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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
Q. SB?
*Since quasi-judicial bodies are not strictly courts, their jurisdiction is strictly
construed against them.
-The legislative and the executive are called POLITICAL BRANCHES of the
government, where policies are formulated, enacted and implemented.
-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.
-In turn, this principle is the result of our Presidential System of Government.
*In the recall election, the people will decide whether or not they have lost
their confidence in the official concerned.
*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.
EDSA 1
-Involves the exercise of the people power of revolution
which overthrows the whole government.
*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.
2.
3.
*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.
CALLING OUT POWER
-It is a political question.
-A question in regard to which full discretionary authority has been delegated
by the Constitution to the President.
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 Presidents exercise of the power should
not be questioned. Mere abuse of discretion will not suffice. To doubt is to
sustain.
Q. What is the effect of the EXPANDED CONCEPT OF JUDICIAL POWER
on the political question doctrine?
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.
Q. What are the requisites for a proper exercise of the power of JUDICIAL
REVIEW?
*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:
1.
2.
3.
4.
2.
*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.
TAXPAYERS SUIT
To constitute a taxpayers suit, two requisites must be met, namely:
1.
2.
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)
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.
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.
THE CONSTITUTIONAL QUESTION MUST BE THE VERY LIS MOTA OF
THE ENTIRE CONTROVERSY
*The constitutional question must be the main issue of the controversy.
*There is no way that the Court may resolve the entire case, unless it first
resolves the constitutional question raised.
AMENDMENTS OR REVISIONS (ARTICLE XVII)
3 ESSENTIAL ELEMENTS OF A GOOD WRITTEN CONSTITUTION:
1.
2.
3.
REVISION
-implies a change that alters a
Constitution.
2.
Proposal
2.
Ratification
Constitutional convention
b.
3.
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.
1.
2.
Initiative on Statutes
3.
*Article XVII, Sec. 2 remains to be non self executing. The implementing law
was declared unconstitutional. (Santiago vs. Comelec)
3 SYSTEMS OF INITIATIVE:
Ex. Article 2180, NCC- The State is responsible xxx when it acts though a
special agent xxx.
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.
TEOTICO VS. CITY OF MANILA
*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.
*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.
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
*Charter-special law creating GOCC
*The provision in the charter on whether it may sue or be sued is an express
waiver by special law.
IMPLIEDLY-2 ways:
1.
*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.
*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.
*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.
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.
*The case was remanded to the Labor arbiter. There is waiver of immunity.
EXECUTION OF JUDGEMENT
*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.
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?
A. To make representation with the proper legislative authority for the
enactment of an appropriation law necessary to satisfy the judgement.
Q. What if the legislative authority refuses to enact the law?
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.
her Philippine citizenship. Even if Australia follows jus soli, it only results to
her possessing dual citizenship.
(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
expressthe 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
3 Requisites for the application of this provision:
(1) They were born before 17 Jan. 1973.
(2) Their mother is a Filipino.
*This results in complications when the country where you are born
applies the principle of jus soli.
*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 citizenshipas 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 legitimatehe can elect Philippine citizenship upon reaching the
age of majority. If he is illegitimate, he will follow the mothers 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.
*Natural-Born Citizens (Sec. 2)
2 Kinds of Natural-Born Citizens:
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.
-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 citizenshipthere is no marriage.
-Thus, they are better situated than those who contracted marriage
with foreigners.
-Absurd!
*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.
-No need to elect.
Naturalization
1. As to Nature
Q. Why?
-Simpler proces
-A mode of re-a
citizenship.
Thus:
-A
mode
of
acquisition
and
reacquisition of Philippine citizenship.
Re
c. Those who marry aliens if by the laws of the latters country the former are
considered citizens, unless by their act or omission they are deemed to have
renounced their Philippine citizenship.
Dual Allegiance
1. As to how it results
2. As to voluntariness
-Voluntary.
Dual
-Arises when, d
application of t
or more sta
simultaneously
by said states.
Involuntary.
Ex:
Structure of Government
Article VI, Sec 1 The legislative power shall be vested in the congress of
the Philippines
This is also called the POWER OF THE PURSE.
Article VII, Sec 1 The executive power shall be vested in the President of
the Philippines
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.
The legislative and the executive branches are called the POLITICAL
BRANCHES.
Corollary to the principle of separation of powers:
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.
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
Standard: to streamline the bureaucracy for economy and sufficiency.
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.
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.
The law must set forth the policy to be executed, carried out or implemented
by the delegate.
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.
A. Legislative Power under Article VI, Sec. 1 (The Power of the Purse).
Initiative on Statutes
Senate
House of Representatives
Valid
The houses are co-equal bodies; hence the terms upper house and lower
house are inaccurate!
Bicameral Conference Committee
See Phil. Judges Association vs. Hon. Prado, and
Tolentino vs. Secretary of Finance.
PARTICIPATION
IN
THE
LAW-MAKING
When the president prepares a budget which is the basis of the GENERAL
APPROPRIATIONS ACT.
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.
Art VI. Sec 15 The president may call a special session at any time
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
When the president certifies as the urgency of the bill to meet a public
calamity or emergency.
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]
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.
and due execution thereof in the manner provided by law, canvass the
votes.
Composition of CONGRESS
Senate 24 senators elected at large;
Term: 6 years
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
Term: 3 years
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
House of Representatives
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!
Congress has the power to reapportion district every census, under
Art VI, Sec 5(4)
Senator
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.
Representative
(1) Citizenship
Natural born
(2) LIteracy
(3) Voter
Registered voter
(4) Age
35 years of age on
the day of election
(5) Residence
2 years residence
(6) Term
6
years,
2
consecutive
termlimit
Qualifications:
Marcos vs. COMELEC
SCRA 300 [1995])
In
her
application
candidacy, Imelda wrote
(248
for
7
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.
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, 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.
[other sectors: fisher folks, elderly, handicapped (Sec 5, RA7941)].
PUF LICE HWY O
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.
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!)
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 laws
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.
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.
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 voters
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.
Registered voter
Resident of the Philippines for a perioud of not less than 1 year immediately
preceding the day of the electon.
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.
Bar
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.
See RA 7941.
The three (3) seat limit
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: 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?
A: Yes. The votes for the disqualified parties should be excluded.
(Ang Bagong Bayani OFW vs. COMELEC [June 25, 2003 En Banc])
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.
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.
3 Privileges:
(1) Privilege from Arrest
Not absolute!
Limitations: (1) Congress must be in session
(2) The offense must be one punishable by imprisonment not exceeding 6
years.
In session
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).
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)
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
the regular session is every 4 th Monday of January and the duration of the
session is for a fixed period of 100 days. It was patterned after the American
Constitution.
Absolutely privileged
absolutely not actionable even if the author is in bad faith
Ex: Freedom of speech and debate of members of Congress.
Qualifiedly privileged
Requisites:
SC: The Senates 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.
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.
Therefore:
Matter or Right before conviction, punishable by penalty lower than
reclusion perpetua
Exception: charged with offense punishable by RP or death.
cannot be extended by
Intendment
Implication
Equitable considerations
The right against self incrimination (Art III sec 17) may be invoked.
In aid of legislation
Section 21
Section 22
Nature
of the power
to punish for contempt
- pertains to the power to conduct
a questions
hour;
the aim of which is to obtain information in the
General
Rule: The power is Judicial in nature. It is an inherent power of the
pursuit of the congress oversight
function
court.
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?
# of senators of party
Commission on Appointments
Total # of senators
How
many
Senate President ex officio chairman
Organization
Q:
A: 25
x 12
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)
LOP = 4
A: Only when the congress is in Session. (Art VI, Sec 19. 2 nd 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
LAKAS = 2
- Thus, ad interim appointments are allowed (see Section 16, 2nd par. Art VII)
KNP = 8
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.
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.
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.
Membership 9 members
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
Bondoc vs. Pineda
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 Bondocs favor. Thus, the party expelled Camasura from
HRET on the grounds of disloyalty to the party and breach of party
discipline.
Appropriations bill
Private bills
Revenue or Tariff bills
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
senates 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, etcmust 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 senates
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.
2 rules:
1) One-subject-one-title rule
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!
Philippine Judges Association vs. Prado
FACTS: RA7354 is entitled, law creating the Philippine Postal Corporation.
In section 35 (Repealing clause), the Judiciarys 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 bills 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.
[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.]
This, for as long as various provisions are germane to the subject matter
which is expressed in the title the rule is complied with.
First Reading
the bills title is read; it is assigned a number, and then referred to the
appropriate committee
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.
If the members of the committee endorse the bill to the plenary, it will be
calendared for 2nd reading.
Second Reading
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.
After 3 readings, the bill will be sent to the other house where it will
undergo the same cumbersome process.
If both houses have different versions of the Bill, said versions will be sent
to the Bicameral Conference Committee for reconciliation.
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
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.
Enrolled Bill Doctrine
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.
The yeas and nays on any question at the request of 1/5 of the members
present
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.
The yeas and nays upon re-passing a bill over the Presidents veto.
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
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
the same with his objections to the House where it originated, which shall
enter the objections at large in its journal x x x
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.
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
From Congress, the bill will be sent to the President.
Q:
How
A: 3 options:
many
options
does
Kinds of Veto
the
president
have?
bill
does
not
General Rule: President may not veto a provision without vetoing the entire
bill.
The rule is all or nothing; selective veto is not allowed.
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)
Exceptions: Selective veto is allowed in 3 kinds o bill (ART)
Appropriation bills
Revenue Bills
Tariff Bills
Grounds for Vetoing Ordinance by the Chief Executive
[UP]
Ultra-vires/
prejudicial to public welfare
Sec 55 of LGC par. B: on Item/line veto:
Appropriation Ordinance
Punong Baranggay
Persons-in-
Lupong taga-pamayapa
A: NO.
HELD: The Court sustained the validity of the exercise by the President of
her veto power, invoking the doctrine of inappropriate provision.
Changing the name of Manila Intl Airport to Ninoy Aquino Intl Airport
President Aquino
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)
EXECUTIVE DEPARTMENT
EXECUTIVE POWER
ARTICLE VII, Sec. 1: The executive power shall be vested in the President
of the Philippines.
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.
ARTICLE VII, Sec. 17, 2nd sentence: xxx he shall ensure that the laws be
faithfully executed.
ARTICLE VII, Sec. 3, 2nd par. The vice President may be appointed as a
Member of the Cabinet. Such appointment requires no confirmation.
PRESIDENTIAL SUCCESSION
- Enumeration is exclusive!
4 INSTANCES:
- The Constitution specifically provided that the Congress cannot add nor
subtract from the list.
(1) Death
(2) Permanent disability
(3) Removal
- 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.)
- Grounds:
(a) culpable violation of the Consitution
(b) treason
(c) bribery
(d) graft and corruption
(e) high crimes
(f) betrayal of public trust
A: Yes!
Q: But was he removed through impeachment?
- 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
- 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
- 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.
II.
SPECIFIC
CONSITUTION
POWERS
FOUND
ELSE
IN
THE
SOMEWHERE
country.
(3) Officers of the armed forces from the rank of colonel or naval captain
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
commission. The authority of local executives over the police units in their
jurisdiction shall be provided by law.
(1) All other officers of the government whose appointments are not
otherwise provided by law
(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: The NLRC Chairman and Commissioners fall within the 2 nd 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
among the officers mentioned in the 1 st 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.
- 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
Q: What are ad interim appointments?
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.
- 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.
AD INTERIM
REGULAR
Q: What if the appointments were actually disapproved and not simply bypassed, can they still be validly reappointed?
permanent in nature
merely temporary
requires
confirmation
by
Commission on Appointments
the
- Appointment is discretionary.
Acting Appointments
(1) those made for buying votes (to influence the outcome of
Presidential elections)
DE RAMA VS. CA
- 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.
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.
(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.
A: (1) President
(2) Vice President
(3) Member of the Cabinet and their deputies or assistants
- applies to private employment
- the idea is for them to focus in their functions
Q: What are the exceptions?
A: (1) unless otherwise provided in this Constitution
EX: The Vice President may be appointed as a Member of the
Cabinet xxx. (ARTICLE VII, Sec. 3, Par. 2)
The Secretary of Justice is an ex-officio Member fo the Judicial
and Bar Council (ARTICLE VIII, Sec. 8, Par. 1)
(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
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.
FORBIDDEN OFFICE
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.
CONTROL
more of an inhibition
more of a prohibition
A: Yes.
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?
SC: Such withholding clearly contravenes the Constitution and the law. The
Constitution vests the President with the power of supervision, not control,
over LGUs. Such power enables him to see to it that LGUs 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
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 Presidents 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.
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.
- 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.
(1) invasion }
} when public safety requires it
(2) rebellion }
Other Limitations
- For a period not exceeding 60 days
- 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.
- While the case was pending before the SC, EDSA I happened.
- Justice Teehankee, the lone dissenter in the Aquino case,
became the Chief Justice of SC and he penned the Olaguer doctrine.
- 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.
- 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.
- 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.
PARDON
AMNESTY
conviction
required
is
not
by
final
judgment
but
PARDONING POWER
- Under the law on evidence, there are 3 things which need not be proven:
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)
To grant reprieves
To grant commutations
To grant pardons
To remit fines and forfeitures
To grant amnesty
(1) those matters which the court must take judicial notice of
(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.
- 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.
AMNESTY
(1) does not apply in cases of impeachment (ARTICLE VII, Sec. 19)
(2) there must first be conviction by final judgment (ARTICLE VII, Sec. 19)
It involves
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.
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.
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)
Q:
Is an EXECUTIVE AGREEMENT
INTERNATIONAL AGREEMENT?
equally
binding
as
an
BAYAN VS. ZAMORA
INTERNATIONAL
EXECUTIVE
-
involves implementation of
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?
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?
A: Petitioners contention on this point was upheld.
- 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.
- 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.
(2) Criminal cases in which the appealed decision imposes the death
penalty;
Composition:
} as ex officio members
- Term:
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.
General Considerations:
Taada 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
However, there seems to be no clear distinction between what are
Principles and what are Policies.
II.
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
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!
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
This is constituent with the policy of the UN, of which we are a member.
A:
NO! This clause should not be lifted out of context. Look
at the 1st sentence of the provision that the civilian authority is supreme
over the military. Thus, the AFPs role must be understood within the context
of civilian supremacy.
Q:
A:
A:
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.
5.
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.
This is self-executing provision! (Oposa v. Factoran)
Thus, its violation gives rise to a cause of action.
VII.
Q:
A:
1.
2.
3.
4.
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
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.
SALIENT POINTS
1.
RA 8371:
(1) Recognizes the existence of the indigenous
cultural communities (ICCs) or indigenous
peoples (IPs) as a distinct sector in the
Philippine society
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 States power to regulate educational
institutions
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.
Definitions:
(1) Ancestral Domain Sec. 3(a),
IPRA
4.
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
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,
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
5.
Q:
A:
NO!
(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
-Registration
Art. V. Sec 1
-Political Parties
Art. IX-C, Sec 2(5)
Q:
A:
MACALINTAL v. COMELEC
PRE-ELECTION STAGE
Registration of Voters
Q:
A:
VOTERS QUALIFICATIONS
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.
(1) citizens of the Philippines
(2) not otherwise disqualified by law
(3) at least 18 years of age
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
Section 8, BP 881
-
Failure of Elections
Sec. 6 OEC
-Campaign Perio
-Substitution of C
Sec. 77 OEC
Sec. 12 RA 90
Miranda v.
-Disqualification C
Sec. 68 OEC
Sec. 69 OEC
Sec. 78 OEC
Sec. 4 RA 7166
Mitmug v. COMELEC
-
Pre-Proclamation
Sec. 241,242,243 OEC
Sec. 15, RA 7166
Effects of Disqualification
Sec. 6, RA 7166
Guerrero v. COMELEC
Loong v. COMELEC
Salcedo v. COMELEC
Tecson v. COMELEC
Q:
Election Protest
A:
Counter protest
Kho v. COMELEC
Quo Warranto
Effect of Death Art. IX-C, Sec. 2(5) ORGANIZATIONS THAT MAY NOT BE REGISTERED
AS POLITICAL PARTIES
De Castro v. COMELEC
Santiago v. FVR (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. V, Sec. 2 The Congress shall provide a system for securing
Art. IX-C, Sec. 2(5) Par. 2 Financial contributions from foreign
the secrecy and sanctity of the ballot as well as a system for
governments and their agencies to political parties, organization,
absentee voting by qualified Filipinos abroad xxx
coalitions, or candidates related to elections constitute interference
in national affairs, and when accepted, shall be an additional
Provides for:
ground for the cancellation of their registration with the
(1) A system for securing the security and sanctity of ballots
Commission, in addition to their penalties that may be prescribed
(2) A system for absentee voting
by law.
EXIT POLLS
This constitute an election offense in accordance to Section 81,
The reason for securing the sanctity/secrecy of ballots is to avoid vote
Omnibus election Code Intervention of foreigners- it shall be unlawful for
buying through voter identification. What is forbidden is the association of
any foreigners, whether judicial (juridical) or natural person, to aid any
voters with their respective votes for the purpose of assuring that votes have
candidate or political party, directly or indirectly, or to take part in or influence
been cast in accordance with the instruction of a third party.
in any manner any election, or to contribute or make any expenditure in
connection with any election campaign or partisan political activity.
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)
MULTI-PARTY SYSTEM
We are supposed to have a multi-party system as provided under Art. IX-C,
Q:
Even if you possess all qualifications and none of the
Sec. 6 A free and open party system shall be allowed to evolve according
disqualifications. If you fail to register you will not be able/ allowed
to the free choice of the people, subject to the provisions of this Article.
to vote. Is registration then an additional qualification of a voter?
A:
ELECTION PERIOD
Q:
A:
Q:
Does Pichays 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.
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
Q:
Ka Roger went to Laguna to file COC. The election officer refused
because he seeks to achieve goals through violence. Valid?
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
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
The certificate of candidacy must be filed within the period prescribed by law.
Late filing not allowed
Sec. 73, 3rd 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
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:
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
written declaration under oath. (Sec. 73, 2nd 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.
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:
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.
FARIAS 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.
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.
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
Q:
A:
Q:
A:
Q:
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.
Q:
A:
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
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
A:
SALCEDO v. COMLELEC
HELD: Material misrepresentation refers to the QUALIFICATIONS of the
elective official for the elective office and NOT to any innocuous mistake.
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:
(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
Q:
A:
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.
Q:
Where to file a petition to declare a failure of election?
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.]
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.
(1) President/ VP
PROCLAMATION
Q:
A:
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
- who really won in the election?, determination of real
choice of electorate
- only the candidate running for the same can file
- if the protestant wins, he shall be proclaimed and shall
replace the previously proclaimed winner.
JURISDICTION
- SC en banc , acting as
Presidential Electoral Tribunal
(Art. VII, Sec. 4[7])
sole judge
-COMELEC (Original)
-SC (Appellate)
-RTC (Original)
(trial courts of general jurisdiction)
-COMELEC (Appellate)
(Art. IX-C, Sec. 2[2])
QUO WARRANTO
- whether the winning candidate is qualified, eligibility or
lack of qualifications of the(6)
candidate
Elective Barangay Official
-MTC (Original)
(trial courts of limited jurisdiction)
-COMELEC (Appellate)
- EP 30 days
QW 10 days
-EP or QW
- 15 days
- 10 days
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.
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.
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 COMELECs 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,
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.
INCLUSION/EXCLUSION PROCEEDINGS
- within the jurisdiction of MTC appealable to RTC
-RTC decision is not appealable
WHEN ELECTION PROTEST BECOMES MOOT
(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 latters favor UNLESS it can be considered as
marking, in which case the entire ballot is invalid.
ADMINISTRATIVE AGENCIES
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.
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.
BUREAU
-
OFFICE
-
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
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
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
Legislative
Supplemental
Interpretative
Contingent
Due Process
Contempt Power
Appeals
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
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)
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.
THIRD REQUISITE: it must be promulgated in accordance with the
prescribed procedure.
among the prescribed procedure is the requirement of:
a. PUBLICATION
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.
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.
PUBLIC OFFICER
SELECTION
2 ways:
4. It is not a property.
1. Election
2. Appointment
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 Engr 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.
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
appointment cannot be faulted on the ground that there are others better
qualified who should have been preferred.
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
APPOINTMENT in focus
Nature of appointment
1. Executive on character
2. Discretionary
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.
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.
Q: Can the Deputy Officer claim that he should be the one to be appointed?
A: No, appointment is discretionary.
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.
NEXT IN RANK RULE
Where can you find the said rule?
Civil Service Law
What is the next in rank rule?
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.
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?
Rules:
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.
3. The appointing authority is allowed to fill vacancies by promotion,
transfer, reinstatement, etc.
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.
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
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.
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.
PRINCIPLE OF VACANCY
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.
a. citizenship
- this is the most important
- only Filipinos may hold public office
b. residence
- only in elective office as an elective official, he/she must serve in a
particulare constituent
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.
3 CLASSES OF DOMICILE
FLORES VS DRILON
1. Domicile of Birth
2. Domicile of Choice
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
EXCEPTIONS:
Domicile of Origin
Domicile of Choice
-
SC: Argument No.1) he was voted by the people, hence the defect was
cured:
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.
d). education
--No religious test shall be required for the exercise of civil or political rights
Q: What offenses?
Political Affiliation
G.R. Not a valid qualification
Xpn: Can be a valid qualification under:
1. Party-list system
2. Membership in the Commission on Appointments
3. In case of permanent vacancies in the Sanggunian
DISQUALIFICATIONS:
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;
4. Those with dual citizenship;
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.
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.
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.
RODRIGUEZ VS COMELEC
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.
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.
the
the
the
the
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).
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.
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.
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?
Service of recall term will not constitute one full term in applying the
disqualification.
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.
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;
The law requires publication of all vacant positions in the government. This
is mandatory so that all eligible can apply.
one year
but it may even be shorter
2. Non-Career
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;
2. Coterminous with that of the appointing authority or
subject to his pleasure; or
3. Limited to the duration of a particular project for which
the purpose for employment was made.
Q:
How do you classify position of members of the Sangguniang
Panlalawigan?
A: Non-career. It is an elective office.
PROXIMITY RULE
- 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.
CSC VS SALAS
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.
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).
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).
Secretary/head of bureau-CSC-CA
CSCCA
FABIAN VS DESIERTO
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.
b. dismissal;
Now, the rule is: OmbudsmanCA
SC: Under the Ombudsman Act, only the following cases are final and
executory:
c. censure;
d. reprimand;
e. admonition
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.
PAREDES VS CSC
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.
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)
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.
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,
A. ADMINISTRATIVE CASE
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
their salaries during their suspension beyond 90 days. This was
granted. Hence, Sec. Gloria questioned this.
Period - 90 days
Case Gloria vs CA
2. Local Government Code
Period 60 days for appointive officials
3. Ombudsman Act
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?
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: Period?
GANZON vs. CA
JURISDICTION
Appointive Officials
Q: Where do you file an administrative complaint against local
appointive officials?
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.
b.
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.
General Rule: Appointive official not allowed from holding other position in
the government
Exceptions: a. allowed by law
b. allowed by the primary functions of their position
4.
5.
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
those related within third (3rd) degree of either consanguinity of
affinity.
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
or relatives within the 4th 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
Under the Civil Service Law = 3rd Civil Degree
Under the LGC = 4th 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
*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
Pedro
Mario
Jose
District I (10,000)
5,000
District II (8
4,500
5,000
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.
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.
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.
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/
OR SUBSTANTIAL
* 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
proper subject of
ICC
- it is a separate body.
international
criminal
court
persons/individuals, not states, who com
serious crimes of international concern.
to eliminate
- 18 judges
Human Rights
- 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.
- those fundamental and inalienable rights which are
essential for life as a
human being.
division
of court)
Principle of Complementarity
- 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.
- unless, the proceeding in the national court is:
a) for the purpose of shielding the person concerned from liability;
a.) 1st generation of human rights consisting of civil and political rights
b.) 2nd generation of human rights consisting of economic, social and
cultural rights.
c.) 3rd generation of human rights consisting of right to development,
right to peace and right to environment.
* Human rights are either:
or
a) individual
Constitution.
person and
rights.
hostilities.
Person in time of
* Three Grand Divisions of International Law:
a) Laws of Peace govern relations between and among nations under
normal circumstances.
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
- first Geneva convention
- 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
HRL
- onceofcaptured,
they are considered as combatants (not
HRL does not deal with conduct
hostilities.
civilians) and will be treated as a prisoner of war.
- provides for specific mechanisms that help its - human rights in implementing mechanisms are
d) Officers and Crew of Merchant marine
implementation
complex and includes regional systems.
vessels who forcibly
resist attack once
captured, they are considered as combatants
* Basic Rules of IHL:
and will be treated as prisoners of war.
(1.) Attacks must be limited to combatants and military targets
Non-Privileged Combatants although they have rights
(limited/minimal),
when
Combatants persons taking direct part in hostilities or
captured, are not entitled to be treated as
members of the
armed forces.
prisoners of war.
Military targets combatants and objects which by their
- they do not form part of the regular or irregular forces but
nature, location,
purpose or use make an effective contribution to
actually takes part directly or indirectly in the hostilities as:
military action and whose
destruction offers a definite military
advantage.
a) spies
Civilians shall not be attacked!
b) mercenaries soldiers for a fee/ soldiers of fortune
In case of doubt, a person shall be considered a civilian.
A soldier, not wearing uniform during hostilities, runs
the risk of being
treated as a spy; thus, not to be treated
* Four Categories of Combatants:
as a prisoner of war.
a) Regular Forces members of the armed forces except medical
BAR 1993:
Reden, Jolan and Andy, Filipino tourists, were in
personnel and chaplain.
Bosnia-Herzegovina when hostilities erupted between the Serbs and the
Moslems.
Penniless and caught in the crossfire, Reden, Jolan and
b) Irregular Forces consists of the guerilla and the militia
Andy, being retired
generals, offered their services to the Moslems
for a handsome salary, which offer was accepted. When the Serbian
- they are treated as lawful combatants, provided:
National Guard approached Sarajero, the
Moslem civilian population
i) they must be under the command of an officer responsible for the
spontaneously took up arms to resist the invading
troops. Not finding
conduct of his men.
time to organize, the Moslems wore armbands to identify
themselves,
vowing to observe the laws and customs of war. The three Filipinos
ii) they wear uniforms or insignia recognizable from a distance.
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
iii) they carry arms openly.
force.
iv) they observe the laws and customs of war in the
their hostilities.
of
conduct
* Concept of Belligerency
- may be understood in two senses:
a) state of war between two or more states
simply
- 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.
2) Ministrant
- third states are to observe strict neutrality in their dealings either with the
rebel government or legitimate government
All states have a legal interest for its compliance, and thus all states are
entitled to invoke responsibility for breach of such an obligation.
Extradition
SC:
(decided October 17, 2000 by a 9-6 vote) reconsidered;
controlling
doctrine!!!
- an extradition proceeding is sui generis
- it is not a criminal proceeding which will call into operation all the
rights of an accused as guaranteed by the Bill of Rights.
- presumption of innocence does not apply
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.
- the concept of due process is flexible for not all situations calling
for procedural safeguards call for the same kind of procedure.
time
the
issue
* 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.
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.
* Judicial Approaches to Resolve Questions in Constitutional
Law
always presumed
fundamental
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.
warrant of arrest
- 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!!!