Sandoval Political Review Notes Edited
Sandoval Political Review Notes Edited
Sandoval Political Review Notes Edited
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.
10
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.
11
12
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.
13
*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.
14
-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?
-A
mode
of
acquisition
and
reacquisition of Philippine citizenship.
-Simpler proces
-A mode of re-a
citizenship.
Thus:
Re
15
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
Dual
Involuntary.
-Voluntary.
-Arises when, d
application of t
or more sta
simultaneously
by said states.
16
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.
17
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.
18
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).
19
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
20
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.
21
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
Senator
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 legislative district every
census, under - Art VI, Sec 5(4)
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
SEMA v COMELEC
Creation of Shariff Kabunsuan
was declared unconstitutional.
Power to create legislative district
is legislative in character. Only
Congress can make legislative
district not ARMM Assembly. An
inferior legislative body like
ARMM created by a superior
22
Qualifications:
Marcos vs. COMELEC (248 SCRA 300 [1995])
In her application for candidacy, Imelda wrote 7 months
requirement, then amended it and wrote, Since birth. The SC decided in
favor of Imelda.
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
23
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
24
The party must not only comply with the requirements of the law; its
nominees must likewise do so x x x
By the very nature of the party-list system, the party or organization must be
a group of citizens, organized and operated by citizens.
Bar
25
In the case of Labo vs. COMELEC, reaffirmed in the case of Grego vs.
COMELEC, the court declred that the votes case for an ineligible or
disqualified candidate cannot be considered stray, because this would
disenfranchise the voters/majority; valid votes.
However, votes cast for a notoriously disqualified candidate may be
considered stray and excluded from the canvass.
This does not apply to the party-list elections!
Because of the express rule in Sec 10, RA 7941 x x x that a vote cast for
a party, sectoral organization or coalition not entitled to be voted for shall not
be counted x x x
The LABO doctrine applies only to SINGLE ELECTIVE POST/ELECTIONS
(e.g. Mayor); In the party-list system, even the 2 nd, 3rd, etc... candidate may
get seats.
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])
26
A: Three categories:
Ex: Budget hearings usual means of renewing policy and auditing the use
of previous appropriation to ascertain whether they have been disbursed for
purposes authorized in an appropriation act.
Ex: GSIS.
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:
27
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.
Freedom of Speech and Debate
No more because of the fact that he was convicted in RTC indicates that his
guilt is strong. Bail is even not a matter of discretion.
In relation to Doctrine of Condonation (Aguinaldo v Santos)
Note: Doctrine of Condonation is no longer available as defense. It has been
overturned by SC in a recent case.
Art VI, Sec 15 the Congress shall convene once every year on the
Fourth Monday of July for its regular session, unless a different date is
fixed by Law, and shall continue to be in session for such number of
days as it may determine until thirty days before the opening of its next
regular session, exclusive of Saturdays, Sundays, and legal holidays x
xx
28
Q: What is As remedy?
A: Ask the house to punish the congressman.
cannot be extended by
Intendment
Implication
Equitable considerations
Q: During pendency of his appeal from conviction of RTC, should he be
allowed to post bail?
A. NO. Evidence of guild is strong; should wait for decision on appeal inside
the penitentiary.
1987 Constitution says
Art III, Sec 13 All persons, except those charged with offenses punishable
by reclusion perpetua, when the evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on recognizance
as may be provided by law. x x x
Rules of Court says
Rule 114 Sec 4 Bail, a matter of right; exception:
29
It is investigative.
30
IF what is involved in Question hour, members of cabinet and other top level
officers, may validly refused to appear invoking EO 464. After all, QH is not
really a regular feature of presidential form of government. Appearance
therein is not really mandatory. But in not in INQUIRY IN AID OF
LEGISLATION.
Section 21
Section 22
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?
A: If the requirement then to secure presidential consent under EO 464 is
limited only to appearances in the Question hour, then it is VALID. For under
Section 22, Article VI of the Constitution, the appearance of department
31
Organization
Q:
A: 25
How
many
Senate President ex officio chairman
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.
Example:
Senate composition:
32
- Thus, ad interim appointments are allowed (see Section 16, 2nd par. Art VII)
LAKAS = 2
Formula to determine seats per party in the Commission on
Appointments:
# of senators of party
x 12
Total # of senators
12 is the # of CoA seats
Simply put, it is the # of senators of a Party DIVIDED by 2
Follow the same formula for HOR component just use the # of
congressmen.
Therefore:
K4 = 5
KNP = 4
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)
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.
Two Electoral Tribunals
Senate Electoral Tribunal (SET)
House of Representatives Electoral Tribunal (HRET)
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.
33
of party discipline are not valid grounds for expelling a tribunals member.
The members are not supposed to vote along party lines once appointed,
the house/senate leadership should not interfere with the tribunal. Although
they are attached to congress, yet they are independent of Congress.
HELD: The dismissal (of the case) is incorrect. This is a recognition of the
jurisdictional boundaries between COMELEC and HRET. In an electoral
contest where the validity of the proclamation of a winning candidate who
has taken his oath of office and assumed his post as congressman is raised,
the issue is best addressed to the HRET. This avoids duplicity of
proceedings and a dash of jurisdiction between constitutional bodies.
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.
[Thus, once a winning candidate has been proclaimed, taken his oath of
office and assumed office as a member of the HOR, the COMELECs
jurisdiction over election contests relating to his election returns and
qualifications ends, and the HRETs own jurisdiction begins.]
b.
34
c.
General Rule: A bill may be introduced and may originate either from the
Senate or the HOR.
Exceptions: Bills that must originate exclusively with the HOR [APRIL]
Appropriations bill
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
co-equality of the legislative power between the HOR and the Senate. Thus,
35
of the act, and is not calculated to mislead the legislature or the people,
there is sufficient compliance with the constitutional requirement.
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.
[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.]
3.
This, for as long as various provisions are germane to the subject matter
which is expressed in the title the rule is complied with.
36
thereon shall be taken immediately thereafter, and the yeas and nays
entered in the Journal.
While the sufficiency of the factual basis of the suspension of the writ of
Habeas Corpus or declaration of martial law is subject to Judicial review
because basic rights of individuals may be at hazard, the factual basis of
presidential certification of bills, which involves doing away with procedural
requirements designed to insure that bill are duly considered by member of
congress, certainly should elicit a different standard of review.
no deliberations yet
In the committee to which the bill was referred to, it may die a natural death
if said committee sits on it.
After 3 readings, the bill will be sent to the other house where it will
undergo the same cumbersome process.
If the members of the committee endorse the bill to the plenary, it will be
calendared for 2nd reading.
If both houses have different versions of the Bill, said versions will be sent
to the Bicameral Conference Committee for reconciliation.
Second Reading
The bill is sent back to the plenary.
In the plenary, it will be discussed in its entirety; there will be sponsorship
speech, interpellations, deliberations; amendments may also be introduced.
Third Reading
rd
Power of each house of Congress to have rules of proceedings under Art VI,
Section 16(3) Each house may determine the rules of its proceedings x x
x; and
The fact that we have a bicameral Congress Art VI, Sec 1 The
legislative power shall be vested in the Congress x x x which shall consist of
a senate and a HoR.
Nature and Functions of the Bicameral Conference Committee
Source: Philippine Wages Association vs. Prado
37
speaker
Senate president
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. (Tolentino vs Secretary of Finance ***)
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.
In other words, the following are the signatories to the enrolled bill:
-The yeas and nays upon re-passing a bill over the Presidents veto.
38
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.
-The presidents objection to a bill he had vetoed.
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
Astorga vs. Villegas
FACTS: A bill of local application was filed in the and was there passed on
3rd reading without amendments. Forthwith, the bill was sent to the Senate
for its concurrence. It was approved with minor amendments suggested by
Senator Roxas, that instead of the City Engineer, it be the President
Protempore of the Municipal Board who should succeed the Vice Mayor in
case of the latters incapacity to act as Mayor. However, on second reading,
substantial amendments to this were introduced by Senator Tolentino. These
were approved in toto by Senate. The amendment recommended by
Senator Roxas does not appear in the Journal of the Senate proceedings as
having been acted upon. When the Secretary of the Senate sent a letter to
the that the House Bill No. 9266 had been passed by the Senate with
amendments, he attached a certification of the amendment, which were the
ones actually approved by the senate. The thereafter signified its
approval of the bill and caused copies thereof to be printed. The printed
copies were then certified and attested by the secretaries of the and the
senate and the speaker of the and the Senate president. When the
printed copies were sent to the President, he affixed his signature thereto by
was of approval. The bill became R.A. 4065. However, Senator Tolentino
issued a press statement that the bill signed into law by the President was
the wrong version. Consequently, the Senate President withdrew his
signature.
many
options
does
the
president
have?
bill
does
not
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.
39
Kinds of Veto
Item Veto or Line Veto Art VI, Sec 27, par 2 The President shall have the
power to veto any particular item or items in an appropriation, revenue, or
tariff bill, but the veto shall not affect the item or items to which he does not
object.
General Rule: President may not veto a provision without vetoing the entire
bill.
Tariff Bills
Lupong Tagapamayapa
[UP]
Ultra-vires/
Chief Executive
Revenue Bills
Appropriation Ordinance
Adopting a local development plan
Ordinance Authorizing Payment of money/creating Liability
Persons-in-
40
Lupong taga-pamayapa
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)
41
EXECUTIVE POWER
ARTICLE VII, Sec. 1: The executive power shall be vested in the President
of the Philippines.
- Enumeration is exclusive!
- The Constitution specifically provided that the Congress cannot add nor
subtract from the list.
The president as chief executive, he shall ensure that the laws be faithfully
executed.
ARTICLE VII, Sec. 17, 2nd sentence: xxx he shall ensure that the laws be
faithfully executed.
ARTICLE VII, Sec. 3, 1st par. There shall be a Vice President who shall
have the same qualifications and term of office xxx as the President."
- may be re-elected once!
ARTICLE VII, Sec. 3, 2nd par. No Vice President shall serve for more than
two successive terms.
PRESIDENTIAL SUCCESSION
42
(3) Removal
(4) Resignation
-in such instances, VP shall take over as President.
- The President can only be removed by means of impeachment.
Se.2, Art.XI
- 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
Q: Was Estrada impeached?
A: Yes!
Q: But was he removed through impeachment?
43
44
(c) pardons
(d) remit fines and forfeitures
(in these 4, conviction by final judgment is a requirement)
(e) amnesty (par.2 of sec.19, Art. VII)
- require concurrence of the majority of Congress
- conviction by final judgment is not a requirement
- if case is still pending, may extend amnesty
1.
2.
5.
3.
4.
1.
2.
45
Bayan vs Zamora
II.
SPECIFIC
CONSITUTION
POWERS
FOUND
SOMEWHERE
ELSE
IN
THE
46
APPOINTING POWER
- ARTICLE VII, Sec. 16
- correlate with Law on Public Officers
- carries with it the removal power (power to hire carries with it the power to
fire)
47
Constitution, leads to abuse of such power. Thus, was perceived the need
to establish a middle ground between the 1935 and 1973 Constitution.
(3) Officers of the armed forces from the rank of colonel or naval
captain
Q: What about officers of PNP of equivalent ranks?
- 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.
A: No.
MANALO VS. SISTOZA
- President Aquino promoted 15 police officers by appointing them
to positions in the PNP with the rank of Chief Superintendent to Director.
Without their names submitted to the Commission on Appointments for
confirmation, the said police officers took their oath and assumed their
respective positions. Manalo questioned this on the ground that both under
Sec. 16, ARTICLE VII of the 1987 Constitution and RA. 6975 (Local Govt Act
of 1990) require their appointments to be submitted for confirmation and that
PNP is akin to the AFP.
48
SECOND SENTENCE
INSTANCES WHEN CONFIRMATION IS NO LONGER REQUIRED
(1) All other officers of the government whose appointments are not
otherwise provided by law
49
REGULAR
takes
effect
immediately,
so
appointee may assume immediately
(2) There are four situations where ARTICLE IX-C, Sec. 1, Par. 2 will apply:
MATIBAG VS. BENIPAYO READ
Benipayo, Tuason, and Borra were appointed Chairman and
Commissioners respectively of the COMELEC by the President when
Congress was not in session. These ad interim appointments were bypassed by the Commission on Appointments.
However, they were
subsequently re-appointed by the President to the same positions. Upon
assumption to office, Benipayo transferred Matibag to another department.
Matibag now questions the validity of the appointments on the grounds that:
(1) the ad interim appointments violate ARTICLE IX-C, Sec. 1, Par. 2 In
no case shall any member be appointed or designated in a temporary or
acting capacity (Matibag is of the impression that such ad interim
appointments are temporary because they are revocable at the will of the
President); and (2) even assuming they are valid, their re-appointment
violates ARTICLE IX-C, Sec. 1, Par. 2 The chairman and the
commissioners shall be appointed xxx for a term of seven years without
reappointment.
SC: (1) An ad interim appointment is permanent in character (Summers vs.
Ozaeta). The Consitution imposes no condition on the effectivity of an ad
interim appointment and thus an ad interim takes effect immediately.
a)
where an ad interim appointee to the Comelec, after
confirmation by the Commission on appointment, serves his full seven-year
term;
b) where the appointee, after confirmation, serves a part of his
term and then resigns before his seven-year term of office ends;
c) where the appointee is confirmed to serve the unexpired term of
someone who died or resigned and the appointee completes the unexpired
term;
d) where the appointee has previously served a term of less than
seven years, and a vacancy arises from death or resignation.
Q: What if the appointments were actually disapproved and not simply bypassed, can they still be validly reappointed?
A: No. The disapproval is actually a judgment on the merits of their
qualification. The principle of checks and balances will come into play.
50
- Appointment is discretionary.
Acting Appointments
permanent in nature
merely temporary
requires
confirmation
by
Commission on Appointments
the
(1) those made for buying votes (to influence the outcome of
Presidential elections)
51
52
- This was a reaction to what happened during the Marcos Regime. There
was proliferation of newly created agencies, instrumentalities, and
government-owned or controlled corporations created by presidential
decrees and other modes of presidential issuances where cabinet members,
their deputies and assistants were designated to head or sit as member of
the board with the corresponding salary, emoluments, per diems,
allowances, and other perquisites of the office. This practice of holding
multiple offices or positions in the government soon led to abuses by
unscrupulous public officials who took advantage of this scheme for
purposes of self-enrichment.
- EO 284 was declared null and void!
PUBLIC INTEREST CENTER, INC. VS. ELMA
Magdangal B. Elma was appointed by the President as Chairman of the
PCGG. At the same time, he was appointed as Chief Presidential Legal
Counsel. At that time, PCGG was placed directly under the Office of the
President and PCGG Chairman has the same rank, position, and salary as
that of a cabinet secretary. Public Interest center questioned this on the
ground that Elma, as a member of cabinet, he is prohibited from holding 2
positions under ARTICLE VII, Section 14.
SC: The prohibition in Section 13, ARTICLE VII of the 1987 Constitution
does not apply to Elma since neither the PCGG Chairman nor the CPLC is a
cabinet secretary, undersecretary, or assistant secretary even if the former
may have the same rank as the latter positions. Even if Section 13,
ARTICLE VII is not applicable, Elma still could not be appointed concurrently
to the offices of the PCGG Chairman and CPLC because neither office was
occupied by him in an ex-officio capacity and the primary functions of one
office do not require an appointment to the other post. Moreover, even if the
appointments in question are not covered by Section 13, ARTICLE VII of the
1987 Constitution, said appointments are still prohibited under Section 7,
ARTICLE IX-B, which covers all appointive and elective officials, due to the
incompatibility between the primary functions of the offices of the PCGG
Chairman and the CPLC.
- PRINCIPLE OF INCOMPATIBLE OFFICE : one which may not be held by
a member during his term without forfeiting his seat.
EX: Fiscal and PAO
Treasurer and Auditor
Congressman and Cabinet Secretary
53
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.
A: No!
exercised
over
all
executive
departments bureaus, and offices
GENERAL SUPERVISION
exercised over local governments
ARTICLE X, Section 4 The
President of the Philippines shall
exercise general supervision over
local governments xxx
ARTICLE II, Section 25 The State
shall ensure the autonomy of local
governments.
Q: What is CONTROL?
A: (1) to direct the performance of a duty;
(2) to restrain the commission of acts;
(3) to review, reverse, revise, alter, or modify the decisions of his
subordinates; or
(4) to substitute his own decision over that of his subordinates.
Q: Does the President have CONTROL over local government units?
54
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.
- The power to investigate is an incident of the power of control.
MILITARY POWERS
ARTICLE VII, Sec 18
3 DISTINCT MILITARY POWERS OF THE PRESIDENT
55
(1) Calling out power as the Commander-in-chief of the Armed Forces of the
Philippines
(2) Power to proclaim martial law
(3) Power to suspend the privilege of the writ of habeas corpus
INSTANCES WHEN THE PRESIDENT MAY CALL OUT AFP To suppress
(1) lawless violence
(2) invasion
(3) 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.
- The Congress, voting jointly, by a vote of at least a majority of all its
members in regular or special session,, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President.
- sentence was not carried out but he died just the same
- Several Filipinos abroad were against the decision in Aquino vs.
Commission they were known as Olaguer group.
- They were out to embarrass the Marcos Government.
- Unfortunately, the Lovely brothers, among their con-conspirators
accidentally detonated a bomb.
- They did not die and the group was arrested.
- All were sentenced to die by musketry.
- While the case was pending before the SC, EDSA I happened.
- Justice Teehankee, the lone dissenter in the Aquino case,
became the Chief Justice of SC and he penned the Olaguer doctrine.
- Upon the initiative of the President, the Congress, may in the same
manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and
public safety requires it.
56
- 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.
by
final
judgment
is
not
but
PARDONING POWER
ARTICLE VII, Sec.19 Except in cases of impeachment, or as otherwise
provided in this Constitution, the President may grant reprieves,
commutations, and pardons and remit fines and forfeitures, after conviction
by final judgment.
He shall also have the power to grant amnesty with the concurrence of a
majority of all the Members of the Congress.
FIVE MATTERS COVERED
(1)
(2)
(3)
(4)
(5)
conviction
required
- Under the law on evidence, there are 3 things which need not be proven:
(1) those matters which the court must take judicial notice of
(2) judicial admissions
(3) presumptions
- Under Section1, Rule 129 of the Rules of Court, one of the matters which
the courts must take judicial notice of is the official acts of the legislative,
executive and judicial departments of the Philippines.
- Hence, amnesty, which is an official act of the President, no longer
requires proof.
To grant reprieves
To grant commutations
To grant pardons
To remit fines and forfeitures
To grant amnesty
- On the other hand, pardon, being a private act of the President, requires
proof and the convict who was granted such pardon has the burden of proof.
AMNESTY
- segregated from the 4 others
- concurrence of the majority of all member of congress is required
- conviction by final judgment is not required unlike the 4 others
(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)
(3) not applicable to legislative contempt
PARDON
AMNESTY
57
- Hence, she is excused from serving sentence; but in the eyes of the law,
she is still a convict. Unless the grant expressly so provides, she cannot be
reinstated. And since she is not entitled to be reinstated, with more reason
that she is not entitled to backwages.
- It does not impose upon the government any obligation to make reparation
for what has been suffered since the offense has been established by
judicial proceedings, that which has been done or suffered while they were
in force is presumed to have been rightfully done and justly suffered and no
satisfaction for it can be required.
58
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.
pardonee has thereby placed himself under the supervision of the Chief
Executive or his delegate who is duty-bound to see to it that the pardonee
complies with the terms and conditions of the pardon. (In Re: Wilfredo
Sumulong Torres)
Q: Is the grant or revocation of conditional pardon by the President subject
to judicial review?
A: No! This exercise of presidential judgment is beyond judicial scrutiny. (In
Re: Wilfredo Sumulong Torres)
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 such limitations as may be provided
by law xxx.
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.
59
Q:
Is an EXECUTIVE AGREEMENT
INTERNATIONAL AGREEMENT?
equally
binding
as
an
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?
A: Sec. 25, ARTICLE XVIII disallows foreign military bases, troops or
facilities in the country unless the following conditions are sufficiently met:
(a) it must be under a treaty;
(b) the treaty must be duly concurred in by the Senate and when so
required by Congress, ratified by a majority of the votes cast by the people in
a national referendum; and
(c) recognized as a treaty by the other contracting state
60
and in a limited sense, however the provisions of Section 21, ARTICLE VII
will find applicability with regard to the issue and for the sole purpose of
determining the number of votes required to obtain the valid concurrence of
the Senate.
Q: The nature of the petition filed was for certiorari and prohibition. Did it
constitute grave abuse of discretion on the part of the President when he
submitted the VFA to the Senate invoking Section 21 instead of Section 25?
A: No! The President, in ratifying the VFA and in submitting the same to
Senate for concurrence, acted within the confines and limits of the powers
vested in him by the Constitution. It is of no moment that the President, in
the exercise of his wide latitude of discretion and in the honest belief that
VFA falls within the ambit of Section 21, ARTICLE VII of the Constitution
referred to the Senate for concurrence. Certainly, no abuse of discretion
much less a grave, patent and whimsical abuse of judgment, may be
imputed to the President in his act of ratifying the VFA and referring the
same to the Senate for the purpose of complying with the concurrence
requirement embodied in the fundamental law. In doing so, the President
merely performed a constitutional task and exercised a prerogative that
chiefly pertains to the functions of his office.
BUDGETARY POWER
ARTICLE VII, Sec. 22 The President shall submit to the Congress within
30 days from the opening of every regular session, as the basis of the
general appropriations bill, a budget of expenditures and sources of
financing, including receipts from existing and proposed revenue measures.
- Correlate with Section 25(1), ARTICLE VI Congress may not increase
the appropriations recommended by the President for the operation of the
Govt as specified in the budget. The form, content, and manner of
preparation of the budget shall be prescribed by law.
- The most that Congress could do is to trim down or slash the budget!
INFORMING POWER
ARTICLE VII, Sec. 23 The President shall address the Congress at the
opening of the regular session. He may also appear before it at any other
time.
JUDICIAL DEPARTMENT
JUDICIAL POWER
QUORUM = 8
MAJORITY = 5
61
VOTING
- Only the members present and who participated in the deliberations on the
issues in the case shall vote.
- All cases xxx which shall be heard en banc xxx shall be decided with the
concurrence of a majority of members who actually took part in the
deliberations on the issues in the case and voted thereon.
- Cases or matters heard by division shall be decided or resolved with the
concurrence of a majority of Members who actually took part in the
deliberations on the issues in the case and voted thereon and in no case,
without the concurrence of a t least 3 such members.
- When the required number is not obtained, the case shall be decided en
banc.
- No doctrine or principle of law laid down by the court in a decision
rendered en banc or in a division may be modified or reversed except by the
court sitting en banc.
(2) Criminal cases in which the appealed decision imposes the death
penalty;
Composition:
} as ex officio members
}
- Term:
62
(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.
63
over the military. Thus, the AFPs role must be understood within the context
of civilian supremacy.
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
V.
A:
64
A:
servitude:
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)
VII.
65
VIII.
Provisions on Education
Academic Freedom Art. XIV, Sec. 5 (2) Academic freedom
shall be enjoyed in all institutions of higher learning.
Note that the provision says institutions of higher
learning
This refers to the tertiary level only!
Q:
A:
2.
3.
4.
66
accept a student
IX.
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
67
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,
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
68
69
Registration of Voters
Q:
Q:
A:
NO!
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.
-Registration
Art. V. Sec 1
-Political Parties
Art. IX-C, Sec 2(5)
Q:
A:
-Campaign Period
-Substitution of C
Sec. 77 OEC
Sec. 12 RA 90
Miranda v.
-Disqualification C
Sec. 68 OEC
Sec. 69 OEC (
Sec. 78 OEC (
MACALINTAL v. COMELEC
Exception to Residence qualification of a voter
70
Section 8, BP 881
-
Failure of Elections
Sec. 6 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
voters with their respective votes for the purpose of assuring that votes have
been cast in accordance with the instruction of a third party.
Exit polls conducted by ABS-CBN does not violate the sanctity of ballots.
The contents of the ballots are not exposed. The revelation is not
compulsory but voluntary. Also, voters are not required to reveal their
names. (ABS-CBN v. COMELEC)
Q:
A:
Q:
Who has the power to register political parties?
Election Protest
Counter protest
A:
COMELEC in accordance with Article IX-C, Sec. 2(5). It is the
Kho v. COMELEC
registration with COMELEC that vests personality to an
Quo Warranto
organization as a political party.
-
Effect of Death
IX-C, Sec. 2(5) ORGANIZATIONS THAT MAY NOT BE REGISTERED
De CastroArt.
v. COMELEC
AS POLITICAL PARTIES
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 and adhere to the Constitution
(4) those which are supported by any foreign government
Art. V, Sec. 2 The Congress shall provide a system for securing
the secrecy and sanctity of the ballot as well as a system for
Art. IX-C, Sec. 2(5) Par. 2 Financial contributions from foreign
absentee voting by qualified Filipinos abroad xxx
governments and their agencies to political parties, organization,
coalitions, or candidates related to elections constitute interference
Provides for:
in national affairs, and when accepted, shall be an additional
(1) A system for securing the security and sanctity of ballots
ground for the cancellation of their registration with the
(2) A system for absentee voting
Commission, in addition to their penalties that may be prescribed
by law.
EXIT POLLS
The reason for securing the sanctity/secrecy of ballots is to avoid vote
This constitute an election offense in accordance to Section 81,
buying through voter identification. What is forbidden is the association of
Omnibus election Code Intervention of foreigners- it shall be unlawful for
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
71
MULTI-PARTY SYSTEM
We are supposed to have a multi-party system as provided under Art. IX-C,
Sec. 6 A free and open party system shall be allowed to evolve according
to the free choice of the people, subject to the provisions of this Article.
ELECTION PERIOD
Q:
A:
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
always 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.
72
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.
considered ipso facto resigned from his office upon the filing of his certificate
of candidacy.
Q:
X, a municipal treasurer filed a certificate of candidacy for governor.
What is the effect?
A:
He is considered ipso facto resigned.
Q:
Is there a need to resign?
A:
NO! The appointive official is ipso facto resigned. Ipso facto means
no need to resign.
QUINTO vs COMELEC
-sustained the constitutionality of sec.66 of OEC. No violation of
equal protection clause. There is a valid classification based on substantial
distinction between those holding appointive and elective offices.
Q:
A:
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.
PNOC-EDC v. NLRC
HELD: The OEC does not distinguish between employees of GOCCs which
have original charters and those that do not have one.
Elective Officials
Sec. 67, OEC Candidates holding elective office xxx has already been
repealed by the Repealing Clause of the Fair Election Act under Sec. 14, RA
9006 Repealing Clause. Sec 67 and 85 0f the EOC xxx are hereby
repealed.
Q:
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.
73
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:
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.
74
(a) To enable the voters to know at least 60 days before the regular
election, the candidates among whom they are to make the choice
and
(b) To avoid confusion and inconvenience in the tabulation of the votes
cast
Q:
LABO DOCTRINE
The thrust is what to do with the votes cast for a disqualified candidate.
Should they be considered as stray votes?
SC:
No! That would disenfranchise the majority. The votes cast for the
disqualified are not stray votes they are valid votes only that the candidate
was later on found to be disqualified.
It would have been different if his disqualification was so apparent,
so notorious, so much so that the people, notwithstanding that they knew
him to be disqualified, they still voted for him in which case the votes cast for
him shall be considered as protest votes. Protest votes are considered as
stray votes. But not in this case, where the people of Baguio voted for Labo
only to find out that he is disqualified.
You cannot apply Labo Doctrine in Party-List because of Section 10, RA
7941
CAYAT v. COMELEC
FACTS: Rev. Fr. Nardo Cayat ran for Mayor. Palileng, his opponent, found
out that Cayat, before the elections, was previously convicted of acts of
lasciviousness although he was granted probation. His candidacy was then
questioned in a disqualification case invoking Section 40 pf the LGC.
(Disqualification The following persons are disqualified from running for
any elective local position: (a) those sentenced by final judgment for an
offense involving moral turpitude or for an offense punishable by one (1)
year or more of imprisonment, within (2) years after serving sentence ; xxx) .
COMELEC disqualified Cayat on the ground of conviction of an offense
involving moral turpitude. However, Cayat alleged that he did not receive a
copy of the judgment. That decision disqualifying Cayat became final even 2
weeks before the election. Still, Cayat won in the election. Palileng claimed
that since Cayat is disqualified, he should be the one proclaimed.
HELD: The Court agreed and did not apply the doctrine of the rejection of
the second placer. The one who obtained the second highest number of
votes was the one actually proclaimed. This is very peculiar because here,
there is only one candidate. Since Cayat was disqualified, it is as if he is not
a candidate. Hence, there is no second placer here.
The doctrine of the rejection of second placer is not applicable because of
Sec.6 of RA 6646
Also, under Section 6, RA 6646 (Electoral Reform Law of 1987 Effect of
disqualification) which contemplates of 2 situations, it is the 1 st sentence
which applies to Cayat. He was declared by final judgment, to be
disqualified because the decision attained finality even 2 weeks before the
election. He shall therefore not be voted for and the votes cast for him shall
not be counted.
The second sentence contemplates that there was a disqualification case
filed before the COMELEC but for whatever reason, COMELEC was not
able to render a decision before the election and such candidate won in the
election, in which case, the court or Commission shall continue with the trial
and hearing of the election, inquiry or protest.
DISQUALIFICATIONS/REMEDIES BEFORE ELECTION
Any disqualification filed before the election, whether pursuant to Sections
68, 69 and 78 of OEC, the jurisdiction is with the COMELEC
(1)
75
Within twenty-five (25) days from the time the candidate filed his certificate
of candidacy/ from the date the candidate alleged to have made
misrepresentation in the COC filed.
LOONG v. COMELEC
FACTS: Loong was a candidate for Vice-Governor in ARMM. There was an
election held but there was yet no proclamation. Eventually, it was found out
that Loong was still underage. Can the petition to disqualify Loong on the
ground of material misrepresentation prosper?
HELD: No. The petition was filed out of time. The disqualification case
under Sec. 78 should be filed within 25 days from the date the candidate
who made the misrepresentation filed his certificate of candidacy, not on the
date of discovery. The 25-day period is mandatory.
Q:
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.
There must be a deliberate intent to deceive the people to ones qualification
for public office.
TECSON v. COMELEC
FACTS: A disqualification case was filed against FPJ in accordance with
Sec. 78 on the ground of material representation as to the citizenship.
HELD: There was no material misrepresentation. The misrepresentation
must not only be material. There must also be a deliberate intent to mislead
or deceive as to ones qualification to public office.
EFFECT OF DISQUALIFICATION CASES
76
ROMUALDEZ-MARCOS v. COMELEC
There was yet no proclamation, hence not yet a member of the HOR.
COMELEC still has jurisdictom
GUERRERO v. COMELEC
Farias was elected, proclaimed and took his oath. The COMELEC ousted
itself of jurisdiction. SC upheld COMELEC. It was recognition of the power
of the HRET and the constitutional boundaries.
Sec.17, Art.VI-HRET as sole judge of all contests, returns and qualifications
of their respective members.
Election 7am 3pm, then counting, members of Board of Canvassers
Return usually 7 copies:
(1)COMELEC
(2)Treasurer
(3)Municipal Judge
The idea is that in case of lost return, they can refer to the other copies.
Number of votes written in words and number
CAYAT vs COMELEC Apr. 24, 2007 (case of 1st impression!)
Priest- convicted of acts of lasciviousness- for DQ
Held: he won in the election
Here SC did not apply the doctrine of rejection of 2 nd placer because for all
intents and purposes there was no 2nd placer here. Kayat was as if not a
candidate at all.
Applying Section 6 of Republic Act No. 6646, The Electoral
Reforms Law of 1987, states:
Sec. 6. Effect of Disqualification Case. Any candidate who has
been declared by final judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be counted. If for any reason a candidate is
not declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the
Court or Commission shall continue with the trial and hearing of the action,
inquiry, or protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the proclamation
of such candidate whenever the evidence of his guilt is strong. (Emphasis
added)
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:
77
78
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)
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
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
QUO WARRAN
- whether the winning candidate is
lack of qualifications of the candida
79
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.
JURISDICTION
(1) President/ VP
- SC en banc , acting as
Presidential Electoral Tribunal
(Art. VII, Sec. 4[7])
sole judge
Remedy: MFR only
-Senate Electoral Tribunal
-HR Electoral Tribunal
(Art. VI, Sec. 17)
No appeal
Or Rule 65 (Special Civil Action
on Certiorari based on GAD)
-COMELEC (Original)
(Art. IX-C, Sec. 2[2])
-SC (Appellate)
-COMELEC (Original)
-SC (Appellate)
-RTC (Original)
80
Q:
A:
The death of the protestant neither constitutes a ground for the
dismissal of the contest not ousts the trial court of its jurisdiction to decide
the election contest. An election protest involves both the private interests of
the rival candidates and the public interest in the final determination of the
real choice of the electorate, and for this reason, an election contest
necessarily survives the death of the protestant or the protestee. But while
the right to public office is personal and exclusive to the public officer, an
election protest ins not purely personal and exclusive to the protestant or to
the protestee such that after the death of either would oust the court of all
authority to continue the protest proceedings. An election contest, after all,
involves not merely conflicting private aspirations but is imbued with
paramount public interests. (DE CASTRO v. COMELEC)
Sec.3, Art.IX-C
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.
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.
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.
DE CASTRO vs. COMELEC
Effect of death of the protestant in election protest
SC: Election protest involves both private and public interest of the
electorate. For this reason an election protest survives the death of
protestant and protestee.
Q:
Who shall prosecute election offenses?
A:
COMELEC not the fiscal unless the latter is deputized by the
COMELEC
Q:
A:
INCLUSION/EXCLUSION PROCEEDINGS
- within the jurisdiction of MTC appealable to RTC
-RTC decision is not appealable
81
(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.
FABIAN vs DESIERTO
82
The Code is a general law and incorporates into a unified document the
major structural, functional and procedural principles of governance and
embodies changes in administrative structures and procedures designed to
serve the people (Ople v. Torres).
- The Code is divided into seven books:
Book 1 : Sovereignty and General Administration
Book 2: Distibution of Powers of the Three Branches of the Government
Book 3: Office of the President
Book 4: Executive Branch
Book 5: Constitutional Commissions
Book 6: National Government Budgeting
Book 7: Administrative Procedure
- includes the Civil Service Law.
Two important definitions of Administrative Law
1. Dean Roscoe Pound
it is that branch of modern law under the executive department of the
government, acting in quasi-legislative or quasi-judicial capacity, interferes
with the conduct of individual for the purpose of promoting the well being of
the community.
2. Professor Goodnow
it is that part of public law which fixes the organization of the government
and determines the competence of the authorities who execute the law and
indicates to the individual remedies for the violation of his rights.
83
In both definitions, the focus is on the executive department acting in quasilegislative and quasi-judicial functions.
THREE IMPORTANT DOCTRINES
Thus,
LOCAL
CONTROL is the very heart of the power of the
GOVERNMENTS
President. (Joson V. Torres)
are included in the
EXHAUSTION OF ADMINISTRATIVE REMEDY
definition
of
GOVERNMENT
OF
THE
REPUBLIC
OF THE
Whenever there is an available administrative remedy provided by
PHILIPPINES
law, no judicial recourse can be made until all such remedies have been
availed of and exhausted.
(a) They are referred to as various arms through which political
authority is made effective in the Philippines (ADMINISTRATIVE
(3) DOCTRINE OF PRIMARY JURISDICTION OR PRIOR RESORT
CODE)
The courts cannot and will not resolve a controversy involving a
question, which is within the jurisdiction of an administrative tribunal.
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.
84
OFFICE
-
85
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
GOVERNMENT-OWNED OR CONTROLLED CORPORATION
refers to any agency organized as a stock or non-stock
corporation, vested with functions relating to public needs
whether governmental or proprietary in nature, and owned by
the government directly or through its instrumentalities either
wholly or where applicable as in the case of stock corporations
to the extent of fifty-one (51%) percent of its capital stock xxx
(Section 2[13] Introductory provisions, E.O. 292)
-
Interpretative
Contingent
Due Process
Contempt Power
Appeals
86
Q. Other names?
A. (1) Rule-making power of an agency
(2) Power of Subordinate Legislation
87
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)
88
Elements: CD-DIP
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.
89
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
APPOINTMENT VS DESIGNATION
2 ways:
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.
2. Discretionary
LUEGO VS CSC
Felimon Luego was appointed by Mayor Solon as Administrative
Officer II. His appointment was described as permanent, but CSC approved
it on a temporary basis subjecting it to the final action to be taken on the
protest filed by Felicula Tuazo. Subsequently, CSC found Tuazo to be better
qualified than Luego and directed that Tuazo be instead appointed. Luego
questioned this.
SC: CSC has no authority to revoke said appointment simply because it
believed that Tuazo was better qualified, for that would have constituted an
encroachment on the discretion vested solely in the City Mayor.
Appointment is essentially a discretionary power and must be performed by
the power on which it is vested. The only condition being that the appointee
should possess the qualification required by law. If he does, then the
appointment cannot be faulted on the ground that there are others better
qualified who should have been preferred.
90
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
When the US-Phils treaty expired, Congress enacted RA 7227,
creating the SBMA. The Charter provided that for the first year of operation,
the President shall appoint the Mayor of Olongapo City as head chairman
and CEO of SBMA. Thus, then Mayor Gordon assumed the positions.
SC: The Charter violates:
1. Art IX-B, Section 7, part 1:
No elective official shall be eligible for appointment or
designation in any capacity to any public office or position during his tenure.
This prohibits elective officers from being appointed or designated to any
public office. The only exception is when the public office is to be held in exofficio capacity.
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?
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?
Q: Can the Deputy Officer claim that he should be the one to be appointed?
A: No, appointment is discretionary.
Rules:
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
91
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?
A: No. This is because there was no vacancy, hence security of tenure did
not attach.
2 PRINCIPLIES:
1. A person no matter how qualified cannot be appointed to an office which
is not vacant.
2. One who is illegally dismissed from office is, by fiction of law, deemed not
to have vacated his office. His security of tenure did not attach.
QUALIFICATION TO PUBLIC OFFICE
The power to prescribe qualifications to public office is vested with the
LEGISLATURE.
THREE IMPORTANT LIMITATIONS ON THE PART OF THE CONGRESS:
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.
92
QUALIFICATION AS AN ENDOWMENT
warranto proceedings.
93
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
1. Domicile of Birth
SC: With the death of her husband, her adoption of the San Juan residency
is lost.
2. Domicile of Choice
MACALINTAL VS COMELEC
At any given point, a person may only have one domicile
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.
94
--No religious test shall be required for the exercise of civil or political rights
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;
d). education
95
Q: What offenses?
MARQUEZ JR VS COMELEC
1. Moral turpitude
2. Punishable by one year or more of imprisonment
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
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.
the
the
the
the
BORJA VS COMELEC
Borja was first elected as Vice Mayor in 1988 at Pateros. In 1989,
the Mayor died, so he replaced the Mayor. During the 1992 elections, he ran
96
and won. In 1995, he again ran and won. In 1998, he ran again. His
qualification was questioned.
SC: Borja is qualified. The term limit for elective local officials must be
taken to refer to the right to be elected as well as the right to serve in the
same elective position. Consequently, it is not enough that an individual has
served three consecutive terms in an elective local office, he must also have
been elected to the same position for the same number of times before the
disqualification can apply.
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 (Mayor LONZANIDA of Zambales VS COMELEC).
Read: Francis Ong vs Alegre and Comelec, 01-23-06
Q: X was elected Mayor in 1992 election. In 1995 and 1998 elections, he
ran and won again. In December 2000, as a result of an administrative
case, he was removed. He did not appeal. The administrative case
becomes final. Is he qualified to run in the 2001 election?
A: NO! He is disqualified to run because of Sec. 40 of the LGC and not
because of Art. X, Sec. 8.
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?
sec.8, Art.X
1. The local official must be elected for three consecutive terms for the
same position.
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?
97
started June 30, 2001. After a year, a resolution calling for a special election
was passed. On the said special election, Hagedorn filed his certificate of
candidacy. His qualification was questioned.
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: What if in 2004 and 2007 he wins again, then in 2010, he wants to run
again, is he 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)
98
Art. IX-B, sec. 2(1) The Civil Service embraces all branches, subdivisions,
instrumentalities and agencies of the government, including the GOCC with
original charters.
alleging that it is embraced within the Civil Service rules and regulations,
being a GOCC with an original charter. Camporedendo questioned this
contending that its charter was already amended corverting it to a public
corporation.
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.
The law requires publication of all vacant positions in the government. This
is mandatory so that all eligible can apply.
CAMPOREDONDO VS NLRC
Baltazar Camparedondo was a chapter administrator of PNRC.
During a field audit, he was found short. His request for a re-audit by an
independent auditor of his account was denied. Thereafter, he filed with
NLRC a complaint for illegal dismissal. PNRC moved to dismiss the
complaint on the ground of lack of jurisdiction over the subject matter,
one year
but it may even be shorter
99
Q:
How do you classify position of members of the Sangguniang
Panlalawigan?
A: Non-career. It is an elective office.
BAR Question:
What are the characteristics pf career positions as well as non-career
positions?
1. Career
2. Non-Career
a. Entrance is based other than those tests of merit and fitness
utilized for the career service;
A: NO! They may possess technical skills or training but not in the supreme
or superior degree, hence non-career.
b. Tenure is:
1. Limited to a period specified by law;
100
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.
SC: Applying the proximity rule, Salas cannot be removed on the said
ground. The position of Salas as a supervisor is too remote from the
appointing authority, the Chairman. There are so many intermediaries
between them.
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).
101
102
PAREDES VS CSC
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)
103
BEJA, SR VS CA
GLORIA VS CA
Period - 90 days
Case Gloria vs CA
3. Ombudsman Act
Period 6 months
Case Hagad vs Gonzales
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.
B. CRIMINAL CASE
1. Anti-Graft and Corrupt Practices Act
Period 90 days applying by analogy
PREVENTIVE SUSPENSION IN AN ADMINISTRATIVE CASE
LAYNO VS SANDIGANBAYAN
104
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.
105
days from the time he was formally notified of the case against
him. However, if the delay in the proceedings of the case is
due to his fault, neglect or request, other than the appeal duly
filed, the duration of such delay shall not be counted in
computing the time of termination of the case.
d.) Any abuse of the exercise of the power of preventive
suspension shall be penalized as abuse of authority.
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
106
Elective Officials
Q: where do you file an administrative complaint against local
elective offificals?
SC:
There is nothing in the LGC (RA 7160) to indicate that it has
repealed the pertinent provisions of the Ombudsman Act (RA 6770). Repeals
by implication are not favored. Every statute must be so interpreted and
brought into account with other laws as to form a uniform system of
jurisprudence. Besides, the grounds to impose preventive suspension under
the LGC and the Ombudsman Act are different. The Ombudsman has
concurrent jurisdiction with the officers who have authority to impose
preventive suspension pursuant to Section 63 of LGC.
GANZON vs. CA
107
SEGOVIA
vs.
SANDIGANBAYAN;
*Section 13 RA 3019 does not state that the officer concerned must be
suspended only for the office he was charged.
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
108
General Rule: Appointive official not allowed from holding other position in
the government
Exceptions:
3.
a. allowed by law
b. allowed by the primary functions of their position
(CIVIL LIBERTIES UNION vs. EXECUTIVE
SECRETARY)
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
109
d.
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.
110
(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.
SC:
The appointment or designation as Acting Provincial Administrator
was violative of the prohibition against nepotism, then embodied in Section
49 PD No. 807. Moreover, the Court emphatically agrees with the CSC that
although what was extended to Benjamin was merely a designation and not
an appointment xxx the prohibitive mantle on nepotism would include
designation because what cannot be done directly cannot be done indirectly.
We cannot accept petitioners view. His specious and tenuous distinction
between appointment and designation is nothing more than either a play
ingeniously conceived to circumvent the rigid rule on nepotism or a last ditch
maneuver to cushion the impact of its violation. The rule admits of no
distinction between appointment and designation. Designation is also
defined as all appointment or assignment to a particular office, and to
designate means to indicate, select, appoint, or set apart for a purpose of
duty.
*for purposes of the law on nepotism, appointment and designation are the
same.
7. Section 90, LGC Practice of Profession
(a) All governors, city and municipal mayors are prohibited from
practicing their profession or engaging in any occupation other than the
exercise of their functions as local chief executives.
(b) Sanggunian members may practice their professions, engage in
any occupation, or teach in schools except during session hours,
Provided, that sanggunian members who are also members of the Bar
shall not:
(1) Appear as counsel before any court in any civil case wherein a
local government unit or any office, agency or instrumentality of the
government is the adverse party;
(2) Appear as counsel in any criminal case wherein an officer or
employee of the national or local government is accused of an offense
committed in relation to his office;
(3) Collect any fee for their appearance in administrative
proceedings involving the local government unit of which he is an official;
and
111
Pedro
Manuel
Jose
District I (10,000)
5,000
District II (8
4,800
5,000
112
(3)
(b) Except for the sangguniang barangay, only the nominee of the political
party under which the sanggunian member concerned had been elected and whose
elevation to the position next higher in rank created the last vacancy in the
sanggunian shall be appointed in the manner herein after provided. The appointee
shall come from the same political party as that of the sanggunian member who
caused the vacancy and shall serve the unexpired term of the vacant office. In the
appointment therein mentioned, a nomination and certificate of membership of the
appointee from the highest official of the political party concerned are conditions sine
qua non, and any appointment without such nomination and certification shall be null
and void ab initio and shall be ground for administrative action against the official
responsible therefor.
(c) In case the permanent vacancy is caused by a sanggunian member who
does not belong to any political party, the local chief executive shall, upon
recommendation of the sanggunian concerned, appoint a qualified person to fill the
vacancy.
(d) In case of vacancy in the representation of the youth and the barangay
in the sanggunian, said vacancy shall be filled automatically by the official next in rank
of the organization concerned.
The last ranking sanggunian bayan member who did not belong to any
political party resigned. To fill the vacancy, both the mayor and the governor
appointed their own choice.
SC:
Neither of the two appointees should assume position.
Sec 45 (c) LGC must be read together with Sec 45 (a). Since this is a
municipality, the governor should appoint but with the recommendation of
the sanggunian concerned which is the sanggunian bayan where the
vacancy took place.
NAVARRO vs. CA sec.45(b), LGC
Composition of the municipal government:
Mayor Lakas
NUCD
Vice
Mayor.
Lakas
NUCD
1st to 5th sanggunian member.. Reporma
6th Sanggunian Member.. Lakas NUCD
7th Sanggunian Member.. Reporma
8th Sanggunian Member.. Lakas NUCD
Therefore in the Sanggunian, there were 6 Reporma and 2 Lakas.
The mayor died. The Vice mayor became the Mayor. The last ranking
position became vacant so the governor appointed someone from Reporma.
Lakas protested because the vacancy came from Lakas.
SC:
Governor is correct. What is crucial is the interpretation of Sec. 45
(6). The reason behind the right given to the political party to nominate a
replacement is to maintain the party representation as willed by the people in
the election.
With the elevation of Tamayo (Reporma) as the Vice Mayor it
diminished the Repormas representation in the Sanggunian. Hence, the one
appointed should come from Reporma.
GAMBOA JR. vs. AGUIRRE JR.
July 20, 1994
The governor went abroad. He was away for 3 months. Governor
issued an administrative order designating the Vice governor as acting
governor. The acting governor wants to preside in the session of the
sanggunian.
SC:
Being the acting governor, he cannot simultaneously exercise the
functions of his office. The power of the vice governor to preside over
sanggunian session is suspended as long as he is the acting governor.
113
Initiatory
Special Recall Election
114
UNITS/
AUTONOMOUS
REGIONS/
115
2. Body corporate
DUAL FUNCTION OF LGU
1. Acting as body politic- governmental
2. Acting as a corporate entity representing the inhabitantsproprietary
OR SUBSTANTIAL
116
2.
3.
*The doctrine under Paredes has been abandoned by TAN vs. COMELEC,
as reaffirmed in the Padilla vs. Comelec.
Q: In the income requirement, should the IRA be included in the
computation?
A: Yes.
ALVAREZ vs. GUINGONA
Congress passed a law creating Santiago. The IRA was excluded.
SC:
The basis of IRA is Article X, Sec 6. This is not self-executing. It is
implemented in the LGC.
LGUs are entitled to 40% of the total national taxes. The
allocations in Sec 285 LGC- Allocations to Local Government Units.- The
share of local government units in the internal revenue allotment shall be
allocated in the following manner:
a. Provinces 23%
b. Cities 23%
c. Municipalities 34%
d. Barangays 20%
Hence, IRAs are regular recurring income. It does not constitute as
a mere transfer. It should be included in the computation. It is an income of
the LGU.
MAIN SOURCES OF INCOME OF LGUs
1.
2.
Resolution
- merely a declaration of sentime
lawmaking body
- temporary
- no reading in its enactment is req
by majority of sanggunian members
117
POWER TO TAX
Of the three powers of the state, the power to tax is constitutionally
delegated power to LGU, subject to guidelines as the Congress may provide
in accordance with Article X sec. 5.
POLICE POWER ; EMINENT DOMAIN
They are delegated by the Congress not by the Constitution
*Police Power: Section 16, LGC General Welfare Every local
government unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers necessary, appropriate, or
incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective
territorial jurisdictions, local government units shall ensure and support,
among other things the preservation and enrichment of culture, promote
health and safety, enhance the right of the people to a balanced ecology,
encourage and support the development of appropriate and self-reliant
scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their
residents, maintain peace and order and preserve the comfort and
convenience of their inhabitants.
*Eminent Domain: SEC. 19. Eminent Domain. - A local government
unit may, through its chief executive and acting pursuant to an ordinance,
exercise the power of eminent domain for public use, or purpose, or welfare
for the benefit of the poor and the landless, upon payment of just
compensation, pursuant to the provisions of the Constitution and pertinent
laws: Provided, however, That the power of eminent domain may not be
exercised unless a valid and definite offer has been previously made to the
owner, and such offer was not accepted: Provided, further, That the local
government unit may immediately take possession of the property upon the
filing of the expropriation proceedings and upon making a deposit with the
proper court of at least fifteen percent (15%) of the fair market value of the
property based on the current tax declaration of the property to be
expropriated: Provided, finally, That, the amount to be paid for the
expropriated property shall be determined by the proper court, based on the
fair market value at the time of the taking of the property.
---- End---Good Luck and God Bless Us all.
* 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
118
1.
2.
3.
4.
2.
a.
b.
people
Territory
Government
Sovereignty or Independence or capacity to enter into
relations(Montevideo Convention)
119
b.
Taada vs Angara
ESTRADA DOCTRINE
AUTO-LIMITATION of SOVEREIGNTY
-When we enter intro treaty with other states it is understood that we have to
surrender some aspects of our power. Especially in view of pacta sunt
servanda.
1.
2.
3.
4.
5.
ICC
- it is a separate body.
Act of State Doctrine- the courts of law of one state are not competent to
pass judgment of an act of another state committed in its territory.
* Jurisdiction of the International Criminal Court over the
following
offenses:
3.
Recognition of Belligerency
This may be understood in 2 senses:
a.
a.) genocide
b.) crimes against humanity
c.) war crimes
d.) crimes of aggression
common characteristics of the four they are the most serious crimes
of international concern.
120
to eliminate
or
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)
Rights:
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.
121
2) Secondary
a) individual
permanent
resources.
d) judicial decisions
e) teachings of authoritative publicists of various
nations.
person and
rights.
122
particularly the right to life and liberty, a re-examination of this Courts ruling
in the Purganan case is in order.
(4) International Humanitarian Law (IHL)
- used to be called laws of war/ laws of armed conflict (which may
refer to both international armed conflict and internal armed conflict)
- that branch of public international law which governs armed
conflict to the end that the use of violence is limited and that human suffering
is mitigated or reduced by regulating or limiting the means of military
operations and by protecting persons who do not or no longer participate in
hostilities.
* Three Grand Divisions of International Law:
a) Laws of Peace govern relations between and among nations under
normal circumstances.
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 of IHL 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 (LAND WARFARE)
HRL
123
conduct
of
Others:
Non-Privileged Combatants although they have rights
(limited/minimal), when captured, are not entitled
to be treated as
prisoners of war.
- they do not form part of the regular or irregular forces but
actually takes part directly or indirectly in the hostilities as:
a) spies
b) mercenaries soldiers for a fee/ soldiers of fortune
A soldier, not wearing uniform during hostilities, runs
the risk of being
treated as a spy; thus, not to be treated
as a prisoner of war.
BAR 1993:
Reden, Jolan and Andy, Filipino tourists, were in
Bosnia-Herzegovina when hostilities erupted between the Serbs and the
Moslems.
Penniless and caught in the crossfire, Reden, Jolan and
Andy, being retired
generals, offered their services to the Moslems
for a handsome salary, which offer was accepted. When the Serbian
National Guard approached Sarajero, the
Moslem civilian population
spontaneously took up arms to resist the invading
troops. Not finding
time to organize, the Moslems wore armbands to identify
themselves,
vowing to observe the laws and customs of war. The three Filipinos
124
fought side by side with the Moslems. The Serbs prevailed resulting
in the capture
of Reden, Jolan and Andy, and part of the civilian fighting
force.
- disabled soldiers
(4) Military and civilian medical personnel and facilities (hospitals,
clinics, ambulances, etc.) must be respected and protected and must be
granted all
available help for the performances of their duties.
* Concept of Belligerency
- may be understood in two senses:
a) state of war between two or more states
the
simply
125
4) if the rebels were able to observe the laws and customs of war
126
CUSTOM vs USAGE
- this is the formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representatives.
estoppel;
res alios acta
prescription;
stare decisis(de cheeses) a general principle of law but is not
recognized in international law because decisions in internatiol
court are binding only between parties.
127
a) requesting state the state where the offenses was alleged to have
been committed
- it was only much later when the two states entered into an
extradition treaty
- when Australian government learned that Mr. Wright was in the
Philippines, it requested that Mr. Wright be extradited to Australia to face trial
for his alleged criminal offense therein.
* under PD 1069 (Extradition Law), jurisdiction over
extradition cases is with the RTC.
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.
4) unless otherwise stipulated in the treaty, the offense must have been
committed in the territory of the requesting state.
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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
- as an extradition proceeding is not criminal in character and the
evaluation stage in an extradition proceeding is not akin to a preliminary
investigation, the due process safeguards in the latter may not necessarily
apply during the initial evaluation stage in an extradition proceeding.
- this we hold for the procedural due process required by a given
set of circumstances must begin with a determination of the precise nature
of the government function involved as well as the private interest that has
been affected by governmental action.
- the concept of due process is flexible for not all situations calling
for procedural safeguards call for the same kind of procedure.
* Mark Jimenez is not entitled to the documents he was requesting
only at the early stage of the proceeding.
- eventually he will be furnished those documents at the
of filing of the case before the court
time
the
129
- abandoned!!!
Ex. Speech ibagsak ang bulok na gobyerno! Magrebolusyon
tayo!
- the speech had a dangerous tendency of producing the
substantive evil which the state is duty bound to prevent or suppress the
resulting revolution, death, injuries, chaos, were the substantive evils, even if
it did not take place.
- the arrest and dispersal of the rally will be justified under this rule.
130
SC:
Mayor Bagatsing is wrong. Any act of the government
alleged to have infringed upon fundamental freedoms comes to court with
a heavy presumption of unconstitutionality. So that the burden now is on the
part of the government to justify the act.
these interests
SC:
The more compelling state interest must be upheld to
prevent the escape of
potential extraditee which can be precipitated by
premature information of the basis for the request of his extradition.
always presumed
entitled to a copy of
131
fundamental
warrant of arrest
132
* Two Doctrines
1) Doctrine of Incorporation
- the generally accepted principles of international law
automatically become part of their laws and will no longer require an
enabling act from the legislative body.
- the Philippines subscribe to this doctrine under section 2,
article II of the Constitution, which provides that, the Philippines adopts the
generally
accepted principles of international law as part of the law
of the land.
2) Doctrine of Transformation
- the generally accepted principles of international law
does not automatically become part of their laws and will still require an
enabling act from the legislative body.
133
134