Compiled Digests Property 21 Sept.docx

DE LA SALLE UNIVERSITY COLLEGE OF LAW Lasallian Commission on Bar Operations 2018

POLITICAL AND INTERNATIONAL LAW Green Notes

Chel Sy LCBO Chairperson Nico Garcia LCBO Vice Chair for Internals Steph Griar LCBO Vice Chair for Externals Pat Costales LCBO Executive Secretary Ces Naga LCBO Executive Treasurer

Tet Valeza Academic Affairs Chairperson

Borgy Gavina Political and International Law Chairperson

 Janine Tutanes Rod Zantua Academic Affairs Deputy Chairpersons

Iris Yap Political and International Law Deputy Chairperson Nolan Domingo Constitutional Law I Subject Head Martin Villadolid Constitutional Law II Subject Head  Jesse Solis Law on Administrative Agencies and Election Law Subject Head Dianne Uy Sam Loyola Law on Local Governments Subject Heads Cha De Vera Public International Law Subject Head

POLITICAL LAW

Table of Contents

CONSTITUTIONAL LAW 2

IV.

Constitutional Law I I.

THE PHILIPPINE CONSTITUTION ……….….1 A. Constitution: Definition, Nature, And Concepts....………..…….……………...1 Concepts....………..…….……………...1 B. Parts……………. Parts…………….…………………...….…….2 C. Amendment and Revisions ……...………..2 D. Self-Executing and Non-self-executing provisions ……………………………...……3 E. General Provisions……………………...…..3

II.

GENERAL CONSIDERATIONS …………….…4 A. National Territory……………………….….4 Territory……………………….….4 1. Archipelagic Doctrine …………........4 B. State Immunity .………………………...…..4 C. General principles and state policies……...5 D. Separation of Powers …………………........9 E. Checks and Balances ……………………….9 F. Delegation of powers ……………………..10 G. Forms of Government ……...……………..10

III.

LEGISLATIVE DEPARTMENT ………………..10 A. Who may exercise legislative power……..10 1. Congress…………………………………...11 2. Regional/Local Legislative power ..........11 3. People’s initiative on statutes……...........11 statutes……...........11 a. Initiative and Referendum………..11 Referendum………..11 B. House of Congress Congress ………………………...11 1. Senate………………………………...11 2. House of Representatives……….….11 a. District Representatives and questions of apportionment…………..……13 b. Party-list Party-list system……………...13 C. Legislative privileges, inhibitions and disqualifications…………………………….14 D. Quorum and voting voti ng majorities……. majorities…….…...….15 E. Discipline of members…………………….. 15 F. Electoral tribunals and the Commission on Appointments……………………………… 16 1. Nature…………………………..……. 16 2. Powers………………………….……. 16 G. Powers of Congress…………………………17 1. Legislative………………………….... 17 a. Legislative inquiries and the oversight functions b. Bicameral conference committee c. Limitations on legislative power i. Limitations on revenue appropriations, and tariff measures ii. Presidential veto and Congressional override 2. Non-Legislative…………………...… Non-Legislative…………………...… 22 a. Informing function b. Power of Impeachment c. Other non-legislative powers.

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EXECUTIVE DEPARTMENT……………………22 A. Privileges, inhibitions and disqualifications…………...……….………..22 1. Presidential immunity………....….…23 2. Presidential Privilege……...…….….. Privilege……...…….….. 23 B. Powers…………………………………….......24 1. Executive and administrative powers in general……..……………………… 24 2. Power of Appointment……………...…………..25 a. In general b. Commission on Appointments confirmation c. Midnight appointments d. Power of Removal 3. Power of Control and supervision…………………………… 26 a. Doctrine of qualified political agency b. Executive departments and offices c. Local government unites 4. Military powers………………….….... 27 5. Pardoning power………………...........28 power………………...........28 a. Nature and limitations b. forms of Executive clemency 6. Diplomatic power……………………..28 7. Powers relative to apportionment measures……………………………….29 measures……………………………….29 A. Validity of transferring savings between departments 8.

C.

Delegated powers……………………………….....29 9. Veto powers……………………………30 10. Residual Powers ………………….…..30 11. Executive privilege…………………....30 privilege…………………....30 12. Emergency Powers……………………30 Rules of Succession ……………………...…..30 ……………………...…..30

V.

 JUDICIAL DEPARTMENT………………….…….31 A. Concepts………………………………...……..31 1.  Judicial Power……………………..…..31 2.  Judicial Review; requisites…………...32 a. Operative fact doctrine b. Moot questions c. Political question doctrine B. Safeguards Safeguards of Judicial independence……….33 C.  Judicial restraint………………………………34 restraint………………………………34 D. Appointments to the Judiciary……………...34 A.  Judicial and Bar Council……………......................34 E. Supreme Court………………………………..34 1. En banc and division cases……....34 2. Procedural rule-making………….34 rule-making………….34 3. Administrative supervision over lower courts……………………….35 4. Original and appellate  Jurisdiction…..…………………...35

VI.

CONSTITUTIONAL COMMISSIONS…………..….35 A. Constitutional safeguards to ensure independence of commissions……….……35

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POLITICAL LAW

B.

Powers and functions of each commission………………..…..……………….36 commission………………..… C. Prohibited offices and Interests…………… Interests……………..36 ..36 D.  Jurisdiction of each constitutional Commission……………………..……………..36 Commission…………………… E. Review of Final orders, resolutions, and decisions………………………..………………36 decisions……………………… VII.

VIII.

CITIZENSHIP…………………..…………………..38 A. Who are Filipino citizens…………………….38 B. Natural-born citizens and public office...….38 office...….38 C. Modes of Acquiring citizenship...…………..38 citizenship...…………..38 D. Naturalization and denaturalization...…......38 denaturalization... …......38 E. Dual citizenship and dual allegiance……….39 F. Loss and re-acquisition of Philippine Citizenship………………………………….…39 NATIONAL ECONOMY AND PATRIMONY........................................................….39 PATRIMONY.............. ..........................................….39 A. Regalian doctrine……………………………..40 B. Franchises, authority, and certificates for public utilities…………………………….40 C. Practice of professions ………………………41 D. Monopolies, restraint of trade and unfair competition……………………………………41

IX.

SOCIAL JUSTICE AND HUMAN RIGHTS……………………………………………...41 A. Concept of Social justice………………….….41 B. Commission on Human Rights………….….41

X.

EDUCATION, SCIENCE, TECHNOLOGY, ARTS, CULTURE AND SPORTS……………………………………………..42 A. Academic Freedom…………………………..42

Constitutional Law II I.

II.

FUNDAMENTAL POWERS OF THE STATE (POLICE POWER, EMINENT DOMAIN, TAXATION) A. Concept, application and limits Police Power ……………………………………….43 Eminent Domain……………………………..……44 Taxation Taxation …………………………………................46 …………………………………................46 B. Requisites for valid exercise exercise ……………………..47 ……………………..47 C. Similarities Similarities and differences …………………….. 47 D. Delegation ………………………...……………….48 PRIVATE ACTS AND THE BILL OF RIGHTS .............49

III. DUE PROCESS – THE RIGHTS TO LIFE, LIBERTY & PROPERTY …………………..……………………………...49 A. Relativity of due process ……..……………….. 49 B. Procedural and substantive due process .….…49 C. Constitutional and statutory due process ……49 D. Hierarchy of rights ……………………………...51 ……………………………...51 E.  Judicial standards of review …………...…...….51 1. Void-for-vagueness Void-for-vagueness doctrine ………….......51 2. Rational Basis Test ……….…..…………….51 3. Strict Scrutiny Test ……………….…..….....51 4. Intermediate Scrutiny Test …….….…........51

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CONSTITUTIONAL LAW 2

IV.

EQUAL PROTECTION…………………………..…..…51 PROTECTION…………………………..…..…51 A. Concept …...……...………………...….…...……. 51 B. Requisites for valid classification ……….…..…..51 ……….…..…..51

V.

SEARCHES AND SEIZURES …………...... …………......……………52 ……………52 A. Concept ……… …………………………................ …………………………................52 52 B. Warrant requirement; requisites for a valid warrant…………..………………………………...52 C. Warrantless searches ……………….. ………………..…………...53 …………...53 D. Warrantless arrests ……………….. ………………..…………......54 …………......54 E. Administrative arrests …………... …………...……….…….. ……….…….. 54 F. Drug, alcohol, and blood tests …………............. …………............. 55

VI. PRIVACY OF COMMUNICATIONS AND CORRESPONDENCE ………………………... ……………………… ...………….55 ………….55 A. Private and public communications ……………56 B. Intrusion, when allowed ..……………….……….56 C. Writ of habeas data ……………………... …………………… ...……. ……...…. ..….57 57 VII. FREEDOM OF EXPRESSION ………………..... ……………….. ...……....57 ……....57 A. Concept and scope ……..……….…...……….……. 57 a. Prior restraint (censorship) (censorship) …..…..….…... 58 b. Subsequent punishment ……..……..…….59 B. Content-based and content-neutral regulations a. Tests Tests …..………..…………………….…......59 b. Applications……..………………....………59 C. Facial challenges and the overbreadth doctrine… doctrine… 60 D. Tests ……………………………………………..….. 59 E. State regulation of different types of mass media…………………………..……...………….…. .60 media………………………… F. Commercial speech …………………….…….…....58 …………………….…….…....58 G. Private vs. government speech ……………..……..58 ……………..……..58 H. Heckler’s veto ……...………….. ……...…………..……………………58 ……………………58 VIII. FREEDOM OF RELIGION …………….……………….62 A. Non-establishment Non-establishment clause ………...…………….....62 ………...…………….....62 a. Concept and basis ………………..……..…...62 ………………..……..…...62 b. Acts permitted and not permitted by the clause…………….............................................62 clause…………….............................................62 c. Test ……………………………..………….....62 B. Free exercise clause …………………….……….....63 C. Tests ……………………………………..…………..63 a. Clear and Present Danger Test …..……......63 …..……......63 b. Compelling State Interest Test…………......63 c. Conscientious Objector Test ……………….63 IX. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT………………………………….………….64 A. Limitations ………….………..……………………. 64 B. Right to travel ………..…………………………… 64 a. Watch-list and hold departure orders…………………………….……...….64 orders…………………………….……...….64 C. Return to one’s country ……………………….…...65 X.

RIGHT TO INFORMATION …...………………………65 A. Limitations Limitations …….…………………………………….65 B. Publication of laws and regulations….………….. r egulations….………….. 66 C. Access to court records …………………………….66 D. Right to information relative to: a. Government contract contract negotiations ..……… 67 ..……… 67 b. Diplomatic Diplomatic negotiations ……………............ ……………............ 67

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POLITICAL LAW

XI. RIGHT OF ASSOCIATION …….………...…………..67 XII. EMINENT DOMAIN …………………....…………….67 A. Concept ……….……..……………..……………... 67 B. Expansive concept of “public use” ...…………... 68 C.  Just compensation …..…………………………… 68 a. Determination ………………..……….... 68 b. Effect of delay ………………………….. 68 D. Abandonment of intended use and right of repurchase…………………………………….….. 69 XIII. CONTRACT CLAUSE ……………………..…………..69 A. Contemporary application of the contract clause XIV. LEGAL ASSISTANCE AND FREE ACCESS TO COURTS………………………………………………… 70 XV. RIGHTS OF SUSPECTS ………………………………. 70 A. Availability………….………………….….……... 70 B. Requisites ………………………………………… 71 C. Waiver ……………………………………………. 71 XVI. RIGHTS OF THE ACCUSED ……………………….... 72 A. Criminal due process ……………………………...72 B. Presumption of innocence ………………………...72 C. Bail …………………………………………………..73 D. Right to be heard …………………………………..74 E. Assistance of counsel ………………………….......74 F. Right to be informed ………………………………75 G. Right to speedy, impartial and public trial …….. 75 H. Right of confrontation ……………………………. 76 I. Compulsory process ……………………………… 76  J. Trial in absentia ……………………………………. 76 XVII.

WRIT OF HABEAS CORPUS ……………………77

XVIII. WRITS OF AMPARO, HABEAS DATA, AND KALIKASAN……………………………………… ……. 78 XIX. SELF-INCRIMINATION CLAUSE... …..…………… 79 A. Scope and coverage ……………………................. 79 a. Foreign laws ………………………………79 B. Application ………………………………………... 79 C. Immunity statutes ………………………………... 80 XX. INVOLUNTARY SERVITUDE AND POLITICAL PRISONERS …………………………………………… 81 XXI. EXCESSIVE FINES AND CRUEL AND INHUMAN PUNISHMENTS…..………...………………………… 81 XXII.

NON-IMPRISONMENT FOR DEBTS ………... 82

XXIII. A. B.

DOUBLE JEOPARDY ………………………….. 82 Requisites ………………………………………....82 Motions for reconsideration and appeals ……………………….…………………………….82 Dismissal with consent of accused …………… 83

C.

XXIV. EX POST FACTO LAWS AND BILLS OF ATTAINDER…………………………………………………83

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CONSTITUTIONAL LAW 2

Law on Public Officers I.

GENERAL PRINCIPLES A. Definition ………………………………………….85 B. Essential Elements of a Public Office…………....85 C. Classification of Public Officers …………………85 D. Characteristics of a Public Officer……………….86 E. Creation of a Public Office……………………….86 F. How a Public Office is Created………………….86 G. Who are Public Officers…………………………..86

II.

MODES OF ACQUIRING TITLE TO PUBLIC OFFICE..…………………………………..87

III. MODES AND KINDS OF APPOINTMENT…………87 A. Nature and Characteristics……………………… 87 B. Appointment and Designation………………..... 88 C. Appointment vs. Designation………….……….. 88 D. Permanent vs. Temporary…………………….. .. 88 E. Presidential Appointments …………………….. 89 F. Regular vs. Ad Interim………………………….. 89 G. Rules on Acceptance and Revocation…………..90 IV. ELIGIBILITY AND QUALIFICATION REQUIREMENTS……………………………………….90 A. Definitions …………………………….…………. 90 B. Scope of Qualifications………………………….. 91 C. Who May Prescribe Qualifications…………….. 91 D. Restrictions on the Power of Congress………… 91 E. Qualifications Prescribed by the Constitution… 92 F. Duration of Qualification………………………... 92 G. Political Qualification………………………......... 93 V.

DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS A. Constitutional Disqualifications……………….. 93 B. Other Disqualifications and Prohibitions……... 94 C. Prohibition om Holding Offices in the Private Sector………………… …………………………. 94 D. Prohibition on Nepotic Appointments………... 94 E. Disqualifications in the LGC ………… .......…… 95

VI. POWERS AND DUTIES OF PUBLIC OFFICERS……96 A. Authority of Public Officers ………… …............ 96 B. Duties of Public Officers ……………………….. 96 VII. RIGHTS OF PUBLIC OFFICERS ……………………...96 A. In General………………………………………... 96 B. Right to Office…………………………………… 97 C. Right to Compensation…………………………. 97 D. Constitutional Provisions………………………. 97 E. Right to Retirement Pay………………………… 98 F. Right to Reimbursement and Indemnity………98 G. Right to Reinstatement and Back Salary…….…98 H. Rights to Property, Devices, and Inventions…..98 VIII. LIABILITIES OF PUBLIC OFFICERS…………………99 A. In General………………………………………… 99 B. Three-Fold Responsibility of Public Officers…. 99 C. Preventive Suspension and Back Salaries…….. 100 D. Rules on Preventive Suspension……………….. 100 E. Illegal Dismissal, Reinstatement, and Back Salaries……………………………………….…… 101

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POLITICAL LAW

IX. IMMUNITY OF PUBLIC OFFFICERS .………………101 X.

CONSTITUTIONAL LAW 2

IV.

DE FACTO OFFICERS A. Officer de Jure vs. Officer de Facto……………… 102

XI. TERMINATION OF OFFICAL RELATION A. Expiration of the Term or Tenure of Office…. 104 B. Reaching the Age Limit………………………… 104 C. Death or Permanent Disability………………… 104 D. Resignation………………………………………. 104 E. Acceptance of an Incompatible Office……….... 105 F. Abandonment of Office………………………… 105 G. Prescription of Right to Office…………………. 105 H. Removal………………………………………….. 105 I. Abolition…………………………………………. 106  J. Conviction of a Crime…………………….…….. 106 K. Non-User……………………………………..……106 L. Recall…………………………………………..…..106 M. Filing of a Certificate of Candidacy by an Appointive Official……….…………………..…..106 XII. THE CIVIL SERVICE A. Scope……………………………………………… 106 B.  Jurisdiction of the Civil Service Commission….106 C. Appointments to the Civil Service………………107 D. Personnel Action...………………………………..108 XIII. ACCOUNTABILITY OF PUBLIC OFFICERS………..108 A. Impeachment………………………...……………108 B. Ombudsman……………………………………... 109 C. Sandiganbayan………………………………..… 110 D. Ill-Gotten Wealth………………………………… 110 XIV. TERM LIMITS………………………………….……… 111

Administrative Law I. A. B. C. II.

GENERAL PRINCIPLES…………………………113 Sources of Administrative Law…………………113 Scope of Administrative Law…………………...113 Classifications of Administrative Law…………113

G. H.

ADMINISTRATIVE AGENCIES………………..113 Definition………………………………………….113 Creation of Administrative Agencies…………..114 Different Ways of Creating Public Office……...114 Faithful-Execution Clause……………………….114 Administrative Agencies Directly Created by the 1987 Constitution…………………………….….. 114 How the President’s Ordinance Power is Exercised……………………………………….….114 Extent of President’s Powers……………….…....114 Kinds of Administrative Agencies………….…..114

A. B. C. D. E. F.

POWERS OF ADMINISTRATIVE AGENCIES..115 Express and Implied Powers……………………115 Doctrine of Necessary Im plication…………….. 115 Powers of Administrative Agencies……………115 Quasi-Legislative Powers………………………..115 Quasi- Judicial Powers……………………………116 Investigatory Powers…………………………….118

A. B. C. D. E. F.

III.

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 JUDICIAL RECOUSE AND REVIEW………….118 A.  Judicial Review of Administrative Decisions….118 B. Requisites of Judicial Review of Administrative Decisions…………………………………………..118 C. Doctrine of Exhaustion of Administrative Remedies…………………………………………..119 D. Doctrine of Primary Jurisdiction…………..……119 E. Doctrine of Exhaustion of Administrative Remedies vs. Doctrine of Primary Jurisdiction………...……...119

Election Law I.

SUFFRAGE ……………………………………………120 A. Definition………………………………………... 120 B. Scope of Suffrage……………………………...... 120 C. Kinds of Election………………………..………. 120

II.

QUALIFICATION AND DISQUALIFICATION OF VOTERS…………………………………………………120 A. Qualification of Voters……………………….… 120 B. Disqualification of Voters……………………… 121

III. REGISTRATION OF VOTERS……………………….. A. Registration, Definition……………………….. 121 B. Registered Voter………………………………. 121 C. Effect of Transfer of Residence……………….. 121 D. Period of Registration…………………………. 121 E. Manner of Registration…………………………121 F. Change of Residence or Address…………….. 121 G. Remedy in Case of Approval/Disapproval of Application for Registration...……….………... 122 H. Deactivation of Registration…………………...122 I. Grounds of Deactivation……………………….122  J. Reactivation of Registration…………………... 122 a. Period…………………………………….. 122 K. Overseas Absentee Voter…………………….... 122 L. Coverage of the Right to Vote……………….... 122 IV. INCLUSION AND EXCLUSION PROCEEDINGS…122 A. Period for Filing the Petition for Inclusion or Exclusion Proceeding…………………………...122 B. Court with Jurisdiction over Inclusion and Exclusion Proceeding………………….………. 122 C. Common Rules………………………………… 123 V.

POLITICAL PARTIES…………………………………123 A. Political Party, Definition…………………….. 123 B. Kinds of Political Party……………………….. 123 C. Party-list System………………………………. 123 D. Sectoral Organization……………….………... 123 E. Coalition……………………………………….. 123 F.  Jurisdiction of COMELEC over Political Parties………………………………………….. 123 G. Purpose of Registration………………………. 124 H. Grounds for Refusal/Cancellation of Registration…………………………………… 124 I. Effect of Change of Party-list Affiliation…… 124  J. Seat Allocation………………………………... 124 K. Rules on the Computation of the Seats…….. 124

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POLITICAL LAW

VI. CANDIDACY………………………………………….124 A. Candidacy, Definition………………………....124 B. Qualification of Candidates…………………..124 C. Substitution in Case of Death, Withdrawal, and Disqualifications………………………………..125 D. Ministerial Duty of COMELEC to Receive Certificate………………………………………..125 E. Nuiscance Candidate…………………………..125 F. Ground for Denying and Cancelling a Certificate of Candidacy...……………………..126 G. Filing of Petition for Denial and Cancellation of Certificate of Candidacy...…..126 H. Disqualifications of Candidates………………126 I. Effects of Disqualification…………………….126  J. Withdrawal of Candidacy…………………….126 K. Effect of Withdrawal…………………………..126

CONSTITUTIONAL LAW 2

Local Government Code I.

II. MUNICIPAL CORPORATIONS……………….148 A. De Jure Municipal Corporations ….….…........150

IX. REMEDIES AND JURISDICTION IN ELECTION LAW……………………………………………………..130 A. Petition Not to Give Due Course to C ancel a Certificate of Candidacy………...…………….130 B. Disqualification Cases…………………………131 C. Failure of Election………………...……………131 D. Pre-Proclamation Controversy….....…………132 E. Election Protest………………..……………….134 F. Quo Warranto……………….…………………136 X.

PROSECUTION OF ELECTION OFFENSES………136 A. Election Offenses………………………………136 B. Other Election Offenses under RA 6646…….137 C. Prescription…………………………………….137 D.  Jurisdiction……………………………………. 137 E. The Policy of Non-Interference………………137

XI. OMNIBUS ELECTION CODE OF THE PHILIPPINES (B.P. Blg. 881, as amended)……………………...…..139 XII. ELECTION AUTOMATION LAW (R.A. No. 8436, as amended by R.A. No. 9369)………………………....139

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B.

Municipal Corporations by Prescription ……..150

C.

De Facto Municipal Corporations.…………...150

III. PRINCIPLES OF LOCAL AUTONOMY……... 154 A. Decentralization of Administration……….....155 B. Decentralization of Power………………….....155 C. Devolution…………………..……………….…155 D. Deconcentration……………………..…..…......155 E. Debureaucratization…………………..…..…...155

VII. CAMPAIGN…………………………………………..126 A. Premature Campaign…………………………126 B. Prohibited Contributions……………………. 126 C. Prohibited Donations………………………… 127 D. Lawful Election Propaganda………………... 127 E. Unlawful Election Propaganda………………128 F. Limitations on Expenses………………………128 G. Statement of Contributions………………….. 128 H. Effect of Failure to File………………………...128 VIII. BOARD OF ELECTION INSPECTORS AND BOARD OF CANVASSERS……………………………………...129 A. Composition of Election Inspectors…………...129 B. Qualifications…………………………………….129 C. Disqualifications………………………………....129 D. Powers of Board of Election Inspectors….……129 E. Board of Canvassers……………………………..129 F.  Jurisdiction of the COMELEC over Board of Canvassers……………………………………..…130 G. Duties of the Board of Canvassers…………..…130 H. Ministerial Duties of the Board of Canvassers..130 I. Quasi-judicial Duties of the Board of Canvassers…………………………..…………...130  J. Period to Complete Canvass………..………….130

PUBLIC CORPORATIONS……………………..147

IV. POWERS OF LOCAL GOVERNMENT UNITS…………………………………………..….156 A. Police Power……………………………...………156 B. Eminent Domain…………………………………157 C. Legislative Power………………………………..159 D. Corporate Powers………………………………...160 E. Liabilities of LGUs……………………………….161 F. Settlement of Boundary Disputes………………162 V. LOCAL OFFICIALS………………………………163 A. Succession on Local Officials…………………. 164 B.

Discipline of Local Officials……….………...…166

Public International Law VI. CONCEPTS ............................................................ 170 A. Obligations erga omnes ............................................ 170 B.  Jus cogens ................................................................... 170 C. Concept of ex aequo et bono...................................... 170 I.

RELATIONSHIP OF INTERNATIONAL AND NATIONAL LAW .......................................................... 171 A. Theories on the Relationship between International Law and Municipal Law ................................ ........ 171 B. Theories as to Adoption of International Law and Domestic Law .......................................................... 171 C. Conflict between International law and Municipal Law ........................................................................... 171

II.

SOURCES ........................................................................ 171 A. The Sources of International Law .................. 171 B. Classification of Sources ................................. 171 C. Sources of International Law under the Statute of the International Court of Justice .............. 171 D. Treaties & Agreements .. ................................. 172 E. Customary International Law ........................ 172 F. General Principles o f Law .............................. 172 G.  Judicial Decisions and Teachings of the Most Highly Qualified Publicists ............................ 173

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III.

SUBJECTS ....................................................................... 173 A. States ....................................................................... 173 a. Elements/Qualifications of Statehood: ......173 B. International o rganizations .................................. 174 1. Belligerent community ..............................174 2. International Administrative Bodies ....... 174 C. Individuals..............................................................174

IV. BASIC PRINCIPLES OF DIPLOMATIC AND CONSULAR LAW .......................................................... 174 A. Vienna Convention on Diplomatic Relations ... 174 B. Bilateral and Multilateral Diplomacy ................ 174 C. Elements of Diplomatic and Consular Law ......175 D. Sources of Diplomatic and Consular Law......... 175 E. Classes of Heads of Consular Posts ...................177 F. General Provisions ............................................... 177 A. Persona Non Grata ............................................... 177 V.

GENERAL PRINCIPLES OF TREATY LAW .............. 178 A. Treaty ..................... ................................................. 178 B. Types o f Tre aties ....................................................178 C. Treaty-Making Process .......................................... 178 D. Principles ...................................... .......................... 179 E. Amendment and Modification of a Treaty .........179

VI. NATIONALITY AND STATELESSNESS ....................180 A. Nationality..................................................................... 180 A. Multiple Nationality ........................................... 180 B. Doctrine of Indelible Allegiance .........................180 C. Statelessness..........................................................180 VII. STATE RESPONSIBILITY AND TREATMENT OF ALIENS ............................................................................ 180 A. Doctrine of State Responsibility ......................... 180 a. Elements o f State Responsibility .............. 180 b. Elements of An Internationally Wrongful Act ............................................................... 180 B. Treatment and Protection of Aliens ...................180 a. Standard of Protection of Aliens .............181 C. Right of Diplomatic Protectio n ........................... 181 a. Methods to Avoid Liability ...................... 181 VIII. JURISDICTION OF STATES ......................................... 181 A. Territoriality principle ...........................................181 B. Nationality principle and statelessness ............... 181 a. Nationality..................................................181 b. Statelessness ............................ ................... 181 C. Protective Principle................................................ 181 D. Universality Principle............................................ 182 E. Passive personality principle................................ 182 F. Conflicts o f jurisdiction ......................................... 182 a. Three Modes for Resolving Conflicts ...... 182 b. The Balancing Test ..................................... 182 c. International C omity ................................. 182 d. Forum non conveniens.............................. 182

CONSTITUTIONAL LAW 2

X.

International Human Rights Law ............................. ... 183 A. Universal Declaration of Human Rights ........... 183 B. International Covenant on Civil and Political Rights .................................................................... 183 a. Substantive Rights under ICCPR ............ 183 b. Non-derogable Rights under ICC PR ...... 183 c. Optional Protocols to the International Covenant on Civil and Political Rights ... 183 C. International Covenant on Economic, Social and Cultural Rights ..................................................... 183 b. Three Generations of Human Rights ...... 183

XI. BASIC PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW AND NEUTRALITY.......... 184 A. Categories of armed conflicts ............................. 184 a. International armed conflicts (IAC) ............... 184 b. Internal or non-international armed conflict (NIAC) ................................................................... 184 c. War o f national liberation ............................... 184 B. Core international obligations of states in International Humanitarian Law ....................... 184 a. Civilian ....................................................... 185 b. Civilian population ................................... 185 C. Principles of International Humanitarian Law 185 a. Prisoners of war......................................... 185 D. Law on neutrality................................................. 185 a. Rights and Duties o f Neutral States ........ 185 b. Rights and Duties of Belligerent States ... 185 E. RA No . 9851 .......................................................... 186 XII. LAW OF THE SEA ......................................................... 188 A. Baselines................................................................ 188 a. Two Ways of Drawing the Baseline ........ 188 B. Archipelagic states .............................................. 188 a. Straight archipelagic baselines................. 188 b. Archipelagic waters ............................... ... 188 c. Archipelagic sea lanes passage ................ 188 C. Internal waters ..................................................... 188 D. Territorial sea ...................... ................................. 188 E. Exclusive economic zone .................................... 188 F. Continental shelf .................................................. 188 a. Extended continental shelf ....................... 188 G. International Tribunal for the Law of the Sea .. 188 XIII. INTERNATIONAL ENVIRONMENTAL LAW ......... 189

IX. TREATMENT OF ALIENS ............................................ 182 A. Extradition ........... ................................................. 182 b. Principles ................................ .................... 182 c. Distinction between Extradition and Deportation ................................................ 182

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POLITICAL LAW

CONSTITUTIONAL LAW 2

THE PHILIPPINE CONSTITUTION A. CONSTITUTION: DEFINITION, NATURE, AND CONCEPTS. i. Definition Constitution defined, Body of rules and maxims in accordance with which the power of sovereignty is habitually exercised.

CONSTITUTIONAL LAW I

Written instrument enacted by direct action of the people by which the fundamental powers of the government are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise Basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer. A law for the government, safeguarding individual rights, set down in writing. An organic instrument, under which governmental powers are both conferred and circumscribed.((Fernando, The Constitution of the Philippines 20-21 (2 nd ed., 1977 ) Constitutional Law  defined, Constitutional Law is the study of the maintenance of the proper balance between the authority of the State and liberty as guaranteed by the Bill of Rights. ii. Purpose 







To prescribe permanent framework of a system of government To assign to several departments their respective powers and duties. To establish certain first principles on which the government is founded. To shape and fix the limits of governmental activity.

iii. Classification a.  Written –  precepts are embodied in one document or set of documents b.

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Unwritten – not integrated into a single, concrete form but are scattered in various sources i.e. statutes, judicial decisions, commentaries of publicist, customs and traditions and certain common law principles.

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c.

Enacted (conventional) – formally struck off at a definite time and place through a deliberate effort taken by a constituent body or ruler.

d.

Evolved (cumulative) –  result of a political evolution, changing by accretion rather than systematic method.

e.

Rigid – amended only by a formal and usually difficult process.

f.

Flexible – can be changed by ordinary registration. 

Philippine Constitution –  Written, Enacted and Rigid.

Date of Effectivity of the 1987 Constitution: February 2, 1987, the date of the  plebiscite, not the date of the proclamation of the ratification ((De Leon v. Esguerra, G.R. No. 78059, August 31, 1987))

civil and political rights of the citizens and imposes limitations on the powers of the government as a means of securing the enjoyment of those rights.  e.g. Bill of Rights (2). Constitution of Government  - outlines the organization of the government, enumerates its powers, lays down certain rules relative to its administration and defines the electorate. ( Arts. VI, VII, VIII, IX)

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(3). Constitution of Sovereignty - the provisions pointing out the mode or proced ure in accordance with which formal changes in the fundamental law may be brought about. e.g. Art. XVII

C. AMENDMENT/REVISION OF THE CONSTITUTION i.

Amendment v. Revision

iv. Qualities of a Good Written Constitution a. Broad –  must be comprehensive enough to provide for everyday contingency. b. Brief – must confine itself to basic principles to be implemented with legislative details more adjustable to change and easier to amend. c. Definite – to prevent ambiguity in the provisions to avoid divisiveness and confusion among people.

Amendment Broadly refers to a  change that adds, reduces, deletes, without altering the basic principle involved. GR: affects only  specific provisions being amended

v. Construction or Interpretation of Constitution a. Verba Legis —whenever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed. b. Ratio legis et anima – the words of the c onstitution should be interpreted in accordance with the intent of the framers. c. Ut magis valeat quam pereat — the Constitution has to be interpreted as a whole. (Francisco vs. HR, G.R. No. 160261, November 10, 2003) d. Construction of doubtful provisions 

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Examined in light of the history of the times and the conditions and circumstances under which the constitution was framed. (Civil Liberties Union vs. Executive Secretary, 194 SCRA 317) Construed as self-executory and mandatory rather than directory; prospective rather than retroactive.

B. PARTS (1). Constitution of Liberty - sets forth the fundamental

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ii.

Revision Broadly implies a  change that alters a basic principle in the Constitution, like altering the principle of separation of powers or the system of checks and balances. If the change alters the  substantial entirety of the Constitution Generally affects  several provisions of the Constitution  (Art. XVIII, 1987 Const.)

Legal Tests (1). Quantitative test- The court examines the number of provisions affected and does not consider the degree of change ; (2). Qualitative test-  The court inquires into the qualitative effects of the proposed change in the Constitution. The main inquiry is whether t he change will “accomplish such far-reaching changes in the nature of our basic governmental plan as to amount to a revision” ((Lambino v. COMELEC, G.R. No. 174153. October 25, 2006))

iii.

Procedure

(1). Proposal –  adoption of the suggested change in the Constitution a. Congress (as a Constituent Assembly) – vote of ¾ of ALL its members b. Constitutional Convention –  called into existence by (1) 2/3 of ALL members of Congress OR (2) the electorate, in a referendum

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called for by the majority of the members of Congress (CONST., Art. XVII, Sec. 3) c. People (through a People’s initiative) – a petition of at least 12% of the total number of registered voters, and every legislative district must be represented by at least 3% of the registered voters therein. No Amendment in this manner shall  be authorized within 5 years following the ratification of the 1987 Const. nor more often than once every 5 years thereafter Constitutional provision on  amendments via People’s Initiative not self-executory (DefensorSantiago v. COMELEC, 270 SCRA 170 (1997) Two essential elements must be  present: i. The people must author and sign the entire proposal; no agent or representative can sign in their behalf; ii. As an initiative upon a petition, the proposal must be embodied in the petition. (Lambino, supra.) (2). Ratification – proposed amendment shall be submitted to the people and shall be deemed ratified by the majority of votes cast in a  plebiscite, held not earlier than 60 days nor later than 90 days after: a. Congress of by the ConCon; or b. Certification by the COMELEC of the sufficiency of the petition of the people Doctrine of Proper Submission A plebiscite may be held on the same day as a regular election (Gonzales v. COMELEC, 21 SCRA 774). No “piecemeal submission” is allowed. (Lambino, supra.) The entire Constitution must be submitted for ratification at one plebiscite only. The people must have a proper “frame of reference (Tolentino v. COMELEC, 41 SCRA 702)  Justiciability ()Although the question of whether a Constitution was validly ratified is a justiciable question, the question of whether a Constitution has come into force and effect is a political question which is beyond the competence of the Court to decide. ((Javellana v. Executive Secretary. 50 SCRA 30, (1973))  )

D. SELF-EXECUTING AND NON-SELFEXECUTING PROVISIONS General Presumption: Unless the contrary is clearly intended, all provisions of the Constitution should be considered self-executing. (Manila Prince Hotel v. GSIS et al. G.R. No. 122156, February 3, 1997)

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(1). Statements of general principles such as those in Art II are usually not self-executing ((Id.)) (2). Constitutional provisions of personal dignity, sanctity of family life, vital role o f the youth in nationbuilding, values of education, social justice and human rights, promotion of general welfare, promotion of total human liberation and development are merely guidelines for legislation ((Id.)) Exception to the Exception: The right to a balanced and healthful ecology (Oposa v. Factoran. G.R. No. 101083, July 10, 1993).  The promotion and protection of health is self-executory. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)

E. GENERAL PROVISIONS Philippine Flag () Shall be red, white and blue, with a sun and three stars. Design of the flag may be changed only by constitutional amendment. (Sec. 1, Article XVI)() Name of Country, etc. Name of the country, national anthem, and national seal() may be changed by Congress by law. Such law will only take effect upon ratification by the qualified electorate in a national referendum. (Sec. 2, Article XVI) Armed Forces a. Composition - The armed forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and serve as may be provided by law. It shall keep a regular force necessary for the security of the State (Sec. 4, Art. XVI).

b.

Tour of duty of the Chief of Staff  - The tour of duty of the Chief of Staff of the Armed Forces shall not exceed three years. Exception: In times of war or other  national emergency declared by the Congress, the President may extend such tour of duty (Sec. 5(7), Art. XVI).

c.

Partisan political activity - No member of the military shall engage directly or indirectly in any partisan political activity, except to vote (Sec. 5 (3), Art. XVI).

d.

 Appointment to other positions  - No member of the armed forces in active service shall, at any time, be appointed or designated in any capacity to a civilian position in the government including government-owned or controlled corporation or in any of their subsidiaries (Sec. 5(4), Art. XVI).

Police Force One police force; National in scope; Civilian in Character Mass media and advertising industry a. State policy on the ownership of mass media  - The ownership and management of mass media shall be limited to citizens of the Philippines, or to

Exceptions:

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corporations, cooperatives or associations, wholly owned and managed by such citizens. Congress shall regulate or prohibit  monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or  unfair competition therein shall be allowed (Sec. 11 (1), Art. XVI ). b.

State policy on the advertising industry   - The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare. Only Filipino citizens or corporations or  association at least 70% of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry. The participation of foreign investors in  the governing body or entities in such industry shall be limited to their proportionate share in the capital thereof All the executive and managing officers  of such entities must be citizens of the Philippines (Sec. 11 (2), Art. XVI )

Preamble The Preamble is not a source of power o r right for any department of government. It sets down the origin, scope, and purpose of the Constitution. It bears witness to the fact that the Constitution is the manifestation of the sovereign will of the Filipino people. Social Contract Theory The identification of the Filipino people as the author of the Constitution calls attention to an important principle -- that the document is not just the work of representatives of the people but of the people themselves, who put their mark approval by ratifying it in a plebiscite. Does not confer rights nor impose duties;  Indicates authorship of the Constitution;  Enumerates the primary aims and aspirations of  the framers; and Serves as an aid in the construction of the  Constitution.

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their breadth and dimensions, form part of the internal waters of the Philippines The Archipelagic Doctrine A body of water studded with islands, or the islands surrounded with water, is viewed as a unity of islands and waters together forming one integrated unit ((N.B. Embodied in Art. II specifically by the mention of “ Philippine Archipelago”  plus the specification on internal waters)) Straight baseline method Consists of drawing straight lines connecting appropriate points on the coast without departing to any appreciable extent from the general direction of the coast, in order to delineate the internal waters from the territorial waters of an archipelago. ((Republic Act 9522; Amended R.A. No. 3046 entitled “An Act to Define the Baseliens of the Territorial Sea of the Philippines))

Components of Territory

(1). The Philippine archipelago with all the islands and waters embraced therein Internal waters -  waters around, between, and  connecting the islands of the archipelago, regardless of breadth and dimension; (2). All other territories over which the Philippines has sovereignty or jurisdiction. The Philippine Archipelago The Philippine Archipelago is that body of water studded with islands which is delineated in the Treaty of Paris of December 10, 1988, as modified by the Treaty of Washington of November 17, 1900 and the Treaty with Great Britain of January 2, 1930. Other territories over which the Philippines exercises  jurisdiction Includes any territory which presently belongs or mi ght in the future belong to the Philippine through any of the internationally accepted modes of acquiring territory. 

GENERAL CONSIDERATIONS 

A.

NATIONAL TERRITORY

ART. 1 (SEC. 1) 1987  CONSTITUTION

The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarines areas. The waters around, between and connecting the islands of the archipelago, regardless of

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R.A. N0. 9522 specified that baselines of Kalayaan Group of Islands, and Bajo de Masinloc (Scarborough Shoal) shall be determined as “Regime of Islands” under the Republic of the Philippines, consistent with the UNCLOS. R.A. No. 9522 is not unconstitutional. It is a statutory tool to demarcate the maritime zone and continental shelf of the Philippines under UNCLOS III and does not alter the national territory.The law does not abandon the country’s claim to Sabah, as it does not expressly repeal the entirety of R.A. No. 5446 (Magallona v. Ermita, G.R. No. 187167, 16 July 2011)

B.

STATE IMMUNITY

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i.

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(2). Sociological Theory- If the State is amenable to suits, all its time would be spent defending itself from suits and this would prevent it from performing its functions (Republic v. Hon. Villasor, G. R. No. L-30671, November 28, 1973

Rules GR: The State cannot be sued. Exception: The State consents to be sued. Exception to the Exception: The State/public officer may be sued without prior consent: (1). To compel him to do an act required by law; (2). To restrain him from enforcing an act claimed to be unconstitutional (3). To compel the payment of damages from an already appropriated assurance fund or to refund tax over-payments from a fund already available for the purpose; (4). To secure a judgment that the officer impleaded may satisfy himself without the State having to do a positive act to assist him; (5). Where the government itself has violated its own laws (Sanders v. Veridiano, 245 Phil. 63 (1988)) Manner by which consent is given: (1). Express Consent a. General law; i. Money claims arising from contracts express or implied (Act. No. 3083: An Act Defining the Conditions under which the Government may be Sued.) ii. Torts (1). Liability of LGUs (Art. 2189 CC) (2). Vicarious liability for special agents (Art. 2180(6), CC) b. Special law (2). Implied Consent a. When the State commences litigation, it becomes vulnerable to a counterclaim; b. State enters into a business contract in the exercise of its proprietary power; c. When it would be inequitable for the State to invoke immunity; and d. When the state exercises the power of eminent domain

ii. Basis Constitutional Basis: Sec. 3, Art. XVI International Law Basis: Par in parem non ha bet imperium.  Jurisprudential Basis: (1). Positivist Theory- (Royal Prerogative of Dishonesty) There can be no legal right as against the authority that makes the laws on which the right depends. (Department of Agriculture v. NLRC, G.R. No. 104269, 11 November 1993)

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 When a suit is against the State: A suit is against the state regardless of who is named the defendant if: (1). It produces adverse consequences to the public treasury in terms of disbursement of public funds and loss of government property. (2). It cannot prosper unless the State has given its consent  When a suit is not  against the State: A suit is not against the state when: (1). The purpose is to compel an officer charged with the duty of making payments pursuant to an appropriation made by law in favor of the plaintiff to make such payment, since the suit is intended to compel performance of a ministerial duty (2). From the allegations in the complaint, it is clear that the respondent is a public officer sued in a private capacity; (3). The action is not in personam with the government as the named defendant, but an action in rem that does not name the government in particular

State immunity may be invoked where it is established that the U.S. military vessel at the time of the incident was performing a governmental function (Arigo v. Swift, 735 SCRA 102 (2014)) iii.

Specific Rules

Suits against Government Agencies (1). Incorporated (has a separate charter)   - If the charter provides that the agency can sue, then the suit will lie. The provision in the charter constitutes express consent. (SSS v. Court of Appeals, 120 SCRA 707 (1983) (2). Unincorporated (no separate personality) - Suit will lie, because when the state engages in principally proprietary functions, it descends to the level of a private i ndividual, and may, therefore, be vulnerable to suit (Civil Aeronautics Administration v. CA (1988) State may only be liable for proprietary acts ( jure gestonis ) and not for sovereign acts (   jure imperii ) Scope of Consent Suability depends on the consent of the state to be sued, liability on the applicable law and the established facts. The circumstance that a state is suable does not necessarily mean that it is liable; on the other hand, it can never be held l iable if it does not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed itself to be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable. (US v. Guinto (1990))

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C. GENERAL PRINCIPLES AND STATE POLICIES (1). Sec. 2, Article II

Three parts: (1) Renunciation of war - the power to wage a defensive war is of the very essence of sovereignty; limited to only renouncing an aggressive war  because of its membership in the United Nations whose charter renounces war as an instrument of national policies of its member states. (2)

Adoption of the principles of international law; nothing more than a formal acceptance of a  principle to which all civilized nations must conform.

(3)

Adherence to a policy of peace, equality, justice, freedom, cooperation & amity. called the “selfish policy”—the guiding principle  of Philippine foreign policy is the national interest. However, this is tempered with concern for “equality, peace, freedom and justice.

Generally accepted principles of international law Norms of general or customary international law which are binding on all States.

The classical formulation in international law sees customary rules accepted as a binding result from the combination of: (1) State Practice   - The established, widespread, and consistent practice on the part of States; and (2) Opinio Juris - A psychological element known as the opinion juris sive necessitates (opinion as to law or necessity) (Poe-Llamanzares v. COMELEC, G.R. No. 221697) International law becomes part of the sphere of domestic law either by incorporation or transformation: Doctrine of Incorporation Generally accepted principles of international law are made part of the law of the land either by express provision of the Constitution or by means of judicial declaration or fiat. Applied whenever municipal tribunals or local  courts are confronted with a conflict between a rule of international law and the provisions of the Constitution or statute of a State. (Pharmaceutical and Health Care Association of the Philippines v. Duque III, G.R. No. 173034 (2007)) Efforts should first be exerted to harmonize them  so as to give effect to both. In case of conflict, municipal law shall prevail. However, rules of international law are given  equal standing with, and are not superior to, national legislative enactments. Generally accepted principles of international  law via the incorporation clause of the Constitution form part of the laws of the land even if they do not derive from treaty obligations. Doctrine of Transformation

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Requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation (Joaquin G. Bernas, S.J., Constitutional Structure and Powers of Government (Notes and Cases) Part I ( 2005)) (2).Civilian Supremacy Clause) – Sec. 3, Article II

Installation of the President as the highest civilian authority, as the commander-in-chief of the AFP—  an external manifestation that civilian authority is supreme over the military. (Sec. 18, Art. VII, in relation to Sec. 3, Article II) Civilian authority is not defeated in a joint task force between the PNP and Marines for the enforcement of law and order in metro Manila as long as control is left to the PNP (IBP v. Zamora (2000)) (3)

Sec. 4, Article II

Posse Commitatus, defined It is the power of the state to require all able-bodied citizens to perform civic duty to maintain peace and order.

The Supreme Court upheld the validity of the National Defense Act in Lagman on the basis of the compulsory military and civil service provision of the 1935 Constitution. It said that: “The duty of the Government to defend the State cannot be performed except through an army. To leave the organization of an army to the will of the citizens would be to make this duty to the Government excusable should there be no sufficient men who volunteer to enlist therein…the right of the Government to require compulsory military service is a consequence of its duty to defend the State and is reciprocal with its duty to de fend the life, liberty, and property of the citizen.” (People vs. Lagman, 66 Phil. 13,) (4)

Sec. 5, Article II

Right to bear arms It is a statutory and not a constitutional right. The license to carry a firearm is neither a property nor a property right. Neither does it create a vested right. Even if it were a property right, it cannot be considered absolute as to be placed beyond the reach of police power. The maintenance of peace and order, and the protection of the people against violence are constitutional duties of the State, and the right to bear firearm is to be construed in connection and in harmony with these constitutional duties.( Chavez vs. Romulo, G.R. No. 157036,  June 9, 2004) Recognition of Hierarchy of Rights a. Life b. Liberty c. Property (Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co. Inc., 51 SCRA 189)

(5)

Sec. 6, Article II

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The State should not use its money and coercive power to establish religion. It should not support a particular religion. The State is prohibited from interfering with purely ecclesiastical affairs. But it does not mean that there is total or absolute separation. The better rule is symbiotic relations between the church and State. Allowing religion to flourish is not contrary to the principle of separation of Church and State. In fact, these two principles are in perfect harmony with each other. x x To successfully invoke compelling state interest, it must be demonstrated that the masses in the QC Hall of Justice unduly disrupt the delivery of public services or affect t he judges and employees in the performance of their official functions. (Re: Letter of Tony Q. Valenciano, Holding of Religious Rituals at the Hall of Justice Building in Quezon City, A.M. No. 10-4-19-SC, March 7, 2017) (6)

Independent Foreign Policy – Sec. 7, Article II

(7)

Policy of Freedom from Nuclear Weapons – Sec. 8, Article II

The ban is on nuclear arms - that is, the use and stockpiling of nuclear weapons, devices, and parts thereof. Includes: possessing, controlling and manufacturing nuclear  weapons, nuclear test in our territory,  use of our territory as dumping ground for  radioactive waste. However: provision not a ban on the peaceful uses of nuclear energy. Nor is it a ban on all “nuclear-capable vessels.”  For a vessel to be banned, it is not enough that it is capable of carrying nuclear arms; it must actually carry nuclear arms. (The 1987 Constitution of the Republic of the Philippines: A Commentary (2009), Bernas)

(8)  Just and Dynamic Social Order – Sec. 9, Article II (9)

Social Justice – Sec. 10, Article II

Social Justice Equalization of economic, political and social opportunities with special emphasis on duty of the state to tilt balance of social forces by favoring the disadvantaged.

(10) Personal Dignity and Human Rights –  Sec. 11, Article II (11) The Family as Basic Social Institution –  Sec. 12, Article II The declaration of family autonomy acce pts that the family is anterior to the State and is not a creature of the State. It protects the family from instrumentalization by the State. When necessary to save the life of the mother, the life of the unborn may be sacrificed; but not when the purpose is merely to save the mother from emotion suffering, for which other remedies must be sought, or to spare the child rom a life of poverty, which can be attended to by welfare institutions.

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(12) Vital Role of the Youth in Nation Building – Sec. 13, Article II (13) Equality of Women and Men – Sec. 14, Article II  , The policy of not accepting or considering as disqualified from work any woman worker who contracts marriage, runs afoul of the test of, and the right against, discrimination, which is guaranteed all women workers under the Constitution. While a requirement that a woman employee must remain unmarried may be justified as a “bona fide occupational qualification”  where the particular requirements of the job would demand the same, discrimination against married women cannot be adopted by the employer as a general principle. ( PT&T Co. vs. NLRC, G.R. No. 118978, May 23, 1997) Towards this end, the State shall exert efforts to address violence committed against women and children in keeping with the fundamental freedoms guaranteed under the Constitution and the provisions of the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, Convention on the Rights of the Child and other international human rights instruments of which the Philippines is a party. (Garcia v. Drilon, 699 SCRA 352 (2013), ) (14) Right to Health – Sec. 15, Article II (15) Right to a Balanced and Healthful Ecology – Sec. 16, Article II The minors who filed an action for themselves as representing “their generation as well as generations yet unborn,” had a valid cause of action in questioning the grant of Timber Licensing Agreements (TLAs) for commercial logging purposes on the ground of the right to a balanced and healthful ecology and the correlative duty to refrain from impairing the environment. This is based on the concept of intergenerational responsibility. Such a right considers the “rhythm and harmony of nature” which indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country’s forest, mineral, land, waters, fisheries, wildlife, offshore areas and other natural resources to the end that their exploration, development, and utilization be equitably accessible to the present as well as the future generations. ( Oposa vs. Factoran, Jr., 224 SCRA 792). Sections 15 and 16, however, impose on the state a positive duty to "promote and protect" the right to health and to "promote and advance" the right of "the people to a balanced and healthful ecology." With respect to health and ecology,

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therefore, the state is constitutionally mandated to provide affirmative protection. The mandate is in the nature of an active duty rather than a passive prohibition. (I nternational Service for the  Acquisition of Agri-Biotech Applications, Inc. v. Greenpeace Philippines etc. al., G.R. Nos. 209271 etc., December 8, 2015,) Precautionary Principle When there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it.

For purposes of evidence, the precautionary principle should be treated as a principle of last resort, where application of the regular Rules of Evidence would cause in an inequitable result for the environmental plaintiff: a. settings in which the risks of harm are uncertain; b. settings in which harm might be irreversible and what is lost is irreplaceable; and c. settings in which the harm t hat might result would be serious.

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the SC held that the Magna C arta for Disabled Persons mandates that qualified disabled persons be granted the same terms and conditions of employment as qualified able- bodied employees; thus, once they have attained the status of regular workers, they should be accorded all the benefits granted by law, notwithstanding writer o r verbal contracts to the contrary. This treatment is rooted not merely in charity or accommodation, but in justice for all. ( Bernardo vs. NLRC, G.R. No. 122917, July 12, 1999,) (18) Sec. 19, Article II

, Where the issue is on the signing of the Philippines on the WTO agreement, SC held that the Constitution does not necessarily rule out the entry of foreign investments, goods and services. It contemplates neither “economic seclusion”  nor “mendicancy in the international community”. (Tanada vs. Angara, 272 SCRA 18) 





When features of uncertainty, possibility of irreversible harm, and possibility of serious harm coincide, the case for the precautionary principle is strongest. When in doubt, cases must be resolved in favor of the constitutional right to a balanced and healthful ecology. Parenthetically, judicial adjudication is one of the strongest fora in which the precautionary principle may find applicability (International Service for the Acquisition of Agri-biotech Applications, INC., v. Greenpeace Philippines et al., G.R. No 209271 (2015)) The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt.

(16) Sec. 17, Article II While the SC has upheld the constitutional right of every citizen to select a profession or course of study subject to fair, reasonable, and equitable admission and academic requirements, the exercise of this right may be re gulated pursuant to the police power of the State to safeguard health, morals, peace, education, order, safety and general welfare. Thus, persons who desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an examination as a prerequisite to engaging in their chosen careers. This regulation assumes particular pertinence in the field of medicine, in order to protect the public from the potentially deadly effects of incompetence and ignorance. (  PRC vs. De Guzman, G.R. No. 144681, June 21, 2004 ) (17) Sec. 19, Article II

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Aside from envisioning a trade policy based on “equality  and reciprocity”,  the fundamental law encourages industries that are “competitive in both domestic and foreign markets,”  thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor of the gradual development of robust industries that can compete with the best in the foreign markets.

(19) Sec. 25, Article II Even as we recognize that the Constitution guarantees autonomy to LGUs, the exercise of local autonomy remains subject to the power of control by Congress and the power of general supervision by the President. xxx The President can only interfere in the affairs and activities of a LGU if he finds that the latter had acted contrary to law, but not when the concerned LGU acts within the parameters of the law and the Constitution. Any directive, therefore, by the President or any of his alter egos seeking to alter the wisdom of a lawconforming judgment on local affairs of a LGU is a patent nullity, because it violates the principle of local autonomy, as well as the doctrine of separation of powers of the executive and legislative departments in governing municipal corporations. ( Judge Dadole vs. COA, G.R. No. 125350, December 3, 2002,) (20) Sec. 26, Article II The SC said that this provision does not bestow a right to seek the Presidency; it does not contain a judicially enforceable constitutional right and merely specifies a guideline for legislative action. The provision is not intended to compel the State to enact positive measures that would accommodate as many as possible into public

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office. The privilege may be subjected to limitations. One such valid limitation is the provision of the Omnibus Election Code on nuisance candidates. ( Pamatong vs. COMELEC, G.R. No. 161872, April 13, 2004,)

D. SEPARATION OF POWERS Doctrine of Separation of Powers In essence, separation of powers means the legislation belongs to Congress, execution to the executive, settlement of legal controversies to the judiciary. Each is prevented from invading the domain of the others. But the separation is not total. The system allows for “checks and balances” the net effect of which being that, in general, no one department is able to act without the cooperation of at least one of the other departments. This principle operated as an implicit limitation  on legislative powers as on the two other powers. Purpose To prevent concentration of powers in one department and thereby to avoid tyranny. The purpose was not to avoid friction, but to save the people from autocracy.

(1) (2) (3) (4)

To secure action To forestall overaction To prevent despotism To obtain efficiency 

Post-enactment measures which govern the areas of project identification, fund release and fund realignment are not related to functions of congressional oversight and, hence, allow legislators to intervene and/or assume duties that properly belong to the sphere of budget execution. By virtue of the foregoing, legislators have been, in one form or another, authorized to participate in the various operational aspects of budgeting, including evaluation of work and financial plans for individual activities and regulation and release of funds, in violation of the separation of powers principle. (Belgica v. Ochoa, G.R. Nos. 208566 etc. (2013))

Principle of Blending of Powers Instances when powers are not confined exclusively within one department but are assigned to or shared by several departments. (Philippine Political Law, Cruz)

E. CHECKS AND BALANCES This allows one department to resist encroachments upon its prerogative or to rectify mistakes or excesses committed by the other departments. (1). Power of the President to veto any particular item in an appropriation or tariff bill. ( Article VI, Sec. 27 (2)) (2). Power of the president to grant reprieves, commutations, pardons, and remit fines except in impeachment cases. ( Article VII, Sec. 19).

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(3). Power of the Judiciary to resolve cases involving the constitutionality of a treaty, international or executive agreement or law. ( Article VIII, Sec. 4 (2))

Test in determining whether a given power has been validly exercised by a p articular department:

The first and safest criterion to determine whether a given power has been validly exercised by a particular department is whether or not the power has been constitutionally conferred upon the department claiming its exercise—since the conferment is usually done expressly. Exception:  Even in the absence of express conferment, the exercise of the power may be justified under the doctrine of necessary implication. The grant of express power carried with it all other powers that may be reasonably inferred from it. Congressional oversight is not per se violative, but is integral, to separation of powers. However, for a post-enactment congressional measure to be valid, it must be limited to:

1. Scrutiny – Congress’ power of appropriation, i.e. budget hearings, and power of confirmation 2. Investigation and monitoring of implementation of laws-   using its power to conduct inquiries in aid of legislation (Abakada v. Purisima, G.R. No. 166715, August 14, 2008) Section 8(2) of RA No. 6770 is unconstitutional because it subjects the Deputy Ombudsman to discipline and removal by the President. Such a law intrudes upon the constitutionally-granted independence of the Office of the Ombudsman.. By so doing, the law directly collided not only with the independence that the Constitution guarantees to the Office of the Ombudsman, but inevitably with the principle of checks and balances that the creation of an Ombudsman office seeks to re vitalize. (Gonzales III v. Office of the President (2014)) The Court deems it a sound judicial policy not to interfere in the conduct of preliminary investigations, and to allow the Executive Department, through the Department of  Justice, exclusively to determine what constitutes sufficient evidence to establish probable cause for the prosecution of supposed offenders Exception:  Judicial review may be allowed where it is clearly established that the public prosecutor committed grave abuse of discretion, that is, when he has e xercised his discretion “in an arbitrary, capricious, whimsical or despotic manner by reason of passion or personal hostility, patent and gross enough as to amount to an evasion of a positive duty or virtual refusal to perform a duty enjoined by law. (Ampatuan, Jr. v. De Lima 695 SCRA 159, (2013))  Justiciable question Implies a given right, legally demandable and enforceable, an act or omission violative o f such right, and a remedy granted and sanctioned by law for said breach of right. (Casibang vs.

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Aquino, 92 SCRA 642)

Principle: Delegata potestas non potest delegari- What has been delegated can no longer be delegated

whether pertaining to: a. The autonomous regions, b. The provincial city, municipal or barangay subdivisions, or c. Other forms of local government. (Sec. 2(1), Book I, Revised Administrative Code)

GR: Only Congress may exercise legislative Power

ii.

F. DELEGATION OF POWERS

As to control

A. De Jure  - An organized government of a

Exceptions: (CRUZ p. 162) (1). Delegated legislative power to local governments: Local governments, as an immemorial practice, may be allowed to legislate on purely local matters (Rubi vs. Provincial Board, 1919)) (2). Delegated emergency powers of the President during a State of War or Emergency(Art. VI, Sec. 23(2)) (N.B. The Power of Declaration of State of Emergency belongs to the congress, (Nachura p.77) (3). Delegated taxing powers of the President (Art. VI, Sec. 28(2)) (4). Subordinate legislation of administrative agencies

state that has the general support of the people.

B.

De Facto - Government of fact, that is, it actually exercises power or control without legal title (Co Kim Cham v. Valdes, (1945))

(1)

(2)

Two tests of valid delegation: (1) Completeness test   - The law sets forth the policy to be executed, carried out or implemented by the delegate (Abakada Guro Party List vs. Purisima, 2008), such that there is nothing left for the delegate to do but to enforce the law (Pelaez vs Auditor General, 1965). (2)

Sufficient Standard Test - The standard is sufficient if it defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected (Edu vs Ericta, 1970).

(3)

iii.

As to Centralization A. Unitary –  One in which the control of the national and local affairs is exercised by the national and local government B. Federal - One in which the powers of the government are divided between two sets of organs, one for national affairs and one for local affairs

iv.

As to Concentration of Powers A. Presidential- There is separation of powers in the executive and legislative branches of the government. B. Parliamentary- There is a fusion of executive and legislative powers in the Parliament, although the actual exercise of the executive powers is vested on the Prime Minister. (Bernas)

(5). Power reserved to people for initiative and referendum (Art. VI, Sec. 1) How law-making power is delegated: suppletory rulemaking (filling in details to ensure enforcement of the law) and contingent rule-making (ascertaining the facts to bring the law into operation

G. FORMS OF GOVERNMENT i.

Definitions

Government Institution  or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them. (United States v. Darr (1903)) Government of the Philippines The corporate governmental entity through which the functions of government are exercised throughout the Philippines, including the various arms through which political authority is made effective in the Philippines,

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De Facto Proper- The government that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter. Independent Government - That established as an independent government by the inhabitants of a country who rise in insurrection against the parent state. That which is established and maintained by military forces who invade and occupy a territory of the enemy in the course of war, and which is denominated as a government of paramount force. e.g. Second Republic established by the Japanese belligerent

LEGISLATIVE DEPARTMENT A.  WHO MAY EXERCISE LEGISLATIVE POWER (1)

Congress Legislative power is vested in the Congress which shall consist of a Senate and a House of Representatives.

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Congress may delegate legislative powers to the President in times of war or in other national emergency (Art. VI Sec. 23)

(2)

Regional/Local Legislative Power A regional assembly exists for the ARMM

(3)

People’s Initiative on Statutes The power of initiative and referendum is the power of the people to “propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body.” (Art. VI, Sec. 32)

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The provision is not self-executing. (Santiago v. COMELEC, 270 SCRA 106(1997)) Executing Law: RA 6735 Valid for laws, ordinances, and resolutions, but NOT for amendments to the Constitution (Santiago, supra)

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(2)

Statutes involving emergency measures, the enactment of which is specifically vested in Congress by the Constitution, cannot be subject to referendum until 90 days after effectivity (Sec. 10, RA 6735)

B. HOUSES OF CONGRESS i. Composition Senate (Art. VI, Secs. 2-4) Composition: Twentyfour, elected at large by qualified voters of the Philippines, as may be provided by law.

INITIATIVE (1) Local initiative; voter requirements Autonomous regions, not less than 2000 registered voters; 1,000 for provinces; 100 for municipalities; 50 for barangays. Venue for filing  Regional Assembly or local legislative body. (Sec. 13, RA 6735)

House of Representatives (Art. VI, Sec. 5-8) Composition: not more than two hundred fifty members, unless otherwise provided by law, consisting of:

a.

District Representatives – elected from legislative districts apportioned among the provinces, cities and the Metropolitan Manila area (Sec. 5(1), Article VI)

b.

Party-List Representatives – constitutes 20% of the total number of representatives elected through a party-list system of registered national, regional and sectoral parties or organization.

c.

Sectoral Representatives – ½ of the seat allocated to party-list representatives shall be filled, as provided by law, by selection of election from the: labor, peasant, urban poor, indigenous cultural communities, women, youth and other sectors provided by law except religious sector.

Limitations Cannot be exercised more than once a year; extends only to subjects or matters which are within the legal powers of the local legislative bodies to enact; and if at any time before the initiative is held, the local legislative body should adopt in toto  the proposition presented, the initiative shall be cancelled (supra. Sec 15) Indirect Initiative The exercise of initiative by the people through a proposition sent to Congress or the local legislative body for action. (Sec. 3b, supra) REFERENDUM The power of the electorate to approve or reject legislation through an election called for that purpose (Sec. 3c, supra) Classes of Referendum (1) Referendum on statutes - petition to approve or reject an act or law, or part thereof, passed by Congress; (2) Referendum on local laws –  legal process whereby the registered voters of the LGUs may approve, amend, or reject any o rdinance enacted by the Sanggunian (Sec. 126, LGC) Limitations on Referendum The following cannot be the subject of an initiative or referendum petition: (1) No petition embracing more than one subject shall be submitted to the electorate;

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ii. Qualifications Senate Qualifications: a. Natural-born citizen of the Philippines;

House of Representatives Qualifications: a. Natural-born citizen of the b. Philippines;

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b.

At least thirty-five (35) years of age on the day of the election; Able to read and write; Registered voter; e. Resident of the Philippines for not less than 2 years immediately preceding the day of the election.

c. d. e.

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c.

d. e.

f.

At least 25 years of age on the day of the election; Able to read and write; Registered voter in the district in which he shall be elected except the party-list representatives; Resident of the district for a period of not less than 1 year immediately preceding the day of the election

Additional requirements for party-list representatives: g.

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A bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election

If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. (Social Justice Society v. Dangerous Drugs Board, G.R. No. 157870) Repatriation results in the recovery of the original nationality. This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural-born Filipino. (Bengzon III v. HRET (2001))

advantage of the creation of new political districts by suddenly transplanting themselves in such new districts, prejudicing their genuine residents in the process of taking advantage of existing conditions in these areas(Aquino v. COMELEC iii. Term of Office; Limitation Senate

Limitations:

House of Representatives Term of Office: 3 years –  shall commence, unless otherwise provided by law, at noon on the 30th day of June next following their election. (Art. VI, Sec. 6)

a.

Limitations:

Term of Office: 6 years - shall commence, unless otherwise provided by law, at noon on the 30th day of June next following their election. (Art. VI, Sec. 4)

Term Limit: 2 consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. (Section 4, Article VI) b.

b. One who has been declared by competent authority as insane or incompetent

c.

c. One who has been sentenced by final judgment for: Subversion, Insurrection, Rebellion, Any offense for which he has been sentenced to a penalty of not more than 18 months; or A crime involving moral turpitude, unless given plenary pardon or granted amnesty (Section 12, BP 881—  Omnibus Election Code)

The term "residence" as used in the election law is synonymous with "domicile" which imports not only intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention (Nuval vs. Guray, 52 Phil., 645). In order to acquire a domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. In other words, there must be an animus non revertendi and an animus manendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time. (Gallego v. Verra, 1941) Finally, petitioner's submission that it would be legally impossible to impose the one year resid ency requirement in a newly created political district is specious and lacks basis in logic. A new political district is not created out of thin air. It is carved out from part of a real and existing geographic area, in this case the old Municipality of Makati. That people actually lived or were domiciled in the area encompassed by the new Second District cannot be denied. Modern-day carpetbaggers cannot be allowed take

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a. 3 Term Limit: consecutive terms. b. One who has been declared by competent authority as insane or incompetent c. One who has been sentenced by final  judgment for: Subversion, Insurrection, Rebellion, Any offense for which he has been sentenced to a penalty of not more than 18 months; or A crime involving moral turpitude, unless given plenary pardon or granted amnesty (Section 12, BP 881— Omnibus Election Code)

iv. Removal Senate

House of Representatives

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EXPULSION by the Senate with the concurrence of two-thirds (2/3) of all its members (Section 16, par. 3, Article VI) a.

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EXPULSION by the House with the concurrence of twothirds (2/3) of all its members (Sec. 16, par. 3, Art. VI)

Apportionment

Rules on Apportionment of Legislative Districts (1) Apportionment of legislative districts must be through a law: i. General Appropriation Law; ii. Special Laws (i.e. laws that create new provinces) (2) Proportional representation based on number of inhabitants i. Each city with a population of at least 250,000 shall have at least 1 representative ii. Each province, irrespective of the number of inhabitants, shall have at least 1 representative (3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. (4) Re-apportionment by Congress within 3 years after the return of each census 

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The use by the subject provision of a comma to separate the phrase "each city with a population of at least two hundred fifty thousand" from the phrase "or each province" point to no other conclusion than that the 250,000 minimum population is only required for a city, but not for a province. (Aquino III and Robredo v. COMELEC) For Congress to delegate validly the power to create a province or city, it must also validly delegate at the same time the power to create a legislative district. The threshold issue then is, can Congress validly delegate to the ARMM Regional Assembly the power to create legislative districts for the House of Representatives? The answer is in the negative. (Sema v. COMELEC)

Legislative apportionment   is defined by Black's Law Dictionary as the determination of the number of representatives which a State, county or other subdivision may send to a legislative body. It is the allocation of seats in a legislative body in proportion to the population; the drawing of voting district lines so as to equalize population and voting power among the districts. Reapportionment, on the other hand, is the realignment or change in legislative districts brought about by changes in population and mandated by the constitutional requirement of equality of representation. (Bagabuyo v. COMELEC) Gerrymandering The formation of a legislative district out of separate territories so as to favor a particular candidate or party (Bernas, pg. 625)

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b.

Party-list system (R.A. 7941)

Party-list Registered, regional and sectoral parties or organizations aims to democratize political power by encouraging growth of a multi-party system while at the same time giving power to those who traditionally do not win in the elections. Atong Paglaum Guidelines:

1. Three different groups may participate in the party-list system: (1) national parties or organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations. 2. National parties or organizations and regional parties or organizations do not need to organize along sectoral lines and do not need to represent any “marginalized and underrepresented” sector. 3. Political parties can participate in party-list elections provided: (a) they register under the party-list system, and (b) do not field candidates in legislative district elections. i. A political party, whether major or not, that fields candidates in legislative district elections can participate in partylist elections only through its sectoral wing ii. The sectoral wing is by itself an independent sectoral party, and is linked to a political party through a coalition. 4. Purely Sectoral parties or organizations may either be (a) “marginalized and underrepresented” or (b) lacking in “welldefined political constituencies.” 5. A majority of the members of sectoral parties or organizations” must (a) belong to the “marginalized and underrepresented” sector they represent, or (b) must have a track record of advocacy for their respective sectors. The nominees of national and regional parties or organizations must be bona-fide members of such parties or organizations. 6. National, regional, and sectoral parties or organizations shall not be disqualified if some of their nominees are disqualified, provided that they have at l east one nominee who remains qualified. Rationale: “ The framers intended the sectoral parties to constitute a part, but not the entirety, of the party-list system… In fact, the framers voted down , 19-22, a proposal to reserve the party-list system exclusively to sectoral parties.”

“There can be no doubt whatsoever that the framers of the 1987 Constitution expressly rejected the proposal to make the party-list system exclusively for sectoral parties only, and

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that they clearly intended the party-list system to include both sectoral and non-sectoral parties,” (G.R. No. 203766, April 3, 2013)

Section 10, Article VI—The salaries of Senators and Members of the House of Representatives shall be determined by law. No increase in said compensation shall take effect until after the expiration of the full term of all the Membe rs of the Senate and the House of Representatives approving such i ncrease.

Disqualified Parties:

ii. Privileges  (Sec. 11, Art. VI)

(1)

Religious Sects

(2)

Foreign Organizations

(3)

Advocating Violence or Unlawful Means

(4)

Receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes

(5)

Violates or fails to comply with laws, rules, or regulations relating to elections

(6)

Declares untruthful statements in its petition

(7)

Ceased to exist for at least 1 year; or

(8)

Fails to participate in the last two preceding elections or fails to obtain at least 2 per centum of the votes cast under the party-list system in t he two preceding elections for the constituency in which it has registered

Freedom from Arrest. Reinforced by Art. 145, Revised Penal Code. When a crime committed by a member is punishable of not more than six years imprisonment, representative may be privileged from arrest while the Congress is in regular session.1 iii. Parliamentary Privilege of Speech No member shall be questioned nor be held liable i n any other place for any speech or debate in the Congress or any committee thereof. 

Protection is only against forums other than the Congress, it does not protect the assemblyman against disciplinary authority of Congress.



It is an absolute protection against suits for Libel.



This refers to utterances made by Congressmen in the performance of their official functions, such as speeches delivered, statements made, or votes cast in the halls of Congress, while the same is in session, as well as bills introduced in Congress, whether the same is in session or not, and other acts performed by Congressmen, either in Congress or outside the premises housing its offices, in the official discharge of their duties as members of Congress and of Congressional Committees duly authorized to perform its functions as such, at the time of the performance of the acts in question (Jimenez v. Cabangbang (1966))

Parameters of the party-list system

(1)

20% allocation: 20% of the total number of the membership of the House is the maximum number of seats available to party-list organizations

(2)

2% threshold:  To guarantee a one seat, a party-list organization needs to garner 2% of the total votes cast.

(3)

Additional Seats: The additional seats, which refers to the remaining seats after the allocation of the guaranteed seats, shall be distributed to the party-list organizations including those that received less than two percent of the total votes Rationale: The continued operation of the 2% thresholds is unconstitutional because this mathematically and physically prevents the filling up of the available seats

(4)

3-Seat Cap: Intended to prevent any party from dominating the party-list system. The Constitution does not require absolute proportionality for the party-list system.

C. LEGISLATIVE PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS i. Salaries

1 People

iv. Disqualifications (Sec. 13, Art. VI)

a.

 Incompatible Office (Art. VI, Sec. 13) No Senator or member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. 

Purpose is to prevent him from owing loyalty to another branch of the government, to the detriment of the independence of the legislature and the doctrine of separation of powers.

v. Jalosjos, G.R. No. 132875, Feb 3, 2000

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b.

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Prohibition is not absolute, what is not allowed is the simultaneous holding of that office and the seat in the Congress. A legislator may hold another office or employment in the government provided he forfeits his position in the Congress. Forfeiture of the legislator’s seat, or cessation of his tenure, shall be automatic upon holding of the incompatible office. (Adaza v. Pacana, G.R. No. L-68159)

 Forbidden Office (Art. VI, Sec. 13) No Senator or member of the House of Representatives shall be appointed to any office, which may have been created, or the emoluments thereof increased during the term for which he was elected. Even if the member of the Congress is willing to forfeit his seat therein, he may not be appointed to any office in the government that has been created or the emoluments thereof have been increased during his term. However, after such term, and even if the legislator is reelected, the disqualification no longer applies and he may therefore be appointed to the office.

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Purpose is to prevent trafficking in public office.

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Provision does not apply to elective offices.

v. Other Inhibitions

c.

Conflict of Interest All members of the Senate and the HOR shall, upon assumption of office, make a full disclosure of their financial and business interests. They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are author. (Art. VI, Sec. 12) 

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Cannot appear as counsel before any court or before the Electoral Tribunals, quasi-judicial or other administrative bodies (see Cruz p. 237) Shall not, directly or indirectly, be financially interested in any contract with, franchise or special privilege granted by the government (see De Leon p. 250)

D. QUORUM AND VOTING MAJORITIES i.

Quorum

Majority of each House shall constitute a quorum, although a smaller number may adjourn from day to day and may compel the attendance of absent members. In computing a quorum, only those within the House’s coercive jurisdiction are included. “Majority”  refers to the number of members within the  jurisdiction of the Congress. There is a difference between a majority of “all the members of the House” and a majority of “the House” (Avelino v. Cuenco (1949)) ii.

Voting Majorities

Doctrine of Shifting Majority For each House of Congress to pass a bill, only the votes of the majority of those present in the session, there being a quorum, is required. Exceptions: (1) Votes where requirement is based on “ALL THE MEMBERS OF CONGRESS” a. Overriding Presidential Veto (2/3 of both Houses, voting separately) b. Grant of Tax exemptions (majority) c. Electing President in case of a tie (majority, voting separately) d. Confirming appointment of VP (majority, voting separately) e. Revoking or extending Martial Law or the suspension of the writ of habeas corpus (majority, voting jointly) f. Submitting question calling a Constitutional Convention to the electorate (majority) g. Call for Constitutional Convention (2/3 vote) h. Propose Amendments to the Constitution (3/4 vote)

(2)

Other Special Cases a. Determining President’s disability (2/3 of both Houses, voting separately) b. Declaring a State of War (2/3 of both Houses, voting separately)

E. DISCIPLINE OF MEMBERS Each house may punish its members for disorderly behavior and, with concurrence of 2/3 of all its members, suspend (for not more than 60 days) or expel a member. The interpretation of disorderly behavior - prerogative of the House concerned and cannot be judicially reviewed. (Sec. 16(3), Art. VI) 

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Shall not intervene in any matter before any office in government for his pecuniary benefit or where he may be called upon to act on account of his office.

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, The determination of the acts which constitutes disorderly behavior is within the full discretionary authority of the House concerned (Osmeña vs. Pendatun, 109 Phil 863)

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The suspension contemplated in the Constitution is different from the suspension prescribed in the Anti-Graft and Corrupt Practices Act (RA 3019). The former is punitive in nature, while the latter is preventive. (Defensor-Santiago v. Sandiganbayan, G.R. No. 118364, August 10, 1995,)

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Ad-interim appointments Appointments extended while Congress is not in session, shall only be effective until: a. disapproval by the CA; or b. next adjournment of Congress. ELECTORAL TRIBUNALS

Senate

F. COMMISSION ON APPOINTMENTS AND ELECTORAL TRIBUNALS COMMISSION ON APPOINTMENTS i. Composition a. Senate President as Ex Officio Chairman b. 12 Senators c. 12 Congressmen Election is based on proportional representation  from the political parties and party-list representatives 

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It is NOT mandatory to elect 12 Senators to the Commission before it can discharge its functions. What the Constitution requires is at least a majority of the membership (Guingona v. Gonzales (1992)) Acts as a Legislative check on the appointing authority of the President The CA shall be constituted within 30 days after the Senate and the House of Representatives shall have been organized with the election of the President and the Speaker The CA shall act on appointments within 30 session days from their submission to Congress The power to approve or disapprove appointments is conferred on the CA as a body and not on the individual members. (Pacete v. Secretary (1971)) Meetings 1. CA shall meet only while Congress is in session. 2. Meetings are held either at the call of the Chairman, or by a majority of all its members

 Jurisdiction CA shall confirm the appointments by the President with respect to the following positions: a. Heads of Executive Departments Exception: Vice President b. Ambassadors, other public ministers or consuls; c. Officers of the AFP from the rank of Colonel or Naval Captain d. Other officers whose appointments are vested in him by the Constitution (e.g. members of the constitutional commissions)

Congress cannot require that the appointment of a person to an office created shall be subject to CA confirmation.

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House of Representatives Nature Senate Electoral Tribunal House of Representative (SET) Electoral Tribunal (HRET) Composed of composed of nine   three (3) Supreme (9) members: 3 Court Justices Supreme Court and six (6)  Justices and six (6) Senators members of the Congress (Section to act as sole  17, Art. VI)  judge of all contest relating to election returns and qualifications of their respective members. Composition Rules The Electoral Members chosen   Tribunals shall be enjoy security of constituted within tenure and cannot 30 days after the be removed by Senate and the mere change of House shall have party affiliation. been organized (Bondoc v. Pineda, with the election of 201 SCRA 793) the President and the Speaker Selection The Constitution explicitly confers on the Senate and on the House the authority to elect among their members those who would fill the 12 seats for Senators and 12 seats for House members in the Commission on Appointments. Under Section 17, Article VI of the Constitution, each chamber of Congress exercises the power to choose, within constitutionally defined limits, who among their m embers would occupy the allotted 6 seats of each chambers respective electoral tribunal. (Pimentel v. HRET)  Jurisdiction Sole judge of all contests relating to the election, returns, and qualifications of their respective members.

Since party-list nominees are elected members of the House of Representatives no less than the district representatives are, the HRET has jurisdiction to hear and pass upon their qualifications.

Acquisition of Jurisdiction (1) There is an election contest (2) Only after the proclamation of the Candidate

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In the absence of election contest, and before proclamation, jurisdiction remains with COMELEC. (Lazatin v. COMELEC (1988)) NOTE: Ongsiako-Reyes v. COMELEC (G.R. No. 207264, June 25, 2013) The Electoral Tribunal acquires jurisdiction only after (1) a petition is filed before it, and (2) a candidate is already considered a member of the house. To be considered a member , in turn, there must be a concurrence of the following: (1) a valid proclamation; (2) a proper oath (a) before the Speaker and (b) in open session; and (3) assumption of office.

Once a proclamation has been made, COMELEC’s  jurisdiction is already lost and HRET’s own  jurisdiction begins. This only applies in the context of a candidate who has not only been proclaimed and sworn in, but has also assumed office.

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It must be in accordance with duly published rules and procedure of the House concerned 

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Remedy: invoke the Right against Self Incrimination QUESTION HOUR Section 21 (Legislative Investigation) 1. Any Person may appear 2. Committee conducts the investigation 3. The subject matter is any matter for the purpose of legislation 4. Appearance is mandatory

G. POWERS OF CONGRESS i. LEGISLATIVE POWERS AND

THE

Power to conduct inquiries in aid of legislation/ Investigatory Power - not absolute; subject to judicial review in view of the expanded power of the court to determine whether there has been grave abuse of discretion amounting to lack or excess of  jurisdiction. b.

LIMITATIONS

The inquiry must be in aid of legislation 

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Department heads (alter ego of the president), chairmen and members of PCGG are not exempt from summons; only the President and the Supreme Court Justices are so exempt Should be related to re-examination of any law connected to proposed law or for future legislation Department heads may appear with permission from the President in deference to separation of powers Close advisers to the President may be prevented by the President from appearing by virtue of the Presidential Communications Privilege (Neri v. Senate Blue Ribbon Committee, G.R. No. 180643) Military officers may be prevented by the President in the exercise of his or her Commander-In-Chief powers (Gudani v.

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Intended to satisfy basic requirement for due process Publication is constitutionally mandated whether or not the rules have undergone any amendments or revisions (Garcillano v. House of Representatives, G.R. No. 170338)

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

Independence To be able to exercise exclusive jurisdiction, the House Electoral Tribunal must be independent. Its jurisdiction to hear and decide congressional election contests is not to be shared by it with the Legi slature nor with the courts. (Bondoc v. Pineda)

INQUIRIES a. LEGISLATIVE OVERSIGHT FUNCTION

Senga, G.R. No. 170165) People are merely called as resource persons and cannot be criminally liable

c.

Section 22 (Question Hour)

1. Only department heads may appear 2. The entire body will conduct the investigation 3. Subject matters are matters related to the department only 4. Appearance is discretionary

BICAMERAL CONFERENCE COMMITTEE

Bills are passed: (1)  Jointly- in a joint session; required by the Constitution in special cases (2) Separately- each house takes up the bill on their own BICAMERAL CONFERENCE COMMITTEE

The mechanism for compromising differences between the Senate and the House—capable of producing unexpected results—bill will have to be sent back to both houses and subject to voting ENROLLED BILL DOCTRINE

It is one duly introduced and finally passed by both houses, authenticated by the proper officer of each, and approved by the President. It is conclusive upon the courts as regards the tenor of the measure passed by Congress and approved by the President. Once the bill becomes an enrolled bill, it is conclusive upon the court of its due enactment. Courts may no longer validly inquire into the bill because of the doctrine of separation of powers.

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d.

CONSTITUTIONAL LAW 2

LIMITATIONS ON LEGISLATIVE POWER FORMAL OR PROCEDURAL LIMITATIONS

(1)

One-subject, One-Title Rule Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title. (N.B. This is to eliminate rider clauses: those not embraced within the title)

(2)

No bill passed by either house shall become law unless it has passed three readings on separate days On the  first reading , the title and the bill number are read. On the second reading , periods of sponsorship, debates, amendments, and voting on the amendments, take place. On the third reading , the title and the bill number are the only things read and voting on the entirety of the bill takes place.

(3)

Printed copies in its final form must have been distributed to its members 3 days before the passage of the bill. Exception: President certifies to the necessity of its immediate enactment to meet a public calamity or emergency.

(4)

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

Presidential certification dispenses with the (1) printing requirement; and (2) requiring the submission of the proposed bill to three readings on separate days

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A bill is proposed and signed by the author and filed before either house

First Reading – the number and title of the bill is read

Referred to the appropriate committee for study

Bill is transmitted to the other house and undergoes through 3 readings

Second Reading – Bill is subjected to debates and discussion

Third Reading – subjected to a final vote

Bicameral Conference

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Transmitted to the President for signature

The president signs the bill or approves it by inaction

President vetoes the bill

Bill does not become law

Congress repass the bill by a vote of 2/3 with both Houses voting seperately

Bill becomes a law

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from savings in other items of their respective appropriations a. President b. Senate President c. Speaker of the House d. Chief Justice e. Chairs of Constitutional Commissions

SUBSTANTIVE LIMITATIONS EXPRESS LIMITATIONS

(1) (2) (3) (4) (5)

Exercise of general powers of the state- Bill of Rights Limitations on the power of taxation Requisites to pass an appropriation bill Limitation on the appellate jurisdiction of the SC No law granting title of royalty or nobility shall be passed

LIMITATIONS ON REVENUE, APPROPRIATIONS, AND TARIFF MEASURES i. APPROPRIATIONS

FOR SPECIAL APPROPRIATION BILLS

(1) (2)

LIMITATIONS ON THE USE OF PUBLIC FUND

(1)

GENERAL LIMITATIONS

(1) (2) (3)

Appropriations must be for a public purpose The appropriation must be by law Cannot appropriate public funds or property, directly or indirectly, in favor of a. Any sect, church, denomination, or sectarian institution or system of religion or b. Any priest, preacher, minister, or other religious teacher or dignitary as such. Exception: If the religious teacher or dignitary is assigned to the Armed Forces, any penal institution, government orphanage or leprosarium Note:  Government is not prohibited from appropriating money for a valid secular purpose, even if it incidentally benefits a religion

Shall specify the purpose for which it is intended Shall be supported by funds a. Actually available as certified  by the National Treasurer; or b. To be raised by corresponding revenue proposal therein

(2)

No money shall be paid out of the National Treasury Except: In pursuance of an appropriation made by law. However, this rule does not prohibit continuing appropriations e.g. for debt servicing, for the reason that this rules does not require yearly or annual appropriation

ii. TAXATION LIMITATIONS

(1). Power to tax should be exercised only for a public purpose. (2). Taxes to be imposed must be uniform and equitable. a. Power to tax must operate with the same force and effect in every place where the subject of it is found. b. Classification for the purpose of taxation is not prohibited per se, but it must comply with the Test of Valid Classification

SPECIFIC LIMITATIONS CONSTITUTIONAL TAX EXEMPTIONS

(1)

(2) (3)

(4)

(5)

Congress may not increase the appropriations recommended by the President for the o peration of the Government specified by the President for the operation of the Government as specified in the budget Form, content and manner of preparation of the budget shall be prescribed by law. No provision or enactment shall be embraced i n the general appropriations bill unless it relates specifically to some particular appropriation therein. Procedure in approving appropriations for the congress  shall strictly follow the procedure for approving appropriations for other departments and agencies. No law shall be passed authorizing any transfer of appropriations. Exception:  the following may, by law, be authorized to augment any item in the general appropriations law for their respective offices

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(1) (2)

(3)

Religious, charitable, educational institutions and their properties All revenues and assets of non-stock, non-profit educational institutions are exempt from taxes and duties provided that such revenues and assets are actually, directly and exclusively used for educational purposes (Art. XIV, Sec. 4(3)) Grants, endowments, donations or contributions used actually, directly and exclusively for educational purposes shall be exempt from tax, subject to conditions prescribed by law  (Art. XIV, Sec. 4(4))

GOVERNMENT BUDGETING PROCESS (Guingona v. Carague)

(1)

Budget Preparation

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Covers the estimation of government revenues, the determination of budgetary priorities and activities within the constraints imposed by available revenues and by borrowing limits, and the translation of desired priorities and activities into expenditure levels. Starts with the Budget Call from DBM, where  all agencies are required to submit their proposals (2)

(3)

(4)

Budget Legislation Congress formulates the appropriation following the Constitutional processes.

Illegal Acts under the Disbursement Acceleration Program  Creation of savings prior to the end of the fiscal year and withdrawal of these funds for implementing agencies Cross-border transfers of the savings  from one branch of government to another Allotment of funds for projects, activities,  and programs not outlined in the General Appropriations Act (Araullo v.  Aquino)

AND

CONGRESSIONAL

PRESIDENT’S OPTIONS

(1) (2)

 WHEN POCKET VETO OCCURS

a. The President fails to act on the bill; b. The reason he does not return the bill to the Congress is that Congress is not in session.

act

Budget Accountability Evaluation of actual performance and initially approved work targets, obligations incurred, personnel hired and work accomplished are compared with the targets set at the time the agency budgets were approved. The existence of appropriations and the  availability of funds are indispensable prerequisites to or conditio ns sine qua non for the execution of government contracts. The obvious intent is to impose such conditions as a priori requisites to the validity of the proposed contract (COMELEC v. QuijanoPadilla)

VETO

Inaction - the bill automatically becomes a law within 30 days upon receipt of the bill from Congress.

PRESIDENTIAL VETO

Budget Execution Covers various operational aspects of budgeting. The establishment of obligation authority ceilings, the evaluation of work and financial plans for individual activities, the continuing review of government fiscal position, the regulation of funds releases, the implementation of cash payment schedules, and other related activities comprise this phase of the budget cycle.

iii. PRESIDENTIAL OVERRIDE

(3)

Sign and the bill becomes a law. Vetoes the bill, it does not become a law. Congress can override by 2/3 votes of all its  Members

1. General veto of the President 2. Item/Line veto of the President General rule: Selective/partial veto is not allowed. The President may not veto a provision of the bill without vetoing the whole/entire bill itself. Exception: Item/Line veto

to the Item—Refers particulars, the details, the distinct and severable parts of the bill. It is an indivisible sum of money dedicated to a stated purpose. Allowed in: i. Appropriation ii. Revenue iii. Tariff Bills Exceptions to the exception 1.DOCTRINE PROVISIONS

OF

INAPPROPRIATE

A provision that is constitutionally inappropriate for an appropriation bill may be singled out for veto even if it is not an appropriation or revenue item. 2. EXECUTIVE IMPOUNDMENT

Refusal of the President to spend funds already allocated by Congress for specific purpose. It is the failure to spend or o bligate budget authority of any type. This power is derived from Section 38 of the Administrative Code of 1987 on suspension. 3. LEGISLATIVE VETO

A congressional veto is a means whereby the legislature can block or modify administrative action taken under a statute. It is a form of legislative control in the implementation of particular executive action. The form may either be: a. Negative - subjecting the executive action to disapproval by Congress; or b. Affirmative requiring approval of the executive action by Congress ii. NON-LEGISLATIVE POWERS

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

1. INFORMING FUNCTION Conduct of Legislative Inquiries is intended to benefit not only Congress but citizenry who are equally concerned with the proceedings (Sabio v. Gordon (2006))







2. IMPEACHMENT POWER

3.

4.

Filing by (a) any member of the HOR or (b) any citizen upon endorsement by a member of the HOR; followed by referral to the proper HOR Committee a. Committee Report by the HOR Committee on Justice, which either favourably or unfavourably resolves the complaint b. 1/3 of all members of the House votes by resolution to affirm or overridde, if unfavourable VERIFIED COMPLAINT OR RESOLUTION Filed by 1/3 of all the members of the HOR. Thereafter, Senate Trial will proceed TRIAL Senate has sole power to try and decide all cases of impeachment. o

o

Court power of judicial review extends over justiciable issues arising from the impeachment proceedings (Francisco v. House of Representatives (2003)) A question whether the Senate Impeachment Rules were followed is a political question (Corona v. Senate (2012))

EXECUTIVE DEPARTMENT

A. Privileges, Inhibitions, Disqualifications

1. Qualifications and Disqualifications PRESIDENT

(1) (2) (3) (4) (5)

QUALIFICATIONS Natural born citizen; Registered voter; Able to read and write; At least 40 years of age on the da y of election; and Resident of the Philippines for at least 10 years immediately preceding the election

DISQUALIFICATIONS

(1) (2)

(a)

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VICE PRESIDENT

TERM OF OFFICE: Six (6) years

NON-EXCLUSIVITY OF IMPEACHMENT PROCEEDINGS TO REMOVE IMPEACHABLE OFFICERS Quo warranto is now available as an alternative remedy to remove an impeachable officer. For impeachment proceedings, the grounds are impeachable offenses while for quo warranto, the basis would be the invalidity of a public officer’s appointment into office. (Republic of the Philippines v. Sereno, G.R. No. 237428)

(iii) OTHER NON-LEGISLATIVE POWERS Canvass presidential election  Declare the existence of state of war  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 Exercise delegation of emergency powers;  Call special election for President and VP;  Give concurrence to treaties and amnesties;  Propose constitutional amendments (constituent  power);

Confirm certain appointments; Decide the disability of President because majority of the Cabinet disputes his assertion that he is able to discharge his duties; Revoke or extend proclamation of suspension of privilege of writ of habeas corpus or declaration of martial law; Set the rules regarding the utilization of natural resources.

(b)

Not eligible for any re-election; No person who has succeeded as President and has served as such for more than 4 years shall be qualified for election to the same office at any time.

(3)

Shall not serve for more than two (2) consecutive terms

General Disqualifications One who has been declared incompetent or insane by competent authority; One who has been sentenced by final judgment for: Subversion  Insurrection  Rebellion  Any offense for which he has been  sentenced to a penalty of not more than 18 months; or any crime involving moral turpitude, Exception: If given plenary pardon o r granted amnesty (Section 12, BP 881— Omnibus Election Code)

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CANVASSING BOARD Congress (Senate and House of Representatives); in case of tie, Congress by majority vote shall select. ELECTORAL TRIBUNAL Supreme Court (en banc) REMOVAL Impeachment and quo warranto (Republic of the Philippines v. Sereno, G.R. No. 237428)

The tribunals which have jurisdiction over the question of the qualifications of the President, the Vice-President, Senators and the Members of the House of Representatives were made clear by the Constitution. ( Poe-Llamanzares v. Commission on Elections, – SCRA – (G.R. Nos. 221697, etc., 8 March 2016, and, 5 April 2016) On the issue of being a natural-born Filipino:   There is a disputable presumption that things have happened according to the ordinary course of nature and the ordinary habits of life. The common thread of the UDHR, UNCRC and the ICCPR is to obligate the Philippines to grant nationality from birth and ensure that no child is stateless. This grant of nationality must be at the time of birth, and it cannot be accomplished by the application of our present naturalization laws, Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of which require the applicant to be at least eighteen (18) years old.

CONSTITUTIONAL LAW 2

become academic or dead or when the matter in dispute has already been resolved and hence, one is not entitled to  judicial intervention unless the issue is likely to be raised again between the parties. There is nothing for the court to resolve as the determination thereof has been overtaken by subsequent events. ( Pormento v. Estrada , 629 SCRA 530 (2010).  Macalintal v. Presidential Electoral Tribunal , 635 SCRA 783 (2010) 651 SCRA 239 (2011):  PET is a constitutionally created body and has a distinct mandate from the Supreme Court but it is not separate from the judicial department. ( Macalintal v. Presidential Electoral Tribunal , 635 SCRA 783 (2010) 651 SCRA 239 (2011) “

2. PRIVILEGES

(1)

Official Residence –  Malacanang (for the President only)

(2)

Salary  shall be determined by law. Shall not be decreased during tenure. No increase shall take effect until the expiration of the incumbent term

(3)

Immunity from Suit Rationale: to assure that the exercise of presidential  duties and functions is free from any hindrance or distraction. However, there is nothing in our laws that prevent the President from waiving his right. Chief executive cannot invoke immunity from suit  from civil damages after his tenure. Validity of his acts can be tested by an action  against other executive officials Immunity is co-extensive with tenure and covers  only official duties

The principles found in two conventions, while yet unratified by the Philippines, are generally accepted principles of international law.

 Requisites for a new domicile: There are three requisites to acquire a new domicile: (1) Residence or bodily presence in a new locality; (2) An intention to remain there; and (3) An intention to abandon the old domicile. To successfully effect a change of domicile, one must demonstrate an actual removal or an actual change of domicile; bona fide intentions of abandoning the former place of residence and establishing a new one and definite acts which correspond with the purpose. In other words, there must basically be animus manendi coupled with animus non revertendi. Purpose to remain in or at the domicile of choice  must be for an indefinite period of time; Change of residence must be voluntary; and  Residence at the place chosen for the new domicile  must be actual.

As a rule, this Court may only adjudicate actual, ongoing controversies. The Court is not empowered to decide moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the result as to the thing in issue in the case before it. In other words, when a case is moot, it becomes non-justiciable. An action is considered moot when it no longer presents a  justiciable controversy because the issues involved have

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But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused. (Soliven v. Makasiar, 167 SCRA 393) (4)

No need for Commission on Appointment for Cabinet post (Vice-president)

(5)

Executive privilege Right of the President and high-level executive  branch officials to withhold information from Congress, the courts and ultimately, the public. Topics within the scope of privilege (Section 2(a)  EO 464) (a) Conversation and correspondence between president and the public official covered by the executive privilege (b) Military, diplomatic and other national security matters which in the interest of national security should not be divulged

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information between inter-government agencies prior to the conclusion of treaties and executive agreements (d) discussion in close door cabinet meeti ngs (e) matters affecting national security and public order

CONSTITUTIONAL LAW 2

(c)

2 KINDS OF EXECUTIVE PRIVILEGE

a.

b.

Presidential Communications Privilege Communications are presumptively privileged; president must be given freedom to explore alternatives in policy-making Deliberative Process Privilege (Executive Officials) Materials that comprise part of a process by which governmental decisions and policies are formulated.

Requisites for validity of claim of privilege

a.

b.

c.

Quintessential and non-delegable presidential power The power subject of the legislative inquiry must be expressly granted by the Constitution to the President Operational Proximity Test It must be authored, solicited, and received by the close advisor of the President or the President himself. The advisor must be in “operational proximity” with the president, that is, being proximate to the President not only by reason of function but also by reason of position in the organizational structure. No adequate need The privilege may be overcome by a showing of adequate need such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere by an appropriate investing authority.

3. PROHIBITIONS AND INHIBITIONS

a. b. c.

d. e. f.

Shall not receive any other emolument from the government or any other source; Shall not hold any other office or employment unless otherwise provided in the Constitution i.e. ex-officio member – this is provided by law and they are not given additional compensation for this. (National Amnesty Commission v. COA, G.R. No. 156982 (2004)) Shall not practice any other profession; Shall not participate in any business; Shall not be financially interested in any contract with, or in any franchise, or special privilege granted by the Government, including

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g. h.

GOCCs; Shall avoid conflict of interest in conduct of office; Shall avoid nepotism.

B. POWERS OF THE PRESIDENT

1. Executive power

It is the legal and political functions of the President involving the exercise of discretion. It is vested in the President of the Philippines. It is the power to enforce and administer laws. Power of Administrative Reorganization The President, subject to the policy of the Executive Office and in order to achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize the administrative structure of the Office of the President. (Sec. 31, Book III, E.O. 292) Faithful Execution Clause The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.

2. Appointing power Appointment Is the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. (Cruz, Phil. Political Law, 1989 ed., p. 178)

Appointing power is executive in nature. It is vested in the President. The power carries with it the power to remove except in some cases like Justices of the Supreme Court, the President appoints them but he cannot remove them. They can only be removed through impeachment and quo warranto (Republic of the Philippines v. Sereno, G.R. N o. 237428). Congress cannot appoint a specific person into a public office. The appointing power is the exclusive prerogative of the President, upon which no limitations may be imposed by Congress, except those resulting from the need of securing the concurrence of the Commission on Appointments and from the exercise of the limited legislative power to prescribe the qualifications to a given appointive office. (See: Manalang v. Quitoriano, G.R. No. L-6898 (1954)) Designation Simply means imposition of additional duties on a person already in the public service.

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Binamira vs. Garrucho, 188 SCRA 154 , when a person is merely designated and not appointed, the implication is that he shall hold office in a temporary capacity and may be replaced at will of the appointing authority. In this sense, a designation is considered only an acting or temporary appointment which does not confer security of tenure on the person named.

Classifications

(a)

Permanent – those extended to perso ns possessing the requisite eligibility and are thus protected by the constitutional guarantee of security of tenure. (b) Temporary  - those given to persons without such eligibility, revocable at will and without necessity of  just cause or a valid investigation, made on the understanding that the appointing power has not yet decided on a permanent appointee and that the temporary appointee may be replaced at any time a permanent choice is made.

(c)

Regular  - Appointment by the President when Congress is in session. It takes effect only after confirmation by the CA, and once approved, continues until the end of the term of the appointee. (d) Ad Interim - Appointment by the President when Congress is not in session. Takes effect immediately but ceases to be  valid if disapproved by the CA or upon the next adjournment of Congress. It is deemed by-passed through inaction. Intended to prevent interruptions in vital  government services that would otherwise result from the prolonged vacancies in government offices. It is a permanent appointment because it  takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation  by the Commission on Appointments do not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the CA or until the next adjournment of Congress.

Ad Interim (1) Takes effect immediately (2) Appointee assumes office immediately and later on the appointment should be confirmed by the CA (3) Made while Congress is not in session Ad Interim

Regular (1) Does not take effect immediately (2) Appointee assumes office only after confirmation by the CA (3) Made when Congress is in session

Appointment capacity

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in

acting

(1) (2) (3) (4)

Congress not in session Requires confirmation of CA Permanent in nature Appointee enjoys security of tenure

(1)

(2) (3)

Made any time when there is vacancy, whether or not Congress is in session Does not require CA confirmation Temporary in nature; no security of tenure

An ad interim appointment means a permanent appointment made by the President in the meantime that Congress is in recess. It does not mean a temporary appointment that can be withdrawn or revoked at any time. An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. Once an appointee has qualified, he acquires a legal right to the office which is protected not only by statute but also by the Constitution. He can only be removed for cause, after notice and hearing, consistent with the requirements of due process. The SC held that an ad interim appointment that is by-passed by the Commission on Appointments because of lack of time or failure of the latter to organize is another matter. There is no final decision by the Commission on Appointments to give or withhold its consent to the appointment as required by the Constitution. Absent such decision, the President is free to renew the ad interim appointment of a by- passed appointee. This is recognized in Section 17 of the Rules of the Commission on Appointments. Hence, under the Rules, a bypassed appointment can be considered again if the President renews the appointment ( Matibag vs. Benipayo, 380 SCRA 49) MIDNIGHT APPOINTMENTS

Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. General Rule: No appointments two months immediately before the next presidential elections and up to the end of his term Exceptions 1. Temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety 2. Appointments in the judiciary (De Castro v. JBC, 2010)

Elements of a Valid Appointment

(1) (2)

(3)

Authority to appoint and evidence of the exercise of the authority; Transmittal of the appointment paper and evidence of the transmittal (Preferably through the Malacañang Records Office) Vacancy of the position at the time of appointment; and

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(4)

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Receipt of the appointment paper and acceptance of the appointment by the appointee who possesses all the qualifications and none of the disqualifications.

upon citizen except for purposes of defense of the State under Section 4, Article II of the Constitution, as an exception to the rule against involuntary servitude.

 WHEN CONFIRMATION IS NOT REQUIRED 











When the President appoints other government officers whose appointments are not otherwise provided by law; Those officers whom he may be authorized by law to appoint (e.g. Chairman and members of the Commission on Human Rights) When Congress creates inferior offices but omits to provide for appointment thereto, or provides in an unconstitutional manner for such appointments When the Vice-President is appointed as member of the Cabinet Appointments under the recommendation of the  Judicial and Bar Council (Members of the Supreme Court, Ombudsman and Deputies) Appointments solely by the President

 WHO MAY BE APPOINTED?

Not all appointments made by the President need CA confirmation. Only those enumerated in paragraph 1 of Section 16, Article VII need confirmation of the Commission on Appointments. (Sarmiento v. Mison, 156 SCRA 549). Officers to be appointed by the President that require the confirmation of Commission on Appointments: (the list is exclusive) a. Heads of the executive department Except: Vice-President—may be appointed as a Member of the Cabinet. Such appointment requires no confirmation. (Section 3, Article VII) b. Ambassadors, other public ministers and consuls c. Officers of the armed forces from the rank of colonel or naval captain d. Other officers whose appointments are vested in him in the Constitution. Example: JBC, Constitutional Commissions e. All other officers of the government whose appointments are not otherwise provided by law f. Those whom he may be authorized by law to appoint.

PROCEDURE for APPOINTMENTS:

(1) (2) (3) (4)

Nomination by the President; Confirmation by the Commission on Appointments; Issuance of commission; and Acceptance by appointee. Deemed complete upon acceptance. Pending such acceptance, which is optional to the appointe e, the appointment may still be validly withdrawn. Appointment to a public office cannot be forced

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Limitations on Appointing Power:

(1)  Prohibition against nepotism - The spouse and relati ves by consanguinity or affinity within the 4 th civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of bureaus or offices, including governmentowned or controlled corporations and their subsidiaries. (2)  Appointments extended by an Acting President   shall remain effective unless revoked by the elected President within 90 days from his assumption of office. (3)

The presidential power of appointment may also be limited by Congress  through its power to prescribe qualifications for public office.

(4)

The judiciary may annul an appointment made by the President if the appointee is not qualified or has not been validly confirmed by the Commission on Appointments.

(5)

Midnight Appointments

Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments (Section 15, Article VII) Exception:  temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. The prohibition against midnight appointments applies only to positions in the executive department . (De Castro v. JBC, G.R. No. 191002, Mar. 17, 2010) The following elements should always concur in the making of a valid (which should be understood as both complete and effective) appointment: (1) authority to appoint and evidence of the exercise of the authority; (2) transmittal of the appointment paper and evidence of the transmittal; (3) a vacant position at the t ime of appointment; and (4) receipt of the appointment paper and acceptance of the appointment by the appointee who possesses all the qualifications and none of the disqualifications. (VelicariaGarafil v. Office of the President, G.R. No. 203372, 16 June  2015): The concurrence of all  these elements should always  apply, regardless of when the appointment is made, whether outside, just before, or during the appointment ban. These steps in the appointment process should always concur and operate as a single process. There is no valid appointment if the process lacks even one step.

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Power of Removal

Government may validly be delegated to his cabinet members exercising control over a particular executive department. (DENR v. DENR Region XII Employees, G.R. No. 149724)

General Rule:  This power is implied from the power to appoint.

 Manalang-Demigillo v. Trade and  Investment Development Corporation of the  Philippines (TIDCORP), 692 SCRA 359, G.R. No. 168613 March 5, 2013:  The doctrine of qualified political agency could not be extended to the acts of the Board of Directors of TIDCORP despite some of its members being themselves the appointees of the President to the Cabinet. (Bersamin, J.)

Exceptions: Those appointed by him where the Constitution prescribes certain methods for separation from public services.

Examples: President, VP, Members of the Constitutional Commissions, Justices of the SC and the Ombudsman - may be removed through impeachment (Art. XI, Sec. 2) and quo warranto (Republic of the Philippines v. Sereno, G.R. No. 237428) President may be removed in the case of inability to discharge official functions. There must be a written declaration from the President transmitted to the Senate President and Speaker of the House Majority of the Members of the Cabinet may transmit the written declaration

4. Military Powers

Calling-out power, power to place the Philippines under martial law and power to suspend the privilege of the writ of habeas corpus (a)

THE COMMANDER-IN-CHIEF CLAUSE

3. Control and supervision power 



Control Power to alter or modify or nullify or set aside what a subordinate had done in the performance of his duties and to substitute the judgment of the former for that of the latter. Supervision Overseeing, or the power or authority of an officer to see that subordinate officers perform their duties, and if the latter fail o r neglect to fulfill them, then the fo rmer may take such action or steps as prescribed by law to make them perform these duties. 

The President shall exercise general supervision over local governments.

ALTER EGO PRINCIPLE / DOCTRINE OF QUALIFIED POLITICAL AGENCY

The acts of the secretaries of the executive department, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive. (Vilena v. Secretary of Interior, G.R. No. 46570, (1939) The rule which has thus gained recognition is that "under our constitutional setup the Executive Secretary who acts for and in behalf and by authority of the President has an undisputed jurisdiction to affirm, modify, or even reverse any order" (Lacson-Magallanes Co. Inc. v. Paño, (1967)) Applying the doctrine of qualified political agency, the power of the President to reorganize the National

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To call out the Armed forces to prevent or suppress lawless violence, invasion or rebellion. Organize courts martial for the discipline of the armed forces and create military commissions for the punishment of war criminals. Section 18, Art VII grants the President, as Commander-in-Chief, a "sequence" of "graduated power(s)." From the most to the least benign, these are: the calling out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare martial law. In the exercise of the latter two powers, the Constitution requires the concurrence of two conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise of such power. These conditions are not required in the exercise of the calling out power. The only criterion is that 'whenever it becomes necessary,' the President may call the armed forces 'to prevent or suppress lawless violence, invasion or rebellion. 'Nevertheless, it is equally true that S18, Art7 does not expressly prohibit the President from declaring a state of rebellionsince the constitution vests the Presdient with Executive powers. (SANLAKAS v. Executive Secretary, G.R. No. 159085)

The power to choose, initially, which among these extraordinary powers to wield in a given set of conditions is a judgment call on the part of the President. As Commander-in-Chief, his powers are broad enough to include his prerogative to address exigencies or threats that endanger the government, and the very integrity of the State. (Lagman v. Medialdea, G.R. No. 231658

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Constitutional safeguards on the exercise of the power of the President to proclaimmartial law: There must be actual invasion or rebellion;  The duration of the proclamation shall not  exceed 60 days; Within 48 hours, the President shall report  his action to Congress. If Congress is not in session, it must convene within 24 hours; Congress may, by majority vote of all its  members voting jointly, revoke the proclamation, and the President cannot set aside the revocation; By the same vote and in the same  manner, upon initiative of the President, Congress may extend the proclamation if the invasion or rebellion continues and public safety requires it; 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 30 days from its filing; such power to review may be exercised simultaneously with, and independently from, the power to revoke by Congress (Lagman v. Medialdea, G.R. No. 231658) It does not suspend the operation of the  Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the confinement of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

, the ability of the President to require a military official to secure prior consent before appearing before Congress pertains to a wholly different and independent specie of presidential authority—the commander-in-chief powers of the President. By tradition and jurisprudence, the commander-in-chief powers of the President are not encumbered by the same degree of restriction as that which may attach to executive privilege or executive control. (Gudani vs. Senga, G.R. No. 170165, August 15, 2006) (b) SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS Grounds: invasion or rebellion, when public safety requires it. Duration: not to exceed 60 days, following which it shall be lifted unless extended by Congress Duty of the President : To report action to Congress within 48 hours, personally or in writing

(c)



Congress may revoke or extend, on request of the President, the effectivity of proclamation by a majority vote of all its Members, voting jointly.



Suspension applies only to persons  judicially charged for rebellion or offenses inherent in or directly connected with invasion.



During the suspension of the privilege o f the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three (3) days, otherwise he shall be released.

5. Pardoning Power

PROCLAMATION OF MARTIAL LAW

The constitutional validity of the President’s proclamation of martial law or suspension of the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court. (Fortun v. Macapagal-Arroyo) During martial law, the President may have the powers of a commanding general in a theatre o f war. In actual war,the President as the commanding general has the authority to issue orders which have the effect of law but strictly in a theater of war, not in the situation we had during the period of martial law. If in the actual theater of war civil courts, in fact, are unable to function, then the military commander is authorized to give jurisdiction even over civilians to military courts precisely because the civil courts are closed in that area. (Lagman v. Medialdea, G.R. No. 231658, citing Constitutional Commission deliberations

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Pardoning power, reprieves, commutations, amnesty, remit fines and forfeitures (Section 19, Article VII) Exercise by the President Discretionary and may not be controlled by the legislature or reversed by the courts Exception: if there is violation of the Constitution

(a)

Pardon - an act of grace which exempts the individual on whom it is bestowed from punishment which the law inflicts for a crime he has committed. Plenary or partial  Absolute or conditional  Conditional pardon— is in the nature of a contract between the sovereign power or the Chief Executive and the convicted criminal to the effect that the former will release the latter subject to the condition that if he does not comply with the terms of the pardon, he

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will be recommitted to prison to serve the unexpired portion of the sentence or an additional one. The grant of absolute pardon restores the person to his full civil and political rights. ( Risos-Vidal v. Commission on  Elections , 747 SCRA 210).  Effect of Absolute Pardon: A close scrutiny of the text of the pardon extended to former President Estrada shows that both the principal penalty of reclusion perpetua  and its accessory penalties are included in the pardon. The sentence,which states that "(h) e is hereby resto red to his civil and political rights," expressly remitted the accessory penalties that attached to the principal penalty of reclusion perpetua. A conditional pardon has no force until accepted by the condemned. The reason is obvious. The condition may be less acceptable to him than the original punishment, and may in fact be more onerous (Cabantag v. Wolfe, G.R. No. 3080 (1906)

(b)

Commutation - reduction or mitigation of penalty

(c)

Reprieve  - postponement of sentence or stay of execution

(d) Parole  - release from imprisonment, but without full restoration of liberty, as parolee is in custody of the law although not in confinement (e)

Amnesty - act of grace, concurred in by the Legislature, usually extended to groups of persons who committed political offenses, which puts into oblivion the offense itself.

Limitations (a) (b)

Cannot be granted in cases of impeachment; Cannot be granted in violations of election laws without favorable recommendations of the COMELEC; (c) Can be granted only after conviction by fi nal judgment (except amnesty); (d) Cannot be granted in cases of legislative contempt or civil contempt; (e) Cannot absolve convict of civil liability; (f) Cannot restore public offices forfeited. (g) Amnesty must be with the concurrence of a majority of all the members of Congress

6. Diplomatic / Treaty-making power (Section 21, Article VII)

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Saguisag v. Ochoa, Jr., G.R. Nos. 212426 and 212444, 12  January 2016):  EDCA is not a treaty but only an Executive Agreement.

Senate ratification is not necessary: The Senate ratification of the Mutual Defense Treaty (“MDT”) complies with the requirement of Section 25, Article XVIIP9 of the 1987 Constitution that any agreement allowing foreign military facilities in the Philippines, like the prepositioning of U.S. war materials, must be embodied in a treaty and ratified by two-thirds vote of the Senate. The treaty which covers the terms and conditions under EDCA is the MDT which the Philippine Senate ratified by two-thirds vote o n 12 May 1952 and which the U.S. Senate earlier ratified on 20 March 1952. (Saguisag v. Ochoa, Jr., G.R. Nos. 212426 and 212444, 12  January 2016) To hold that the EDCA cannot take effect without Senate ratification is to render the MDT, the sole mutual self-defense treaty, totally inutile to meet the grave, even existentialist, national security threat. (Carpio, J., concurring opinion)

7. POWER RELATIVE TO APPROPRIATION MEASURES Contracting and guaranteeing foreign loans Requisites: (1) Concurrence of the monetary board (Art. VII, Sec. 20) (2) Subject to limitations as may be provided by law (Art.XII, Sec. 2) (3) Information on foreign loans obtained or guaranteed shall be made available to the public (Art. XII, Sec.2) 

Republic Act 4860 authorizes the President to obtain foreign loans, or incur foreign i ndebtedness

Preparing and Submitting the Budget Art. VII, Sec.22 The President shall submit to Congress within thirty 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. Budget It is a plan indicating: (a) Expenditures of the government, (b) Sources of financing, and (c) Receipts from revenue-raising measures Fixing of Tariff Rates (Art. VI, Sec.28) The Congress may, by law, authorize the President to fix: (1) within specified limits, and (2) subject to such limitations and restrictions it may impose: (a) Tariff rates; (b) Import and export quotas; (c) Tonnage and wharfage dues;

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(d) Other duties or imposts within the framework of the national development programs of the Government.

11. EXECUTIVE PRIVILEGE See previous discussion on presidential privilege

8. DELEGATED POWERS The President, under martial rule or in a revolutionary government, may exercise delegated legislative powers (Art. VI, Sec 23(2)) Congress may delegate legislative powers to the presi dent in times of war or in other national emergency (Bernas, supra.)

12. EMERGENCY POWERS (Art. VI, Sec. 23) (1) In times of war or other national emergency, the Congress, may authorize the President to exercise powers necessary and proper to carry out a declared national policy (2) Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

9. Veto power General Rule: All bills must be approved by the President before they become law. Exceptions: (1) The veto of the President i s overridden by 2/3 vote of ALL the Members of the House which it originated (2) Bill lapses into law after 30 days because of the inaction of the President; and (3) The bill passed is the special law to elect the President and Vice President.

It is true that the Constitution provides a mechanism for overriding a veto. Said remedy, however is available only when the presidential veto is based on policy or political considerations but not when the veto is claimed to be ultra vires. In the latter case, it becomes the duty of the Court to draw the dividing line where the exerci se of executive power ends and the bounds of legislative jurisdiction begin. (PHILCONSA v. Enriquez (1994))

10. Unstated Residual Power Residual powers are implied from the grant of executive power necessary for the President to comply with the Constitutional duties such as to safeguard and protect general welfare. (Marcos v. Manglapus (1988))

Emergency Powers vis-à-vis Commander-in-Chief clause: (1) When the President acts under the Commander-inChief clause, he acts under a constitutional grant of military power, which may include the law-making power. (2) When the President acts under the emergency power, he acts under a Congressional delegation of law-making power. Emergency Powers cease when (a) Upon being withdrawn by resolution of the Congress; or (b) If Congress fails to adopt such resolution, upon the next voluntary adjournment of Congress.

The fact that Congress is able to meet in session uninterruptedly and adjourn of its own will prove that the emergency no longer exists to justify the delegation. (Araneta v. Dinglasan (1949)) The specific power to continue in force laws and appropriations which would lapse or otherwise become inoperative is a limitation on the general power to exercise such other powers as the executive may deem necessary to enable the government to fulfill its responsibilities and to maintain and enforce its authority (Rodriguez v. Gella (1953))

13. Other Powers: (a)

Borrowing power The President may contract or guarantee foreign loans on behalf of the Republic with the concurrence of the Monetary Board, subject to such limitation as may be provided by law The Monetary Board shall submit to the Congress report on loans within 30 days from end of every quarter. (Section 20, Article VII)

(b)

Budgetary power Within 30 days from opening of every regular session, President shall submit to Congress a budget of

President’s guiding principles in the exercise of executive power: 1. Protection of the people 2. Promotion of welfare 3. Advancing national interest

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expenditures and sources of financing, including receipts from existing and proposed revenue measures.

his disability, the Speaker of the House of Representatives, shall act as President until a President or a VP shall have been chosen and qualified. In the event of inability of the officials mentioned, Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or VP shall have qualified.

The Congress may not increase the appropriation recommended by the President. However, its form, content, manner of preparation of the budget shall be prescribed by Congress. (Section 22, Article VII) (c)

Informing power—State of the Nation Address (Section 23, Article VII & Sec. 15, Art VI)

(d) Power to call special session (Section 15, Article VI) (e)

Power to Reorganize the Office of the President (Administrative Code)

(f)

Power of Impoundment Impoundment refers to the refusal of the President, for whatever reason, to spend funds made available by Congress. It is the failure to spend or obligate budget authority of any type.

Proponents of impoundment have invoked at least three (3) principal sources of the authority of the President. a. Authority to impound given to him either expressly or impliedly by Congress b. The executive power drawn from the President’s role as Commander-in-Chief c. Faithful Execution Clause (g)

Power to Deport The power to deport aliens is lodged in the President of the Republic of the Philippines. As an act of state, it is vested in the Executive by virtue of his office, subject only to the regulations prescribed in section 69 of the Revised Administrative Code or to such future legislation as may be promulgated on the subject. (Tan Tong v. Deportation Board, G.R. No. L-17169)

C. RULES ON SUCCESION

1. Vacancy at the beginning of the term (1) (2)

(3)

(4)

Death or permanent disability of the Presidentelect: VP-elect shall become President President-elect fails to qualify: VP-elect shall act as President until the President-elect shall have qualified President shall not have been chosen: VP-elect shall act as President until a President shall have been chosen and qualified. No President and VP chosen nor shall have qualified, or both shall die or become permanently disabled: The President of the Senate, or in case of

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

At 10 o’clock in the morning of the 3rd day after the vacancy occurs, Congress shall convene without need of a call, and within 7 days enact a law calling for a special election to elect a President and a VP to be held not earlier than 45 or late r than 60 days from the time of such call. The bill shall be deemed certified and shall become a law upon its approval on 3rd  reading by Congress. The convening of the Congress cannot be suspended nor the special election postponed. No special election shall be called if the vacancy occurs within 18 months before the date of the next presidential election

2. Vacancy during the term Death, permanent disability, removal from office, or resignation of the President: VP shall become the President Estrada vs. Arroyo, G.R. No. 146738, March 2, 2001, the SC declared that the resignation of President Estrada could not be doubted as confirmed by his leaving Malacañang Palace. In the press release containing his final statement – (1) He acknowledged the oath-taking of the respondent as President; (2) He emphasized he was leaving the Palace for the sake of peace and in order to begin the healing process (he did not say that he was leaving due to any kind of disability and that he was going to reassume the Presidency as soon as the disability disappears); (3) He expressed his gratitude to the people for the opportunity to serve them as President (without doubt referring to the past opportunity); (4) He assured that he will not shirk from any future challenge that may come in the same service of the country; (5) He called on his supporters to join him in promotion of a constructive national spirit of reconciliation and solidarity.

The Court declared that the elements of a valid resignation are: 1. Intent to resign; 2. Act of relinquishment. Both were present when Estrada left the Palace.

3. TEMPORARY DISABILITY 

Voluntary Written Declaration

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The President may transmit to the Senate president a written declaration that he is unable to discharge his functions. In this case, the VicePresident will assume his d uties and functions. 

Vote of the Majority of the Cabinet If the majority of the Cabinet transmits to the Senate President that the President is unable to discharge his functions, the Vice-President shall assume his functions. o The President may once again assume his functions after transmitting to the Senate President that he is not unable to discharge his functions. o Should the Cabinet believe that the President is still incapable, the members may send a written declaration to the Senate President within 5 days.  In this case, Senate shall convene if in session or within 12 days if not in session. The Congress may determine  that the President is incapable of exercising his functions by a 2/3 vote of both houses voting separately.

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 JUDICIAL DEPARTMENT

A. Concepts

1. Judicial Power The judicial power shall be vested in one SC and in such lower courts as may be established by law.  Judicial power includes: (1) Traditional Concept:  The duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceableE (2) Expanded Power: To determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction (GADALEJ) on the part of any branch or instrumentality of the Government.  Jurisdiction: The power to hear and decide cases.

4. Resignation Resignation may be written, oral, express, or implied, for as long as it is clear it must be given legal effect.

5. Vacancy in the Office of the Vice-president Whenever there is vacancy in the Office of the VP during the term for which he was elected, the President shall nominate a VP from among the Members of the Senate and the HOR who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately. (Section 9, Article VII)

Sec 2, Art. VIII The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof

No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members Facial Challenge (Cruz v. DENR 135385) The only instance where a facial challenge to a statute is allowed is when it operates in the area of freedom of expression. In such instance, the overbreadth doctr ine permits a party to challenge the validity of a statute even though as applied to him it is not unconstitutional but it might be if applied to others not before the Court whose activities are constitutionally protected. Doctrine of Judicial Supremacy . The judiciary is vested with the power to annul the acts of either the legislative or the executive or of both when not conformable to fundamental law. (Association of Small Landowners v. Secretary of Agrarian Reform, G .R. No. 78742, July 14, 1989)

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Operative Fact Doctrine

2. Judicial Review Power of courts to test the validity of executive and legislative acts in light of their conformity with the Constitution and to declare a law, treaty, international or executive agreement, presidential decree, proclamation order, instruction, ordinance or regulation unconstitutional. To assure that the supremacy of the Constitution is  upheld.

 Who may exercise the power

1. 2.

3.



Supreme Court to decide question on Constitutionality Section 5(2) Article VIII implicitly recognizes the authority of lower courts to decide questions involving constitutionality of laws, treaties, international agreements, etc. The Constitution vested the power of judicial review not only to SC but also with the lower courts. Note: In doing so, notice to the Solicitor General is mandatory to enable him to decide whether or not his intervention in the action is necessary.

FUNCTIONS OF JUDICIAL REVIEW:

1. 2.

3.

Checking  –  whether or not there has been grave abuse of discretion Legitimating - Rule on Double Negative—uses the term “not unconstitutional”; the court cannot declare a law constitutional because it already enjoys a presumption of constitutionality Symbolic  - educating the bar and bench and the people on the extent of protection given by the constitutional guarantees

REQUISITES FOR THE PROPER EXERCISE OF POWER OF JUDICIAL REVIEW

i. Actual case or controversy Must be definite, concrete, bearing upon the legal relations of parties who are pitted against each other due to their adverse legal interests, and susceptible of judicial determination.

General Rule : The interpretation (or declaration) of unconstitutionality is retroactive in that it applies from the law’s effectivity Exception: Subsequent declaration of unconstitutionality does not nullify all acts exercised in line with (the law). The past cannot always be erased by a new judicial declaration. (Municipality of Malabang v. Benito (1969), citing Chicot County)

Moot and Academic Issues General Rule: Courts will not decide questions that have become moot and academic. Exception: Courts will still decide if: a. There is a grave violation of the Constitution; b. The situation is of exceptional character and paramount public interest is involved; c. The constitutional issue raised requires formulation of controlling principles to guide the bench, the bar and t he public; and d. The case is capable of repetition yet evading review. (David v. Macapagal-Arroyo (2006)  Justiciable Question A given right, legally demandable and enforceable, an act or omission violative of such right, and a remedy granted by law for said breach of right Political Questions Those questions which, under the constitution, are to be decided by the people in their sovere ign capacity; or in regard to which full discretionary authority has been delegated to the legislative or executive branches of government.

ii. The constitutional question must be raised by the proper party A proper party is one who has sustained or is in imminent danger of sustaining an injury as a result of the act complained of. (LOCUS STANDI) "Legal Standing "- personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of governmental act. Real Party in Interest –  Party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit

When will a citizen be allowed to raise constitutional question: (a) He has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government – Direct Injury Test – interest means “material interest”

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(b) Injury is fairly traceable to the challenged action (c) Injury is likely to be redressed by a favorable action.

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Court cannot recognize question of constitutionality if the case can be dispensed of on some other grounds, such as application of a statute or a general law. Every law has in its favor the presumption of constitutionality

Liberal attitude of the SC to standing based on the ff requirements: (a) Case involves constitutional issues (b) Taxpayers – there must be a claim of illegal disbursement of public funds or tax measure is unconstitutional (c) Voters – there must be a showing of obvious interest in the validity of election law in question. (d) Concerned Citizens –  issues raised are of transcendental importance which must be settled early (e) Legislators –  claim that the official action complained of infringes their prerogatives as legislators General rule:   A party can question the validity of a statute only if, as applied to him, it is unconstitutional. Exceptions: (1)  Facial Challenge  The statute is absolutely unconstitutional under no circumstance. But the only time a facial challenge to a statute is allowed is when it operates in the area of freedom of expression.

(2) Overbreadth Doctrine  Permits a party to challenge the validity of a statute even though as applied to him, it is not unconstitutional, but it might be if applied to others not before the Courts whose activities are constitutionally protected.  Invalidation of the statute “on its face”, rather than “as applied” is permitted in the interest of preventing a chilling effect on freedom of expression.

iii. The constitutional question must be raised at the earliest opportunity Generally, the question must be raised in he pleadings; however, in criminal cases, the question can be raised at any time at the discretion of the court; in civil cases, the question can be raised at any stage of the proceedings if necessary for the determination of the case itself; and in every case, except where there is estoppel, it can be raised at any stage if it involves the jurisdiction of the court.

iv. The decision on the constitutional question must be the very LIS MOTA

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Effects of Declaration of Unconstitutionality (1) Orthodox view – unconstitutional act is not a law, confers no act, imposes no duty, affords no protection, creates no office and inoperative as if it had not been passed. (2) Modern view – courts simply refuse to recognize the law and determine the rights of the parties as if the statute prior to its declaration of unconstitutionality may be recognized

Partial Unconstitutionality Requisites: (1) Legislature must be willing to retain the valid portions usually shown by the presence of a separability clause (2) Valid portion can stand independently as a law. c.f: C. Judicial Restraint for more details

B. Safeguards of Judicial Independence Constitutional Safeguards that guarantee independence of  Judiciary: (1) The SC is a constitutional body and may not be abolished by law; (2) The members of the SC are removable only by impeachment; (3) The members of the judiciary are not subject to confirmation by the CA (4) The SC may not be deprived of minimum original and appellate jurisdiction; appellate jurisdiction may not be increased without its advice and concurrence; (5) The appellate jurisdiction of the SC may not be increased by law without its advice and concurrence (6) The SC has administrative supervision over all inferior courts and personnel; (7) The SC has the exclusive power to discipline  judges/justices of inferior courts; (8) The members of the Judiciary have security of tenure; (9) The members of the SC may not be designated to any agency, performing quasi- judicial or administrative functions; (10) Salaries of judges may not be reduced; the Judiciary enjoys fiscal autonomy;

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(11) The SC alone may initiate Rules of Court; (12) The SC alone may order temporary detail of judges; (13) The SC can appoint all officials and employees of the  Judiciary. (14) The judiciary shall enjoy fiscal autonomy.

C. JUDICIAL RESTRAINT The judiciary will not interfere with its co-equal branches when: a. There is no showing of grave abuse of discretion b. The issue is a political question

 Judicial Privilege

 Judicial privilege is a form of deliberative process privilege because certain court records which are considered predecisional and deliberative in nature are protected and cannot be the subject of a subpoena.  Judicial Privilege is an exception to the general rule of transparency as regards access to court records. Court deliberations are traditionally considered privileged communication.

Political Question Doctrine General Rule: The court will not take cognizance of the case

The term “political question” refers to: 1. Matters to be exercised by the people in their  primary political capacity; or 2. Those specifically delegated to some other department or particular office of the government, with discretionary power  to act. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. (Tañada v. Cuenco (1957)) Note: When grave abuse of discretion is committed even by the highest executive authority, the judiciary should not hide behind the political questions doctrine.

Guidelines for determining when a question is political

(Baker v. Carr (369 US 186)): 1. There is a textually demonstrable constitutional commitment of the issue to a political department; 2. Lack of judicially discoverable and manageable standards for resolving it;

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4. Impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; 5. An unusual need for unquestioning adherence to a political decision already made; and 6. Potential embarrassment from multifarious pronouncements by various departments on one question.

D. Appointment to the Judiciary Qualifications: Of proven Competence, Integrity, Probity and Independence (CIPI) In addition: Qualification Position Citizenship Age Others SC  Justices Congress Natural – may 40 CA Born prescribe  Justices other qualifications RTC Has been 35  Judges engaged in the practice of law for at least 5 years or has held Citizen MTC, public office MeTC, Only 30 in the MCTC Philippines  Judges requiring admission to the practice of law

Procedure for Appointment:

1.

2.

Appointed by the President from among a list of at least 3 nominees prepared by the Judicial and Bar Council (JBC) for every vacancy. For lower courts, President shall issue the appointment 90 days from submission of the list.

Tenure of Justices and Judges: 



Supreme Court -  Hold office until they reach the age of 70 or become incapacitated to discharge their duties. They may be removed only through impeachment. Lower Courts - Hold office during good behavior until they reach the age of 70 or become incapacitated to discharge their duties.

3. The impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion;

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 Judicial and Bar Council Composition

1. 2. 3.

Ex-Officio Chairman—Chief Justice of the Supreme Court Ex-Officio Members —Secretary of Justice Secretary de Officio—Clerk of the Supreme Court

a majority of the actual membership of the court en banc; and (h) All other cases as the court en banc by a majority of its actual membership may deem of sufficient importance to merit its attention.

2. Jurisdiction of the Supreme Court

Appointment

The President shall appoint regular members for a 4-year term with the consent of the Commission on Appointments

a. Original Jurisdiction of the Supreme Court:

1. Powers and FUNCTIONS:

1. 2. 3.

Recommend appointees to the Judiciary; Recommend appointees to the Office of the Ombudsman and his 5 Deputies; May exercise such other functions as may be assigned by the Supreme Court.

E. Supreme Court Composition: Chief Justice and 14 Associates Justices May sit: En Banc; or  In its discretion, in divisions of 3, 5, or 7 members 

Any vacancy shall be filled within 90 days from occurrence thereof.

2. 3. 4. 5. 6.

Cases affecting ambassadors, other public ministers and consuls; Petition for certiorari Petition for prohibition Petition for mandamus Petition for quo warranto Petition for habeas corpus

Original Jurisdiction ( Art. VIII, Sec. 5(2)) – on appeal or certiorari (as the Rules of Court provide), SC may review, revise, reverse, modify , or affirm final judgments  and orders of lower courts in:  Cases involving the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation  Cases involving the legality of any tax , impost, assessment, or toll, or any penalty imposed in relation thereto  Cases in which the  jurisdiction of any lower court is in issue  Criminal cases where the penalty imposed is reclusion perpetua or higher.  Cases where only a question of law  is involved.

1. Cases to be heard by the SC En Banc:

(a) Cases in which the constitutionality or validity of any treaty, international or executive agreement, law, executive order, or presidential decree, proclamation, order, instruction, ordinance, or regulation is in question; (b) Cases raising novel questions of law; (c) Cases affecting ambassadors, other public ministers and consuls; (d) Cases involving decisions, resolutions or orders of the Civil Service Commission, Commission on Election, and Commission on Audit; (e) Cases where the penalty to be imposed is the dismissal of a judge, officer or employee of the  judiciary, disbarment of a lawyer, or either the suspension of any of them for a period of more than one (1) year or a fine exceeding ten thousand pesos (P10,000.00) or both; (f) Cases where a doctrine or principle laid down by the court en banc or in division m ay be modified or reversed; (g) Cases assigned to a division which in the opinion of at least three (3) members thereof merit the attention of the court e n banc and are acceptable to

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Period for Deciding Cases (Art. VIII, Sec. 15(1))

Supreme Court 24 months

Lower Collegiate Courts 12 months, unless reduced by the SC

Other Lower Courts 3 months, unless reduced by the SC

Note: The Sandiganbayan has 3 months to decide on its cases because it is considered as a trial court.

Original Jurisdiction

(a) Over cases affecting ambassadors, other public ministers and consuls; (b) Over petition for Certiorari, Prohibition, mandamus, Quo Warranto, and Habeas Corpus

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b. Temporary assignment of judges of lower courts to other stations as public interest may require

(c) Review of factual basis for the declaration of martial law or suspension of the privilege of writ of habeas corpus

Not to exceed 6 months without the consent of the  judge concerned.

b. Appellate Jurisdiction c. Order change of venue or place of trial, to avoid miscarriage of justice

Over final judgments and orders of lower co urts in: (a) All cases in which constitutionality or validity of any treaty international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question; (b) All cases involving the legality of any tax impost, assessment, or toll, or any penalty imposed in relation thereto; (c) All cases in which the jurisdiction of any lower courts is in issue; (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher; and (e) All cases in which only a question of law is involved.

d.. Power of Appointment

SC appoints all officials and employees of the  Judiciary in accordance with Civil Service law.

e. Yearly Report

Within 30 days from the opening of each regular session of Congress, SC shall submit to the President and Congress an annual report on the operation and activities of the Judiciary. (Section 16, Art. VIII)

3. Procedural Rule-making power

Promulgates rules concerning: (a) Protection and enforcement of constitutional rights; (b) Pleading, practice, and procedure in all courts; (c) Admissi ons to the practice of law; (d) IBP; and (e) Legal assistance to the underprivileged. Limitations on rule-making power: (a) Provide a simplified and inexpensive procedure for speedy disposition of cases; (b) Uniform for all courts of the same grade; (c) Sha ll not diminish, increase or modify substantive rights

CONSTITUTIONAL COMMISSIONS

Independent Constitutional Commissions: (1) (2) (3)

Civil Service Commission (Art IX-B) Commission on Elections (Art. IX-C) Commission on Audit (Art. IX-D)

4. Power of Administrative Supervision

SC shall have administrative supervision over all courts and personnel thereof. Administrative proceedings before the SC are confidential in nature in order to protect the respondent therein who may turn out be innocent of the charges; it can take years to build a reputation and only a single acc usation, although unfounded, to destroy it.2

5. Other powers a. Electoral Tribunal for Presidential and VicePresidential Contests

over all contests relating to the election, return and qualification of the President or Vice- President.

A. Safeguards that guarantee the independence of the Commissions (1) (2) (3) (4) (5) (6) (7) (8)

2

They are constitutionally created; may not be abolished by a statute; Each is conferred certain powers and functions which cannot be reduced by statute; Each expressly described as independent; Chairmen and members are given fairly long term of office for seven (7) years; Chairmen and members cannot be removed except by impeachment; Chairmen and members may not be reappointed o r appointed in an acting capacity; Salaries of chairmen and members are relatively high and may not be decreased during continuance in office; Commissions enjoy fiscal autonomy;

Godinez vs. Alano, A.M. RTJ-98-1409, February 18, 1999

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(9)

Each commission may promulgate its own procedural rules; (10) Chairmen and members are subject to certain disqualifications calculated to strengthen their integrity; and (11) Commissions may appoint their own officials and employees in accordance with Civil Service Law.

B. Prohibited offices and interests No member of a Constitutional Commission shall, during his tenure: Hold any other office or employment;  Engage in the practice of any profession;  Engage in the active management and control of  any business which in any way may be affected by the functions of his office; and Be financially interested, directly or indirectly, in  other contract with, or in any franchise or privilege granted by the government, any of its subdivision, agencies or instrumentalities, including GOCCs or their subsidiaries. (Sec. 2, Art. IX)

C. Powers, JURISDICTION, and functions of each commission

Civil Service Commission Composition

Qualifications

(1) (2) (1) (2) (3) (4)

Term

Chairman; Commissioners Natural-born citizen; At least 35 years of age at the time of appointment; With proven capacity for public administration; and Not a candidate for any elective position in the election immediately preceding

7 years, without reappointment

Scope of the Civil Service

Embraces all branches, subdivisions, instrumentalities and agencies of the Government, including government-owned and controlled corporations with original charters (Section 2(1), Article IX-B)

Classes of Service i. Career Service

(a)

(b) (c)

Entrance based on merit and fitness to be determined by competitive examination or based on highly technical qualification; Opportunity for advancement; and Security of tenure.

Kinds of Career Service: Open Career Positions —prior qualification via  examination; Closed Career Positions—those highly technical position; Career Executive Service —Undersecretaries,  Bureau Directors; Career Officers—those appointed by the President  like those in the Foreign Service; Commissioned Officers and enlisted men of the  AFP—governed by separate merit system; Personnel of GOCCs —  whether performing  governmental or proprietary functions, with original charters; and Permanent laborers —whether skilled, semi skilled, or unskilled.

II. on-Career Service

characterized by: (a) Entrance on bases other than those of the usual tests of merits and fitness utilized for the career service; and (b) Tenure which is limited to a period specified by law, which is co-terminus with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made. Kinds of Non-Career: Elective official and their personal or confidential staff;  Department heads and other officials of Cabinet rank  who hold positions at the pleasure of the President and their personal or confidential staff; Chairmen and members of commissions and boards  with fixed terms of office and their personal or confidential staff; Contractual personnel or those whose employment in  the government is in accordance with a special contract to undertake a specific work or job; and Emergency and seasonal personnel.  Exceptions to the Requirement of Competitive Examinations (1) Policy-determining Position —  one charged with laying down of principal or fundamental guidelines or rules; (2) Primary Confidential Position — one denoting not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgiving or betrayals of personal trust on confidential matters of state, or one declared to be so by the President upon recommendation of the Civil Service Commission. (3) Highly Technical Position — requires the appointee to possess technical skill or training in the supreme or superior degree.

characterized by:

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(1) (2)

COMMISSION ON ELECTIONS Composition

(1) (2) (1) (2) (3) (4)

Qualifications (5)

Term

1 Chairman; 6 Commissioners Natural-born citizen; At least 35 years of age at the time of appointment; With proven capacity for public administration; and Not a candidate for any elective position in the election immediately preceding Majority, including the Chairman, must be members of the Philippine Bar who have been engaged in the practice of law for at least ten (10) years

7 years, without reappointment

Powers, Functions, AND JURISDICTION:

(a)

Enforce and administer law and regulations relative to the conduct of elections, plebiscite, initiative, referendum or recall; (b) Exclusive original jurisdiction over all contests relating to election, returns and qualifications of all elective regional, provincial, and city officials; (c) Exclusive appellate jurisdiction over all contests involving elective municipal officials decided by the RTC, or involving elective barangay officials by MTC; (d) Decide, except those involving right to vote, all questions affecting elections, including the determination of number and location of polling places, appointment of election officials and inspectors and registration of voters; (e) Deputize, with concurrence of President, law enforcement agencies and instrumentalities for exclusive purpose of insuring free, orderly, honest, peaceful and credible elections. (f) Register, after sufficient publication, political parties, organizations or coalitions which must present their platform or program government; accredit citizen’s arms; (g) File upon verified complaint or motu proprio petitions in court for inclusions or exclusions of voters; investigate and, where appropriate, prosecute cases of violations of election laws; (h) Recommend to Congress effective measures to minimize election spending, limitation of places and prevent and penalize all forms of election frauds, offenses, malpractice and nuisance candidates; and (i) Submit to the President and Congress, comprehensive reports on conduct of each election, plebiscite, initiative, referendum or recall.

COMMISSION ON AUDIT Composition

(1) (2)

1 Chairman; 2 Commissioners

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(3) Qualifications

(4)

Term

Natural-born citizen; At least 35 years of age at the time of appointment; CPA with at least ten (10) years auditing experience or members of the Philippine Bar with at least ten (10) years practice of law; at no time shall all members belong to the same position; and Not a candidate for any elective position in the election immediately preceding

7 years, without reappointment

Powers and Duties (Art. IX-D, Sec. 2):

(a)

Examine, audit and settle all accounts pertaining to revenue and receipts of, and expenditures or uses of funds and property owned or held in trust or pertaining to government;

Post-audit basis (Art. IX-D, Sec.2): 1. Constitutional bodies, commissions and offices; 2. Autonomous state colleges and universities; 3. GOCCs with no original charters and their subsidiaries; 4. Non-governmental entities receiving subsidy or equity, directly or indirectly from or through the Government, which are required by law or the granting institution to submit such audit as a condition of subsidy or equity. (b) Keep general accounts of government and preserve vouchers and supporting papers; (c) Authority to define scope of its audit and examination, establish techniques and methods required therefore; and (d) Promulgate accounting and auditing rules and regulations, including those for preservation and disallowance. D. REVIEW OF FINAL ORDERS, RESOLUTIONS, AND DECISIONS

1. RENDERED IN THE EXERCISE OF QU ASI-JUDICIAL FUNCTIONS Thhe Commission shall have 60 days from the date of the submission of the case for decision or resolution to decide by a majority of its members. Any ruling or decision made by the Commission may be brought to the Supreme Court on certiorari within 30 day from the receipt of the copy. (Sec. 7, Art. IX-A). Decisions Each commission shall decide by a majority vote of all its members any case or matter brought before it within 60 days from the date of its submission for decision or resolution (Art IX-A, Sec. 7)

In resolving cases brought before it on appeal respondent COA is not required to limit its review only to the grounds relied upon by a government agency’s auditor with respect to disallowing certain disbursements of public funds. Such

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would render COA’s vital constitutional power unduly limited and thereby useless and ineffective. (Yap v. COA)

CITIZENSHIP

Certiorari Jurisdiction of the Supreme Court The Court exercises extraordinary jurisdiction, thus, the proceeding is limited only to issues involving grave abuse of discretion resulting in lack or excess of jurisdiction, and does not ordinarily empower the Court to review the factual findings of the Commissions (Aratuc v. COMELEC (1999))

A. Who are citizens of the Philippines a.

2. RENDERED IN THE EXERCISE OF ADMINISTRATIVE FUNCTIONS 

Each Commission shall appoint its own officials in accordance with law (Art. IXA, Sec. 4)



Each Commission En Banc  may promulgate its own rules concerning pleadings and practices before it (supra, Sec. 6)



But these rules shall not diminish, increase, or modify substantive rights.

b. c.

d.

Citizens of the Philippines at the time of the adoption of this Constitution; Those whose fathers OR mothers  are citizens of the Philippines; Those who elected to be citizens. This applies only to : Those born before Jan 17, 1973 to Filipino  mothers; and  Elect Philippine citizenship upon reaching the age of majority Those naturalized in accordance with law

As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution's enumeration is silent as to foundlings, there is no restrictive language which would definitely exclude foundlings either. No such intent or language permits discrimination against foundlings. On the contrary, all three Constitutions (1935, 1973, and 1987) guarantee the basic right to equal protection of the laws. All exhort the State to render social justice. (Poe-Llamanzares v. COMELEC , G.R. No. 221697 (2016))

B. Public Officers who must be natural born citizens    

 



 

President Art. VII, Sec. 2 Vice President Members of Congress Art. VI, Sections 3 and 6  Justices of the Supreme Court and lower collegiate courts, Art. VIII, Sec. 7(1) Ombudsman and his deputies, Art. XI, Sec. 8 Members of the Constitutional Commission, Art. IX, B, Sec. 1 (1); C, Sec. (1); and D, Sec. 1(1) Members of the Central Monetary Authority, Art. XII, Sec. 20 Members of Commission on Human Rights Art. XIII, sec. 17 (2) Former natural born citizens as transferees of private lands, Art. XII

C. Modes of acquiring citizenship 1. By Birth  Jus soli “Right of soil”; person’s nationality is based on the place of birth

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 Jus sanguinis – “Right of blood”; person’s nationality follows that of his/her natural parents. This is the principle adhered to by the Philippines.

2. By Naturalization

CONSTITUTIONAL LAW 2

(4) (5) (6)

(7)

Applicable Law: Commonwealth Act. 473

(8) QUALIFICAtionS to be naturalized

(C.A. 473, Sec. 2) (1) Not less than twenty-one years of age on the day of the hearing of the petition; (2) Resided in the Philippines for a continuous period of 10 years or more; (3) Of good moral character; believes in the principles underlying the Philippine Constitution; conducted himself in a proper and irreproachable manner during the entire period of his residence towards the government and community (4) Must own real estate in the Philippines worth P5,000 or more OR must have lucrative trade, professio n, or lawful occupation; (5) Able to speak or write English or Spanish or anyone of the principal languages; (6) Enrolled his minor children of school age in any of the recognized schools where Philippine history, government and civics are taught or prescribed as part of the school curriculum, during the entire period of the residence in the Philippines required of him.

 When is the 10-year residence requirement reduced to 5 years? (Special Qualifications)

(C.A. 473, Sec. 3) – Any of the following will result to reduction of 10-year period to 5 years (1) Having honorably held office under the Government of the Philippines or under that of any of the provinces, cities, municipalities, or political subdivisions thereof; (2) Established a new industry or introduced a useful invention in the Philippines; (3) Married to a Filipino woman; (4) Engaged as a teacher in the Philippines in a public or recognized private school not established for the exclusive instruction of children of persons of a particular nationality or race, in any of the branches of education or industry for a period of 2 years or more; (5) Born in the Philippines.

DISQUALIFICATIONS FROM BEING naturalized?

(C.A. 473, Sec. 4) (1) Persons opposed to organized government or affiliated with groups who uphold and teach doctrines opposing all organized governments; (2) Persons defending or teaching the necessity o r propriety of violence, personal assault, or assassination for the success of their ideas; (3) Polygamists or believers in polygamy;

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Persons convicted of crimes involving moral turpitude; Persons suffering from mental alienation or incurable contagious diseases; Persons who during the period of their stay, have not mingled socially with the Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions, and ideals of the Filipinos; Citizens or subjects of nations with whom the Philippines is at war Citizens or subjects of a foreign country other than the United States, whose laws do not grant Filipinos the right to become naturalized citizens or subject thereof.

GROUDS FOR Denaturalization, Sec. 18

(C.A. 473, Sec. 18) – Upon the proper motion of the Solicitor General or the provincial prosecutor, naturalization may be cancelled when: 1. Naturalization certificate was fraudulently or illegally obtained (See Po Soon Tek v. Republic, 60 SCRA 98 (1974)) 2. If, within the five years next following the issuance, he shall return to his native country or to some foreign country and establish his permanent residence there 3. Remaining for more than one year in his native country or the country of his former nationality, or two years in any other foreign country, shall be considered as  prima  facie evidence of his intention of taking up his permanent residence in the same; 4. Petition was made on an invalid declaration of intention; 5. Minor children of the person naturalized failed to graduate from the schools mentioned in sec. 2, through the fault of their parents, either by neglecting to support them or by transferring them to another school or schools. 6. If he has allowed himself to be used as a dummy in violation of the Constitutional or legal provision requiring Philippine citizenship as a requisite for the exercise, use or enjoyment of a right, franchise or privilege. Burden of Proof The applicant must comply with the jurisdictional requirements, establish his or her possession of the qualifications and none of the disqualifications enumerated under the law, and present at least two (2) character witnesses to support his allegations. (Go v. Republic of the Philippines, G.R. No. 202809 (2014)) Naturalization is never final  and may be revoked if one commits acts of moral turpitude. (Republic v. Guy (1982))

 Judgment directing the issuance of a certificate of naturalization is a mere grant of a political privilege and that neither estoppel nor res judicata may be invoked  to bar the State from initiating an action for the cancellation or nullification of the certificate of naturalization thus issued. (Yao Mun Tek v. Republic (1971)

: Good moral character   is an essential requirement for one to be naturalized as a Filipino. A deliberate falsehood amounting to perjury, as he concealed his true status under oath and, likewise,

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shows petitioner’s wanton disregard for truth, hence, lack of good moral character disabling him from acquiring Philippine citizenship. (Tak Ng v. Republic , G.R. L-13017, December 23, 1959) The commission of a crime involving moral turpitude is a bar for naturalization  "Moral turpitude" has been defined as an act of baseness, vileness, or depravity in the private and social duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man (Traders & General Ins. Co. v. Russell, Tex. Civ. App., 99 S.W. (2d) 1079) or conduct contrary to justice, honesty, modesty, or good morals (Marah v. State Bar of California, 210 Cal. 303, 291 P. 583). Profiteering  is an offense which involves moral turpitude inasmuch as it affects the prices of prime commodities and goes to the life of the citizens, especially those who are poor and with hardly the means to sustain themselves. Hence, conviction of said crime disqualifies a petitioner from naturalization as a Filipino citizen.

D. Dual Citizenship AND DUAL ALLEGIANCE:

CONSTITUTIONAL LAW 2

In dual citizenship, such is not an automatic disqualification. Filing of the Certificate of Candidacy is sufficient to renounce foreign citizenship to the effect that one declares under oath of maintenance, true faith and allegiance to the Constitution of the Philippines (Valles v. COMELEC (2000)).

E. Loss and Reacquisition of Citizenship Art. IV, Sec. 3, Sec. 2 – GROUNDS: (1) Naturalization in a foreign country; (2) Express renunciation or expatriation (3) Taking an oath of allegiance to another country upon reaching the age of majority; (4) Marriage by a Filipino woman to an alien, if by the laws of her husband’s country, she becomes a citizen thereof (5) Accepting a commission and serving in the armed forces of another country, unless there is an offensive/ defensive pact with the country, or it maintains armed forces in RP with RP’s consent; (6) Denaturalization; (7) Being found by final judgment to be a deserter of the AFP

Reacquisition R. A. No. 9189 – Overseas Voting Law :=, There is no provision in the dual citizenship law - R.A. 9225 - requiring "duals" to actually establish residence and physically stay in the Philippines first before they can exercise their right to vote. On the contrary, R.A. 9225, in implicit acknowledgment that "duals" are most likely non-residents, grants under its Section 5(1) the same right of suffrage as that granted an absentee voter under R.A. 9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as much as possible all overseas Filipinos who, save for the residency requirements exacted of an ordinary voter under ordinary conditions, are qualified to vote.”( Nicolas- Lewis v. COMELEC 497 SCRA 649) DUAL ALLEGIANCE (Sec. 5, Art IV) Where a person simultaneously owes, by some positive act, loyalty to 2 or more states; Not equivalent to dual citizenship;  Examples  Aliens who are naturalized as Filipinos but remain loyal to their country of origin; Public officers who, while serving the government, seek citizenship in another country Such are disqualified from running for any  elective local position (Sec. 40d, Local Government Code) DUAL CITIZENSHIP IN RE. DUAL ALLEGIANCE Once a candidate files his candidacy, he is deemed to have renounced his foreign citizenship ( Mercado v. Manzano (1999))

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1. 2. 3. 4. 5. 6. 7.

Naturalization 21 years of age Be a resident for 6 months Have good moral character No disqualification Repatriation- results in the recovery of the original nationality Legislative Act

NATIONAL ECONOMY AND PATRIMONY The term “patrimony” pertains to heritage, and given the history of the Manila Hotel, it has become a part of our national economy and patrimony. Thus, the Filipino First policy provision of the Constitution i s applicable. Such provision is per se enforceable, and requires no further guidelines or implementing rules or laws for its operation. ( Manila Prince Hotel v. GSIS, (1990) Goals: 





More equitable distribution of opportunities, income, and wealth Sustained increase in amount of goods and services produced by the nation for the benefit of the people Expanding production as the key to raising the quality of life for all, especially the underprivileged.

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A. Regalian doctrine All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna and other natural resources are owned by the State (Sec. 2, Art. XII). The State, being the owner of the natural resources, is accorded the primary power and responsibility in the exploration, development and utilization  thereof. As such it may undertake these activities through four modes: (1) The State may directly undertake such activities; (2) The State may enter into co-production, joint venture or production-sharing agreements with Filipino citizens or qualified corporations; (3) Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens; or (4) For the large-scale exploration, development and utilization of minerals, petroleum and other mineral oils, the President may enter into agreements with foreignowned corporations involving technical or financial assistance. (La Bugal-B’Laan Tribal Assn. v. Ramos (Jan. 2004))

Limits imposed on the concept of regalian doctrine under Section 2, Article XII 











Only agricultural lands of the public domain may be alienated. The exploration, development, and utilization of all natural resources shall be under the supervision of the State either by directly undertaking such exploration, development, and utilization or through co-exploration, joint venture, or production-sharing agreements with qualified persons or corporations. All agreements with the qualified private sector maybe for only a period not exceeding twenty-five years, renewable for another twenty-five years. The twenty-five year limit is not applicable to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, for which beneficial use may be the measure and the limit of grant. The use and enjoyment of the marine wealth of t he archipelagic waters, territorial sea, and exclusive economic zone shall be reserved for Filipino citizens. Utilization of natural resources in rivers, lakes, bays, and lagoons may be allowed on a small scale to Filipino citizens or cooperatives—with priority for subsistence fishermen and fish workers (Bernas, The 1987 Philippine Constitution: A Complimentary Reviewer)

Classification of the land of the public domain Lands of the public domain are classified into agricultural, forest or timber, mineral lands, and national parks. Agricultural lands of the public domain may be further classified according to the uses to which they may be devoted (Sec. 3, Art. XII ).

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CONSTITUTIONAL LAW 2

Rules on the disposition of agricultural lands of the public domain Private corporations or associations may not acquire  alienable lands of the public domain. Qualified individuals (Filipinos) may acquire a  maximum of 12 hectares of alienable lands of public domain by purchase, homestead or grant. Private corporations may hold alienable lands of the  public domain by lease up to a maximum of 1,000 hectares and for a period of twenty-five years renewable for another twenty-five years. Qualified individuals (Filipinos) may lease land of the  public domains up to a maximum of 500 hectares (Sec. 3,  Art. XII ). Transfer of private lands to aliens Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain. (Sec. 7, Art. XII) Prohibition does not apply to ownership of other real property A foreigner may own a condominium unit because the prohibition on aliens is only from acq uiring land (see Hulst v. PR Builders, G.R. No. 156364, September 25, 2008). Public utility A public utility is a utility corporation which renders service to the general public for compensation. Its essential feature is that its service is not confined to privileged individuals but is open to an indefinite public. The public or private character of a utility does not depend on the number of persons who avail of its services but on whether or not it is open to serve all members of the public who may require it (Iloilo Ice and Cold Storage Co. v. Public Utility Board, 44 Phil. 551 )

B. franchises, authority, and certificates for public utilities Franchise, certificate or any other form of authorization for the operation of public utilities- ONLY to citizens of the Philippines or corporations at least 60% of whose capital is Filipino-owned. (Art. VII, Sec 11) Congress does not have the exclusive power to issue franchises. Administrative bodies may be empowered by law to do so (Albano v. Reyes, 175 SCRA 264) Public utility 

Business or service engaged in re gularly supplying the public with some commodity or service of public consequence. A  joint venture falls within the purview of an “association” pursuant to Sec. 11, Art. XII and must comply with the 60%40% Filipino-foreign capitalization requirement. ( JG Summit Holdings v. CA (2001) a.

Capital - the 60% requirement applies to both the voting control and the beneficial ownership of the public utility. Therefore, it shall apply uniformly, separately, and across the board to all classes of shares, regardless of nomenclature or category,

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comprising the capital of the corporation. (e.g. 60% of common stock, 60% of preferred voting stock, and 60% of preferred non-voting stock.) (Gamboa v. Teves, G.R. No. 176579, October 9, 2012) State polices on monopolies and restraint of trade . The State shall regulate or prohibit monopolies when the public i nterest so requires. No combinations in restraint of trade or unfair competition shall be allowed (sec. 19, Art. XII ). State policy on the ownership of educational institutions . Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of which is owned by such citizens. The Congress may, however, require increased Filipino equity participation in all educational institutions. The control and administration of educational institutions shall be vested in citizens of the Philippines ( Sec. 4(2), Art. XIV )

C. Practice of Profession The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law. ( Art. XII, Sec. 14)

CONSTITUTIONAL LAW 2

Qualifications of the Governors: (1) Natural-born Filipino; (2) Known probity, integrity and patriotism; (3) Majority shall come from the private sector

ORGANIZATION AND REGULATION OF CORPORATIONS, PRIVATE AND PUBLIC Art. XII, Sec. 6. The use of property bears a social function, and all economic agents shall contribute to the common good.

Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands. Article XIII, Sec. 6. The state shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands.

SOCIAL JUSTICE AND HUMAN RIGHTS

D. Monopolies, restraint of trade and unfair competition Monopolies Although the Constitution enshrines free enterprise as a policy, it nevertheless reserves to the Government the power to intervene whenever necessary for the promotion of the general welfare (Philippine Coconut Desiccators v. PCA (1998))

b.

Not per se prohibited by the Constitution but may be permitted to exist to aid the government in carrying on an enterprise or to aid in the performance of various services and functions in the interest of the public. Nonetheless, a determination must first be made as to whether public interest requires a monopoly. (Agan, Jr. v. PIATCO (2003))

A. Concept Social justice is “neither communism, nor despotism, nor atomism, nor anarchy,” but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. (Calalang v. Williams)

B. Commission on Human Rights - Powers and Functions (1)

Central Monetary Authority Functions: (1) Provide policy directions in the areas of money, banking and credit; (2) Supervise the operation of banks; (3) Exercise such regulatory powers as may be provided by law over the operations of finance companies and other institutions performing similar functions

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(2)

(3)

Investigate, o its own or on complaint by any party, all forms of human rights violations involving civil and political rights; Adopt its operational guidelines and rules and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court; Provide appropriate legal measures for the protectio n of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the under-

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privileged whose human rights have been violated or need protection (4) Exercise visitorial powers over jails, prisons, or detention facilities (5) Establish a continuing program of research, education, and information to enhance respect for the primacy of human rights; (6) Recommend to Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights, or their families (7) Monitor the Philippine Government’s compliance with international treaty obligations on human rights (8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority; (9) Request the assistance of any department, bureau, office, or agency in the performance of its functions (10) Appoint its officers and employees in accordance with law; and (11) Perform such other duties and functions as may be provided by law The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e., receive evidence and make findings of fact as regard claimed human rights violations involving civil and political rights. But fact finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasi judicial agency or official. (Carino v. CHR, G.R. No. 96681, December 2, 1991

C. AGRARIAN REFORM The basic law allows two (2) modes of land distribution: direct and indirect ownership. a. Direct transfer to individual farmers is the most commonly used method by DAR and widely accepted. b. Indirect transfer through collective o wnership of the agricultural land is the alternative to direct ownership of agricultural land by individual farmers. Sec. 4 EXPRESSLY authorizes collective ownership by farmers. No language can be found in the 1987 Constitution that disqualifies or prohibits corporations or cooperatives of farmers from being the legal entity through which collective ownership can be exercised.

CONSTITUTIONAL LAW 2

EDUCATION, SCIENCE, TECHNOLOGY, ARTS, CULTURE, AND SPORTS

A. Academic Freedom Four essential freedoms of a university: (1) Who may teach; (2) What may be taught; (3) How it will be taught; and (4) Who may be admitted to study The right to discipline the student likewise finds basis in the freedom “what to teach”. Indeed, while it is categorically stated under the Education Act of 1982 that students have a right “to freely choose their field of study, subject to existing curricula and to continue their course therein up to graduation,” such right is subject to the established academic and disciplinary standards laid down by the academic institution (DLSU Inc., v. CA, G.R. No. 127980, December 19, 2007) Due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of  justice. Such proceedings may be summary and crossexamination is not even an essential part thereof. Accordingly, the minimum standards laid down by the Court to meet the demands of procedural due process are: (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shall have the right to answer the charges against them, with the assistance of counsel, if desired: (3) they shall be informed of the evidence against them; (4) they shall have the right to adduce evidence in their own behalf and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. (PSBA v. Alcuaz, G.R. No. 76353, May 1988)

By using the word collectively, the Constitution allows for indirect ownership of land and not just outright agricultural land transfer. This is in recognition of the fact t hat land reform may become successful even if it i s done through the medium of juridical entities composed of farmers. (Hacienda Luisita Inc. v. PARC (2011)

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CONSTITUTIONAL LAW 2

FUNDAMENTAL POWERS OF THE STATE (A) Police Power (B) Eminent Domain (C) Power of Taxation

POLICE POWER Police Power, defined

CONSTITUTIONAL LAW II

“The power vested in the legislature  by the Constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances , either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of t he same.” (Bernas, S.J. (2009). The 1987 Constitution of the Republic of the Philippines: A commentary. Rex Printing Compnay, Inc.) •

State authority to enact legislation   that may interfere with personal liberty or property in order to promote the general welfare. (Edu v Ericta, 35 SCRA 481, 1970)

Nature and Basis

“[It] is an inherent and plenary power   which enables the State to prohibit all that is hurtful to the comfort, safety, and welfare of the society. (Ermita-Malate Hotel and Motel Operators  Assoc., Inc. v Mayor of Manila, GR No. L-24693, July 31, 1967) “It is [also] the most pervasive, the lease limitable and the most demanding of the three powers. It is the most essential, insistent and least limitable, extending as it does “to all the great public needs”. Hence, it may be exercised as long as it has some relevant to the public welfare. The justification is found in the ancient Latin maxims: Salus populi est suprema lex - the welfare of the people is the supreme law. •

•

Sic utere tuo ut alienum non laedas - so use your own property as not to injure another’s property. (Cruz, Isagani)

Scope a. General “The most essential, insistent and the least limitable of powers, extending as it does to all the great public needs.” (Ichong v. Hernandez, 101 Phil. 1155, 1957) •

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The police power is considered the most pervasive, the least limitable, and the most demanding of the three powers.

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•

Police power rests upon public necessity and upon the right of the State and of the public to self-protection. For this reason, its scope expands and contracts with changing needs. (Churchill v. Rafferty, 32 Phil. 580, 1915)

CONSTITUTIONAL LAW 2

•

Through the “general welfare clause”, the lawmaking bodies on all municipal levels, including the barangay, exercise police power. (Cruz)

“The rigidity of the theory of separation of b. Particular aspects The pervasive reach of police power has been used to justify measures: (H-M-S-W)

(1) (2) (3) (4)

Public Health Public Morals Public Safety Public W elfare

governmental powers has, to a large extent, been relaxed by permitting the delegation of greater powers by the legislative and vesting a larger amount of discretion in administrative and executive officials, not only in the executions of laws, but also in the promulgation of certain rules

Limitations a. General b. Due process Basis: “no person shall be deprived of life, liberty or property without due process of law” (Sec.1, Art III, CONST.) c. Equal protection Basis: “xxx Nor shall any person be denied of equal protection of law”

Requisites for valid exercise (1)

Lawful subject or purpose The interests of the public generally , as distinguished from those of a particular class, require the exercise of the police power

(2)

Lawful means The means are reasonably necessary   for the accomplishment of the purpose, and not unduly oppressive upon individuals. (US v. Toribio, 15 P hil. 85, 1910)

Who may exercise police power? (1)

(2)

Legislature The police power is lodged primarily in the national legislature .

and regulations calculated to promote public interest.”. (Calalang v. Williams, 70 Phil. 726, 1940)

EMINENT DOMAIN

Eminent domain, defined It is the power of the state to take or condemn private property for public use upon payment of  just compensation. (Bernas) TWO STAGES OF EMINENT DOMAIN CASES 1. The determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit 2. The determination by the court of the just compensation for the property sought to be taken . (Republic vs. Lim, GR no. 161656, June 29, 2005)

Who may exercise the power of eminent domain? [It] is lodged primarily in the national legislature , but its exercise may be validly delegated to other governmental entities and, in fact, even to private corporations: (Bernas) (1) (2) (3)

Executive By virtue of a valid delegation of legislative power; it may also be exercised by the President and administrative boards.

GENERAL RULE:  Police power primarily lodged in the Legislative EXCEPTION:  Valid delegation to the President and Administrative Bodies as well as the lawmaking bodies of Municipal Corporation or LGUs. Once delegated, the agents can exercise only such legislative powers as are conferred on them by the lawmaking body.  ( MMDA vs. Bel-Air Village  Association, GR no. 135962, March 27, 2000)

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(4) (5) •

•

Congress President of the Philippines Municipal governments and other government entities Certain public corporations (i.e. NHA) Quasi-public corporations operating public utilities

In the hands of Congress  the scope of the power is plenary. It is as broad as the sc ope of police power itself. It can reach every form of property which the State might need for public use . The delegated power of eminent domain of local governments is strictly speaking not a power of eminent but of inferior domain –  a share merely in eminent domain. It is only as broad as the eminent authority would allow it to be .

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Requisites for the exercise of the power of eminent domain 1. 2. 3.

Taking of private property Said taking must be for public use Payment of just compensation

CONSTITUTIONAL LAW 2

Public Use Means public usefulness, utility, or advantage, or what is productive of general benefit (Bernas). •

Private property General rule: Anything that can come under the dominion of man is subject to expropriation, i.e.: 1. Real and personal properties 2. Tangible and intangible properties Exceptions: 1. Money Would be futile because of the requirement of just compensation, which is usually in money.

2.

Cause of action “A personal right not reduced into possession but recoverable by a suit at law; a right to receive, demand, or recover a debt, demand or damages on a cause of action ex contractu or for a tort or omission of duty”

Taking  In law, it has a broader connotation. It may include trespass without actual eviction of the owner, material impairment of the value of the property or prevention of the ordinary uses for which the property was intended (Cruz).

Requisites of “Taking for Purposes of Eminent Domain” (Republic v. Castellvi, 58 SCRA 336, 1974) 1. 2. 3. 4.

5.

The expropriator must enter a private property. The entrance into private property must be for more than a momentary period. The entry into the property should be under warrant or color of legal authority. The property must be devoted to public use or otherwise informally appropriated or injuriously affected. The utilization of the property for public use must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property.

MEANING OF TAKING (AD-MI-C-O) 1. The owner is actually deprived  or disposed of the property. 2. There is practical destruction or material impairment of the value of his property 3. The owner is deprived of jurisdiction, supervision and control of his property 4. The owner is deprived of the ordinary use of his property (Republic vs. Sandiganbayan, GR no 157847,  August 25, 2005). WHEN IS THERE CONSTRUCTIVE TAKING? When there is destruction, restriction, diminution or interruption of the rights of the ownership or of the common and necessary and enjoyment of the property in a lawful manner, lessening or destroying its value (National Power Corporation vs. Heirs of Macabangkil Sangkay, GR no. 1655828,  August 24, 2011).

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•

•

As long as public has right of use, whether exercised by one or many members of the public, a public advantage or public benefit accrues sufficient to constitute a public use (Black’s Law Dictionary, as cited in Mañosca v. CA, 252 SCRA 412, 1997). If the genuine public necessity disappears, then there is no more cogent point for the government’s retention of the expropriated land (Vda de Ouano vs. Republic, GR No. 168770, February 9, 2011). When exercised by the Congress, the question of genuine necessity is a political question which the courts cannot resolve. When it is delegated, the grant of such special authority for special purpose is still a political question. Hence, it is a justifiable question that can be resolved by the courts (City of Manila vs. Chinese Community of Manila, GR no. L-14355, October 31, 1919).

 Just Compensation The just and complete equivalent  of the loss which the owner of the thing expropriated has to suffer by reason of the expropriation (Bernas).

Expressed differently, the compensation given to the owner is  just if he receives for his property a sum equivalent to its “market value.” While market value may be one of the bases in determining just compensation, the same cannot be arbitrarily arrived at without considering the factors to be appreciated in arriving at the fair market value of the property. e.g. cost of acquisition, the current value of like properties, size, shape, location, tax declaration (Landbank v. Wycoco, GR No. 140160, January 13, 2004). FAIR MARKET VALUE The price that may be agreed upon by the parties who are willing but are not compelled to enter into a contract of sale. Otherwise stated, it is the price prepared to be paid by a party who is willing, but not compelled to purchase the property, and the price by which the selle r is willing to par with, but not compelled, to sell the property (National Power Corporation vs. Dela Cruz, GR no. 16093, February 2, 2007).

Point of reference for assessing the value of a piece of property General Rule: The value of the property sought to be taken at the time of the fili ng of the complaint for expropriation which generally coincides with the taking shall be the basis for just compensation;

But: 1.

When filing of the case comes later than the taking and the value of the property has increased because of the use which the expropriator has put it, the value is that of the time of the earlier taking.

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2.

CONSTITUTIONAL LAW 2

If the value increases independently of what the expropriator did, the value is that of the later filing.

CONSEQUENTIAL DAMAGE It consists of injuries directly caused on the residue of the private property taken by the reason of expropriation (Cruz).

Purpose

EFFECT OF DELAY IN PAYMENT The government is expected to immediately pay as directed. •

•

Taking

Appropriated for use by or for the benefit of the public

Prevent injury to public welfare and to public interest For local government, including the benefits to the poor and landless

The trial court is directed to seize any patrimonial property or cash savings of the province in the amount necessary to implement the decision (Provincial Government of Sorsogon vs. Villaroya, GR no. L-64037, August 27, 1987). The owner is entitled to payment of interest, if claimed; otherwise, interest is deemed waived (Urtula vs. Republic, GR no L-22061, January 31, 1968).

EFFECT OF NON-PAYMENT General Rule: The non-payment of just compensation does not entitle the private landowner to recover possession of expropriated lots. Exception: In cases where the government failed to pay just compensation within five (5) years from the finality of the  judgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property (Republic vs. Lim). The power of eminent domain could be used as an implementation of the police power •

Regulation

Where the owner is unwilling to sell, the power of eminent domain will come into play to assert the paramount authority of the State. Private rights must yield to the demand of public interest on the time honored justification, as in the case of police power, that the welfare of the people is the supreme law (Association of Small Landowners v. Sec. of Agrarian Reform, 175 SCRA 343).

DUE PROCESS Property owned must be given an opportunity to be heard in the determination of the fair market value of the property (Sec 3, Rule 67, ROC). REQUISITES OF EXERCISE OF EMINENT DOMAIN BY LGU’S (Municipality of Paranaque vs. VM Realty Corp, GR no 127820, July 20, 1998) (O-PU-JC-O) (1) Ordinance  by the local legislative council authorizing the local chief executive to exercise the power of eminent domain (2) For public use, purpose or welfare or for the benefit of the poor and of the landless (3) Payment of just compensation; and (4) Valid and definite offer has been previously made to the owner of the property sought but such offer was refused •

•

The power of eminent domain as exercised by the LGUS is not strictly speaking, a power of eminent domain. It is merely a power of inferior domain which means that local government units can only exercise such power which is delegated to it (Suarez). The power of the eminent domain may be exercised by LGUs for urban and reform purposes but expropriation of privately owned lands must be resorted to only after all other lands has been exhausted (Sec 10, RA 7279).

“Mere Regulation” versus “Taking”

Regulation Exercise of power

Police Power

Compensation

Not required

Taking Power of Eminent Domain

Prescribed by Constitution

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TAXATION

Taxation; defined It is the power by which the sovereign, through its lawmaking body, raises revenue to defray the necessary expenses of government. It is a way of apportioning the costs of government among those who in some measure are privileged to enjoy its benefits and must bear its burdens.

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CONSTITUTIONAL LAW 2

Nature

Enforced proportional contributions from persons and property, levied by the State by virtue of its sovereignty, for the support of government and for all public needs (Cooley, Taxation, 4th ed.).

Extent

Impairment of obligation of contracts The State’s inherent power of taxation may validly limit the impairment clause. Generally, the imposition of a tax does not alter the relationship between the parties but only the relationship between the parties and the State who may not be a party to the contract. •

The extent of the taxing power is as broad as the purpose for which it is given (Bernas). Reaches every trade or occupation, to every object of industry, use or enjoyment, to every species of possession (Cooley). •

•

prohibited in our jurisdiction. Despite the lack of a specific prohibition, however, double taxation will not be allowed if it results in a violation of the equal protection clause (Cruz).

So pervasive is the power of taxation that it reaches even the citizen abroad and his income earned from sources outside his State (Cruz).

PURPOSE:   

To raise revenue Tool for regulation Protection/ power to keep alive

•

It has been held that a lawful tax on a new subject, or an increased tax on an old one, does not interfere with a contract or impairs its obligation within the meaning of the Constitution.

Tax exemptions May either be constitutional or statutory in nature Limitations to creating tax exemptions Inherent to the power to tax is the power to exempt from tax. Hence, the same general and specific l imitations on the power to tax also apply to the power to create exemptions (Bernas). •

Inherent limitations Found in the very nature of the power itself, these include: 1. 2. 3. 4. 5.

Public purpose Non-delegability Exemption of government from taxation Situs of taxation International comity

Constitutional limitations Those expressly found in the Constitution, or implied from its provisions. These include: (1) Taxes should be uniform and equitable (Section. 28(1), Art. VI ) (2) Power to tax exists for the general welfare; should be exercised only for a public purpose (Section. 28(2), Art. VI ) (3) Might be justified as for public purpose even if the immediate beneficiaries are private individuals (4) Tax should not be confiscatory: If a tax measure is so unconscionable as to amount to confiscation of property, the Court will invalidate it. But invalidating a tax measure must be exercised with utmost caution; otherwise, the State’s power to legislate for the public welfare might be seriously curtailed Double Taxation There is double taxation when additional taxes are laid on the same subject by the same taxing jurisdiction during the same taxing period and for the same purpose (Cooley). •

There is no provision in the Constitution specifically prohibiting double taxation. Our Supreme Court has not categorically held that double or multiple taxation is

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Unlike the ordinary legislation, tax measures require absolute majority of the entire composition of both houses of congress, voting separately. The former requires only majority of members present as long as there is a quorum

Rationale to strict construction of tax exemptions Reason for Sec. 28(4), Art. VI  of the 1987 Constitution: Tax exemptions should not be lightly extended since they will represent a loss of revenue to the government. •

•

•

Where tax exemption is granted gratuitously, it may be validly revoked at will, with or without cause. If the exemption is granted for valuable consideration, it is deemed to partake of the nature of a contract and the obligation thereof is protected against impairment.

Power of taxation as a legitimate police power objective It is inherent in the power to that a state be free to select the subjects of taxation, and it has been repeatedly held that “inequities which result from singling out of one particular class for taxation or exemption infringe no constitutional limitation.” Taxation has been made the implement of the state’s police power (Tio v. Videogram Regulatory Board, 151 SCRA 208). •

ENTITIES AND MATTER EXEMPT FROM SOME KIND OF TAXES BY THE CONSTITUTION 1. Charitable institution, churches, and personages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, building, and improvements actually, directly, and exclusively used for religious, charitable or educational purposes (Sec. 28(3), Article VI, CONST). NOTE: A gift tax is not a property tax, but an excise tax imposed on the transfer of property by way of gift inter

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CONSTITUTIONAL LAW 2

vivos, the imposition of which a property used exclusively for religions purpose does not constitution impairment of the constitution (Lladoc vs. Commissioner of Internal Revenue, GR No. L-19201, June 16, 1965) 2. All revenues and assets of non-stock, non-profit educational institution used actually, directly and exclusively for educational purposes shall be exempt from taxes and duties (Sec 4(3), Par 1, Article XIV, CONST). 3. Proprietary educational institution including those cooperatively owned may likewise be entitled to such exception subject to the limitation provided by the law (Sec 4(3), Aritcle XIV, CONST) 4. All grants endowments donation or contributions used actually, directly and exclusively for educational purpose shall be exempt from tax subject to conditions prescribed by law (Sec 4(4), Aritcle XIV, CONST). e.g, RA 9304 which exempts minimum wage earners from paying income tax , increases tax exemption for all earners and allows additional exemptions for all earners and allows additional exemptions for individuals with dependents/children.

FUNDAMENTAL POWERS OF THE STATE REQUISITES FOR VALID EXERCISE POLICE POWER

(1)

(2)

EMINENT DOMAIN

Lawful subject or purpose

(1)

Lawful means

(3)

(2)

(4)

(5)

Private property. Genuine Necessity. For public use. Payment of  Just Compensation. Due Process

TAXATION

Taxes should be: (1) Uniform (same person/ class taxed at same rate) (2) Equitable

SIMILARTITIES AND DIFFERENCES

SIMILARITIES (1) Inherent in the State (Exercised even without need of express constitutional grant) (2) Necessary and indispensable (State cannot be effective without them) (3) Method by which state interferes with private property (4) Presuppose some equivalent compensation (5) Exercised primarily by the legislature

POLICE POWER

TAXATION

Regulates liberty and property

Affects only property rights

Power exercised by whom Exercised only by the Maybe exercised government by private entities if conferred by law Nature of the property taken Property is Property is wholesome noxious or intended for a noxious purpose Compensation None, the None, the  Just altruistic feeling protection Compensation. that one has given and Full and fair contributed to the public equivalent of the public good. improvements property taken. instituted by the state because of taxes. Delegation GENERAL RULE: GENERAL [It] is lodged RULE: Police power primarily in the Taxing power primarily lodged national is nonin the Legislative legislature, but delegable. its exercise may EXCEPTION: be validly Valid delegation to EXCEPTION: delegated to (a) delegation the President and other to the Administrative governmental President of Bodies as well as entities and, in some tariff the lawmaking fact, even to powers, and bodies of private (b) Local Municipal corporations: government Corporation or (Bernas) unit’s fiscal LGUs. Once autonomy for delegated, the agents can exercise their self serving needs. only such legislative powers as are conferred on them by the lawmaking body. (  MMDA vs. Bel-Air Village Association, GR no. 135962,  March 27, 2000) NOTE: In the exercise of police power, the deprivation of the use of the property may be total, but it will not constitute compensable taking if nobody else acquires use of the property or any interest therein. (Dipidio Earth-Savers  Multipurpose Association v. Gozun, G.R. No. 157882, March 30, 2006) If regulation is the primary purpose, the fact that revenue is incidentally raised does not make the imposition a tax. (Gerochi v. Department of Energy, 2007)

EMINENT DOMAIN

Extent of Power

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CONSTITUTIONAL LAW 2

Taxes, as distinguished from special assessments

PRIVATE ACTS AND THE BILL OF RIGHTS Tax

Special Assessment

Imposed regardless of public improvements

Imposed because of an increase in value of land benefited by public improvement.

Contribution of a taxpayer for the support of the government

Contribution of a person for the construction of a public improvement

Has general application both as to place and time

Exceptional both as to time and locality

The Bill of Rights guarantee governs the relationship between the individual and the State. Its concern is not the relation between private individuals. What it does is to declare some forbidden zones in the private sphere inaccessible to any power holder (People v. Marti, G.R. No. 81561, Jan. 18, 1991). Article III contains the chief protection for human rights but the body of the Constitution guarantees other rights as well. (1) Civil rights – rights that belong to an i ndividual by virtue of his citizenship in a state or community (e.g. rights to property, marriage, freedom to contract, equal protection, etc.) (2) Political rights –  rights that pertain to an individual’s citizenship vis-a  ̀-vis the management of the government (e.g. right of suffrage, right to petition government for redress, right to hold public office, etc.)

If unpaid, the business or activity does not become illegal. Taxes, as distinguished from license fees

Tax Levied to raise revenues

Amount to be collected is unlimited provided it is not confiscatory

(3) Social and economic rights – rights which are intended to insure the well-being and economic security of the individual

License Fees Imposed for regulatory purposes in the exercise of police power Amount is invariably limited to cover the expenses of issuing the license and the cost of the necessary surveillance, inspection or government supervision

Imposed on persons, property, privilege, occupation or business

Imposed for the regulation of lawful business or occupation

If unpaid, the business or activity does not become illegal.

If unpaid, the business or activity itself can become illegal

(4) Rights of the accused – civil rights intended for the protection of a person accused of any crime The Bill of Rights is designed to preserve the ideals of liberty, equality and security "against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of those who have no patience with general principles.” (Philippine Blooming  Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 1973)

BASES AND PURPOSE

Bases: (1) (2)

Importance accorded to the dignity and worth of the individual. Protection against arbitrary actions of government and other members of society

Purpose: (1) To preserve democratic ideals (2) To safeguard fundamental rights (3) To promote the happiness of an individual

DUE PROCESS DUE PROCESS – THE RIGHTS TO LIFE, LIBERTY & PROPERTY Due Process  is a guaranty against any arbitrariness on the part of the government, whether committed by the legislature, the executive, or the judiciary (Cruz).

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(1) (2) (3)

CONSTITUTIONAL LAW 2

Life Liberty Property

CONSTITUTIONAL DUE

STATUTORY DUE

PROCESS

PROCESS

Protects the individual from the government and assures him of his rights in criminal, civil or administrative proceedings

Due process means that:

(1)

There shall be a law prescribed in harmony with the general powers of the legislature; (2) It shall be reasonable in its operation; (3) It shall be enforced according to the regular methods of procedure prescribed; and (4) It shall be applicable alike to all citizens of the S tate or to all of a class (People v. Cayat, G.R. No. L-45987,  May 5, 1939).

While found in the Labor Code and Implementing Rules, it protects employees from being unjustly terminated without just cause after notice and hearing (Agabon v. NLRC, G.R. No. 158693, Nov. 17, 2004).

1. RELATIVITY OF DUE PROCESS The concept of due process is flexible for not all situations calling for procedural safeguards call for the same kind of procedure. (Secretary of Justice v. Lantion, 2000)

Due process in judicial proceedings

Flexibility of the concept of due process To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure. (Morrissey v. Brewer, 1972)

(Banco Español v. Palanca, 37 Phil 921)

2. PROCEDURAL AND SUBSTANTIVE DUE PROCESS

Requisites

An impartial court or tribunal  clothed with judicial power to hear and determine the matter before it; (2)  Jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceedings; (3) The defendant must be given notice and opportunity to be heard; and (4)  Judgment must be rendered upon lawful hearing. (1)

Substantive due process •

•

The prohibition of arbitrary laws. A guarantee against the exercise of arbitrary power e ven when the power is exercised according to proper forms and procedure.

Due process in administrative proceedings

Requisites REQUISITES OF SUBSTANTIVE DUE PROCESS 1. The interests of the public in general, as distinguished from those of a particular class, req uire the intervention of the state. 2. The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.

(Ang Tibay v. CIR, 69 Phil 635) (1)

(2) (3) (4) (5)

Procedural due process •

•

•

Relates chiefly to the mode of procedure which government agencies must follow in the enforcement and application of laws. It is “a law which hears before it condemns; which proceeds upon enquiry, and renders judgment only after trial.” Contemplates notice and opportunity to be heard before  judgment is rendered, affecting one’s person or property. (Lopez v Dir. of Lands) 3. CONSTITUTIONAL AND STATUTORY DUE PROCESS

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(6)

(7)

The right to a hearing,  which includes the right to present one’s own case and submit evidence in support thereof; The tribunal must consider the evidence presented; The decision must have something to s upport itself; The evidence must be substantial; The decision must be based on the evidence presented at the hearing,  or at least contained in the record and disclosed to the parties affected; The tribunal or body or any of its judges must act on its own independent consideration of the law and facts of the controversy,  and not simply accept the views of a subordinate; The board or body should, in all controversial q uestions, render its decision in such manner that the parties to the  proceeding can know the various issues involved, and the reason for the decision rendered.

NOTE: The heart of procedural due process, whether in judicial or administrative proceedings, is the need for notice and an opportunity to be heard. •

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•

•

•

The quantum of proof in administrative proceedings in substantial evidence:

CONSTITUTIONAL LAW 2

•

The rule on publication of laws prior to their effectivity applies to: (1) Statutes (2)  Presidential decrees and executive orders promulgated by the President in the exercise of his legislative powers as delegated by congress or directly conferred by the Constitution (3)  Administrative rules and regulations,  if their purpose is to enforce or implement existing law pursuant to a valid delegation.

Substantial evidence means “such reasonable evidence as a reasonable mind might accept as adequate to support a conclusion.”  In administrative proceedings, technical rules of procedure and evidence are not strictly applied and administrative due process cannot be fully equated with due process in its strict judicial sense. (Samalia v. CA, 454 SCRA 438) •

DOES NOT apply to interpretative regulations and to those merely internal in nature.

REQUISITES OF STUDENT DISCIPLINE PROCEEDINGS Student discipline proceedings may be summary and crossexamination is not an essential part thereof. However, to be valid, the following requirements must be met: (1)  Written notification sent to the student/s  informing the nature and cause of any accusation against him/her; (2) Opportunity to answer  the charges, with the assistance of a counsel, if so desired; (3) Presentation of one’s evidence  and examination of adverse evidence; (4) Evidence must be duly considered by the investigating committee  or official designated by the school authorities to hear and decide the case (Guzman v. NU, G.R. No. L-68288, July 11, 1986). (5) The penalty imposed must be proportionate   to the offense. DUE PROCESS IN DEPORTATION PROCEEDINGS Although deportation proceedings are not criminal in nature, the consequences can be as serious as those of a criminal prosecution. The provisions of the Rules of Court for criminal cases are applicable (Lao Gi v. CA, GR. No. 81789, Dec. 29, 1989.). INSTANCES WHEN HEARINGS ARE NOT NECESSARY (1)

(2) (3) (4) (5) (6) (7) (8)

When administrative agencies are exercising their quasi-legislative functions Abatement of nuisance per se Granting by courts of provisional remedies Cases of preventive suspension Removal of temporary employees   in the government service Issuance of warrants of distraint and/or levy  by the BIR Commissioner Cancellation of the passport of a person c harged with a crime Suspension of a bank’s operations   by the Monetary Board upon a prima facie finding of liquidity problems in such bank

Notice Due process, which is a rule of fairness, requires that those who must obey a command must first know the command. •

“The publication of all presidential issuances of a public nature or of general applicability is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be o fficially and specifically informed of its contents.” (Tañada v. Tuvera, 136 SCRA 27) Impartiality The Supreme Court has repeatedly and consistently demanded the cold neutrality of an impartial judge as the indispensable imperative of due process. To bolster that requirement, [SC] held that the judge must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just. (Javier v. COMELEC, 144 SCRA 194)

4. HIERARCHY OF RIGHTS Human rights favored over property rights When the Bill of Rights also protects property rights, the primacy of human rights over property rights is recognized. Because these freedoms are “delicate and vulnerable, as well as supremely precious in our society” and the “threat of sanctions may deter their exercise almost as potently as the actual application of sanctions,” they “need breathing space to survive,” permitting government regulation only “with narrow specificity.” (Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 1973)

Running through various provisions of the Constitution are various provisions to protect property—but always with the explicit or implicit reminder that property has a social dimension and that the right to property is weighted with a social obligation. 5. JUDICIAL STANDARDS OF REVIEW RATIONAL BASIS TEST Government need only show that the challenged classification is rationally related to serving a legitimate state interest. STRICT SCRUTINY TEST Requires the government to show that the challenged classification serves a compelling state interest  and that the classification is necessary to serve that interest.

There is compelling state interest when: (1) The state have a compelling reason/interest to

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(2)

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reach into such legislation infringing into the private domain; and There is no other alternative

Strict scrutiny was applied in determining whether the requirements of substantive due process were met in an ordinance challenged in as unconstitutional in White Light. The requirements of due process that must co ncur (as held in the case) are: (1) Interest of the public generally, as opposed to a class; (2) Means must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of private rights (3) No other alternative less intrusive of private rights (4) Reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment. (White Light Corporation v. City of Manila, 2009)

It does not demand absolute equality; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced (Ichong v. Hernandez, 101 Phil 1155).  It is an established principle of constitutional law that the guaranty of the equal protection of the laws is not violated by a legislation based on reasonable classification. (People v. Cayat, 68 Phil 12)

2. REQUISITES FOR VALID CLASSIFICATION ( S-G-L-E) (1) Rest on substantial distinctions; (2) Germane to the purpose of the law; (3) Not limited  to existing conditions only; (4) Apply equally to all members of the same class (People v. Cayat, supra).

SEARCHES AND SEIZURES

INTERMEDIATE SCRUTINY TEST

Requires government to show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest. Applies to suspect classifications

1. CONCEPT •

•

6. VOID-FOR-VAGUENESS DOCTRINE •

•

A statute is vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. A vague statute is unconstitutional because: (1) It violates due process for failing to accord persons fair notice of what conduct to avoid; (2) It leaves law enforcers unbridled discretion in carrying out its provisions.

Overbreadth A governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. Ordinances that go beyond what is reasonably necessary to solve the problems. (Lucena Grand Central v JAC Liner, 452 SCRA 174

The constitutional guarantee is not a prohibition of all searches and seizures but only of unreasonable searches and seizures. It is also a guarantee against unlawful arrests and other  forms of restraint on the physical liberty of the person.

General Rule: Searches and seizures are unreasonable Exception: Unless authorized by a validly issued search warrant or warrant of arrest. 2. WARRANT REQUIREMENT; REQUISITES FOR A VALID WARRANT

Conditions for issuance of Search Warrant (1) (2)

It must be issued upon probable cause; Probable cause must be determined personally by the judge himself; (3)  Judge must examine, under oath or affirmation, the complainant and such witnesses as the later may produce; and (4) the warrant issued must particularly describe the place to be searched and the persons or things to be seized. (Pasion vda. de Garcia v. Locsin, 65 Phil 689)

EQUAL PROTECTION Procedure to determine probable cause to search 1. CONCEPT The guarantee of equal protection simply means “that no  person or class of persons shall be deprived of the same  protection of the laws which is enjoyed by other persons or other classes in the same place and in like circumstance.”  (Tolentino v. Board of Accountancy, 90 Phil 83) It is not absolute equality, classification is enough

but

mere

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reasonable

•

Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and attach them to the record. Such written deposition is necessary in order that the  judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for

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perjury the person giving it if it will be found later that his declarations are false. (Mata v. Bayona, 128 SCRA 388) •

and his witnesses in the form of searching questions and answers, for the determination of whether probable cause exists and whether it is necessary to arrest the accused in order not to frustrate the ends of justice, is left to his sound judgment or discretion. (Samulde v. Salvani,  Jr., supra.)

It is axiomatic that the examination must be probing and exhaustive, not merely routinary or pro-forma, if the claimed probable cause is to be established. (Roan v. Gonzales, 145 SCRA 687) •

Particular description of the things to be seized A search warrant may be said to particularly describe the things to be seized: (1) when the description therein is as specific as the circumstances will ordinarily allow; (2) when the description expresses a conclusion o f fact not of law by which the warrant officer may be guided in making the search and seizure; or (3) when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. (Bache & Co. v. Ruiz, 37 SCRA 823)

 Warrant must be specific in terms of description A general warrant infringes on the constitutional mandate requiring particular description of the things to be seized. It considered null and void. (Nolasco v. Paño, 139 SCRA 152) Sufficiency of description A description of the place to be searched is sufficient if the officer serving the warrant can, with reasonable effort ascertain and identify the place intended and distinguish it from other places in the community. A designation or description that points out the place to be searched to the exclusion of all others, and on inquiry unerringly leads the police officers to it, satisfies the constitutional requirement of definiteness (People v. Tee, 395 SCRA 419).  John Doe warrant A “John Doe warrant” satisfies the requirement of particularity of description when it contains a descriptio  personae such as will enable the officer to identify the accused. (People v. Veloso, 48 Phil. 169)

The evidence offered by the complainant and his witnesses should be based on their own personal knowledge and not on mere information or belief. Hearsay is not allowed. (Cruz, p.148)

Personal knowledge

(1)

(2)

The person to be arrested must execute an overt act indicating that he had just committed, is actually committing, or is attempting to commit a crime; and Such overt act is done in the presence or within the view of the arresting officer.

RTC judges need not personally examine complainant It does not necessarily mean that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause of the issuance of the warrants. What the Constitution underscores is the exclusive and personal responsibility of the issuing  judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to  personally examine the complainant and his witnesses.( Soliven v. Makasiar, 167 SCRA 393) Requisites for proper evaluation of an RTC judge (1) The judge shall personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or

(2)

If on the basis thereof he finds no probable cause, may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion on the existence of probable cause.

CONDITIONS FOR Issuance of Arrest Warrant Conditions that must concur for the issuance of the warrant of arrest: (Samulde v. Salvani, Jr, 165 SCRA 734) The investigating judge must: (1) Have examined in writing and under oath the complainant and his witnesses by searching questions and answers; (2) Be satisfied that a probable cause exists; and (3) That there is a need to place the respondent under immediate custody in order not to frustrate the ends of justice.

3. WARRANTLESS SEARCHES & SEIZURES

Exceptions to the requirement of a valid warrant: (1) Search incident to a lawful arrest (2) Search of a moving motor vehicle (3) Seizure of evidence in plain view (4) Search in violation of customs law (customs searches) (5) When the accused waived his rights against unreasonable searches and seizure (6) Stop-and-frisk situations (7) Exigent circumstances

NOTE: It is not obligatory, but merely discretionary , upon the investigating judge to issue that warrant for the arrest, even after having personally examined the complainant •

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 Warrantless Search

(3)

The rule that searches and seizures must be supported by a valid warrant is NOT AN ABSOLUTE RULE.

Exceptions to the warrant requirement: (1) (2) (3) (4) (5) (6) (7)

Search incident to a lawful arrest Search of moving vehicles Seizure of evidence in plain view Customs searches Where there is a waiver of right Stop and frisk situations Exigent and emergency circumstances

Incident to a Lawful Arrest It is a general rule that, as an incident of an arrest, the place o r premises where the arrest was made can also be searched without a search warrant. (Nolasco v. Paño, supra.) •

•

A lawful arrest must precede the search of a person and his belongings. (People v. Chua, 396 SCRA 657) A warrantless search incidental to a lawful arrest may be made only within the permissible area of search, or the place within the immediate control of the person being arrested.

Search of Moving Vehicles The rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. (Caballes v. CA, 373 SCRA 221)

 Justification: It is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.  Limitations: Mere mobility of vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and in the absence of probable cause. Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case. (Caballes v. CA, supra.)

it is immediately apparent   to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. (People v. Go, 411 SCRA 81)

 Waiver of Right The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly. However, the person must know of such right an knowingly decide not to invoke it (Bernas). •

•

No waiver is to be presumed where the person merely submits to the arresting officer in manifestation of his respect for authority or where he allows entry into his home as a sign of hospitality and politeness. Where implied acquiescence was not more than passive conformity given under intimidating or coercive circumstances, no consent to the illegal search or seizure can be implied (Cruz).

“Stop-and-frisk” The act of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s) or contraband. (People v. Chua, supra.)

When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is presently dangerous to him or to others, he may conduct a limited protective search for concealed weapons. (Terry v. Ohio, supra.) Probable cause not required, but there must be a genuine reason While probable cause is not required to conduct a “stop and frisk,” it nevertheless holds that mere suspicion or a hunch will not validate a “stop and frisk” (Malacat v. CA, GR No. 132595).  A genuine reason must exist, in light of the police officer’s experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him (Bernas).

Purpose: To allow the officer to pursue his investigation without the risk of violence.

Two- fold interest of “Stop and Frisk” rule Seizure of Evidence in Plain View Objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. (Harris v. United States, 390 U.S. 234)

Requisites of the Plain View Doctrine (1)

(2)

the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; the discovery of evidence in plain view is inadvertent;

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the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstance and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; (2) the more pressing interest of safety and self preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. (1)

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4. WARRANTLESS ARRESTS

b.

Instances when warrantless arrest by a peace officer or private person may be valid: (Rule 113, Section 5, Rules of Court) Court )

c.





IN FLAGRANTE DELICTO DELICTO - When, in his presence, the person to be arrested has committed, is actually committing, or attempting to commit an offense; When an offense has in fact been committed and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

Determination of probable cause Determination of probable cause is to be made “personally by the judge after examination under oath or affirmation of the complainant and the witnesses witnes ses he may produce.”

The petitioners were not “caught in the act” does not make mak e the arrest illegal. Petitioners were found with young boys in their respective rooms, in some cases naked. Under the circumstances, the CID agents had reasonable ground to believe that the petitioners had committed pedophilia. (Harvey v. Defensor-Santiago) 

When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

FRUIT OF A POISONOUS TREE DOCTRINE If the arrest without a warrant is unlawful at the time it was made, generally nothing that happened or was discovered afterwards can make it lawful. The fruit o f the poisonous tree is necessarily also tainted. The Constitution itself mandates that any evidence obtained in violation of the right is inadmissible in evidence. Consequently, testimonies of the arresting officers as to the admission made by the appellant cannot be used against him. (People v. Burgos) NOTE: Illegality of arrest may be cured when accused voluntarily submitted to the jurisdiction of the court by pleading not guilty without questioning the illegality of the arrest. (People v Escordial)

Petitioners effectively waived the inadmissibility of evidence illegally obtained when he failed to raise the issue during trial. Issues not raised during trial cannot be pleaded for the first time on appeal. (Manalili v. CA) EFFECT OF BAIL If one posts bail, one is estopped from questioning defects of one’s arrest. (Velasco v CA) 5. ADMINISTRATIVE ARRESTS General Rule: The requirement of probable cause contemplates prosecutions essentially criminal in nature. •

Deportation proceedings are administrative in character. It is never construed as a punishment. It is preventive, not a penal process. It need not be conducted strictly in accordance with ordinary court proceedings. (Harvey v. Defensor-Santiago, 162 SCRA 840)  What is essential is: a. there should be a specific charge against the alien intended to be arrested and deported;

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that a fair hearing be conducted with the assistance of counsel, if desired; that the charge be substantiated by competent evidence. (Harvey v. Defensor-Santiago, supra.; Sec. 69, Revised Administrative Code)

Sec. 4, Rule 126 of the New Rules of Criminal Procedure The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted.

Probable cause across issuances The existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted (Buchanan v. Vda. de Esteban, 32 Phil 363, 1915). Probable cause for an arrest or for the issuance of a warrant of arrest (Bernas) Such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. Probable cause for a search war rant (Bernas) Such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. Power of Municipal Trial Judge “The issuance of a warrant w arrant is not a mere mi nisterial function; it calls for the exercise of judicial discretion on the part of the issuing magistrate. x x x The judge must satisfy himself of the existence of probably cause before issuing a warrant or order of arrest.” (Placer v. Villanueva, 126 SCRA 463)

Preliminary investigation 

[It] is merely inquisitorial and is often the only means of discovering whether a person may be reasonably charged with a crime, to enable the prosecuto r to prepare his complaint or information. It may be waived expressly, or by silence, or inaction. (Pilapil v. Sandiganbayan, 221 SCRA 349)



Preliminary examination  is not an essential part of due process of law. It may be conducted by the municipal  judge, prior to the issuance of the warrant of arrest, either in the presence, or in the absence of the accused.

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



•

Preliminary inquiry is made by the judge to determine probably cause for the issuance of a warrant of arrest.

5.

To come under the exclusionary rule, however, the evidence must be obtained by government agents and not by private individuals acting on their own (Bernas). (Bernas).

6.

A private person or entity, however, may be held liable for illegal search under  Art. 32  32  of the New Civil Code.

Preliminary investigation proper   is made by the prosecutor to ascertain whether the offender should be held for trial or released.

Depending on the circumstance of the case, the judge may or may not rely on the fiscal’s evaluation. (Bernas,  p.181) The fiscal’s certification, however, does not bind the judge. If on the face of the information the judge finds no probably cause, he may disregard the fiscal’s certification and require the submission of the affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probably cause. (Placer v. Villanueva, supra.)

 What constitutes searching questions questions Such questions as have tendency to show the commission of a crime and the perpetrator thereof. •

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What would be searching questions would depend on what is sought to be inquired into x x x The points that are subject of inquiry may differ from case to case. (Luna case. (Luna v. Plaza, 26 SCRA 310)

Civil Action for Damages  Art. 32 of the New Civil Code  Code   renders any public officer or employee or any private individual liable in damages for violating the Constitutional rights and liberties of another. 

 Art. 32 speaks 32  speaks of an officer or employee or person “directly” or “indirectly” responsible for the violation of the Constitutional rights and liberties of another. It is not the actor alone who must answer for damages under  Art. 32;  32;  the person directly responsible has also to answer for the damages or injury caused to the aggrieved party. (Aberca v. Ver, 160 SCRA 590)

Power of the Commissioner of Immigration The Commissioner of Immigration is also given, by legislative delegation, the power to issue warrants of arrests.

6. DRUG, ALCOHOL, AND BLOOD TESTS The Court held that Randomized Drug Testing (RDT) for students and employees does not violate the right to privacy in the Constitution. Students do not have rational expectation of privacy since they are minors and the school is in loco parentis. Employees and students in universities, on the other hand, voluntarily subject themselves to the intrusion because of their contractual relation to the company or university.

What May be Seized?

But it is unconstitutional to subject criminals to RDT. Subjecting criminals to RDT would violate their right against selfincrimination.

Sec. 3, Rule 126 of the New Rules of Criminal Procedure Personal property to be seized. - A search warrant may be issued for the search and seizure of personal property: 1. Subject of the offense; 2. Stolen or embezzled and other proceeds, or fruits of the offense; or 3. Used or intended to be used as the means of committing an offense.

Exclusionary Rule Sec. 3(2), Art. III, 1987 Constitution (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Evidence obtained in violation of Art. III, Sec.2 shall be inadmissible for any purpose in any proceeding. (Stonehill v. Diokno, 20 SCRA 383) 4.

Seizure is limited to those items particularly described in a valid search warrant. Searching officers are without discretion regarding what articles they shall seize. Evidence seized on the occasion of such an unreasonable search and seizure is tainted and excluded for being the proverbial “fruit of a poisonous tree.” (Del Rosario v. People, G.R. No. 142295)

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It is also unconstitutional to subject public officials whose qualifications are provided for in the Constitution (e.g. members of Congress) to RDT. Subjecting them to RDT would amount to imposing an additional qualification not provided for in the Constitution. (SJS v. Dangerous Drugs Board, 2008)

PRIVACY OF COMMUNICATIONS AND CORRESPONDENCE BASIS The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of the right protected by the guarantee against unreasonable search and seizures. (But the Court acknowledged its existence as early as 1968 in Morfe v. Mutuc.)

The right to privacy exists independently of its identification with liberty; it is in itself fully deserving of constitutional protection. (Disini v. Secretary of Justice, 2014)

1. PRIVATE AND PUBLIC COMMUNICATIONS

Requisites of Existence of Privacy Right (Test of Reasonable Expectation Of Privacy)

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Right to privacy in social media

(a) Subjective: A person has exhibited an actual expectation of privacy; and (b) Objective: The expectation be one that society is prepared to recognize as reasonable. (Pollo v. Constantino-David, 2011)  What type of communication and correspondence does the provision cover? It covers letters, m essages, telephone calls, telegrams, and the like. It covers both tangible and intangible things (Bernas). (Bernas).

 2. INTRUSIONS WHEN ALLOWED (1)

Upon lawful order of the Court a. When public safety or order requires as otherwise prescribed by law

(2)

When the intrusion into the privacy of communication and correspondence is made without judicial order, it would have to be based upon a non- judicial government official’s assessment that public safety and order demands such intrusion (Bernas). (Bernas).

A Facebook user who opts to make use of a privacy tool to grant or deny access to his or her post or profile detail should not be denied the informational privacy right which necessarily accompanies said choice. Otherwise, using these privacy tools would be a feckless exercise, such that if, for instance, a user uploads a photo or any personal information to his or her Facebook page and sets its privacy level at “Only Me” or a custom list so that only the user or a c hosen few can view it, said photo would still be deemed public by the courts as if the user never chose to limit the photo’s visibility and accessibility. Such position, if adopted, will not only strip these privacy tools of their function but it would also disregard the very intention of the user to keep said photo or information within the confines of his or her private space (Vivares v. St. Theresa’s College, G.R. No. 202666, Sept. 29, 2014). Prohibited Acts under the Anti-Wire Tapping Law (RA 4200) (2009 Bar)

(1)

 RIGHT TO PRIVACY The right to privacy is not absolute

The right of privacy or "the right to be let alone," like the right of free expression, is not an absolute right. A limited intrusion into a person's privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute of a public character. Succinctly put, the right of privacy cannot be invoked to resist publication and dissemination of matters of public interest. The interest sought to be protected by the right of privacy is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern (Ayer Productions Pty. Ltd. v. Capulong, G.R. No. 82380,  April 29, 1988). 1988). Reasonable expectation of privacy test

This test determines whether a person has a reasonable expectation of privacy and whether the expectation has been violated. In Ople v. Torres, we enunciated that “the reasonableness of a person’s expectation of privacy depends on a two-part two-part test: 1. Whether, by his conduct, the individual has exhibited an expectation of privacy; and 2. This expectation is one that society recognizes as reasonable.” Customs, community norms, and practices may, therefore, limit or extend an individual’s “reasonable expectation of privacy.” Hence, the reasonableness of a person’s expectation person’s expectation of privacy must be determined on a case-to-case basis since it depends on the factual circumstances surrounding the case (Ople v. Torres, G.R. No. 127685, July 23, 1998).

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(2)

(3) (4) (5)

To tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described by any person, not being authorized by all the parties to any private communication or spoken word To knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or To replay the same for any other person o r persons; or To communicate the contents thereof, either verbally or in writing, or To furnish transcriptions thereof, whether complete or partial, to any other person.

NOTE: The law does not distinguish between a party to the private communication or a third perso n. Hence, both a party and a third person could be held liable under R.A. 4200 if they commit any of the prohibited acts under R.A. 4200 (Ramirez v. CA, G.R. No. 93833 Sept. 28, 1995). Under Sec. 3 of RA 4200, a peace officer, who is authorized by a written order of the Court, may execute any of the acts declared to be unlawful in Sec. 1 and Sec. 2 of the said law in cases involving the crimes of: (1) Treason (2) Espionage (3) Provoking war and disloyalty in case of war (4) Piracy and mutiny in the high seas (5) Rebellion (conspiracy and proposal and inciting to commit included) (6) Sedition (conspiracy, inciting included) (7) Kidnapping (8) Violations of CA 616 (punishing espionage and other offenses against national security)

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The use of telephone extension is not a violation of RA 4200 (Anti-WireTapping Law). The use of a telephone extension to overhear a private conversation is neither among those devices, nor considered as a similar device, prohibited under the law (Gaanan v. IAC, G.R. No.L-69809 Oct. 16, 1986). NOTE: Anti-Wiretapping Act only protects letters, messages, telephone calls, telegrams and the like. 3. WRIT OF  HABEAS DATA Scope Of Writ The Writ of Habeas Data is a remedy available to any person whose right to privacy in life, liberty, or sec urity is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering or storing of data or information regarding the person, family, home, and correspondence of the aggrieved party. (Section 1)  Who May File The petition may be filed by: (1) Any aggrieved party (2) In cases of extralegal killings and enforced disappearances, by: a. Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or b. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; Effects Of Filing A Criminal Action (1) No separate petition for the writ shall be filed. The relief under the writ shall be available to an aggrieved party by motion in the criminal case. (2) But the disposition of the reliefs available under the writ of habeas data is governed by this rule.

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NOTE: It bears reiteration that like the writ of amparo, habeas data was conceived as a response,  Who May File a petition petition for the writ of habeas habeas data Any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party (Sec. 1, The Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, Jan. 22, 2008). However, in cases of extralegal killings and enforced disappearances, the petition may be filed by: (1) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or (2) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph (Sec. 2, The Rule on the Writ of Habeas Data, A. M. No. 08-1-16SC, Jan. 22, 2008). The writ of habeas data is not confined only to extralegal killings and enforced disappearances

Habeas data, to stress, was designed “to safeguard individual freedom from abuse in the information age.” As such, it is erroneous to limit its applicability to extralegal killings and enforced disappearances only. The writ of habeas data, however, can be availed of as an independent remedy to enforce one’s right to privacy, more specifically the right to informational privacy. The remedies against the violation of such right can include the updating, rectification, suppression or destruction of the database or information or files in possession or in control of respondents.

FREEDOM OF EXPRESSION Institution Of Separate Action The filing of a petition for the writ of habeas data does not preclude the filing of separate criminal, civil or administrative actions. Reliefs available in the petition for issuance of writ of habeas data (1) Updating, rectification, suppression or destruction of the database or information or files kept by the respondent; (2) In case of threats of t he unlawful act, the relief may include a prayer for an order enjoining the act complained of. (3) A general prayer for other reliefs that are just and equitable under the circumstances is also allowed.

SCOPE       

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Freedom of speech Freedom of the press Freedom of assembly Freedom of petition Freedom of religion Right of association Right to access to information on matters of public concern Right not to be detained solely by reason of one’s political beliefs and aspirations A. FREEDOM OF SPEECH AND PRESS

 When Writ of Habeas Data is is not applicable A writ of habeas data may not be issued to protect purely property and commercial concerns nor when the grounds invoked in support of the petitions therefore are vague or doubtful.

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Speech, expression, and press include every form of expression whether oral, written, tape or disc recorded. It also includes movies as well as what is referred to as symbolic speech such as the wearing of an armband as a symbol of protest. Peaceful picket has also been included within the meaning of speech.

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(1)

(2) (3) (4) (5)

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Freedom of expression is available onl y insofar as it is exercised for the discussion of matters affecting the public interest. Purely private matters do not come within the guaranty (Cruz). Primarily protects speech which communicates political, social or religious ideas. The freedom to speak includes the right to be silent. This freedom also includes the right to an audience. The right to listen also includes the right not to listen. Commercial speech does not enjoy the same degree of protection as the “core” speech (i.e. political, social or religious ideas). COMMERCIAL SPEECH

Communication which “no more than proposes a commercial transaction.” (Bernas) General rule: To enjoy protection from curtailment, commercial speech: 1. Must not be false and misleading (truthful) 2. Should not propose an illegal transaction (lawful) Exceptions Government has substantial interest to protect; The regulation directly advances that interest; It is not more extensive than is necessary to protect their interest. •

may not silence speech based on the reaction (or anticipated reaction) of a hostile audience, unless there is a "clear and present danger" of grave and imminent harm, which is not easy to prove.

POLITICAL SPEECH

Political speech is one of the most important expressions protected by the Fundamental Law. “x x x and have to be protected at all costs for the sake of democracy." (GMA Network v. COMELEC, G.R. No. 205357, Sept. 2, 2014). Political speech is motivated by the desire to be heard and understood, to move people to action. It is concerned with the sovereign right to change the contours of power whether through the election of representatives in a republican government or the revision of the basic text of the Constitution. We evaluate restrictions on freedom of expression from their effects. We protect both speech and medium because the quality of this freedom in practice will define the quality of deliberation in our democratic society (Diocese of Bacolod v. COMELEC, G. R. No. 205728, January 21, 2015).

•

•

ELEMENTS OF FREEDOM OF EXPRESSION Freedom from previous restraint or censorship Freedom from subsequent punishment

•

•

(1) (2)

PRIVATE VERSUS GOVERNMENT SPEECH

Parliamentary immunity guarantees the members the freedom of expression without fear of being made responsible in criminal or civil actions before courts or forum outside of Congress. But this does not protect them from responsibility from the legislative body. The members may nevertheless be questioned in Congress itself for unparliamentary conduct. Members of the Congress have been, or could be censured, committed to prison, even expelled by the votes of their colleagues. (Osmen  ̃a v. Pendatun, 1960) “But a libelous letter of a congressman, published on a newspaper, does not fall under “speech or debate” protected by the Constitution. Speech or debate refers to speeches/statements/votes made within Congress while it is in session, or duly authorized actions of congressmen in the discharge of their duties.” (Jimenez v. Cabangbang, 1966) HECKLER’S VETO

1.

FORMS OF ABRIDGMENT Prior restraint Subsequent punishment

LIMITATIONS ON FREEDOM OF EXPRESSION (2014 BAR) It should be exercised within the bounds of laws enacted for the promotion of social interests and the protection of other equally important individual rights such as: (1) Laws against obscenity, libel and slander (contrary to public policy) (2) Right to privacy of an individual (3) Right of state/government to be protected from seditious attacks (4) Legislative immunities (5) Fraudulent matters (6) Advocacy of imminent lawless conducts (7) Fighting words (8) Guarantee implies only the right to reach a willing audience but not the right to compel others to listen, see or read

an attempt to limit unpopular speech. For example, an unpopular group wants to hold a rally and asks for a permit. The government is not allowed to refuse the permit based upon the beli efs of the applicants. But the government can deny the permit, reasoning that it is not because the government disapproves of the group's message, it is just afraid that so many people will be outraged that there might be violent protests. Under the Free Speech Clause of Sec. 4, Art III, the government

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PRIOR RESTRAINT Official government restrictions on the press or other forms of expression in advance of actual publication or dissemination. •

•

The prohibition of “prior restraint” is not absolute. Forms of prior restraint includes (but is not limited to): licensing and permit as prerequisite to publication; censorship; judicial prior restraint; license taxes; flat license fees

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PRESUMPTION OF INVALIDITY Any system of prior restraints of expression bears a heavy presumption against its constitutional validity. The Government thus carries the burden of showing justification for the enforcement of such restraint. (NY Times v. US)

CONTENT NETURAL REGULATION

LIMITATIONS UPON THE IMMUNITY FROM PREVIOUS RESTRAINT OF THE PRESS (W-O-I) (1) When a nation is at war (2) Obscene publications (3) Incitements to acts of violence and the overthrow of force of orderly government (Near v. Minnesota, 283 U.S. 697)

(1)

Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a reality already on ground. (INC v. CA, 259 SCRA 529)

(2)

Any system of prior restraints of expression come to the Court bearing a heavy presumption against its constitutional validity. (New York Times v. United States, 403 U.S. 713)

The State imposes punishment after the dissemination or publication.

•

Basis:  Freedom of speech includes freedom after the speech (Cruz). Tests (1) Dangerous Tendency –  when it creates a denagerous tendency, which the state has the right to prevent. There must be rational connection between the speech and evil apprehended. Ex. People v. Perez (inciting to sedition) (2) Clear and Present Danger – In determining WON a circumstance constitute clear and present danger, the court must inquire WON in each case the gravity of the evil, discounted by its improbability,  justifies an invasion of free speech to avoid the danger. (3) Balancing of Interests – It is the courts function to balance public interest and the freedoms affected by it, and to arrive at a judgment where the greater weight shall be placed.

CONTENT NEUTRAL AND CONTENT BASED REGULATION

Merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well-defined standards.

The restriction is based on the subject matter of the utterance or speech. The cast of the restriction determines the test by which the challenged act is assailed with.

No presumption of unconstitutionality

There is presumption of unconstitutionality NOTE: The burden of proof to overcome the presumption of unconstitutionality is with the government

SUBSEQUENT PUNISHMENT

•

CONTENT BASED RESTRAINT

Test to be used: Intermediate Approach

Clear and Present Danger

If unpaid, the business or activity does not become illegal.

If unpaid, the business or activity itself can become illegal

TESTS AND APPLICATIONS INTERMEDIATE APPROACH TEST

Used when the speech restraints take the form of a contentneutral regulation, only a substantial governmental interest is required for its validity. Because regulations of this type are not designed to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but an intermediate approach—somewhere between the mere rationality that is required of any other law and the compelling interest standard applied to content-based restrictions. The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008). NOTE: A law is narrowly-tailored if it is for the advancement of state’s interest, if it does not restrict a significant amount of speech that does not implicate the government interest and if it is the least restrictive alternative available to serve such interest (Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pennsylvania L. Rev. 2417, 1997). DANGEROUS TENDENCY RULE

Speech may be curtailed or punished when it creates a dangerous tendency which the State has the right to prevent. •

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For speech to be punishable, all it requires it that there be a rational connection between the speech and the evil apprehended.

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•

•

If the words uttered create a dangerous tendency which the State has a right to prevent, then such words are punishable. (Cabansag v. Fernandez, 102 Phil. 152)  It is not necessary to create the evil; a mere tendency towards the evil was enough (Cruz).

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•

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CLEAR AND PRESENT DANGER RULE

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the State has a right to prevent. It is a question of proximity and degree. (Schenk v. United States, 249 U.S. 97) Requisites in determining clear and present danger (1) Means that the evil consequence of the comment or utterance must be extremely serious and the degree of imminence extremely high before the utterance can be punished. (Cabansag v. Fernandez, supra.) (2) The danger must not only be c lear but also present. (Gonzalez v. COMELEC, G.R. No. L-27833) Clear A causal connection with the danger of the substantially evil arising from the utterance questioned. Present Refers to a time element; the danger must not only be probable but very likely inevitable (used to be id entified with imminent and immediate danger). BALANCING OF INTERESTS TEST

When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the  greater protection under the particular circumstances  presented. (American Communications Assocation v. Douds, 339 U.S. 282)

UNPROTECTED SPEECH Both historically and doctrinally, freedom of expression has never been understood to be an absolute right (Bernas).

There are certain and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words - those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace . (Chaplinsky v. New Hampshire, 315 US 568)

•

LIBEL “A libel is a public and malicious imputation of a crime, or of a vice or a defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or  juridical person, or to blacken the memory of one who is dead.” (Art. 353, RPC)

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•

Publicity means “making the defamatory matter, after it has been written, known to someone other than the person to whom it has been written.” (Bernas). The evil which the law on libel seeks to punish is its tendency to injure the person defamed, regardless of its effect upon the public. (People v. del Rosario, 86 Phil. 163) The constitutional guarantees require a rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was must with actual malice - that is, with knowledge that it was false or with reckless disregard of whether it was false or not. (NY Times v. Sullivan, 376 US 254)

OBSCENITY Obscenity is not within the area of protected speech or press. Obscene material is material which deals with sex in a manner appealing to prurient interest. (Roth v. United States, 354 US 476)

TEST FOR OBSCENITY, AS ESTABLISHED IN  MILLER V. CALIFORNIA (413 US 15) (PI-SD-LV) (1) Whether “the average person, applying contemporary community standards” would find that the work, taken as a whole appeals to the prurient interest; (2) Whether the work depicts or describes, in a patently offensive way, sexual conduct  specifically defined by the applicable state law; and (3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. •

“Community standards” x x x does not mean that there are, or should or can be, fixed uniform national standards of precisely what appeals to the “prurien t interest” or is “patently offensive. These are essentially questions of fact. (Miller v. California, supra.)

FACIAL CHALLENGES AND OVERBREADTH DOCTRINE Facial Challenge Facial challenge is a challenge to a statute in court, in which the plaintiff alleges that the legislation is always, and under all circumstances, unconstitutional, and therefore void. Overbreadth A governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. Ordinances that go beyond what is reasonably necessary to solve the problems. (Lucena Grand Central v JAC Liner, 452 SCRA 174 NOTE: Facial challenge to a statute is allowed only when it operates in the area of freedom of expression. Invalidation of the statute on its face, rather than as applied, is permitted in the interest of preventing a chilling effect on freedom of expression. (Separate opinion of Justice Mendoza in Cruz v.

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Secretary of Environment and Natural Resources, GR. 135385, Dec. 6, 2000)

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(1)

STATE REGULATION OF DIFFERENT TYPES OF M ASS MEDIA

(2)

Live Media Coverage of Court Proceedings The propriety of granting or denying permission to the media to broadcast, record, or photograph court proceedings involves weighing the constitutional guarantees of freedom of the press, the right of the public to information and the right to public trial, on the one hand, and on the other hand, the due process rights of the defendant and the inherent and constitutional power of the courts to control their proceedings in order to permit the fair and impartial administration of  justice. Collaterally, it also raises issues in the nature of media, particularly television and its role in society, and of the impact of new technologies on law.

(3) (4)

•

•

An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secret conclaves of long ago. A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with proper decorum and observe the trial process. (Secretary of Justice v. Estrada, A.M. No. 01-4-03SC, Sept. 13, 2001) PROTECTION OF CHILDRENS’ RIGHTS The Court , using the balancing of interest test, it ruled that the government’s interest to protect the and promote the interests and welfare of the children adequately buttresses the reasonable curtailment and valid restraint on and offensive or obscene language uttered on prime-time televeision broadcast to which children have clear access to. (Soriano v.  MTRCB, GR No. 165636) NOTE: In his dissenting opinion, Justice Carpio cited Action  for Children's Television v. FCC which establishes the safe harbor period to be from 10:00 in the evening to 6:00 in the morning, when the number of children in the audience is at a minimum. In effect, between the hours of 10:00 p.m. and 6:00 a.m., the broadcasting of material considered indecent is permitted. Between the hours of 6:00 a.m. and 10:00 p.m., the broadcast of any indecent material may be sanctioned. B. FREEDOM OF ASSEMBLY AND PETITION

The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental. The standards for allowable impairment of speech and press are also those for assembly and petition. The mayor possesses reasonable discretion to determine or specify the streets or public places to be used for the assembly in order to secure convenient use thereof by others and provide adequate and proper policing to minimize the risks of disorder and maintain public safety and order. (Navarro v. Villegas, 31 SCRA 721)

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•

RULES ON ASSEMBLY AND PETITION Inform the licensing authority of the date, the public place where and the time it will take place (private placeonly consent of owner required) Application –  filed ahead of time to enable public officials concerned to appraise WON there may be valid objections. (Indispensable condition to refusal or modification that the CPD test be standard for the decision reached) If public authority believes that there is an imminent and grave danger of substantial evil, applicants must be heard on the matter. Decision must be transmitted at the earliest opportunity (Reyes v. Bagatsing, G.R. No. L65366).

The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. Application should filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. The decision of the public official, whether favorable or adverse, must be transmitted to the applicants at the earliest opportunity.

BP 880 - THE PUBLIC ASSEMBLY ACT OF 1985 Public assembly Any rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place for the purpose of: (1) presenting a lawful cause; or (2) expressing an opinion to the general public on any particular issue; or (3) protesting or influencing any state of affairs whether political, economic or social; or (4) petitioning the government for redress of grievances. Permit shall be required   for any person or persons to organized and hold a public assembly in a public place.

NO PERMIT SHALL BE REQUIRED IF: (1) Public assembly shall be done or made in a freedom park duly established by law or ordinance (2)  Private property, in which case only the consent of the owner or the one entitled to its legal possession is required, (3) Campus of a government-owned and operated educational institution  which shall be subject to the rules and regulations of said institution.

(1)

APPLICATION REQUIREMENTS Application shall be in writing  and shall include: a. names of the leaders or organizers; b. purpose of such public assembly;

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c. date, time and duration; d. place or streets to be used; e. probably number of persons participating; f. transport and public address systems to be used (2) Must incorporate duties and responsibilities of applicant (3) Filed at least five (5) working days before the scheduled  public assembly with the office of the city or municipal mayor in whose jurisdiction the activity is to be held (4) Upon receipt of the application, office of the municipal or city mayor shall post t he application at a conspicuous place in the city or municipal building. DUTIES OF THE MAYOR

(1)

(2)

(3)

Issue or grant a permit   unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health. Act on the application within two (2) working days from the date of filing, failing which, the permit shall be deemed granted. If he is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter.

RESPONSIBILITIES OF LEADERS AND ORGANIZERS (1) Take all reasonable measures and steps to the end that the intended public assembly shall be conducted peacefully in accordance with the terms of the permit; (2) Inform the participants of their responsibility under the permit; (3) To police the demonstrators in order to prevent nondemonstrators from disrupting the lawful activities of the public assembly; (4) To confer with local government officials concerned and law enforcers tot he end that the public assembly may be held peacefully; (5) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and (6) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with the rights of other persons not participating in the public assembly.

FREEDOM OF RELIGION RELIGION

A profession of faith to an active power that binds and elevates man to his Creator. (Aglipay v. Ruiz, 64 Phil. 201) CRITERIA TO QUALIFY AS A RELIGION (1) There must be belief in God or some parallel belief that occupies a central place in the believer’s life. (2) The religion must involve a moral code transcending individual belief (can’t be purely subjective). (3) Demonstrable sincerity in belief is necessary but the court must not inquire into the truth or reasonableness of the belief. (4) There must be associational ties. (U.S. v. Seager )

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Principal parts of Section 5 of Article III: Non-establishment clause Free exercise clause •

•

A. NON-ESTABLISHMENT CLAUSE

THE STATE CANNOT DO THE FOLLOWING: a. Setup a church; b. Pass laws which aid one religion, aid all religion, or prefer one religion over another; c. Force nor influence a person to go to or remain away from church against his will; d. Force him to profess a belief or disbelief in any religion; e. Punish a person for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance; f. Levy tax in any amount to support any religious activity or institution to teach or practice religion; g. Openly or secretly participate in the affairs of any religious organization or group and vice-versa. (Everson v. Board of Educators, 330 U.S. 1) (1) (2)

What the non-establishment calls for is government neutrality in religious matters. The evils against which the Establishment Clause was intended to afford protection: a. sponsorship, b. financial support, and c. active involvement of the sovereign in religious activity.

CONSTITUTIONALLY CREATED EXCEPTIONS TO THE NON-ESTABLISHMENT CLAUSE

a.

b.

c.

Art. 6, Sec.29 (prohibition on appropriation of public money or property for the use, benefit or support of any religion) Art. 6, Sec. 28 (3) (exemption from taxation of properties actually, directly and exclusively used for religious purposes Art. 14, Sect. 3 (3) (optional religious instruction in public elementary and high schools)

NOTE: Religious instructions in public schools: (1) At the option of parents/guardians expressed in writing (2) Within the regular class hours by instructors designated or approved by religious authorities of the religion to which the children belong (3) Without additional costs to the government (4)

(5)

Art. 14, Sec. 4 (2) (citizenship requirement of ownership of educational institutions, except those established by religious groups and mission boards) Art. 6, Sec. 29 (2) (appropriation allowed where ecclesiastic is employed in armed forces, in a penal institution, or in a government-owned orphanage or leprosarium)

LEMON TEST To determine if a law violates the Establishment Clause: (1) The statute must have a secular legislative purpose;

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(2) (3)

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Its principal or primary effect must be one that neither advances nor inhibits religion; The statute must not foster an excessive government entanglement with religion. (Lemon v. Kurtzman, 403 U.S. 601)

discriminate invidiously between the religions, is invalid, even though the burden may be characterized as being only indirect. (Victoriano v. Elizalde Rope Workers Union, 49 SCRA 54) d.

The Government should not be embarrassed in its activities simply because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation. (Aglipay v. Ruiz, 64 Phil 201) •

Not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public money or property. (Garces v. Estenzo, 104 SCRA 510)

But if the state regulates conduct by enacting, within its power, a general law which has for its purpose and effect to advance the State’s secular goals, the statute is valid despite its indirect burden on religious observance, unless the state can accomplish its purpose without imposing such burden. (Victoriano v. Elizalde Rope Workers Union, supra.)

•

NOTE:  A violation of the non-establishment clause need not involve compulsion.

B. FREE EXERCISE CLAUSE Two-fold aspect: Freedom to believe Freedom to act on one’s belief •

•

FREEDOM TO BELIEVE It is absolute as long as the belief is confined within the realm of thought (Cruz). •

•

The absoluteness of the freedom to believe carries with it the corollary that the government, while it may look into the good faith of a person, cannot inquire into a person’s religious pretensions (Bernas). Man’s relation to his God was made no concern of the State. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views. (US v. Ballard, 322 US 78)

FREEDOM TO ACT ON ONE’S BELIEF

Subject to regulation where the belief is translated into external acts that affect the public welfare (Cruz). a.

The moment belief flows over into action, it becomes subject to government regulation.

b.

The Constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it the right to disseminate religious information. (American Bible Society v. City of Manila, 101 Phil. 386)

c.

Any legislation whose effect or purpose is to impede the observance of one or all religions, or to

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NOTE:  Every violation of the free exercise clause involves compulsion. TESTS BENEVOLENT NEUTRALITY APPROACH

Benevolent neutrality is an approach that looks further than the secular purposes of government action and examines the effect of these actions on religious exercise. It recognizes the religious nature of the Filipino people and the elevating influence of religion in society; at the same time, it acknowledges that government must pursue its secular goals. In pursuing these goals, however, government might adopt laws or actions of general applicability which inadvertently burden religious exercise. Benevolent neutrality gives room for accommodation of these religious exercises as required by the Free Exercise Clause. It allows these breaches in the wall of separation to uphold religious liberty, which after all is the integral purpose of the religion clauses (Estrada v. Escritor, A.M. No. P-02-1651, Aug. 4, 2003). CLEAR AND PRESENT DANGER TEST

The test can be applied with regard to the Freedom of Religion when what is involved is religious speech as this is often used in cases of freedom of expression. COMPELLING STATE INTEREST TEST (2013 BAR)

Used to determine if the interests of the State are compelling enough to justify infringement of religious freedom. It involves a three-step process: (1)

(2)

(3)

Has the statute or government action created a burden on the free exercise of religion? – Courts often look into the sincerity of the religious belief, but without inquiring into the truth of the belief since the free exercise clause prohibits inquiring about its truth. Is there a sufficiently compelling state interest to justify this infringement of religious liberty? – In this step, the government has to establish that its purposes are legitimate for the State and that they are compelling. Has the State in achieving its legitimate purposes used the least intrusive means possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the State? – The analysis requires the State to show that the means in which it is

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achieving its legitimate State objective is the least intrusive means, or it has chosen a way to achieve its legitimate State end that imposes as little as possible intrusion on religious beliefs.



The liberty of abode may be impaired only upon lawful of the court, and the court is to be guided by the limits  prescribed by law (Bernas).



The liberty of travel may be impaired even without c ourt order BUT limits may be imposed only on the basis of “national security, public safety, or public health” and “as may be provided by law (Bernas).



The city mayor or chief of police has no right to force citizens of the Philippines to change their domicile from one city to another locality. Philippine penal law specifically punishes any public officer who, not being expressly authorized by law or regulation, compels any person to change his residence. (Villavicencio v. Lukban, 39 Phil. 778)



The right to return to one’s country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to travel. (Marcos v. Manglapus, 177 SCRA 668)

NOTE: The Compelling State Interest test is used in cases involving purely conduct based on religious belief. CONSCIENTIOUS OBJECTOR TEST CONSCIENTIOUS OBJECTOR

An "individual who has claimed the right to refuse to perform military service on the grounds of freedom of thought, conscience, and/or religion (International Covenant on Civil and Political Rights, Art. 18). REQUISITES FOR ONE TO BE CONSIDERED A CONSCIENTIOUS OBJECTOR

(1) (2) (3)

The person is opposed to war in any form He must show that this opposition is based upon religious training and belief And he must show that this objection is sincere (Clay v. United States, 403 U.S.698, 1971).

LIBERTY OF ABODE AND FREEDOM OF MOVEMENT (1) (2)

A right granted to citizens of the Philippines. While the right to travel of citizens covers both exit and entry into the country, aliens cannot claim the same right. LIMITATIONS

Freedom of movement includes two rights:

1. LIBERTY OF ABODE

a. b.

It may be impaired only upon lawful order of the court The court itself is to be guided by the limits prescribed by law

Example: A condition imposed by the court in connection with the grant of bail. 2. LIBERTY OF TRAVEL

(1) (2)

(3)

(4)

May be impaired even without a lawful order of the court But the appropriate executive officer (who may impair this right) is not granted arbitrary discre tion to impose limitations He can only do so on the basis of “national security, public safety, or public health” and “as may be provided by law” (e.g. Human Security Act, quarantine) Impairment of this liberty is subject to judicial review

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 WATCH-LIST ORDER (WLO) Order issued to prevent an individual from travelling. It may be issued by the Secretary of Justice motu proprio  or upon request, under any of the following circumstances:

(1)

(2)

Against the accused, irrespective of nationality, in criminal cases pending trial before the RTCs or before courts below the RTCs. Against the respondent, irrespective of nationality, in criminal cases pending preliminary investigation, petition for review, or motion for reconsideration before the DOJ or any of its provincial or city prosecution offices.

The Secretary of Justice may likewise issue a WLO against any person, either on his own, or upon the request of any government agency, including commissions, task forces or similar entities created by the Office of the President, pursuant to the "Anti-Trafficking in Persons Act of 2003" (R.A. No. 9208) and/or in connection with any investigation being conducted by it, or in the interest of national security, public safety or public health (Sec. 2, DOJ Circ. 41, s.2010). NOTE: A WLO is good for 60 days (Sec. 4, DOJ Circ. 41, and s.2010). The Watch List Order may be lifted or cancelled under any of the following grounds: (1) When the validity period of the WLO has already expired; (2) When the accused subject of the WLO has been allowed by the court to leave the country during the pendency of the case, or has been acquitted of the charge; (3) When the preliminary investigation is terminated, or when the petition for review, or motion for reconsideration has been denied and/or dismissed. HOLD DEPARTURE ORDER (HDO)

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An order issued to prevent an individual from travelling. It may be issued by the Secretary of Justice motu proprio or upon request, under any of the following circumstances:

Note: A watch-list order doesn’t totally bar a person from travelling. A person listed in the WLO must obtain a clearance to be able to travel. In contrast, a hold-departure order totally prevents a person from traveling

(1)

1.

2.

Against the accused, irrespective of nationality, in criminal cases falling within the jurisdiction of courts below the Regional Trial Courts (RTCs): If the case against the accused is pending trial, the application under oath of an interested party must be supported by (a) a certified true copy of the complaint or information; and (b) a Certification from the Clerk of Court concerned that criminal case is still pending. If the accused has jumped bail or has become a fugitive from justice, the application under oath of an interested party must be supported by (a) a certified true copy of the complaint or information; (b) a certified true copy of the warrant/order of arrest; and (c) a Certification from the Clerk of Court concerned that the warrant/order of arrest was returned unserved by the peace officer to whom the same was delivered for service.

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(2)

Against the alien whose presence is required either as a defendant, respondent, or witness in a civil or labor case pending litigation, or any case before a quasi-judicial or an administrative agency of the government.

The application under oath of an interested party must be supported by (1) a certified true copy of the subpoena or summons issued against the alien; and (2) a certified true copy complaint in civil, labor or administrative case where the presence of the alien is required.” The Secretary may likewise i ssue an HDO against any person, either on his own, or upon the request by the Head of a Department of the Government, the head or a constitutional body or commission, the Chief Justice of the Supreme Court for the Judiciary, the Senate President or the House Speaker for the Legislature, when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health.” (Sec. 1, DOJ Circ. 41, s.2010). NOTE: A HDO is valid for 5 years from issuance. The Hold Departure Order can be lifted or cancelled as follows: When the validity period of the HDO has already expired; When the accused subject of the HDO has been allowed to leave the country during the pendency of the case, or has been acquitted of the charge, or the case i n which the warrant/order of arrest was issued has been dismissed or the warrant/order of arrest has been recalled; When the civil or labor case or case before an administrative agency of the government wherein the presence of the alien subject of the HDO/WLO has been dismissed by the court or by appropriate government agency, or the alien has been discharged as a witness therein, or the alien has been allowed to leave the country. •

•

RETURN TO ONE’S COUNTRY

The right to return to one’s country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to travel. Nevertheless, the right to return may be considered as a generally accepted principle of International law, and under the Constitution, is part of the law of the land. However, it is distinct and separate from the right to travel and enjoys a different protection under the Int’l Covenant of Civil and Political Rights ( Marcos v. Manglapus, G.R. No. 88211, Sept. 15, 1989 & Oct. 27, 1989 ).

RIGHT TO INFORMATION RIGHT TO INFORMATION The right of the people to information on matters of public concern shall be recognized. They shall be given access to: (1) Official records; (2) Documents; and (3) Papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development Subject to such limitations as may be provided by law. (Section 7, Art. 3, CONST) FULL PUBLIC DISCLOSURE Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure o f all its transactions involving public interest. (Section 28, Art. 2, CONST)

The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country in accordance with a policy that respects the freedom of speech and of the press. (Section 10, Art. 16, CONST)

• Section 7 guarantees only one general right : the right to

information on matters of public concern. It is both the purpose and the limit of the right of access to public documents. • The right to information and access to official records are

subject to such limitations as may be provided by law.

•

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• While access to official records may not be prohibited, it

may be regulated (Bernas). • The right to information is not absolute.   It is limited to

“matters of public concern,” and is further “subject to such limitations as may be provided by law. (Valmonte v. Belmonte, Jr., 170 SCRA 256)

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(3) AUTHORITY TO CURTAIL RIGHT TO INFORMATION Standards developed for the regulation of speech, press, assembly, petition, and association are applicable to the right of access to information (Bernas). LIMITATIONS ON THE RIGHT TO INFORMATION (NS-TS-CD) (1) National Security, matters including sate secrets on military diplomatic and other national security and information on inter-government exchanges prior to conclusion of executive agreements or treaties. (2) Trade secrets and banking transactions (3) Criminal matter or classified law enforcement matters (4) Other confidential matter (diplomatic affairs) REQUIRMENT OF THE PRESIDENTIAL COMMUNICATION S PRIVILEGE. (Q-OP-C) (1) The communication must relate to a ‘quintessential and non-delegable power of the President –  the power to enter into an executive agreement with other countries. (2) The communications are “receive” by a close advisor of the President under the “operational proximity test” (3) There is no adequate showing of a compelling need that would justify the limitation of the privilege and the unavailability of the information elsewhere by an appropriate investigating authority. FULL PUBLIC DISCLOSURE V RIGHT TO IN FORMATION

Matter

Full Public Disclosure (Art. 2 Sec. 8)

Right to Information (Art. 3, Sec. 7)

All Transactions involving public interest including any matter contained in official communications and public documents of the government agency

Matters of public concern; (PUBLIC CONCERN: Not clearly defined, exact definition and adjudicated by the courts on a case-by- case basis, but examples abound in jurisprudence (e.g. peace negotiations, board exams, PCGG compromise agreements, civil service matters).]

Demand to Access  What is Asserted

Demand or request necessary to gain access Government duty to disclose

Duty to permit access to information on matters of public concern

Three categories of information: (1) official records; (2) documents and papers pertaining to official acts, transactions and decisions; and

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government research data used in formulating policies. (Section 7, Article 3, 1987 Constitution).

NOTE: The right only affords access to records, documents and papers, which means the opportunity to inspect and copy them at his expense. The exercise is also subject to reasonable regulations to protect the integrity of public records and to minimize disruption of government operations. Publication of regulations Publication is necessary to apprise the public of the contents of penal regulations and make the said penalties binding on the persons affected thereby (Pesigan v. Angeles G.R. No. L6427, April 30, 1984).

National Security Matters There is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters. Court Records and Information Canon II Confidentiality Code of Conduct for Court Personnel (AM No. 03-06-13-SC)

Section 1. Court personnel shall not disclose to any unauthorized person any confidential information acquired by them while employed in the judiciary, whether such information came from authorized or unauthorized sources. Confidential information means information not yet made a matter of public record relating to pending cases, as well as information not yet made public concerning the work of any  justice or judge relating to pending cases, including notes, drafts, research papers, internal discussions, internal memoranda, records of internal deliberations and similar papers. The notes, drafts, research papers, internal discussions, internal memoranda, records of internal deliberations and similar papers that a justice or judge uses in preparing a decision, resolution or order shall remain confidential even after the decision, resolution or order is made public.

Decisions and opinions of a court are of public concern or interest. Pleadings and other documents filed by parties to a case NEED NOT BE matters of public concern or interest. They are filed for the purpose of establishing the basis upon which the court may issue an order or a judgment affecting their rights and interests. Access to court records may be PERMITTED at the discretion and subject to the supervisory and protective powers of the court, AFTER considering the actual use or purpose for which the request for access is based and the obvious prejudice to any of the parties (Hilado, et al. v  Judge, G.R. No. 163155, July 21, 2006.).

Trade secrets and banking transactions Trade or industrial secrets (pursuant to the Intellectual Property Code and other related laws) as well as banking transactions (pursuant to the Secrecy of Bank Deposits Act) are exempted from compulsory disclosure.

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Criminal Matters Law enforcement matters, such as those relating to the apprehension, the prosecution and the detention of criminals, which courts may not inquire into prior to such arrest, detention and prosecution. Other confidential Information Prohibition of public officials and employees from using or divulging “confidential or classified information officially known to them by reason of their office and not made available to the public. Also, diplomatic correspondence, closed door cabinet meetings and executive sessions of either house of Congress, as well as the internal deliberations of the SC. Public Concern Like public interest, it eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. (Legaspi v. Civil Service Commission, 150 SCRA 530) Government contract negotiations Information on on-going evaluation or review of bids or proposals being undertaken by the bidding or review committee is not immediately accessible under the right to information. While the evaluation or review is still on-going, there are no "official acts, transactions, or decisions" on the bids or proposals. However, once the committee makes its official recommendation, there arises a "definite proposition" on the part of the government. From this moment, the public's right to information attaches, and any ci tizen can access all the non-proprietary information leading to such definite proposition.

The commissioners of the 1986 Constitutional Commission understood that the right to information "contemplates inclusion of negotiations leading to the consummation of the transaction." Certainly, a consummated contract is not a requirement for the exercise of the right to information. Otherwise, the people can never exercise the right if no contract is consummated, and if one is consummated, it may be too late for the public to expose its defects. Matters of Public Concern

Other matters of public concern decided in jurisprudence 1. Loanable funds of GSIS (Valmonte v. Belmonte, 1989)

2. Civil service eligibility of sanitarian employees (Legaspi v. CSC, 1987) 

Appointments made to public offices and the utilization of public property (Gonzales v. Narvasa, 2000)



National board examinations such as the CPA Board Exams ( Antolin v. Domondon, 2010)

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

Names of nominees of partylists (Bantay Republic v. COMELEC, 2007)



Negotiations leading to the consummation of the transaction (Chavez v. PEA and Amari, 2002)

RIGHT TO ASSOCIATION

RIGHT TO ASSOCIATION; BASIS The right of the people, including those employed in the public and private sectors, to form: (1) unions, (2) associations, or (3) societies for purposes not contrary to law shall not be abridged. (Section 8, Art. 3, CONST)

The State shall guarantee the rights of all workers to: (1) self- organization; (2) collective bargaining and negotiations; (3) peaceful concerted activities; and (4) right to strike in accordance with the law. (Section 3, Art. 13, CONST) The right to self- organization shall not be denied to government employees. (Section 2(5), Art. 9-B, CONST)

(1)

The right is recognized as belonging to people whether employed or unemployed, and whether employed in the government or in the private sector.

(2)

The provision explicitly recognizes that the right to form associations includes the right to unionize.

(3)

The right to join a union includes the right to abstain from joining any union. (Victoriano v Elizalde Rope Workers Union, supra.)

(4)

There is no question that the Constitution recognizes the right of government employees to organize.  Jurisprudence, however, provides that government employees do not have a constitutional right to strike. (Manila Public School Teachers Association v. Sec. of Education, 200 SCRA 323)

FREEDOM OF ASSOCIATION (2000 BAR) The right to form associations shall not be impaired without due process of law. It is therefore an aspect of the general right of liberty. More specifically, it is an aspect of freedom of contract; and in so far as associations may have for their object the advancement of beliefs and ideas, freedom of association is an aspect of freedom of expression and of belief.

NOTE: Freedom of association includes the freedom not to associate, or, if one is already a member, to disaffiliate from the association.

The right to strike is not included in the right to form unions or freedom of assembly by government employees. Their employment is governed by law. It is the Congress and

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 A.

administrative agencies which dictate the terms and conditions of their employment. The same i s fixed by law and circulars and thus not subject to any collective bargaining agreement.

B.

Pursuant to Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Government Employees to Self-Organization, the terms and conditions of employment in the Government, including any of its instrumentalities, political subdivision and government owned and controlled corporations with original charters, are governed by law and employees therein shall not strike for the purpose of securing changes thereof (SSS Employees Association v. CA, GR. No. 85279, July 28, 1989). The only available remedy for them is to lobby for better terms of employment with Congress. The right to unionize is an economic and labor right while the right to association in general is a civil-political right.

C.  D.

(3)

EMINENT DOMAIN

Taking A. B.

EMINENT DOMAIN; BASIS Private property cannot be taken for public purpose without payment of just compensation. (Section 9, Art. 3, CONST) •

It is the power of the State to forcibly take private property for public use upon payment of just compensation. It is a power inherent in sovereignty.

•

The right of eminent domain is usually understood to be the ultimate right of the sovereign power to appropriate, not only the public but the private property of all citizens within the territorial sovereignty, to public purpose.

•

 Also called the power of expropriation, eminent domain is described as “the highest and most exact idea of property remaining in the government” that may be acquired for some public purpose through a method “in the nature of a compulsory sale to the State.” (Black’s law dictionary, 4th ed., 616)

 WHO MAY EXERCISE? Power of eminent domain is lodged primarily in the national legislature, but its exercise may be validly delegate to other governmental entities (Cruz, 2007 ed).

Under existing laws, the following may exercise the power of expropriation: (1) The Congress (2) The President of the Philippines (3) The various local legislative bodies (4) Certain public corporations, like the Land Authority and the National Housing Authority (5) Quasi-public corporations like the Philippine National Railways, the Philippine Long Distance Telephone Co. and the MERALCO. REQUISITES OF POWER OF EMINENT DOMAIN (1)  Necessity of Exercise  A. Improvement for public use

Anything that can come under the dominion of man is subject to expropriation. It may be real, personal, tangible, intangible. Except money and choses in action (personal right not reduced into possession but recoverable by a lawful suit, a right to demand or recover a debt, demand or damages on a cause of action ex contractu  or for a tort or omission of duty. May be franchise since this is a property right and may therefore be expropriated. May be property already used for public use provided it is done directly by the Legislature as specific grant by authority to the delegate.

This imports a physical dispossession of the owner A trespass without actual eviction of the owner.

REQUISITES OF TAKING IN THE POWER OF EMINENT DOMAIN (Republic v. Castellvi, 58 SCRA 336) (1) The expropriator must enter private property. a. The entry must be for more than a momentary period. b. The entry must be under warrant or color of legal authority. c. The property must be devoted to public use or otherwise informally appropriated or injuriously affected. d. The utilization of the property for public use must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property. (2)  Public use a. Any use directly available to the general public as a matter of right and not merely of forbearance or accommodation. b.

EXPANSIVE CONCEPT OF “PUBLIC USE” – Public use as a requirement for the valid exercise of the power of eminent domain is now synonymous with public interest, public benefit, public welfare and public convenience. It includes the broader notion of indirect public benefit or advantage. Public use as traditionally understood as “actual use by the public” has already been abandoned.

(3)  Just Compensation a. It is described as the full and fair equivalent of the property taken from the private owner by the expropriator. b.

Determination of just compensation is a  judicial function.  (National Power

(2)  Private property

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Corporation v. Sps. Florimon v. Lleto, et al., 2012) c.

(1)

(2) (3)

Findings of court appointed commissioners regarding the determination of just compensation are not binding on courts. (Republic v. Santos, 141 SCRA 30; Republic (MECS) v. IAC, 185 SCRA 572)

The court may substitute its own estim ate of the value of the property only for valid reasons: the commissioners have applied illegal principles to the evidence submitted to them; They have disregarded a clear preponderance of evidence; or Where the amount allowed is either grossly inadequate or excessive. (National Power Corporation v. De la Cruz, G.R. No. 156093, February 2, 2007)

 When determined General rule: At the time of the filing of the case

 Exception: If the value of the property increased because of the use to which the expropriator has put it, the value is that of the time of the taking. (NAPOCOR v. CA, 1996) Legal interest: 6%, time when payment is due to actual payment EFFECT OF DELAY  Just compensation means not only the correct amount to be paid to the owner of the l and but also payment within a reasonable time from its taking (Eslaban v. De Onorio, G.R. No. 146062, June 28, 2001)

General rule on delay of payment: For nonpayment, the remedy is the demand of payment of the fair market value of the property and not the recovery of possession of the expropriated lots. (Republic of the Philippines v. Court of Appeals, G.R. No. 146587, July 2, 2002; Reyes v. National Housing  Authority, G.R. No. 147511, January 29, 2003) NOTES: The word “JUST” is used to intensify the meaning of  the word “COMPENSATION,” to convey the idea that the equivalent to be rendered for the property taken shall be real, substantial, full, ample. 



Among the factors to be considered  in arriving at the fair market value (FMV) of the property: Cost of acquisition o Current value of like properties o Actual or potential uses o And, in lands, their size, shape or o location and the tax declarations. Title to the property shall not be transferred until after actual payment of just compensation is made to the owner (Visayan Refining Co. V. Camus, 40 Phil. 550).

ABANDONMENT OF INTETDED USE AND RIGHT OF REPURCHASE

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If the expropriator (government) does not use the property for a public purpose, the property reverts to the owner in fee simple. (Heirs of Moreno v. Mactan-Cebu International Airport, 2005)

CONTRACT CLAUSE

Sec. 10, Art. III, 1987 Constitution

No law impairing the obligation of contracts shall be passed.

Purpose To safeguard the integrity of valid contractual agreements against unwarranted interference by the State. Contract Any lawful agreement on property or property rights, whether real or personal, tangible or intangible. (1) Agreement may be executed or executor (2) Parties may be private persons only, natural or artificial, or private persons on the one hand and the government or its agencies on the other hand. Law (as used in this Article) 1. Includes statutes enacted by the national legislature, executive orders and administrative regulations promulgated under a valid delegation of power, and municipal ordinance passed by local legislative bodies. It does not include judicial decisions or adjudications made by administrative bodies in the exercise of t heir quasi-judicial powers (Cruz, 207 ed). Impairment Anything that diminishes the efficacy of the contract (Clements v. Nolting, 42 Phil. 702). General rule: Non-Impairment of Contracts Exception: A contract valid at the time of its execution  may be legally modified   or even completely invalidated by a subsequent  law. IF THE LAW is a proper exercise of the police power, it will prevail over the contract. Or exercise of power of eminent domain and taxation (Cruz, 207 ed). The law impairs the obligation of contracts if

(1)

(2)

It changes the terms and conditions of a legal contract either as to the time or mode of performance It imposes new conditions or dispenses with those expressed if it authorizes for its satisfaction something different from that provided in its terms

NOTE: Mere technical change which does not change the substance of the contract, and which still leaves an efficacious remedy for enforcement does NOT impair the obligation of contracts. A valid exercise of police power is superior to

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obligation of contracts. Applicability of the provision

This constitutional provision is applicable only if the obligation of contract is impaired by legislative act (statute, ordinance, etc.). The act need not be by a legislative office; but it should be legislative in nature. Furthermore, the impairment must be substantial (Philippine Rural Electric Cooperatives Assoc. v. DILG Secretary, G.R. 143076, June 10, 2003).

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representation in court, and similar services are available from the Department of Justice to liti gants who cannot afford retained counsel, like the accused in a criminal case who can ask for the assistance of counsel de oficio. Indigent persons Persons who have no property or sources of i ncome sufficient for their support aside from their own labor through selfsupporting when able to work and in employment. Those protected include low paid employees, domestic servants and laborers (Cruz, 207 ed).

Inapplicability of the provision

(1)

Franchises, privileges, licenses, etc.

NOTE: These are subject to amendment, alteration or repeal by Congress when the common good so requires. (2)

There is neither public interest involved nor a law that supports the claim.

NOTE: It can only be invoked if it is against the government or when the government intervenes in contract between the parties (Pacific Wide Realty and Development Corp. v Puerto Azul Land, Inc., G.R. No. 180893, Nov. 25, 2009).

Republic Act 6034 (An Act Providing Transportation and Other Allowances for Indigent Litigants), has defined the term "indigent" to refer to a person "who has no visible means of income or whose income is insufficient for the subsistence of his family." Even on the assumption that petitioner owns property, he may still be an indigent considering his sworn statement that he had no income. Under the standard set forth in Acar v. Rosal as well as the recent legislations heretofore advert ed to, it is the income of a litigant that is the determinative factor. For, really, property may have no income. It may even be a financial burden (Enaje v. Ramos, G.R. No. L-22109, January 30, 1970).

Mutuality of contracts

General Rule: Valid contracts should be respected by the legislature and not tampered with by subsequent laws that will change the intention of the parties or modify their rights and obligations. NOTE: The will of the parties to a contract must prevail. A later law which enlarges, abridges, or in any manner changes the intent of the parties to the contract necessarily im pairs the contract itself and cannot be given retroactive effect without violating the constitutional prohibition against impairment of contracts (Sangalang v. IAC, G.R. No. 71169, Dec. 22, 1988).

LEGAL ASSITANCE AND FREE ACCESS TO COURTS

Sec. 11, Art. III, 1987 Constitution

Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of property.

RIGHTS OF SUSPECTS RIGHTS OF PERSONS UNDER INVESTIGATION Any person under investigation for the commission of an offense shall have the right: (1) to be informed of his right (2) to remain silent and (3) to have competent and independent counsel preferably of his own choice. a. If the person cannot afford the service s of counsel, he must be provided with one.

These rights cannot be waived except in writing and in the presence of counsel. CRUEL PUNISHMENT IS NOT ALLOWED (1) torture, (2) force, (3) violence, (4) threat, (5) intimidation or (6) any other means which vitiates the free will shall not be used against him. UNKNOWN DETENTION CELLS ARE PROHIBITED Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

2.

The courts of justice should be as available to the pauper as to the affluent in the protection of their respective rights (Cruz, 207 ed).

3.

The Integrated Bar of the Philippines (IBP) provides deserving indigents with free legal aid, including

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CONFESSIONS OR ADMISSION OBTAINED IN VIOLATION IS INADMISSIBLE AS EVIDENCE Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

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The law shall provide for penal and civil sanctions for violation of his section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. (Section 12, Art. 3, CONST)

B. Right to remain silent

Custodial investigation Questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. (Miranda v.  Arizona, 384 U.S. 436)

C. Right to counsel

RIGHTS AVAILABLE TO A PERSON UNDER INVESTIGATION (1) The right to remain silent; (2) The right to competent and independent counsel preferably of his own choice; (3) The right to be informed of such rights. a)

The rights begin to be available where “the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a  particular suspect, the suspect has been taken into  police custody, the police carry out a process of interrogation that lends itself to eliciting incriminating statements.” (Escobedo v. Illinois, 378 U.S. 478)

b)

The rights in this section are available to any  person under investigation fo r the commission of an offense.

c)

Constitutional procedures on custodial investigation do not apply  to a spontaneous statement not elicited through questioning by the authorities, but given in an ordinary manner whereby the accused orally admits having committed the crime.

RIGHTS ARE NOT AVAILABLE WHEN: (Bernas) (1) Before government investigators become involved; (2) The confession or admission is made to a private individual; (3) The person is undergoing audit;

A. Right to be informed of his rights 

It must be presumed to contemplate the transmission of a meaning information rather than  just a ceremonial and perfunctory recitation of an abstract constitutional principle. (People v. Rojas, 147 SCRA 169)

RULE: It is not sufficient for a police officer just to repeat to the person under investigation the provisions of the Constitution. He must also explain their effects in practical terms. (People v. Rojas, supra.) 

(1)

There must be an effective communication that results in understanding what is conveyed.

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A person under investigation has the right to refuse to answer any question. His silence may not be used against him.

Under the 1987 Constitution, counsel must be “competent and independent” and “preferably of his own choice”. (2)

If the accused never raises an objection to counsel given to him, he is deemed to have been properly counseled.

(3)

“Preferably of his own choice” does not mean that the choice of lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling the defense (Bernas).

WHO ARE NOT CONSIDERED AS “IMPARTIAL COUNSEL” (1) Special counsel, public or private prosecutor, counsel of the police, or a municipal attorney whose interest is adverse to the accused; (2) A mayor, unless the accused approaches him as counselor or adviser; (3) A barangay captain; (4) Any other whose interest may be adverse to that of the accused. NOTE: (1)

Sec. 12(1) guarantees an accused the right to counsel not only at his trial but at any critical confrontation by the prosecution at pretrial proceedings where the results might well determine his fate and where the absence of counsel might derogate from his right to a fair trial. (e.g. post-indictment lineup) (US v. Wade, 388 US 218)

Inapplicability of Miranda Rights : General Rule: When the inquiry is no longer under the control of police officers, the Miranda rights no longer apply (Bernas). Exception: The Miranda rights may still apply even after charges are filed when the police might still attempt to extract confessions or admissions from the accused outside of judicial supervision (Bernas). Unavailability of Miranda Rights (1) During a police line-up, unless admissions or confessions are being elicited from the suspect (Gamboa v. Cruz, G.R. No. L-56291, June 27, 1988). (2) During administrative investigations (Sebastian, Jr. v Garchitorena, G.R. No 114028). (3) Confessions made by an accused at the time he voluntarily surrendered to the police or outside t he context of a formal investigation; (People v Baloloy, G.R. No 140740, April 12, 2002) and (4) Statements made to a private person (People v Tawat, G.R. No 62871, May 25, 1985). (5) Forensic investigation is not tantamount to custodial investigation, therefore Miranda rights is

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not applicable (People v. Tranca, 235 SCRA 455, 1994).

CONSTITUTIONAL LAW 2

freely and voluntarily telling the truth (People v. Andan, G.R. No. 116437, Mar. 3, 1997).

Exclusionary Rule (Sec. 12(3), Art. III) Covers every form of confession tainted with involuntariness. It is a manifestation of the care with which the law wishes to insure the voluntariness of confessions. (2)

RIGHTS OF THE ACCUSED

The protection covers confessions and admissions.

Confession Declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein. (Rule 130, Sec. 33, ROC) Admission Act, declaration or omission of party as to a relevant fact. (Rule 130, Sec. 26, ROC)

(3)

RIGHTS OF THE ACCUSED

Illegally obtained confessions and admissions are inadmissible against the source of the confession or admission.

ACCUSED’S RIGHTS GENERAL RULE: All persons are (1) Entitled to bail, provided that they give sufficient securities and be made before conviction; or (2) Be released on recognizance as may be provided by law. EXCEPTION: Those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong.

NOTE: The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. (Section 13, Art. 3, CONST)

Rights that may be waived

(1) (2)

Right to remain silent Right to counsel

NOTE: However, the right of the accused to be informed of these rights is not subject to waiver; and Requisites for valid waiver

(1) (2) (3)

Made voluntarily, knowingly and intelligently In writing With the presence of counsel (People v. Galit, GR. No. L-51770, Mar. 20, 1985).

Admissibility as evidence of confessions given to news reporters and/or media and videotaped confessions

Confessions given in response to a question by news reporters, not policemen, are admissible. Where the suspect gave spontaneous answers to a televised interview by several press reporters, his answers are deemed to be voluntary and are admissible. Videotaped confessions are admissible, where it is shown that the accused unburdened his guilt willingly, openly and publicly in the presence of the newsmen. Such confessions do not form part of confessions in custodial investigations as it was not given to policemen but to media in attempt to solicit sympathy and forgiveness from the public.

1. CRIMINAL DUE PROCESS DUE PROCESS REQUIREMENT IN CRIMINAL PROCEDURES No person shall be held to answer for a criminal offense without due process of law. (Section 14, Art. 3, CONST) OTHER RIGHTS In all criminal prosecutions, the accused shall be: (1) Presumed innocent until the contrary is proved, and (2) Shall enjoy the right to be heard by himself and counsel, (3) to be informed of the nature and cause of the accusation against him, (4) to have a speedy, impartial, and public trial, (5) to meet the witnesses face to face, and (6) to have compulsory process to secure the attendance of witnesses and (7) the production of evidence in his behalf. (Section 14, Art. 3, CONST) TRIAL MAY PROCEED EVEN WITHOUT ACCUSED AFTER HE HAS BEEN ARRAIGNED However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable. (Section 14, Art. 3, CONST) •

However, due to inherent danger of these videotaped confessions, they must be accepted with extreme caution. They should be presumed involuntary, as there may be connivance between the police and media men (People v. Endino, G.R. No. 133026, Feb. 20, 2001). NOTE: What the Constitution bars is the compulsory disclosure of the incriminating facts or confessions. The rights under Sec. 12 are guarantees to preclude the slightest use of coercion by the State, and not to prevent the suspect from

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•

•

Sec. 14(1) is restricted to criminal cases only and purely to their procedural requirements (Cruz, 2007 ed). Criminal due process requires that the accused be tried by an impartial and competent c ourt in accordance with the procedure prescribed by law and with the proper observance of all the rights accorded him under the Constitution and the applicable statutes. The basic ingredient of criminal due process is a trial conducted in accordance with the rudiments of fair play.

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Hence, the accused has a right to complain if the judge has a personal or pecuniary interest in the outcome of the case. •

The rights enumerated in Sec. 14 (2), including the right to impartiality, are protected only during the trial.

 Rights of the Accused  Under the Rules of Criminal Procedure. the following are the rights accorded the accused: (1) To be presumed innocent until the contrary is proved beyond reasonable doubt. (2) To be informed of the nature and cause of the accusation against him. (3) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. (4) To testify as a witness i n his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him. (5) To be exempt from being compelled to be a witness against himself. (6) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable, or otherwise unable to test ify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him. (7) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf. (8) To have speedy, impartial and public trial. (9) To appeal in all cases allowed and in the manner prescribed by law. (Sec. 1, Rule 115, Rules of Court)

2. PRESUMPTION OF INNOCENCE

PRESUMPTION OF INNOCENCE •

•

•

It is the responsibility of the prosecution to establish the defendant’s guilt beyond reasonable doubt; otherwise, he is entitled to acquittal. Co nviction will depend not on the weakness of his defense but on the strength of the prosecution. The presumption of innocence must be fully adhered to, requiring that there be evidence sufficient to remove every vestige of reasonable doubt (People v. Malilay, 63 SCRA 420). The presumption of innocence is overcome only by proof beyond reasonable doubt.

Reasonable doubt

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CONSTITUTIONAL LAW 2

It is that doubt engendered by an investigation of the whole proof and an inability after such investigation to let the mind rest upon the certainty of guilt. Absolute certainty of guilt is not demanded by the law to convict a criminal charge, but moral certainty is required as to every proposition of proof requisite to constitute the offense  (Mupas v. People, 172834, 2008). Equipoise rule Related to presumption of innocence is what is called the EQUIPOISE RULE which says:

That where the evidence of the parties in a criminal case is evenly balanced, the constitutional presumption of innocence should tilt the scales in favor of the accused. Clearly, however, there is no equipoise if the evidence is not evenly balanced. The equipoise rule cannot be invoked where the evidence of the prosecution is overwhelming (Malana v. People, 173612, 2008).

3. BAIL Bail Security given for the release of a person in custody of law, furnished by him or a bondsman, conditioned upon his appearance before any court as may be required (Rule 114, Sec. 1, ROC).

It is a mode short of confinement which would, with reasonable certainty insure the attendance of the accused (De la Camara v. Enage, 41 SCRA 1, 1971). General rule: Only persons under detention may petition for bail, for the purpose of such bail is to secure their provisional release. Exception: Any offenses which under the law existing at the time of its commission and at the time of the application for bail may be punished by reclusion perpetua, even if a lesser penalty may be imposed upon co nviction. Exception to Exception: However, even if the crime imputed to the accused is punishable by reclusion perpetua, he is still entitled to bail if the evidence o f guilt is not strong (Cruz, 2007 ed).

Form of bail (1) (2) (3) (4)

Corporate surety Property bond Cash deposit Recognizance

Because of the importance of the right to bail both for the accused and for the prosecution, certain duties are imposed upon the Judge. As reiterated in the case of Basco v. Rapatalo: (1)

(2)

Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of Court as amended); Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to

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(3)

(4)

CONSTITUTIONAL LAW 2

present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion (Sections 7 and 8, supra); Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution (Baylon v. Sison); If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. (Section 19, supra). Otherwise, petition should be denied.

Factors which must be considered in determining bail (Bernas) a. b. c. d. e. f. g. h. i.

(1)

(2)

Ability to post bail Nature of the offense Penalty imposed by law Character and reputation of the accused Health of the accused Strength of the evidence Probability of appearing for trial Prior forfeiture of bonds Whether the accused was a fugitive from  justice when arrested  j. Whether under bond in other cases Since bail is constitutionally available to all persons, it must be available to one who is detained even before formal charges are filed (Herras Teehanke v. Rovira, 75 Phil. 634 , 1945). But of course, the person claiming the right must be under actual detention or custody of the law. One is under the custody of the laweither when he has been arrested or has surrendered himself to the jurisdiction of the court.

The following are entitled to bail (1) Persons charged with offenses punishable by death, reclusion perpetua or life imprisonment, when evidence of guilt is not strong (2) Persons convicted by the trial court pending their appeal (3) Persons who are members of the AFP facing a court martial Hearing (1) The constitutional right to bail necessarily includes the right to a hearing. When bail is denied without a hearing, a fundamental right is violated (Beltran v. Diaz, 77 Phil. 484, 1946). The hearing need not be separate and distinct from the trial itself. And it need only be summary. The right to a prompt hearing is waived by agreeing to postponements (Munoz v. Rilloraza, 83 Phil. 609, 1949).

(2)

Hearing on the petition for bail is required to satisfy due process, but this may be summary in nature or held in the course of the trial itself. A separate hearing is not indispensable (Gerardo v. CFI, 86 Phil. 504).

Excessive Bail The right to bail can be rendered useless by a bail bond set at an exorbitant amount. Hence, the Constitution prohibits “EXCESSIVE BAIL.” (Bernas)

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BAIL AS A MATTER OF RIGHT v. BAIL AS A MATTER OF DISCRETION [comparative table]

That he committed the offense while under probation, parole, or conditional pardon; •

Bail as a right Bail is a matter of right if a person is charged with an offense not punishable by reclusion perpetua, life imprisonment or death.

All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule: (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial court of an offense not punishable by death, reclusion perpetua, or life imprisonment. (Sec. 4. Rule 114, ROC)

Bail, when discretionary

Bail is discretionary when a person is charged with an offense

That the circumstances of his case indicate the probability of flight if released on bail; or •

Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court conviction the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.

That there is undue risk that he may commit another crime during the pendency of the appeal. •

The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case. (Sec. 5, Rule 114, ROC)

4. RIGHT TO BE HEARD

Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accuse, of the follo wing or other similar circumstances: That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; •

That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification; •

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(1)

In a very broad sense, it can be understood to mean the totality of the rights embodied in an adequate criminal procedural system (Bernas).

(2)

The qualities demanded of the hearer are fairness and impartiality. Lit is demanded that judge may not play the double role od prosecutor and judge in one and the same case. He must maintain an attitude of neutrality in regard to the prosecution and the accused (People v. Castaneda, 63 Phil. 480, 1936).

The more active role of the accused in expressing the right to be heard includes: (1)

The right to present evidence and to be present at the trial a. Includes the right to testify in one’s favor and b. The right to be given time to call witnesses ( US v. Chueco, 37 Phil. 53, 1917)

(2)

The right to be assisted by counsel a. The right of the accused to counsel in criminal  proceedings has never been considered subject to waiver ( Florez v. Ruiz, 90 SCRA 429). b. The right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio if he so desires and he is poor grant him a reasonable time to procure an attorney of his own (People v. Holgado, 86 Phil. 752).

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(3)

Constitutional Law I

[W]hen a defendant appears without attorney, the court has four important duties to comply with : a. It must inform the defendant that it is his right to have attorney before being arraigned; b. After giving him such information the court must ask him if he desires the aid of an attorney; c. If he desires and is unable to employ attorney, the court must assign counsel de oficio to defend him; d. If the accused desires to procure an attorney of his own the court must grant him a reasonable time therefor.

Where duly authorized members of the bar are not available, the court may appoint any person resident of the province and of good repute for probity and ability.

is not possible for men of ordinary intelligence to determine therefrom what acts or omissions are punished and hence, should be avoided. This is the void-forvagueness rule. Variance doctrine

In spite of the difference between the crime that was charged and that which was eventually proved, the accused may still be convicted of whatever offense that was proved even if not specifically set out in the information provided it is necessarily included in the crime charged (Teves v. Sandiganbayan, G.R. No. 154182, Dec. 17, 2004). 6. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL

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

5. RIGHT TO BE INFORMED Purpose and requirements: ( US v. Karelsen, 3 Phil. 223, 1904) to furnish the accused with such a description of the charge against him as will enable him to make his defense; to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction if one should be had. (United States vs. Cruikshank, 92 U. S., 542.) •

•

•

Requisites for properly informing the accused of the nature and cause of accusation

(1) (2) (3) (4) (5) (6) (7)





Information must state the name of the accused Designation given to the offense by statute Statement of the acts or omission so complained of as constituting the offense Name of the offended party Approximate time and date of commission of the offense Place where offense was committed Every element of the offense must be alleged in the complaint or information

In order that this requirement may be satisfied, facts must be stated; not conclusions of law. Every crime is made up of certain acts and intent; these must be set forth in the complaint with reasonable particularity of time, place, names (plaintiff and defendant), and circumstances. In short, the complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime charged. The defendant is entitled to know the nature and cause of the accusation against him so he can adequately prepare for his defense (Cruz, 2007 ed).



The description and not the designation of the offense is controlling.



The defendant is also denied the right to be informed of the charge against him, and to due process as well, where the statute itself is couched in such indefinite language that it

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Right to a Speedy Disposition of the Case Sec. 16, Art. III, 1987 Constitution All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.

Scope The right covers all periods before, during, and after trial.  It applies to civil, criminal, and administrative cases.  Any party to a case may demand expeditious action on all  officials. Section 16 Applies to all phases in all  judicial, quasi-judicial, administrative proceedings.

Section 14 Applies only to trial phase in criminal proceedings.

Speedy trial One free from vexatious, capricious and oppressive delays And is intended to relieve the accused of needless anxieties and inconveniences before sentence is pronounced upon him (Flores v. People, 61 SCRA 331).

Factors may be considered in determining whether the accused has been deprived of his right to speedy trial and disposition of case: ( Corpuz v. Sandiganbayan) Length of delay;  Reason for the delay;  Defendant’s assertion of his right; and  Prejudice to the defendant.  NOTE: The denial of the right to speedy trial is a ground for acquittal. Remedy for Violation: Dismissal through mandamus.

The right to speedy trial [Sec. 14 (2)] particularly refers to criminal prosecutions which are at the trial stage, while the right to speedy disposition of cases (Sec. 16) applies to all cases before  judicial, quasi-judicial or administrative bodies. Impartial trial Accused is entitled to cold and neutrality of an impartial judge

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Public trial General rule: A trial is public when anyone interested in observing the manner a judge conducts the proceedings in his courtroom may do so. There is no ban on such attendance. His being a stranger to the litigants is of no moment. No relationship to the parties need be shown (Garcia v. Domingo, L-30104, 1973). Exception: The general public may be excluded when the evidence to be presented in the proceeding may be characterized as offensive to decency or public morals (Rule 119, Sec. 13, ROC).

The issue was whether the trial held in the judge’s chambers without, however, any evidence of an attempt to exclude the public was violative of the constitutional command.

Requirements for the exercise of the right to secure attendance of witness

(1) (2) (3) (4)

The witness is really material The attendance of the witness was previously obtained The witness will be available at the time desired No similar evidence could be obtained

NOTE: Right to cross-examine is demandable only during trials. Thus, it cannot be availed of during preliminary investigations. Principal exceptions to the right of confrontation

(1) (2) RIGHT OF CONFRONTATION

(3) Two- fold Purpose: (1) To afford the accused an opportunity to test the testimony of the witness by cross-examination, and (2) To allow the judge to observe the deportment of the witness (US v. Anastacio, 6 Phil. 413, 1906).

Admissibility of dying declarations and all exceptions to the hearsay rule Trial in absentia under Sec.14 (2) of Art. III of the Constitution With respect to child testimony

TRIAL IN ABSENTIA

Requisites: Right of confrontation is recognized during preliminary investigation proper but not during preliminary examination. A preliminary examination is generally a proceeding ex parte in which the person charged has no right to participate or be present (Marinas v. Siochi, 104 SCRA 423, 1981).

COMPULSORY PROCESS

(1)

The accused is entitled under the Constitution to the issuance of subpoena and subpoena duces tecum for the purpose of compelling the attendance of witnesses and the production of evidence that he may need for his defense. Failure to obey then subject to contempt of court or may be arrested so needed evidence will be given.

(2)

The right to compulsory process must be invoked during the trial. Failure to do so constitutes a waiver that cannot be rectified or undone on appeal (US v. Garcia, 10 Phil. 384).

AD TESTIFICANDUM

DECUS TECUM

A process directed to a person requiring him to attend and to testify at the hearing or trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition.

The person is also required to bring with him any books, documents, or other things under his control.

(1) (2) (3)

The accused has already been arraigned; He has been duly notified of the trial; and His failure to appear is unjustified (People v. Salas, 143 SCRA 163).

This is mandatory upon the court whenever the accused has been arraigned, notified of the dates of the hearing, and his absence is unjustified. Trial in absentia can also take place when the accused voluntarily waives his right to be present.  This right may be waived PROVIDED that (1) After arraignment he may be compelled to appear for the purpose of identification by the witnesses of the prosecution, or (2) He unqualifiedly admits in open court after his arraignment that he is the person named as defendant in the case on trial (Carredo v. People, 77542, 1990).

NOTE: The subpoena duces tecum  shall contain a reasonable description of the books, documents or things demanded which must appear to the court as prima facie relevant.

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 WRIT OF HABES CORPUS  WRIT OF HABEAS CORPUS Sec. 15, Art. III, 1987 Constitution The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it.

A. PRIVILEGE

Directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his caption and detention, to do, submit to, and receive whatever the court or judge awarding the writ shall consider in that behalf.

Power to Suspend The power to suspend the privilege of the writ is vested in both the President and the Legislative.

The President (1) May suspend the privilege for not exceeding 60 days. (2) May initiate extension of the suspension. Congress (1) Has the power to revoke the suspension and the President may not set aside the revocation. (2) May, upon the President’s initiative, extend the suspension. 

Conditions for Validity (1) (2) (3)

Functions as the most immediately available safeguard of personal liberty. Object and Purpose (1) To achieve immediate determination of the legality of a detention. (2) “To inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal.” (3) “To provide a speedy and effectual remedy to relieve persons from unlawful restraint, (4) “To set the individual at liberty” 

Habeas Corpus is not the proper mode to question conditions of confinement.

Personal Liberty Actual deprivation of personal liberty is a requisite to the availability of the writ. A prime specification of an application for a writ of habeas  corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. (Villavicencio vs Lukban, 1919)

Personal liberty can be lost through: -

Physical compulsion External Moral compulsion Founded or groundless fear Belief in existence of imaginary power to cause harm Other psychological curtailment of mental faculty.

B. SUSPENSION

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The Court ruled that “what is suspended is not the writ, but the privilege of the writ.”

(4)



There is invasion, or rebellion; and That public safety requires t he suspension. Person is judicially charged with rebellion or offenses connected directly or indirectly with invasion Person detained, during suspension, be judicially charged within 3 days. Otherwise, he will be arrested.

Two conditions must concur for the valid exercise of the authority to suspend the privilege to the writ   (a) there must be "invasion, insurrection, or rebellion" or "imminent danger thereof," and (b) "public safety" must require the suspension of the privilege. President has three (3) courses of action: (a) to call out the armed forces; (b) to suspend the privilege of the writ of habeas corpus; and (c) to place the Philippines or any part thereof under martial law. He had, already, called out the armed forces, proved inadequate. Of the two other alternatives, the suspension of the privilege is the least harsh (Lansang vs Garcia, 1971).

Effect of Suspension Temporarily prevents the courts from enquiring into the legality of the detention. Power to Review Suspension The Supreme Court, upon initiative of any citizen, may review the “sufficiency of the factual basis of the suspension” and must promulgate its decision within 30 days  from the filing (Art. VII, Sec. 18, CONST). Powers of the Supreme Court: (1) Determine if there is in fact actual invasion, or rebellion; (2) Determine whether public safety requires the suspension Problems upon Suspension (1) Whether the accused under an offense during the suspension is entitled to release on bail (2) Lack of procedure after an accused is detained for a crime during the suspension despite receiving evidence to establish probable cause or reasonable belief

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

Constitutional Law I

Because the privilege of the writ of habeas corpus remains suspended  "with respect to persons at present detained as well as other who may hereafter be similarly detained for the crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and for all other crimes and offenses committed by them in furtherance of or on the occasion thereof, or incident thereto, or in connection therewith," the natural consequence is that the right to bail for the commission of anyone of the said offenses is also suspended. To hold otherwise would defeat the very purpose of the suspension. Therefore, where the offense for which the detainee was arrested is anyone of the said offenses he has no right to bail even after the charges are  filed in court. (Moncupa vs Ponce Enrile, 1983)

Suggested remedy to lack of entitlement to right to bail is to have the executive file a formal charge against the detainee. Because the moment a formal charge is filed, the executive submits the legalities of the case to the  jurisdiction of the courts, thus opening the case to inquiries of the legality of the detention and waiving the effects of executive suspension of the privilege (Bernas).

Prior to 1987 Constitution Power to Suspend

Power of Judicial Review over the factual bases of the suspension

Conditions for validity of suspension

Vested in the Executive Should be “within proper bounds”; meaning by asking if the Executive has gone beyond the constitutional limits of its  jurisdiction Invasion, insurrection, rebellion, or imminent danger

Hearing Summary or court may call for a preliminary conference; given same priority as petition for habeas corpus. (Sec. 13) Proof required: Substantial evidence Defense: (1) Private individual – ordinary diligence (2) Public official – extraordinary diligence, no presumption of regularity of duties. (Sec. 17)

 WRIT OF HABEAS DATA

The writ of habeas data is an independent and summary remedy designed to protect the i mage, privacy, honor, information, and freedom of information of an individual, and to provide a forum to enforce one’s right to the truth and to informational privacy.

C. REMEDIES 

which shall, among other things, contain his defenses. A general denial is not allowed. (Sec. 9)

1987 Constitution Vested in both executive and the President SC may review, upon initiative of any citizen, sufficiency of the factual basis, and determine Executive arbitrariness in arriving at the suspension Invasion, or rebellion

There must be a nexus between right to privacy and right to life, liberty and security. Right To Informational Privacy v. Legitimate State Interest The determination of whether the privile ge of the writ of habeas data, being an extraordinary remedy, may be granted in this case entails a delicate balancing of the alleged intrusion upon the private life of Gamboa and the relevant state interest involved. (Gamboa v. P/Supt. Marlou C. Chan, et al., 2012)

 WRIT OF KALIKASAN

Remedy against violation or threat of violation of constitutional right to a balanced and healthful ecology by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces  Who may file:  Natural or juridical persons, NGO or public interest groups in behalf of persons whose right is violated.  Who has jurisdiction: Supreme Court or Court of Appeals.

 WRIT OF AMPARO, HABEAS DATA, AND KALIKASAN  WRIT OF AMPARO Sec. 1, The Rule on the Writ of Amparo.  The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.

Within 72 hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits

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A compulsory production of the private books and papers of the owner is compelling him to be a witness against himself.

SELF-INCRIMINATION CLAUSE SELF-INCRIMINATION CLAUSE

Exception

Sec. 17, Art. III, 1987 Constitution No person shall be compelled to be a witness against himself.

1. SCOPE AND COVERAGE

Purpose of the provision is to prohibit compulsory oral examination of prisoners before the trial, or upon trial to extort unwilling confessions or declarations (Bernas). What is prohibited is the use of physical or moral torture to extort information from the witness , not inclusion of his body or substances from it, in evidence. Not prohibited: Physical Examination

Us vs. Tan Teng 23 Phil 145, GR 7081, (1912) Facts: The defendant was accused of raping his 7yr old neighbor. She later contracted gonorrhea. The investigation revealed him as the suspect after they examined substances from his body and found he had gonorrhea. He alleged his right against self-incrimination was violated because of the physical examination. Issue: Was the physical examination violating his right against selfincrimination? Held: No. The taking of a substance from his body was not a violation of the said right.  He was neither compelled to make any admissions or to answer any questions. The substance was taken from his body without his objection and was examined by competent medical authority. The prohibition of self-incrimination in the Bill of Rights is a prohibition of the use of physical or moral compulsion to extort communications from him, and not an exclusion of his body as evidence, when it may be material. It would be the same as if the offender apprehended was a thief and the object stolen by him may be used as evidence against him.

•

Hand writing Since witnesses in a preliminary investigation are protected by the prohibition, they may not be compelled to take a dictation to compare their handwriting with that found in a supposedly falsified document (Beltran vs. Samson. 1929). •

•

•

Mere denial of the witness that the documents were in her handwriting does not constitute a waiver of the right because such denial discloses nothing (Bermudez vs. Castillo, 1937).

Shapiro vs. United States 335 US 1, (1948) Facts: A prosecution arose from alleged violations of the Emergency Price Control Act of 1942. The defendant was required by law to keep certain records. When these records were ordered produced, he claimed protection under this privilege. Issue: Is the defendant entitled to invoke the right? Held: No. The privilege which exists as to private papers cannot be maintained in relation to ‘records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulations and the enforcement of restrictions validly established.

Incriminating question

A question tends to incriminate when the answer of the accused or the witness would establish a fact which would be a necessary link in a chain of evidence to prove the commission of a crime by the accused or the witness. NOTE: The privilege against self-incrimination is not selfexecuting or automatically operational. It must be claimed. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. The privilege against self-incrimination can be claimed only when the specific question, incriminatory in character, is actually addressed to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed (Rosete v. Lim, G.R. No. 136051, June 8, 2006).

2. APPLICATION

To Persons

(1)

The right applies only to natural persons. T he accused, a witness, and a witness who is also an accused, may avail of this right. a. Accused may refuse to be a witness altogether. b.  Witness  cannot refuse to take the stand. He may invoke the right when an incriminating question is asked.

Incriminating Questions  are those that tend to establish a fact necessary in linking the evidence to prove the commission of crime by the accused or the witness.

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The right includes a right to refuse to testify to a fact which would be a necessary link in a chain of evidence to prove the commission of a crime by a witness (Fernando vs. Maglanoc, 1954).

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To Proceedings •

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The right may be invoked in criminal proceedings and administrative investigations  in the nature of or analogous to a criminal proceeding.

RA 1379: An Act Providing for Forfeiture In Favor of the State any Property found to have been Unlawfully Acquired by any Public Officer or Employee (8) Protection against self-incrimination. Neither the respondent nor any other person shall be excused from attending and testifying or from producing books, papers, correspondence, memoranda and other records on the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to prosecution; but no individual shall be prosecuted criminally for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that such individual so testifying shall not be exempt from prosecution and conviction for perjury or false testimony committed in so testifying or from administrative proceedings.

Facts: The petitioner filed an action for prohibition and preliminary injunction in a proceeding for his alleged malpractice. He claims the counsel for the respondent violated his right against self-incrimination after he expressly stated he refused to be a witness for them. This was in record. The respondents said he would be called again to the witness stand unless he can obtain a restraining order. Issue: Was compelling the accused to be the respondent’s first witness in violation of his right? Held: The Court found for the petitioner in accordance with the well-settled principle that "the accused in a criminal case may refuse, not only to answer incriminatory questions, but, also, to take the witness stand."  If petitioner would be compelled to testify against himself, he could suffer not the forfeiture of property but the revocation of his license as a medical practitioner. The constitutional guarantee protects as well the right to silence: "The accused has a perfect right to remain silent and his silence cannot be used as a presumption of his guilt." It is the right of a defendant "to forego testimony, to remain silent, unless he chooses to take the witness stand —  with undiluted, unfettered exercise of his own free genuine will."

(9) Immunity. The Solicitor General may grant immunity from criminal prosecution to any person who testifies to the unlawful manner in which the respondent has acquired any of the property in question in cases where such testimony is necessary to prove violations of this Act. •

3. IMMUNITY STATUTES

 

Use Immunity Transactional Immunity Exclusionary Rule

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USE IMMUNITY Section 18(8), Article XIII, 1987 Constitution: Use Immunity The Commission on Human Rights shall have the following powers and functions:

(8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority;

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The provision grants the CHR the right to grant this immunity to persons whose documents were co mpelled to be submitted in evidence.

TRANSACTIONAL IMMUNITY

Pascual Jr. v. Board of Medical Examiner GR L-25018 (1969)



The provision on use immunity prohibits the use of the witness’ compelled testimony and its fruits in any manner connected with the criminal prosecution of the witness. The witness may still be prosecuted but his compelled testimony is dispensed with.

Such immunity is granted to the witness from prosecution for an offense to which his compelled testimony relates to. The witness cannot be prosecuted at all. The respondent cannot excuse himself from producing the documentary evidence required by invoking the right against self-incrimination. But he cannot be criminally prosecuted for transactions he was compelled into after he has invoked this right. However, he can still be prosecuted for perjury or false testimony for testifying as such, and for administrative proceedings.

EXCLUSIONARY RULE Section 12(2), Article III, 1987 Constitution No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited

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INVOLUNTARY SERVITUDE AND POLITICAL PRISONERS INVOLUNTARY SERVITUDE AND POLITICAL PRISONERS Sec. 18, Art. III, 1987 Constitution No person shall be detained solely by reason of his  political beliefs and aspirations.

No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.

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A. ILLEGAL DETENTION Illegal detention The provision on illegal detention is an added security to the due process clause, and to the guarantee of freedom of speech, press and expression in Section 4.

B. INVOLUNTARY SERVITUDE

Involuntary Servitude A condition of enforced or compulsory service of one to another (Rubi vs. Provincial Board, 39 Phil 660, 708, 1919) no matter under what form such servitude may be disguised (Bailey vs.  Alabama, 219 U.S. 219, 1910). •

Domestic services are always to be renumerated, an no agreement may subsist in law in which it is stipulated that any domestic service shall be absolutely gratuitous, unless it be admitted that slavery may be established in this country through a covenant entered into between interested parties. (de los Reyes vs. Alojado, 1910)

 Exceptions •

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Punishment for a crime for which the party has been duly convicted. Personal military or civil service in the interest of national defense. In naval enlistment: a person who enlists in a merchant ship may be compelled to remain in service until the end of the voyage. Posse comitatus for the apprehension of criminals Return to work order issued by the DOLE Secretary or the President. Minors under patria potestas are obliged to obey their parents.

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SECTION 19: Rights under Conviction and Death Penalty LIMITATIONS ON PENALTIES (1) No excessive fines to be imposed (2) No cruel, degrading, or inhuman punishment shall be inflicted. DEATH PENALTY GENERAL RULE: Death penalty not allowed EXCEPT:  unless, for compelling reasons involving heinous crimes

NOTE: the Congress hereafter provides guidelines for imposition of death penalty. And any death penalty already imposed shall be reduced to reclusion perpetua. CONSEQUENCE FOR SUBSTANDARD FACILITIES The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.

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NOTE: Fr. Bernas says that the accused cannot be convicted of the crime to which the punishment is attached if the court finds that the punishment is cruel, degrading or inhuman. The reason for this is without a valid penalty, the law is not a penal law. Excessive Fines A fine is excessive when  it is disproportionate to the offense or crime committed. •

DEATH PENALTY

RA 7659, Death Penalty Law RA 9346, Suspending Death Penalty Law •

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EXCESSIVE FINES AND CRUEL AND INHUMAN PUNISHMENTS

The penalty was abolished altogether, but left the matter open for Congress to revive capital punishment at its discretion “for compelling reasons involving heinous crimes”  The Constitution prohibits imposing capital punishment, But Congress has discretion to revive it under circumstances of heinous crimes

Heinous Crimes RA 7659 provides that crimes are heinous “for being grievous, odious, and hateful o ffenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society”. The Court finds this definition or descriptions “to be a sufficient criterion of what is to be considered a heinous crime”. (People v. Echagaray, G.R. No. 117472, Feb. 7, 1997.) •

EXCESSIVE FINES AND CRUEL AND INHUMAN PUNISHMENTS Cruel, Degrading, and Inhumane Punishments Punishment is cruel and inhumane if it involves torture or lingering death; but the punishment of death is not cruel. The constitutional limit is based on the mode and nature of the punishment in terms of the physical pain (Legarda vs. Valdez 1 Phil 146, 1902). •

•

A penalty is cruel and unusual  if it is flagrantly disproportionate to the offense no matter under what circumstances the offense may be committed. The punishment imposed by the Legislature exceeded the limits of its discretionary power (Bernas).

 Requirements for Restoring Death Penalty •

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•

•

Punishment is degrading if it exposes a person to public humiliation. Unconstitutional punishments imply something inhuman and barbarous, something more than the mere extinguishment of life (People vs. Mercado, GR No. 116239, November 29, 2000).

 Four Basic Principles for judging Severe Punishment  (J. Brennan, Furman vs. Georgia, 408 U.S. 238, 1972) The punishment must not be so severe as to be  degrading to the dignity o f human beings. It must not be applied arbitrarily.  It must not be unacceptable to contemporary society  It must not be excessive, or it must serve a penal  purpose more effectively than a less severe punishment would.

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That Congress define or describe what is meant by heinous crimes; That Congress specify and penalize death only crimes that qualify as heinous as defined or described, and/or designate crimes punishable by reclusion perpetua to death in which the latter case, death can only be imposed upon attendance of circumstances duly proven in court; That Congress, in enacting the death penalty bill, be singularly motivated by “compelling reasons involving heinous crimes”.

CUSTODIAL CRUELTIES AND INADEQUATE PENAL FACILITIES

Unless facilities of the penitentiary are brought up to a level of constitutional tolerability, they should not be used for the confinement of prisoners at all (Bernas).

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NON-IMPRISONMENT FOR DEBTS

(2)

The rule protects the accused not against the peril of second punishment, but against being again tried for the same offense. (People v. Ylagan, 58 Phil 851)

NON-IMPRISONMENT FOR DEBTS Sec. 20, Art. III, 1987 Constitution No person shall be imprisoned for de bt or non-payment of a poll tax. Debt Refers to any civil obligation arising from contract, expressed o r implied (Cruz, 2007 ed). As long as the obligation to pay arises ex contractu, it is considered a private matter between the creditor and the debtor and the punitive arm of the State cannot be employed in a criminal action to enforce the former’s right. The remedy in this case is a civil action only for the recovery of the unpaid debt.

Purpose: To set the effects of the first prosecution forever at rest, assuring the accused that he shall not thereafter be subjected to the dangers and anxiety of a second charge against him for the same offense (Cruz).

 REQUISITES:

•

•

In the Ganaway  case, debt includes even debts obtained through fraud since no distinction is made in the Constitution.

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 

When does first jeopardy terminate (1) (2) (3) (4)

NON-PAYMENT OF POLL-TAX

A poll tax or cedula tax It is a tax imposed on all persons of a certain age. At present it is the tax one pays for his or her residence certificate which generally serves as a personal identification instrument (Benras). •

•

A specific fixed sum levied upon every person belonging to a certain class without regard to his property or occupation (Cruz, 2007 ed). Poll tax is not progressive and antiquated.

General rule: Since a tax is not a debt but arises from the obligation of the person to contribute his share in the maintenance of the government, failure to pay the same can be validly punished with imprisonment. Exception: Failure to pay poll tax. This exception is adopted pursuant to the social justice policy (Cruz, 2007 ed).

Sec. 21, Art. III, 1987 Constitution No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

(1)

The right against double jeopardy prohibits the prosecution of any person for a crime of which he has previously been acquitted or convicted.

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By acquittal; By final conviction; By dismissal without express consent of the accused; By dismissal on merits.

When does double jeopardy attach (1) (2) (3) (4)

In a court of competent jurisdiction; upon a valid complaint or i nformation; after he has been arrai gned; and after he has pleaded to the complaint of information. (People v. Ylagan, supra.)

Crimes covered by the rule against double jeopardy The accused may not be prosecuted anew: (1) For the original offense charged, or (2) For any attempt to commit the same or frustration thereof, or (3) For any offense which necessarily includes or is necessarily included in the offense charged in the original complaint or information (Cruz). •

The protection against double jeo pardy may be waived by the accused. Thus, when the accused himself files or consents to the filing of a motion for reconsideration or modification, double jeopardy cannot be invoked because the accused waived his right not to be place therein by filing such motion. (People v. Astudillo, 401 SCRA 723)

•

A motion for reconsideration or modification filed by or with consent of the accused renders the entire evidence open for the review of the trial court without, however, conducting further proceedings, such as the taking of additional proof. (People v. Astudillo, supra.)

DOUBLE JEOPARDY DOUBLE JEOPARDY

A first jeopardy must have attached prior to the second; He first jeopardy must have terminated; The second jeopardy must be for the same offense as that in the first.

Supervening Event The accused may be prosecuted for another offense if a subsequent development changes the character of the first indictment under which he may have already been charged or convicted.

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Where after the first prosecution a new fact supervenes for which the defendant is responsible, which changes the character of the offense and, together with the facts existing at the time, constitutes a new and distinct offense, the accused cannot be said to be in second jeopardy if indicted for the new offense. (People v. City Court of Manila, Br. XI, 121 SCRA 637)

•

Double jeopardy for the same act The constitutional protection against double jeopardy is available only where an identity is shown to exist between the earlier the subsequent offense charged.

•

Makes an action done before the passing of the law and which was innocent when done criminal, and punishes the action; or Aggravates a crime or makes it greater than when it was committed; or Changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed; or Alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant. Assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful; Deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty (Bernas).

• •

• •

•

The identity of offenses does not require on-to-one correspondence between the facts and law involved in one offense is completely included in the other (Bernas). An offense penalized by municipal ordinance, is by definition, different from an offense under a statute. The two offenses would never constitute the same offense having been promulgated by different rule-making authorities and the plea of double jeopardy would never lie. (People v. Relova, 148 SCRA 292)

Motion to quash Dismissal on motion to quash prevents jeopardy Reason: It does not amount to acquittal on merits because it is directed at the insufficiency of the first information. The defendant is deemed not to have been charged. (Cañiza v. People, 159 SCRA 16)

•

NOTES: • The ex-post facto clause only prohibits retrospective penal laws. •

A law on criminal procedure can be an ex-post facto law when it alters the legal rules of evidence or mode of trial UNLESS the changes operate only in a limited and unsubstantial manner to the disadvantage of the acc used.

•

A law shortening the prescriptive period for a crime is expost facto law. BILL OF ATTAINDER

Dismissal on demurrer The Court has held a dismissal equivalent to an acquittal on the merits, and consequently, a bar to a subsequent prosecution for the same offense or an offense which necessarily includes or is necessarily included in the offense charged in the former complaint but dismissal was predicated either on the failure of the prosecution to prove the guilt of the accuse beyond reasonable doubt, or on the right of the accused to a speedy trial. (People v. Mogol, 131 SCRA 296) Absence of jurisdiction prevents jeopardy A court without jurisdiction cannot render a valid judgment; hence, a person charged before it cannot plead double jeopardy when tried anew for the same offense by a competent court, as the first prosecution never placed him in jeopardy (Cruz).

A legislative act that inflicts punishment without trial, its essence being the substitution of legislative fiat for a judicial determination of guilt (Cruz).

 Elements (1) (2)

There must be a law; The law imposes a penal burden on a named individual or easily ascertainable members of a group; (3) The penal burden is imposed directly by the law without  judicial trial. Two kinds of bill of attainder

(1)

EX POST FACTO LAWS AND BILLS OF ATTAINDER

(2)

Bill of attainder proper (legislative imposition of the death penalty) Bill of pains and penalties (imposition of a lesser penalty)

 EX POST FACTO LAWS AND BILLS OF ATTAINDER Sec. 22, Art. III, 1987 Constitution No ex-post facto law or bill of attainder shall be enacted. EX-POST FACTO LAW

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GENERAL PRINCIPLES DEFINITION

LAW ON PUBLIC OFFICERS

A public office is the right, authority, and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer. (Laurel v. Desierto, 381 SCRA 48) A public office is a public trust. A public servant is expected to exhibit, at all times, the highest degree of honesty and integrity, and is accountable to all those he or she serves. [ Hallasgo v. Commission on Audit, G.R. No. 171340 (2009)] Law on Public Officers This branch of law deals with public office, its creation, modification, and dissolution, as well as the eligibility of public officers, the manner of their election or appointment and assumption of office, their rights, duties, powers, inhibitions, and liabilities and the modes of terminating their official relations.

ESSENTIAL ELEMENTS OF A PUBLIC OFFICE

(1) (2) (3) (4) (5)

Created by the Constitution, law, or by authority of law A delegation of some portion of the sovereign power Powers and functions are defined by the Constitution, law, or legislative authority Duties pertaining thereto are performed independently, without control of a superior power Continuing and permanent in nature. (De Leon)

A public office must be created by the (1) Constitution, (2) national legislation, or (3) municipal or subordinate legislation, via authority conferred by the Legislature. The delegation of a portion of the sovereign powers of government necessarily means that the powers are to be exercised for the benefit of the public. Powers conferred and duties imposed upon the office must be defined, directly or impliedly. General Rule: Duties must be performed independently and without the control of a superior power other than the law. Exception: Duties of an inferior subordinate office that was created or authorized by the Legislature and which inferior or subordinate office is placed under the general control of a superior office or body.

CLASSIFICATIONS OF PUBLIC OFFICERS

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ELECTIVE NATIONAL ELECTIVE LOCAL APPOINTIVE

EXECUTIVE

LEGISLATIVE

 JUDICIARY

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Created by the Constitution, including the President, Vice President, Senators, House of Representatives Local officials Created by Constitution: Chief Justice and Associate Justices, Chairman and Members of Constitutional Commissions, and Ombudsman and his deputies Presidential Appointees: Not subject to approval by the Civil Service Commission Non-Presidential Appointees: Subject to approval by the Civil Service Commission Tasked with the execution and enforcement of laws, like President, Governors, City Mayors Primary function is to enact the laws or ordinances, like Members of Congress, local sangguniang panlalawigan,  panlungsod, and pangbayan Exercise judicial power

CHARACTERISTICS OF A PUBLIC OFFICE

Public office can be characterized as follows: (1) It is a public trust; it is merely entrusted to the public officer (2) It is not a property; it is not protected or guaranteed by the due process clause (3) It is not a heritable possession (4) It is outside the commerce of man. It cannot be the subject of a valid contract; otherwise, the contract is void Public Office v. Public Employment Public employment is broader than public office. All public office is public employment, but not all public employment is a public office. Public employment as a position lacks either one or more of the foregoing ele ments of a public office. It is created by contract rather than by force of law. (De Leon) Public Office v. Contract PUBLIC OFFICE CONTRACT How Created Incident of sovereignty. Originates from will of Sovereignty is contracting parties. omnipresent. Object To carry out the sovereign Obligations imposed only as well as governmental upon the persons who functions affecting even entered into the contract. persons not bound by the contract. Subject Matter A public office embraces Limited duration and the idea of tenure, duration, specific in its object. Its terms continuity, and the duties define and limit the rights connected therewith are and obligations of the generally continuing and parties, and neither may permanent.

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depart therefrom without the consent of the other. Scope Duties are generally Duties are very specific to continuing and permanent. the contract. Where duties are defined The law. Contract. Public office is not property. A public office is (1) A public trust Which requires that all government officials and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, with patriotism and lead modest lives (2) Not property One cannot acquire a vested right to public office but it is nevertheless a protected right subject to due process (3) Personal to the public officer Not a property transmissible to his heirs upon his death. (Santos v. Secretary of Labor, 22 SCRA 848) There is no vested right in a public office. General Rule: Public office is not property under the due process clause. There is no vested right to a public office. Exception: Public office is analogous  to property in a limited context and due process may be invoked when the dispute concerns one’s constitutional right to security of tenure. [Lumiqued v. Exevea, G.R. No. 117565 (1997)]

CREATION OF PUBLIC OFFICE

(1) (2) (3)

By the Constitution By statute or law By a tribunal or body to which the power to create the office has been delegated

HOW A PUBLIC OFFICE IS CREATED General Rule : The creation of a public office is primarily a legislative function. Exception: Where the office is created by the Constitution itsel f.

The Sandiganbayan is not a constitutional court (or public office) but a constitutionally-mandated court. It was created by statute and not the Constitution, hence Congress may limit its powers and jurisdiction. [Garcia v. Sandiganbayan, G.R. No. 114135 (1994)]

 WHO ARE PUBLIC OFFICERS

Generally, one who holds a public office. (De Leon) RA 3019 (AntiGraft and Corrupt Practices Act)

Public officer includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt

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service receiving compensation, even nominal, from the government. Any person who, by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, of shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer. A person whose duties, not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government. When used with reference to a person having authority to do a particular act or perform a particular function in the exercise of governmental power, “officer” includes any government employee, agent or body having authority to do the act or exercise that function.

MODES OF ACQUIRING TITLE TO PUBLIC OFICE

Election The choice or selection o f candidates to public office by popular vote through the use of the ballot. [Rulloda v. COMELEC, G.R. No. 154198 (2003)] Appointment The selection by the authority vested with the power of an individual who is to exercise the functions of a given office. (Binamira v. Garrucho, 188 SCRA 154) Succession by Operation of Law When the office to which one succeeds is legally vacated. Direct Provision of Law Such as when the office is validly held in an ex-officio capacity by a public officer.

MODES AND KINDS OF APPOINTMENT

NATURE AND CHARACTERISTICS

Appointment, which is essentially within the discretionary power of whosoever it is vested, is subject only to the condition that the appointee should possess the qualifications required by law. (Umoso v. CSC, 234 SCRA 617 ) If he does, then the appointment cannot be faulted on the ground that there are

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others better qualified who should have been preferred. (Luego v. CSC, 143 SCRA 327 ) Requisites of a Valid Appointment (1) The position is vacant; (2) The appointing authority must be vested with the power to appoint at the time appointment is made; (3) The appointment has been approved by the CSC or confirmed by Commission on Appointments; (4) The appointee should possess all the qualifications including appropriate civil service eligibility and none of the disqualifications; (5) The appointee accepts the appointment by taking the oath and entering into discharge of duty Scope of Discretion The discretion of the appointing authority is not only in the choice of the person who is to be appointed but also in the nature and character of the appointment intended. General Rule : Appointment is generally a political question involving considerations of wisdom which only the appointing authority can decide. Exception: Appointments requiring confirmation by the Commission on Appointments. In such cases, the Commission on Appointments may review the wisdom of the appointment and has the power to refuse to concur with it even if the President’s choice possessed all t he qualifications prescribed by law. (Luego v. CSC, 143 SCRA 327 ) Power of CSC to recall appointments does not include control of discretion. The Civil Service Commission is not empowered to determine the kind or nature of appointment extended by the appointing officer, its authority is limited to approving and reviewing the appointment in light of the requirements of the Civil Service Law. This approval is more appropriately called attestation.

The Civil Service Commission’s authority to recall an appointment which has been initially approved when it is shown that the same was issued in disregard of pertinent laws, rules and regulations. However, it does not have the power to recall an appointment on the ground that another person is better qualified. (Luego v. CSC, 143 SCRA 327 ) The promotion of the “next -in-rank” is not mandatory. While there is a preference for the next-in-rank in the Civil Service Law [Sec. 21(1)-(6), Book V, Civil Service Law], it does not impose a “rigid or mechanistic formula” that requires the appointing power to select the more senior officer. Unless the law speaks in the most mandatory and peremptory tone, there should be full recognition of the wide scope of the discretionary authority to appoint. [Reyes v. Abeleda, G.R. No. 25491 (1968)]

There is no requirement that vacancies must  be filled by promotion, transfer, reinstatement, reemployment or certification, in that order . That would be to construe the provision not merely as a legislative prescription of qualifications but as a legislative appointment, repugnant to the Constitution. What [the law] does purport to say is that as far as practicable the person next in rank should be promoted, otherwise the vacancy may be filled by transfer, reinstatement, reemployment or certification, as the appointing power sees fit, provided the appointee is certified to be qualified and eligible. [Pineda v. Claudio, G.R. No. 29661 (1967)]

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Mandamus as a Remedy General Rule : As regards the power of appointment, courts will act with restraint. Hence, mandamus will not lie to require the appointment of a particular applicant or nominee. Exceptions: (1) When there is grave abuse of discretion, prohibition or mandamus will lie. [ Aytona v. Castillo, G.R. No. 19313 (1962)] (2) Where the palpable excess of authority or abuse of discretion in refusing to issue promotional appointment would lead to manifest injustice, mandamus will lie to compel the appointing authority to issue said appointments. [Pineda v. Claudio, G.R. No. 29661 (1967)]

APPOINTMENT IS GENERALLY AN EXECUTIVE FUNCTION General Rule: Power to appoint is essentially executive in nature and the legislature may not interfere with the exercise of the executive powers. (Pimentel v. Ermita, 472 SCRA 587 ) Exceptions: (1) When the Constitution expressly allows it to interfere. (Pimentel v. Ermita, 472 SCRA 587 ) (2) Congress may appoint its own officials and staff. [Spinger v. Government (1928)] (3) When the Constitution vests the powers in another branch of the State or an independent office.

The power of local chief executives to appoint local government employees under the Local Government Code is separately sanctioned in the power of Congress to “provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. (Sec. 3, Art. X, 1987 Constitution) Legislative Appointments Legislative appointments are repugnant to the Constitution. [Pineda v. Claudio, G.R. No. 29661 (1967)] When 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 on candidate and effectively eliminate the discretion of the appointing power, i.e. when the qualifications prescribed by Congress can only be met by one individual. [ Flores v. Drilon (1993)]

APPOINTMENT v. DESIGNATION APPOINTMENT The selection by the authority vested with the power, of an individual who is to exercise the functions of a given office

Permanent Confers security of tenure

DESIGNATION Assignment of a public officer to perform certain functions different from those of his position to which he has been appointed Temporary Does not confer upon designee security of tenure in the position which he

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Comprehensive extent of powers A public officer who later accepts even a temporary appointment terminates his relationship with his former office (Abandonment of “Prior” Office)

occupies in acting capacity and the designation may be revoked at will May be replaced at will by appointing authority or his designation lapses upon the appointment of another person in his place Limited extent of powers While assuming the designated functions or if the designation is revoked, the public officer may perform the functions of the “prior” office

Where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. (Binamira v. Garrucho, 188 SCRA 154)

PERMANENT v. TEMPORARY PERMANENT TEMPORARY Includes (if appointment is by the President (1) Regular appointments Acting appointments (2) Ad interim appointments Eligibility Requirements Permanent appointees Generally, required. must be (1) eligible and (2) However, in the absence of qualified. appropriate eligible, a person otherwise ineligible may be appointed to it merely in a temporary capacity. Subject to confirmation by the Commission on Appointments Yes, if confirmation by the No, even when CA is required for the confirmation by the CA is office. required for the office. Constitutional Protection No officer or employee of Temporary employees of the civil service shall be the Government shall be removed or suspended given such protection as except for cause provided may be provided by law. by law. Security of Tenure Yes. No. Duration Until lawful termination (1) Until a permanent appointment is issued to the same or different person; or (2) Until the appointee removed by the appointing power

Exception: Fixed-Period Temporary Appointments, which may be revoked

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prior to the end of the term only for valid cause Rationale for temporary appointments . Such a temporary appointment is not made for the benefit of the appointee. Rather, an acting or temporary appointment seeks to prevent a hiatus in the discharge of official functions by authorizing a person to discharge the same pending the selection of a permanent appointee. [CSC v. Daragina (2007)]  When temporary appointments not allowed. In no case shall any Member (or Chair) of the (1) Civil Service Commission, (2) Commission on Elections, or (3) Commission on Audit be appointed or designated in a temporary or acting capacity. [Sec. 1(2), Art. IX-B; Sec. 1(2), Art. IX-C; Sec. 1(2), Art. IX-D, 1987 Constitution]

PRESIDENTIAL APPOINTMENTS (Sec. 16, Art. VII, 1987 Constitution) General Rule: The appointing power is the exclusive prerogative of the Presid ent, upon which no limitations may be imposed by Congress. Exception: Those resulting from the need of securing the concurrence of the Commission o n Appointments and from the exercise of the limited power to prescribe the qualification or disqualifications to a given appointive office. Four Groups of Officers the President is Authorized to Appoint (1) Specifically enumerated under Sec. 16. Art. VII of the Constitution: A. Heads of executive departments; B. Ambassadors; C. Other public ministers and consuls; D. Officers of the armed forces from the rank of colonel or naval captain; E. Other officers whose appointments are vested in him by the Constitution (2) All other officers of the Government whose appointments are not otherwise provided for by law; (3) Officers whom the President may be authorized by law to appoint; (4) Officers lower in rank whose appointments the Congress may by law vest in the President alone.

(1) (2) (3) (4)

(5)

APPOINTMENTS REQUIRING CA CONFIRMATION Heads of the executive departments; Ambassadors; Other public ministers and consuls; Officers of the armed forces from the rank of colonel or naval captain; Other officers whose appointments are vested in him by the Constitution (unless the Constitution

APPOINTMENTS NOT REQUIRING CA CONFIRMATION All other presidential appointments.

Appointments explicitly exempted from the confirmation requirement under the Constitution: (1) Vice President as a member of the cabinet (2) Members of the Supreme Court and  judges of lower courts

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provides that “such appointments require no confirmation”)

(3)

Ombudsman and his deputies

The list of appointments requiring confirmation is exclusive. Congress cannot, by law, require confirmation by the CA for a public office created by statute. This would be unconstitutional as it expands the powers of the CA. [Calderon v. Carale, G.R. No. 91636 (1992)] The President does not have the prerogative to voluntarily submit an appointment for confirmation by the CA. [Bautista v. Salonga, G.R. No. 86439 (1989)]

REGULAR v. AD INTERIM REGULAR AD INTERIM Definition and Constitutional Basis Appointments made while Appointments made Congress is in session. during the recess of the Congress, whether voluntary or compulsory. Nature of the Appointment Permanent Permanent Steps in the Appointment Process (1) President nominates. (1) President nominates. (2) CA confirms. (2) Commission is (3) Commission is issued. issued. (3) Appointee accepts, (4) Appointee accepts, qualifies for office, qualifies for office, and assumes his and assumes his duties. duties. (4) CA confirms. When the appointee may take oa th and assume office Upon confirmation by the Immediately after CA appointment, subject to (1) disapproval by the CA or (2) “bypass” by the CA

 Ad interim appointments to the Constitutional Commissions are permanent and irrevocable appointments. Such do not violate the Constitutional prohibition against acting appointments to these commissions. Termination of ad interim appointments: (1) Disapproval by the CA (2) By-pass by the CA When the CA does not act on the ad interim appointment prior to the next adjournment of Congress (3) Revocation of the appointment by the President, unless prohibited by the Constitution Disapproval v. By-Pass An ad interim  appointee disapproved by the CA cannot be reappointed. But a by-passed appointee, or one whose appointment was not acted upon the merits by the CA, may be appointed again by the President, because failure by the CA to

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confirm an ad interim appointment is not disapproval. [ Matibag v. Benipayo (2002)] Renewal of by-passed appointment A by-passed appointment is one that has not been finally acted upon on the merits by the CA at the close of the session of Congress. There is no final decision by the CA to give or withhold its consent to the appointment as required by the Constitution. Absent such decision, the President is free to renew the ad interim  appointment of a by-passed appointee. [ Matibag v. Benipayo (2002)] Commission A document serving as the written evidence of the appointment. It is the warrant for the exercise of the powers and duties of the office to which the officer is commissioned. (De Leon)

SPECIAL RULES AND DOCTRINES ON PRESIDENTIAL APPOINTMENTS Prohibition on Midnight Appointments General Rule: 2 months immediately before the next presidential elections up to end of the term of the President Exception: All elements must concur: (1) Temporary appointments; (2) To executive positions; and (3) When continued vacancies will (a) prejudice public service or (b) endanger public safety

The outgoing President is prevented from continuing to rule the country indirectly after the end of his term. [Velicaria-Garafil v. Office of the President, G.R. No. 203372 (2015)] Appointments are banned prior to the elections to ensure that partisan loyalties will not be a factor i n the appointment process, and to prevent incumbents from gaining any undue advantage during the elections. The exception is when it will be shown that the appointments have undergone the regular screening process, that the appointee is qualified, that there is a need to fill up the vacancy immediately, and that the appointments are not in bulk. [Nazareno, et al. v. City of Dumaguete, G.R. No. 181559 (2009)] Inapplicability to the Judiciary The midnight appointments ban in the Constitution does not apply to the Judiciary. The applicable provisions on the period s to fill up vacancies in the j udiciary in Art. VIII will prevail over the midnight appointments prohibition in Art. VII of the Constitution. [De Castro v. JBC, G.R. No. 191002 (2010)] Limited Application to Presidential Appointments The Constitutional prohibition on midnight appointments only applies to the President. [De Rama v. CA, G.R. No. 131136 (2001)]

RULES ON ACCEPTANCE AND REVOCATION Four Elements of a Valid, Effective, and Completed Appointment (1) Authority to appoint and evidence of the exercise of the authority;

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(2) (3) (4)

Transmittal of the appointment paper and evidence of the transmittal; A vacant position at the time of appointment; and Receipt of the appointment paper and acceptance of the appointment by the appointee who possesses all the qualifications and none of the disqualifications.

The elements should always concur in the making of a valid appointment. The concurrence of all these elements should always apply. These steps in the appointment process should always concur and operate as a single process. There is no valid appointment if the process lacks even o ne step. [Velicaria-Garafil v. Office of the President, G.R. No. 203372 (2015) ] Appointment is not final without transmittal. It is not enough that the President signs the appointment paper. There should be evidence that the President intended the appointment paper to be issued. Release of the appointment paper through the Malacañang Records Office is an unequivocal act that signifies the President’s intent of its issuance. [VelicariaGarafil v. Office of the President, G.R. No. 203372 (2015)] Rule on Acceptance General Rule: A person cannot be compelled to accept a public office. Exception: When citizens are required, under conditions provided by law, to render personal military or civil service. (Sec. 4, Art. II, 1987 Constitution) Irrevocability of a Valid, Effective, and Completed Appointment General Rule: An appointment, once made, is irrevocable and not subject to reconsideration.

The appointee enjoys security of tenure and may only be removed (1) for cause and (2) with due process. Exceptions: (1) The appointment is an absolute nullity (2) There is fraud on the part of the appointee

ELIGIBILITY AND QUALIFICATION REQUIREMENTS

DEFINITIONS Eligibility The state or quality of being legally fitted or qualified to be chosen. Eligibility to an office should be construed as of a continuing nature and must exist at the commencement of the term and during occupancy of the office. ( Aguila v. Genato, G.R. No. L-55151 (1981)] Eligibles They are persons who obtain a passing grade in a civil service examination and whose names are entered in the register of eligible from which appointments must be made. Qualification

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Endowment or act which a person must do before he can occupy a public office. Endowment refers to the qualities or attri butes which make an individual eligible for public office. It must be possessed at the time of appointment or election and continuously for as long as the official relationship continues. Act refers to the act of entering into the performance of the functions of the office.

RESTRICTIONS ON THE POWER OF CONGRESS TO PRESCRIBE QUALIFICATIONS

(1) (2) (3) (4)

Failure to perform an act required by law could affect the officer’s title to the given office. An oath of office is a qualifying requirement for a public office. Only when the public officer has satisfied this prerequisite can his right to enter into the position be considered plenary and complete. Until then, he has none at all, and for as long as he has not qualified, the holdover officer is the rightful occupant. [Lecaroz v. Sandiganbayan, G.R. No . 130872 (1999)] Once proclaimed and duly sworn in office, a public officer is entitled to assume office and to exercise the functions thereof. The pendency of an election protest is not sufficient basis to enjoin him from assuming office or from discharging his functions. [ Mendoza v. Laxina (2003)]

SCOPE OF QUALIFICATIONS

In general, to entitle a public officer to hold a public office, he must possess all the qualifications and none of the disqualifications prescribed by law for the position not only at the time of his election or appointment but also during his incumbency. Qualification for Office The possession of the qualities or circumstances which are inherently or legally necessary to render him eligible to fill an office or to perform a public duty or function. ( Black’s Law Dictionary)

Qualifications are continuing in nature and must exist at the commencement of the term and during the occupancy of the office, if, during the continuance of his incumbency he ceases to be qualified, he forfeits his office. ( Aguila v. Genato, 103 SCRA 380) The question of eligibility of persons seeking public office must exist to qualify him for the position is a matter of legislative intent.

 WHO MAY PRESCRIBE QUALIFICATIONS

(1) Constitution When the qualifications are prescribed by the Constitution, they are generally exclusive, except where the Constitution itself provides otherwise (2) Congress In the absence of constitutional inhibition, Congress has the same right to provide disqualifications that it has to provide qualifications for office. (De Leon)

(5)

Congress cannot exceed its constitutional powers Congress cannot impose conditions of eligibility inconsistent with constitutional provisions The qualifications must be germane to the position (“Reasonable Relation” Rule) Where the Constitution establishes specific eligibility requirements for a particular constitutional office, the constitutional criteria are exclusive, and Congress cannot add to them except if the Constitution expressly or impliedly gives the power to set qualifications Congress cannot prescribe qualifications so detailed as to practically amount to making a legislative appointment: it is unconstitutional and therefore void for being a usurpation of executive power

TIME OF POSSESSION OF QUALIFICATIONS

(1) (2)

If law specifies: At the time specified by the Constitution or law If law does not specify, there are two views: (a) Qualification during commencement of term or induction into office: the word “eligible” as used in constitutions and statutes, has reference to the capacity not of being elected or appointed to office, but of holding office, and that, therefore, if qualified at the time of commencement of the term or induction into office, disqualification of the candidate or appointee at the time of election or appointment is immaterial (b) Qualification or eligibility during election or appointment: conditions of eligibility must exist at the time of the election must exist at the time of the election or appointment, and that their existence only at the time of the comme ncement of the term of office or induction of the candidate or appointee into office is not sufficient to qualify him to office

Reconciliation of the Two Views If the provision refers to “holding of office,” rather than to eligibility to office, in defining the qualifications, the courts are inclined to hold that the qualifications are to be determined at the time of the commencement of the term. (De Leon)

This is consistent with the rule on liberal interpretation of eligibility requirements for public office. Qualifications are of a continuing nature. Qualification is of a continuing nature and it must exist throughout the holding of the public office. Once the qualifications are lost, the public officer forfeits the office. No estoppel in ineligibility. Knowledge of ineligibility of a candidate and failure to question such ineligibility before or during the election is not a bar to questioning such eligibility after such ineligible candidate has won and been proclaimed. Estoppel will not apply in such a case. [Castañeda v. Yap (1952)] Citizenship requirement should be possessed at start of term .

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The Local Government Code does not specify any particular date or time when the candidate must possess the required citizenship, unlike for residence and age. The requirement is to ensure that no alien shall govern our people and country or a unit of territory thereof. An official begins to govern or discharge his functions only upon proclamation and on start of his term. This liberal interpretation gives spirit, life and meaning to our law on qualifications consistent with its purpose. [Frivaldo v. COMELEC (1996)] Only natural-born Filipinos who owe total and undivided allegiance to the Republic of the Philippines could run for and hold elective public office. Fo r those who avail themselves of RA 9225 and intend to run for public office, Sec. 5(2) thereof provides the additional requirement of making a personal and sworn renunciation of any and all foreign citizenships prior to or at the time of filing of their Certificate of Candidacy. [ Arnado v. COMELEC, G.R. No. 210164 (2015)]

Presumption of Eligibility Doubts as to the eligibility of a candidate are presumed in favor of one who has been elected or appointed to public office.

The right to public office should be strictly construed against ineligibility. The right of a citizen to hold office is the general rule, ineligibility the exception, and therefore, a citizen may not be deprived of this right without proof of some disqualification specifically declared by law. (De Leon)

QUALIFICATIONS PRESCRIBED BY THE CONSTITUTION For President and Vice President  (Sec. 2-3, Art. VII ) (1) Natural-born citizen (2) Registered voter (3) Able to read and write (4) 40 years old on day of election (5) Resident of the Philippines for at least 10 years immediately preceding election day For Senator  (Sec. 3, Art. VI ) (1) Natural-born citizen (2) 35 years old on election day (3) Able to read and write (4) Registered voter (5) Resident of the Philippines for at least 2 years immediately preceding election day For Members of the House of Representatives (Sec. 6, Art. VI ) (1) Natural-born citizen (2) 25 years old on election day (3) Able to read and write (4) Registered voter in district in which he shall be elected (5) Resident therefor for not less than one year immediately preceding election day Residency and registration in the district are not required  for partylist representatives.

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(2) (3) (4)

At least 40 years old 15 years or more as a judge or engaged in law practice Of proven Competence, Integrity, Probity, and Independence

For Members of the Constitutional Commissions CSC

COMELEC COA Citizenship Natural-born citizen  Age 35 years old at the time of appointment Competence With proven College (a) CPA with at capacity for degree holder least 10 years public of auditing administration experience; OR (b) Member of the Bar engaged in practice of law for at least 10 years Composition Rules None Chairman and At no time shall all majority Members of the should be Commission members of belong to the same the Bar who profession have been engaged in the practice of law for at least 10 years Legal Basis Sec. 1(1), Art. IV Sec. 1(1), Art. Sec. 1(1), Art. IX-D B IX-C Practice of Law Any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. Generally, to practice law is to give notice or render any kind of service which requires the use in any de gree of legal knowledge or skill. [Cayetano v. Monsod (1991)] Residency In election law, refers to domicile, the place where a party actually or constructively has his permanent home, where he intends to return. To successfully effect a change of domicile, the candidate must prove an actual removal or an actual change of domicile. ( Aquino v. COMELEC )

There is a presumption in favor of domicile of origin. Domicile requires the twin elements of actual habitual residence and animus manendi  (intent to permanently remain). Domicile of origin is not easily lost; it is deemed to continue absent a clear and positive proof of a successful change of domicile. [Romualdez-Marcos v. COMELEC (1995)]

DURATION OF QUALIFICATION

For Members of the Supreme Court and Lower Collegiate Courts [Sec. 7(1), Art. VIII ] (1) Natural-born citizen

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The Constitution or the statute usually fixes the time when the qualifications must be possessed by the appointee or elective candidate for office, either expressly or impliedly.

Traditional Rule General Rule : Pardon will not restore the right to hold public office. ( Art. 36, Revised Penal Code)

The reckoning point in determining the qualifications of an appointee is the date of issuance of the appointment and not the date of its approval by the CSC or the date of resolution of the protest against it. (Civil Service Commission v. De la Cruz, 437 SCRA 403)

Exception: When the pardon’s terms expressly restores such. ( Art. 36, Revised Penal Code)

RELIGIOUS TEST OR QUALIFICATION IS NOT REQUIRED

No religious test shall be required for the exercise of civil or political rights. (Sec. 5, Art. III, 1987 Constitution)

QUALIFICATION STANDARDS AND REQUIREMENTS UNDER THE CIVIL SERVICE LAW 

Qualification standards enumerate the minimum requirements for a class of positions in terms of education, training and experience, civil service eligibility, physical fitness, and other qualities required for successful performance. (Sec. 22, Book V, Revised Administrative Code) The Departments and Agencies are responsible for continuously establishing, administering and maintaining the qualification standards as an incentive to career advancement. (Sec. 7, Rule IV, Omnibus Rules) Such establishment, administration, and maintenance shall be assisted and approved by the CSC and shall be in consultation with the Wage and Position Classification Office. It shall be established for all positions in the 1 st and 2 nd levels. (Sec. 1, Rule IV, Omnibus Rules)

Pardon does not erase the fact of the commission for the crime and conviction. ( Monsanto v. Factoran, 170 SCRA 190) When a person is given pardon because he did not truly commit the offense, the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring to him his clean name, good reputation and unstained character prior to the finding of guilt. (Garcia v. Commission on Audit, 226 SCRA 356) Under Risos-Vidal (2015), if the wording of the pardon is “complete, unambiguous, and unqualified,” it includes the restoration of civil and political rights because it is “unfettered by Articles 36 and 41 of the Revised Penal Code.”

DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS

Disqualifications to Hold Public Office Individuals who lack any of the qualifications prescribed by the Constitution or by law for a public office are ineligible. Authority to Prescribe Dis qualifications The legislature has the right to prescribe disqualifications in the same manner that it can prescribe qualifications, provided the prescribed disqualifications do not violate the Constitution.

CONSTITUTIONAL DISQUALIFICATIONS POLITICAL QUALIFICATION FOR OFFICE Political Qualifications It refers to membership in political parties, including those registered in the party-list system. General Rule: Political qualifications are not required for public office. Exceptions: (1) Membership in the electoral tribunals of either the House of Representatives or Senate, which requires proportional representation (2) Party-list representation (3) Commission on Appointments, which requires proportional representation (4) Vacancies in local Sanggunians, except the Sangguniang Barangay, which requires that the appointee come from the same political party as that of the sanggunian member who caused t he vacancy

EFFECT OF PARDON UPON THE DISQUALIFICATION TO HOLD PUBLIC OFFICE

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In General (1) Losing candidates cannot be appointed to any governmental office within 1 year after such election. (2) Elective officials during their tenure are ineligible for appointment or designation in any capacity to any public office or position unless they forfeit their seat. (3) Appointive officials shall not hold any other governmental position, unless otherwise allowed by law or his position’s primary functions. o This is the general Constitutional prohibition on holding multiple offices. There is a specific provision applicable to high-ranking officials of the executive department as explained in Civil Liberties Union v. Executive Secretary. o There is no violation of the constitutional provision when another office is held by a public officer in an ex officio capacity (where on cannot receive compensation or other honoraria anyway), as provided by law and as required by the primary functions of his office. [National Amnesty Commission v. COA (2004)] (4) Impeachment: “Judgment in cases of impeachment shall not extend further than removal from office and

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disqualification to hold any office under the Republic of the Philippines.”

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 Members of the Constitutional Commission

On the holding of multiple offices by high-ranking executive department officials The prohibition in Sec. 13, Art. VII is a special rule in relation to Sec. 7, Art. IX of the Constitution. Covered Officials (1) President (2) Vice President (3) Members of the Cabinet, and their deputies and assistants

Ombudsman and his Deputies

General Rule: The holding of any other office or employment is prohibited for the covered officials in Sec. 13, Art. VII. Exceptions: (1) Unless otherwise provided in the Constitution; or (2) Ex Officio positions Requirements for Valid  Ex-Officio Holding  (1) The holding of the ex-officio  office is provided by law; (2) The holding is required by the primary functions of their position; and (3) The position is held without additional compensation.

SPECIFIC CONSTITUTIONAL DISQUALIFICATIONS PUBLIC DISQUALIFICATIONS OFFICER The President, Shall not hold any other office or Vice President, employment during their tenure, the Members of unless  otherwise provided in the the Cabinet, and Constitution. ( Art. VII, Sec. 13) their Deputies or  Assistants Senator or (1) Incompatible Office  Member of the May not hold during his term House of any other office or employment Representatives in the Government, or any subdivision, agency or instrumentality thereof, including government-owned or -controlled corporations or their subsidiaries; (2) Prohibited Office Shall also not be appointed to any office when such was created or its emoluments were increased during his term. (Sec. 13, Art. VI )  Members of the Shall not be designated to any agency Supreme Court performing quasi-judicial or and Other Courts administrative functions. (Sec. 12, Art. Established by VIII ) Law Rationale: Anathema to judicial independence, since this would subject members of the judiciary to the power of control of executive officials.

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The President’s spouse and relatives by consanguinity or affinity within the fourth civil degree

(1)

Shall not hold any other office or employment [during the tenure]. ( Art. IX-A, Sec. 2) (Art. IX, Sec. 8); plus (2) Shall not be qualified to run for any office in the election immediately succeeding their cessation from office. (Sec. 11,  Art. XI ) (1) Same disqualifications and prohibitions as members of the Constitutional Commission (Sec. 8, Art. XI ); plus (2) Shall not be qualified to run for any office in the election immediately succeeding their cessation from office (Sec. 11,  Art. XI ) Shall not be appointed during President’s tenure as: (1) Members of the Constitutional Commissions, or (2) Office of the Ombudsman, or (3) (a) Secretaries, (b) Undersecretaries. (c) Chairmen or Heads of Bureaus or Offices, including Government-Ownedor-Controlled Corporations (Sec. 13, Art. VII )

OTHER DISQUALIFICATIONS AND PROHIBITIONS In General (1) Mental or physical incapacity; (2) Misconduct or crime: Persons convicted of crimes involving moral turpitude are usually  disqualified from holding public office; (3) Removal or suspension from office: This disqualification is not presumed, and cannot be imposed when not provided in the Constitution or in statutes; (4) Previous tenure of office: Prohibitions on reappointment for specific Constitutional offices; (5) Consecutive term limit: A. Vice President: 2 consecutive terms B. Senator: 2 consecutive terms C. Representative: 3 consecutive terms D. Elective local officials: 3 consecutive terms (Sec. 8, Art. X, Constitution) (6) Holding more than one office: To prevent offices of public trust from accumulating in a single person, and to prevent individuals from deriving, directly or indirectly, any pecuniary benefit by virtue of their holding of dual positions.

PROHIBITION ON HOLDING OFFICES IN THE PRIVATE SECTOR

Sec. 7(b)(1) of RA 6713 considers unlawful for public officials and employees during their incumbency to own, control, manage, or accept employment as officer, employee, consultant, counsel, broker, agent, trustee, or nominee in any private enterprise

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regulated, supervised, or licensed by their office unless expressly allowed by law. Private Practice of the Profession General Rule: Sec. 7, RA 6713 provides for the prohibited acts and transactions of public officials and employees. Subsection (b)(2) prohibits them from engaging in the private practice of their profession during their incumbency. Exception: A public official or employee can engage in the practice of his or her profession under the following conditions: (1) The private practice is authorized by the Constitution or by the law; and (2) The practice will not conflict, or tend to conflict, with his or her official functions.

PROHIBITION ON NEPOTIC APPOINTMENTS Nepotism Nepotism is favoritism towards relatives by the appointing authority. The Supreme Court said that nepotism is one pernicious evil impeding the civil service and the efficiency of its personnel. It is a form of corruption. (Galeos v. People, G.R. No. 174730-37, (2011)] General Rule: The Civil Service Law prohibits all appointments in the national and local governments or any branch or instrumentality thereof made in favor of the relative of: (1) Appointing authority; (2) Recommending authority; (3) Chief of the bureau or office; or (4) Person exercising immediate supervision over the appointee

In (3) and (4), it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative of the chief of the bureau or office, or the person exercising immediate supervision over the appointee. [CSC v. Dacoycoy (1999)]  Relative is one who is related within the third degree of either consanguinity or of affinity. Exceptions: The prohibition on nepotic appointments in the Civil Service Law does not apply if the appointee is: (1) A person employed in a confidential capacity; (2) A teacher; (3) A physician; or (4) A member of the Armed Forces of the Philippines

DISQUALIFICATIONS IN THE LOCAL GOVERNMENT CODE

The following persons are disqualified from running from any elective local position: (1) Sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by 1 year or more of imprisonment, within 2 years after serving sentence; (2) Removed from office as a result of an administrative case;

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(3) (4) (5) (6)

(7)

Convicted by final judgment for violating the oath of allegiance to the Republic; Dual citizenship; Fugitive from justice in criminal or non-political cases here or abroad; Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of the Local Government Code; or Insane or feeble-minded.

Dual citizenship is different from dual allegiance. Dual citizenship arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states.

Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual’s volition. The Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. [ Mercado v.  Manzano (1999)]

POWERS AND DUTIES OF PUBLIC OFFICERS

CLASSIFICATION OF POWERS AND DUTIES Ministerial Official duty is ministerial when it is absolute, certain, and imperative involving merely execution of a specific duty arising from fixed and designed facts. Where the o fficer or official body has no judicial power or discretion as to the interpretation of the law, and the course to be pursued is fixed by law, their acts are ministerial only. General Rule: Performance of duties of this nature may be properly delegated to another. Exceptions: (1) Delegation is expressly prohibited by law; or (2) The law expressly states that the act be performed by the officer in person.

Discretionary Acts which necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. When the law commits to any officer the duty of looking into facts and acting upon them, not in a way which it specifically directs, but after a discretion in its nature, the function is discretionary. General Rule : A public officer cannot delegate his discretionary duties to another.

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Exception: The power to substitute another in his place has been expressly granted by law.

its functions. As such there is no presumption that they are empowered to act. There must be a delegation of such authority, either express or implied. [Villegas v. Subido (1969)]

Mandatory Powers conferred on public officers are generally construed as mandatory although the language may be permissive, where they are for the benefit of the public or individuals.

But once the power is expressly granted, it will be broadly construed in line with the Doctrine of Necessary Implication.

Permissive Statutory provisions define the time and mode in which public officers will discharge their duties, and those which are obviously designed merely to secure order, uniformity, system, and dispatch in public business are generally deemed directory.

Scope of Authority of Public Officers (1) Expressly conferred upon him by the act appointing him; (2) Expressly annexed to the office by law; or (3) Attached to the office by common law as incidents to it

DUTIES OF PUBLIC OFFICERS

If the act does not affect third persons and is not clearly beneficial to the public, permissive words will not be construed as mandatory.

Power of Control It implies the power of an officer to manage, direct, or govern, including the power to alter or modify or set aside what a subordinate had done in the performance of his duties and to substitute his judgment for that of the latter.

Power of Supervision Supervisory power is the power of mere oversight over an inferior body which does not include any restraining authority over such body.

General (Constitutional) Duties (1) To be accountable to the people; to serve them with utmost responsibility, integrity, loyalty, and efficiency; to act with patriotism and justice; and to lead modest lives (2) To submit a declaration under oath of his assets, liabilities, and net worth upon assumption of office and as often thereafter as may be required by law (3) To owe the State and the Constitution allegiance at all times Obligations under the Code of Conduct and Ethical Standards for Public Officials and Employees (1) Act promptly on letters and requests

All public officials shall, within fifteen (15) working days from receipt, respond to letters, telegrams, or other means of communication sent by the public. The reply must contain the answer taken on the request.

A supervising officer merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them.

AUTHORITY OF PUBLIC OFFICERS

(2)

Authority of public officers consists of those which are: (1) Expressly conferred by law; (2) Incidental to the exercise of the powers granted; and (3) Necessarily implied

All heads or other responsible officers of agencies of the government or of GOCCs shall, within forty-five (45) working days from the end of the year, render a full and complete report of performance and accomplishments, as prescribed by existing rules and regulations of the agency, office, or corporation concerned.

Doctrine of Necessary Implication All powers necessary for the effective exercise of the express powers are deemed impliedly granted. (Nachura, 2015)

(3) Authority can be exercised only during the term when the public officer is, by law, invested with the rights and duties of the office. Source of Powers and Authority The source of governmental authority is found in the People. Directly or indirectly through their chosen representatives, they create such offices and agencies as they deem to be desirable for the administration of the public functions and declare in what manner and by what persons they shall be exercised.

In the absence of a valid grant, public officials are devoid of power. A public official exercises power, not rights. The Government itself is merely an agency through which the will of the State is expressed and enforced. Its officers therefore are likewise agents entrusted with the responsibility of discharging

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Submit annual performance reports

Process documents and papers expeditiously All official papers and documents must be processed and completed within a reasonable time from the preparation thereof and must contain, as far as practicable, not more than three (3) signatories therein.

(4)

Act immediately on the public’s personal transactions All public officials and employees must attend to anyone who wants to avail himself of the services of their offices, and must, at all times, act promptly and expeditiously.

(5)

Make documents accessible to the public

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All public documents must be made accessible to, and readily available for inspection by, the public within reasonable working hours.

form of a fixed salary or wages, per diems, fees, commissions, or prerequisites of whatsoever character. Distinguished from honorarium which is something given not as a matter of obligation but in appreciation for services rendered.

RIGHTS OF PUBLIC OFFICERS IN GENERAL Rights Incident to Public Office The rights of one elected or appointed to office are, in general, measured by the Constitution or the law under which he was elected or appointed. Rights of Public Officers (1) Right to office (2) Right to salary (3) Right to self-organization (4) Right to vacation leave and sick leave with pay (5) Right to retirement pay (6) Right not to be removed or suspended except for cause provided by law

Salary Personal compensation to be paid to the public officer for his services, and it is generally a fixed annual or periodical payment depending on the time and not on the amount of the services he may render.

Distinguished from wages in that salary is given to officer of higher degree of employment than those to whom wages are given.

CONSTITUTIONAL PROVISIONS REGARDING COMPENSATION OF PUBLIC OFFICERS Senators and Members of the House of Representatives (Sec. 10, Art. VI )

RIGHT TO OFFICE

 Right of Office is the just and legal claim to exercise the powers and the responsibilities of the public office. Rights as a Citizen (1) Protection from publication commenting on his fitness and the like

President and Vice President (Sec. 6, Art. VII )

No increase in said compensation shall take effect until after the expiration of the term of the incumbent during which such increase was approved.

However, by reason of the public character of his employment or office, a public officer is, in general, held not entitled to the same protection from publications commenting on his fitness and the like, as is accorded to the ordinary citizen. Engaging in certain political and business acti vities The governmental interest in maintaining a high level service by assuring the efficiency of its employees in the performance of their tasks may require public employees to suspend or refrain from certain political or business activities that are embraced within the constitutional rights of others, when such activities are reasonably deemed inconsistent with their public status and duties.

RIGHT TO COMPENSATION Compensation In reference to the remuneration of public officers means pay for doing all that may be required of the official, whether it is in the

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No increase in said compensation shall take effect until after the expiration of the full term of all the Members of the Senate and the HoR approving such increase. President shall have an official residence. Determined by law and shall not be decreased during their tenure.

The mere fact that one occupies a public office does not deprive him of the protection accorded to citizens by the Constitution and the laws.

(2)

Determined by law.

Chief Justice and Associate Justices of the Supreme Court (Sec. 10, Art. VIII ) Elective or Appointive Public Officer or Employee and GOCCs (Secs. 8 and 5, Art. IX-B)

They shall not receive during their tenure any other emolument from the Government or any other source. Fixed by law. During their continuance in office, their salary shall not be decreased. Shall not receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government.

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Congress shall provide the standardization of compensation of government officials and employees, including those in GOCCs with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for their positions. Basis of Right The relation between an officer and the public is not the creation of contract, nor is the office itself a contract. The right to compensation grows out of the services rendered. After services have been rendered, the compensation thus earned cannot be taken away by a subsequent law. As a general proposition, a public official is not entitled to any compensation if he has not rendered any service. [ Acosta v. CA (2000)] Salary Not Subject to Garnishment The salary of a public officer may not, by garnishment, attachment, or order of execution, be seized before being paid to him and, appropriated for the payment of his debts.

The salary check of a government officer or employee does not belong to him before it i s physically delivered to him. Until that time, the check belongs to the government as public fund and may not be garnished. [De la Victoria v. Burgos (1995)] Right of a De Facto Officer to Salary Where there is no de jure officer, a de facto officer, who in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees, and other compensations attached to the office. Rights under the Civil Service Decree and the New Administrative Code (1) Right to preference in promotion (2) Right to present complaints and grievances (3) Right not to be suspended or dismissed except for cause as provided by law and after due process (4) Right to organize Next-in-Rank Rule It applies only in cases of promotion. It neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position.

The rule means that old employees should be considered first on the assumption that they have gained not only superior skills but also greater dedication to the public service. However, the law does not preclude the infusion of new blood, younger dynamism, or necessary talents into the government service provided that the acts of the appointing power are bonafide for the best interest of the public service and the person chosen has the needed qualifications. [Corazon Cabagnot v. Civil Service Commission (1993)] Personnel Actions

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Any action denoting the movement or progress of personnel in the civil service is known as personnel action. It includes: (1) Appointment through certification (2) Promotion (3) Transfer (4) Reinstatement (5) Reemployment (6) Detail (7) Reassignment (8) Demotion and Separation A reorganization is valid provided that it is done in good faith. A demotion in office is tantamount to removal, if no cause is shown for it. Thus, before a demotion may be affected pursuant to a reorganization, the observance of the rules on bona fide abolition of public office is essential. [Bautista v. Civil Service Commission, G.R. No. 185215 (2010)] There is demotion when an employee is appointed to a position resulting to a diminution in duties, responsibilities, status, or rank which may or may not involve a reduction in salary. Where an employee is appointed to a position with the same duties and responsibilities but a rank and salary higher than those enjoyed in his previous position, there is no demotion and the appointment is valid. (Bautista v. Civil Service Commission) Rights under the Revised Government Service Insurance Act Covered employees are entitled to retirement benefits, separation benefits, unemployment or involuntary separation benefits, disability benefits, survivorship benefits, funeral benefits, and life insurance benefits.

RIGHT TO RETIREMENT PAY

Given to government employees to reward them for giving the best years of their lives in the service of their country. Retirement laws are liberally construed in favor of the retiree. It may not be withheld and applied to his indebtedness to the government. [Tantuico v. Domingo (1994)]

RIGHT TO REIMBURSEMENT AND INDEMNITY

When a public officer, in the due performance of his duties, has been expressly or impliedly required by law to incur expenses on the public account, not covered by his salary or commission and no attributable to his own neglect or default, the reasonable and proper amount thereof forms a legitimate charge against the public for which he should be reimbursed. Within the same limits, the officer is entitled to be indemnified by the public against the consequences of ac ts which he has been expressly or impliedly required to perform upon the public account, and which are not manifestly illegal and which he does not know to be wrong.

RIGHT TO REINSTATEMENT AND BACK SALARY

 Reinstatement   means the restoration to a state or condition from which one had been removed or separated. One who is reinstated assumes the position he had occupied prior to the dismissal. Back salary or wages is a form of relief that restores the income that was lost by reason of unlawful dismissal.

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An officer who has been lawfully separated or suspended from his office is not entitled to compensation for the period during which he was so suspended. Where an officer was unlawfully removed and was prevented for a time by no fault of his own from performing the duties of his office, he may recover backwages, and the amount that he had earned in other employment during his unlawful removal should not be deducted from his unpaid salary.

RIGHTS TO PROPERTY, DEVICES, AND INVENTIONS

Title to a public office carries with it the right, during the incumbency of the officer, to the insignia and property thereof. The question whether records, discoveries, inventions, devices, data, and the like, made or prepared by an officer while he is occupying the office, belong to the public, must be determined with reference to the facts of each case. (1) Where such are indispensable in the proper conduct of the office, the officer may not take them as his own property. (2) If, not being required by law, they are prepared by the officer apart from his official duties and are not indispensable in the proper conduct of the office, the officer may acquire a property right therein.

LIABILITIES OF PUBLIC OFFICERS IN GENERAL

The liability of a public officer to an individual or the public is based upon and is co-extensive with his duty to the individual or the public. Public officers in respect of the persons to whom their duty is owing, are divided into 2 classes: (1) Those whose duty is owed solely to the public (2) Those whose duty is owed in some degree to the individuals An individual has no cause of action against a public officer for a breach of duty owed solely to the public. A public officer is not liable for the injuries sustained by another as a consequence of official acts done within the scope of his authority, except as otherwise provided by law. A public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice, or negligence. However, under Sec. 24, LGC, local governments and their officials are expressly not exempt from liability for death or injury to persons or damage to property. Administrative Offense Conduct prejudicial to the best interest of the service is an administrative offense which need not be related to respondent’s official functions. [Balasbas v. Monayao, G.R. No. 190524 (2014)] Gross Neglect of Duty

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It is characterized by want of even the slightest care, or by conscious indifference to the consequences, or by flagrant and palpable breach of duty. Misconduct It is a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer. Dishonesty It is defined as a disposition to lie, cheat, deceive, or defraud; unworthiness; lack of integrity; lack of honesty, probity, or integrity in principle; lack of fairness and straightforwardness; disposition to defraud, deceive, or betray. [GSIS v. Manalo, G.R. No. 208979 (2016)]

THREE-FOLD RESPONSIBILITY OF PUBLIC OFFICERS

A public officer is under a three-fold responsibility for violation of duty or for wrongful act or omission: (1) Civil Liability – if the individual is damaged by such violation, the official shall, in some cases, be held liable civilly to reimburse the injured party (2) Criminal Liability – if the law has attached a penal sanction, the officer may be punished criminally. The mere fact that an officer is acting in an official capacity will not relieve him from criminal liability. (3)  Administrative Liability –  such violation may also lead to imposition of fine, reprimand, suspension, or removal from office, as the case may be. Liability of Ministerial Officers (1)  Nonfeasance –  neglect or refusal to perform an act which is the officer’s legal obligation to perform (2)  Misfeasance – failure to use that degree of care, skill, and diligence required in the performance of official duty (3)  Malfeasance –  the doing, through ignorance, inattention or malice, of an act which he had no legal right to perform Statutory Liability Art. 32, Civil Code

Art. 33, Civil Code

Art. 34, Civil Code

Sec. 38(2), Chapter 9, Book I, Revised Administrative Code

Liability for failure or neglect to perform official duty Liability for violating rights and liberties of private individuals Liability of peace officers for render aid or protection to a person; subsidiary liability of municipal corporations in such case Liability for neglecting to perform a duty without just cause within (1) a period fixed by law or regulation; or (2) a reasonable period, if no period is fixed

Liability on Contracts The public officer shall be personally liable on contracts he enters into if he acted without, or exceeded his authority

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Liability on Tort The public officer shall be personally liable if he goes beyond the scope of his authority, or exceeds the powers conferred upon him by law Liability of Superior Officers for Acts of Subordinate Officers A head of a department or a superior officer shall not be civilly liable for the wrongful acts, omissions of duty, negligence or misfeasance of his subordinates, unless he has actually authorized by written order the specific act or misconduct complained of.

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No compensation is due for the period of preventive suspension pending investigation. Such preventive suspension is authorized by the Civil Service Law and cannot, therefore, be considered “unjustified” even if later the charges are dismissed. It is one of those sacrifices which holding a public office requires for the public food. For this reason, it is limited to 90 days unless the delay in the co nclusion of the investigation is due to the employee concerned.

(2) -

Preventive suspension pending appeal An appeal (from the decision of the disciplinary authority) shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins the appeal. [Sec. 47(4), Chapter 6, Subtitle A, Title I, Book V, Revised Administrative Code]

Liability of Subordinate Officers No subordinate officer or employee shall be civilly liable for acts done by him in good faith in the performance of his duties. However, he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy, and good customs even if he acted under orders or instructions of his superiors. Non-Applicability of the Doctrine of Command Responsibility and the Principle of Respondeat Superior to Public Officers Neither the principle of command responsibility (in military or political structural dynamics) nor the Doctrine of respondeat superior   (in quasi delicts) applies in the law of public officers. The negligence of the subordinate cannot be ascribed to his superior in the absence of evidence of the latter’s own negligence. [Reyes v. Rural Bank of San Miguel (2004)] Exception: The President, being the commander-in-chief of all armed forces, necessarily possesses control over the military that qualifies him as a superior within the purview of the command responsibility doctrine. [In the Matter of the Petition for Writ of Amparo and Habeas Data in favor of Noriel H. Rodriguez; Rodriguez v. Macapagal-Arroyo (2011)]

PREVENTIVE SUSPENSION AND BACK SALARIES

Employees are entitled to compensation for the period of their suspension pending appeal if they are found innocent. It would be unjust to deprive him of his pay as a result of immediate execution of the decision against him and continue to do so even after it is shown that he is innocent of the charges for which he was suspended. PENDING INVESTIGATION Not a penalty but only a means of enabling the disciplining authority to conduct unhampered investigation No backwages due for the period of suspension even if found innocent unless suspension is unjustified

If exonerated –  reinstated with full pay for the period of suspension

RULES ON PREVENTIVE SUSPENSION APPOINTIVE OFFICIALS

Not a Presidential  Appointee

Preventive suspension of the accused is mandatory upon finding that the Information is valid. Court possesses no discretion to determine whether one is necessary. [Dela Cruz v. Sandiganbayan, G.R. No. 161929 (2009)]

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Punitive in character

If reprimanded –  cannot claim backwages. Penalty is commuted.

Preventive Suspension It is a disciplinary measure which is intended to enable the disciplinary authority to investigate charges against the respondent by preventing the latter from using his position or office to influence witnesses, to intimidate them, or to tamper with the records which may be vital in the prosecution of the case against him.

Kinds of Preventive Suspension (1) Preventive suspension pending investigation The proper disciplining authority may preventively suspend any subordinate officer under his authority pending an investigation, if the charge against such officer involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty or if there are reasons to believe that the respondent is guilty of the charges which would warrant his removal from service. (Sec. 51, Chapter 6, Subtitle A, Title I, Book V, Revised Administrative Code)

PENDING APPEAL

ELECTIVE OFFICIALS

Presidential  Appointee President – elective official of a province, HUC, or ICC

By

The proper disciplining authority

The proper disciplining authority

Governor – elective official of CC or municipality Mayor – elective official of a barangay

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President – elective official of a province, HUC, or ICC

Against

 When

Any subordinate officer or employee under such authority

Pending an investigation

(1)

(2) Grounds

Period

Charge involves dishonesty , oppressio n or grave misconduc t, neglect in the performan ce of duty; or There are reasons to believe that responden t is guilty of the charges which would warrant his removal from the service

Administrativ e investigation must be terminated within 90 days, otherwise the respondent shall be automatically reinstated unless the

Any subordinate officer or employee under such authority

Governor – elective official of CC or municipality

Mayor – elective official of a barangay Pending an At any time investigatio after the issues n are joined (1) After the issues are  joined; (2) Evidence of guilt is strong; and (3) Given the gravity of the May initially offense, be justified there is under the great circumstanc probabilit e may raise y that the a due continuan process ce in office question if of the continued responden for an t could: unreasonabl (a) Influence e period of of the time witnesses; or (b) Pose a threat to the safety and integrity of the records and other evidence (1) Single administra tive case – not to exceed 60 days (2) Several administra tive cases – not more than 90 days

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delay in the disposition of the case is due to the fault, negligence, or petition of the respondent, in which case the period of delay shall not be counted

Notes

within a single year on the same ground or grounds existing and known at the time of the first suspension Preventive suspension of an elective local official is not an interruption of the 3-term limit rule

ILLEGAL DISMISSAL, REINSTATEMENT, AND BACK SALARIES Reinstatement It means the restoration to a state or condition from which one had been removed or separated. One who is reinstated assumes the position he had occupied prior to the dismissal. Back salary or wages is a form of reli ef that restores the income that was lost by reason of unlawful dismissal

Duty of Plaintiff to Prove His Right to Office For a plaintiff to succeed in seeking reinstatement to an office, he must prove his right to the office. In a quo warranto proceeding, the person suing must show that he has a clear right to the office allegedly held unlawfully by another. Absent that right, the lack of qualification or eligibility of the supposed usurper is immaterial.  Where Removal or Suspension Lawful An officer who has been lawfully separated or suspended from his office is not entitled to compensation for the period during which he was so suspended, even if it be subsequently determined that the cause for which he was suspended was unjustified (so long as the preventive suspension was within the periods provided by law).  Where Removal or Suspension Unlawful When an officer was unlawfully removed and was prevented for a time by no fault of his own from performing the duties of his office, he may recover backwages, and the amount that he had earned in other employment during his unlawful removal should not be deducted from his unpaid salary. Other Rules The award for backwages is limited to a maximum period of 5 years and not to full back salaries from illegal dismissal up to reinstatement.

A petition for quo warranto  and mandamus affecting title to public office must be filed within 1 year from the date the

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petitioner is ousted from his position. The claim for back salaries and damages is also subject to the 1-year prescriptive period. NOTE: Prescription does not lie against the State. It is the general rule that laches, acquiescence, or unreasonable delay in the performance of duty on the part of the officers of the state, is not imputable to the state when acting in its character as a sovereign. [Republic [Republic v. Sereno, G.R. No. 237428 (2018)] (2018)]

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Official immunity serves as a protective aegis for public officials from tort liability for damages arising from disc retionary acts or functions in the performance of their official duties. Presidential Immunity from Suit General Rule : The President shall be i mmune from suit during his tenure. Exception: Impeachment complaint

IMMUNITY OF PUBLIC OFFICERS General Rule : The Doctrine of Official Immunity applies to complaints filed against public officials for acts done in the performance of their duties. Exceptions: (1) Where the public official is charged in his official capacity for acts that are unlawful and injurious to the rights of others (2) Where the public official is clearly being sued not in his official capacity but in his personal capacity, although the acts complained of may have been committed while he occupied a public position (3) Suit to compel performance of official duty or restrain performance of an act Rationale The Doctrine of Official Immunity promotes fearless, vigorous, and effective administration of policies of government. It is generally recognized that public officers and employees would be unduly hampered, deterred, and intimidated in the discharge of their duties, if those who act improperly, or even exceed the authority given them, were not protected to some reasonable degree by being relieved from private liability. The threat of suit could also deter competent people from accepting public office.

Acts of a public officer are protected by the presumption of good faith. Even mistakes concededly committed by such a public officer in the discharge of his official duties are not actionable as long as it is not shown that they were motivated by malice or gross negligence amounting to bad faith. Other Public Policy Considerations (1) Loss of valuable time cause by such actions (2) Unfairness of subjecting officials to personal liability for the acts of their subordinates (3) A feeling that the ballot and removal procedures are more appropriate methods of dealing with the misconduct in public office Official Immunity v. State Immunity The immunity of public official is a more limited principle than state immunity since its purpose is not directly to protect the sovereign, but rather to do so only collaterally, by protecting the public official in the performance of his government function.

The Doctrine of Sovereign Immunity is principally rested upon the tenuous ground that the king could do no wrong. It served to protect the impersonal body politic o r government itself from tort liability.

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While the President is immune from suit, she may not be prevented from instituting a suit. A non-sitting President does not e njoy immunity from suit, even for acts committed during the latter’s tenure.

 DE FACTO OFFICERS

 De Facto Doctrine It is the doctrine that a person who is admitted and sworn into office by the proper authority is d eemed to be rightfully in such office until: (1) He is ousted by judicial declaration in a proper proceeding; or (2) His admission thereto is declared void. Purpose: To ensure the orderly functioning of government. The public cannot afford to check the validity of the officer’s title each time they transact with him.

 De Facto Officer One who has the reputation of being the officer that he assumes to be, and yet is not a good officer in point of law. [Torres [ Torres v. Ribo ] (1948)] (1948) Elements of a  De Facto Officership (1) A validly existing public office (2) Actual physical possession of the office in good faith (3) Color of title to the office or general acquiescence by the public

There is color of title to the office in ANY of the following circumstances: (1) There is no known appointment or election, but people are induced by circumstances of reputation o r acquiescence to suppose that he is the officer he assumes to be. Consequently, people do not to inquire into his authority, and they submit to him or invoke his action; (2) He possessed public office under color of a known and valid appointment or election, but he failed to conform to some precedent requirement or condition; (3) He possessed public office under color of a known election or appointment, but such is VOID because: A. He is ineligible; B. The electing or appointing body is not empowered to do such; C. His exercise of his function was defective or irregular; and

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The public DOES NOT KNOW of such ineligibility, want of authority, or irregularity.

He possessed public office under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such. OFFICER DE JURE v. OFFICER DE FACTO  DE JURE DE FACTO  Requisites A de jure  jure  office De jure office; jure office; exists; He assumed He is legally office under qualified for the color of right or office; general He is lawfully acquiescence by chosen to such the public; office; He actually and He undertakes to physically perform the possessed the duties of such office in good office according faith. to law’s prescribed mode. Basis of Right: He has the Reputation: He  Authority lawful right or possesses office title to the office and performs its duties under color of right, but he is not technically qualified to act in all points of law  How Ousted Cannot be In a direct ousted even in a proceeding (quo (quo direct warranto); warranto); proceeding Cannot be ousted collaterally Validity of Valid, subject to Valid as to the Official Acts exceptions public until his title to the office is adjudged insufficient  Rule on Rightfully Conditionally Compensation entitled to entitled to compensation; receive The principle compensation: “No work, no only when no de pay” is  jure   jure  officer is inapplicable to declared; him. He is paid only for actual services rendered.

 Nature

 DE FACTO He becomes officer with color of title under the circumstances discussed above

USURPER He possesses office and performs official acts without actual or apparent authority

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Basis of  Authority

Color of right or title to office

Validity of “Official” Acts

Valid as to the public until his title to the office is adjudged insufficient Entitled to receive compensation only when no de  jure   jure  officer is declared and only for actual services rendered

 Rule on Compensation

None. Neither lawful title nor color of right to office Absolutely void; his acts can be impeached at any time in any proceeding Not entitled to compensation at all

An intruder or usurper may grow into a de facto officer facto officer if his assumption of office is acquiesced in, as when he continues to act for so long a time as to afford a strong presumption that he has been duly appointed or elected. Office Created Under an Unconstitutional Statute The prevalent view is that a person appointed or elected in accordance with a law later declared to be unconstitutional may be considered de facto  facto  at least before the declaration of unconstitutionality. Legal Effects of Acts of  De Facto Officers (1)  As regards the officers themselves: themselves: A party suing or defending in his own right as a public officer must show that he is an officer de jure. jure. It is not sufficient that he be merely a de facto officer. facto officer. (2)  As regards the public and third persons: persons: The acts of a de  facto   facto  officer are valid as to third persons and the public until his title to office is adjudged insufficient. Rationale: The doctrine is intended not for the protection of the public officer, but for the protection of the public and individuals who get involved in the official acts of persons discharging the duties of a public office.

 De Facto Officer’s Official Acts are Not Subject to Collateral Attack A de facto officer’s and his acts’ validity cannot be collaterally questioned in proceedings where he is not a party, or which were not instituted to determine the very question.  Remedy:  Remedy: Quo warranto proceedings warranto proceedings filed by: (1) The person claiming entitlement to the office; (2) The Republic of the Philippines (represented by the Solicitor-General or a public prosecutor) Liability of  De Facto Officer A de facto officer facto officer generally has the same degree of liability and accountability for official acts as a de jure officer. jure officer.

The de facto officer facto officer may be liable for all imposable penalties for ANY of the following acts: (1) Usurping or unlawfully holding office; (2) Exercising the functions of public office without lawful right; (3) Ineligibility for the public office as required by law

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The officer cannot excuse responsibility for crimes committed in his official capacity by asserting his de facto status. facto status. Right to Compensation of  De Facto Officer facto officer cannot sue for the recovery of General Rule : A de facto officer salary, fees, or other emoluments attached to the office, for the duties he has performed. His acts, as far as he himself is concerned, are void.

The death of the incumbent of an office, which is by law to be filled by one person only, necessarily renders the office vacant. The public official cease to hold office upon his death and all his rights, duties, and obligations pertinent to the office are extinguished. Permanent disability covers both physical or mental disability.

RESIGNATION

facto officer, who Exception: Where there is no de jure officer , a de facto officer, in good faith has had possession of the o ffice and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees, and other compensations attached to the office.

TERMINATION OF OFFICIAL RELATION

EXPIRATION OF THE TERM OR TENURE OF OFFICE General Rule : Upon the expiration of the officer’s term, his rights, duties, and authority as a public officer must ipso facto cease. Exception: Unless he is authorized by law to hold over.

Where an office is created, or an officer is appointed, for the purpose of performing a single act or the accomplishment of a given result, the office terminates and the officer’s authority ceases with the accomplishment of the purposes which called it into being. Term of Office The time during which the officer may claim to hold the office as of right and fixes the interval after which the several incumbents shall succeed one another. It is a fixed and definite period of time to hold office, perform its functions and, enjoy its privileges and emoluments until the expiration of said period. Tenure of Office The period during which the incumbent actually holds office.

REACHING THE AGE LIMIT (RETIREMENT)

This mode of termination results in the compulsory and automatic retirement of a public officer. Compulsory Retirement Age (1) Members of the Judiciary: 70 years old (2) Other government officers and employees: 65 years old (3) Optional retirement age: after rendition of the minimum number of years of service

DEATH OR PERMANENT DISABILITY

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The act of giving up or the act of a public officer by which he declines his office and renounces the further right to use it. It is an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce, and relinquish the office and the acceptance thereof by competent lawful authority. [Ortiz [Ortiz v. COMELEC (1988)] (1988) ] Requisites: (1) Intention to relinquish a part of the term (2) Act of relinquishment (3) Acceptance by the proper authority, either expressly or impliedly Forms of Resignation (1) Where a law requires that resignation is to be made in any particular form, that form must be substantially complied with. (2) Where no such form is prescribed, no particular mode is required, but the resignation may be made by any method indicative of the purpose. It need not be in writing, unless so required by law. A written resignation, delivered to the board or officer authorized to receive it and fill the vacancy thereby created, is prima facie, but not conclusive evidence of the intention to relinquish the office.

Courtesy resignation  resignation  cannot properly be interpreted as a resignation in the legal sense for it is not necessarily a reflection of a public official’s intention to surrender his position. Rather, it manifests his submission to the will of the political authority and the appointing power.  When Resignation is Effective Effective . (1) Date specified in the tender (2) If no such date is specified, resignation shall be effective when the public officer receives notice of the acceptance of his resignation, NOT the date of the letter or notice of acceptance Revocation of Resignation A resignation can be validly withdrawn before the public official is notified of its acceptance. [Republic [ Republic v. Singuin (2008)] (2008) ]

It is an offense for any public officer who, before acceptance of his resignation, abandons his office to the detriment of the public service. ( Art.  Art. 238, RPC ) Acceptance of Resignation (1) As provided by law (2) If the law is silent o n who shall accept and the public officer is an appointive officer, tender to the appointing authority. If elective, tender to those authorized by law.

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RESIGNING PUBLIC OFFICER President and Vice President Members of Congress Governor, Vice Governor, Mayor, Vice Mayor of Highly Urbanized Cities and Independent Component Cities City Mayors and Vice Mayors of Component Cities, Municipal Mayors and Vice Mayors Sanggunian Members Sanggunian Members Elective Barangay Officials Appointive Public Officers

ACCEPTING AUTHORITY Congress

Respective Houses President

Governor

Sanggunian concerned Sanggunian concerned Municipal or City Mayors Appointing Authority

ACCEPTANCE OF AN INCOMPATIBLE OFFICE General Rule : One who, while occupying one office, accepts another office incomplete with the first ipso facto vacates facto vacates the first office. Exceptions: (1) Where the public officer is authorized by law to accept the other office (ex (ex officio capacity). officio  capacity). (2) If the public officer accepts a  forbidden office, office, the holding of the second office is office is absolutely void. Rationale: It is contrary to the policy of the law that the same individual should undertake to perform inconsistent and incompatible duties.  When Incompatible Incompatibility is to be found in the character of the offices and their relation to each other, in the subordination of one to the other and in the nature of the functions and duties which attach to them. It Exists Where: (1) There is conflict in such duties and functions, so that the performance of the duties of one interferes with the performance of the duties of the other as to render it improper from consideration of public policy for one person to retain both. (2) One is subordinate to the other and is subject in some degree to its supervisory power for obviously in such a situation, the design that one acts as a check on the other would be frustrated. (3) The Constitution or the law itself declares the incompatibility even though there is no inconsistency in the nature and functions of the offices.

ABANDONMENT OF OFFICE Abandonment It is the voluntary relinquishment of an office by the holder of all right, title, or claim thereto with the intention of not reclaiming it or terminating his possession and control thereof. Requisites

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(1) (2)

Intention to abandon Overt act by which the intention is carried into effect

Distinguished from Resignation While resignation in general is a formal relinquishment, abandonment is a voluntary relinquishment through non-user.  Non-user  refers   refers to a neglect to use a privilege or a right or to exercise an easement or an office. [ Municipality [ Municipality of San Andres, Catanduanes v. CA (1998)] (1998)]  What May Constitute as Abandonment Abandonment (1) Abandonment may result from acquiescence from the officer in his wrongful removal. (2) An officer or employee shall be automatically separated from the service if he fails to return to the service after the expiration of one-year leave of absence without pay. Also, officers and employees who are absent for at least 30 days without approved leave (AWOL) shall be dropped from the service after due notice.

PRESCRIPTION OF RIGHT TO OFFICE

Under the Rules of Court, quo warranto  warranto  is the proper remedy against a public officer for his ouster from office. The petition should be filed within one (1) year after the cause of such ouster or the right of the plaintiff to hold such office or position arose; otherwise, the action will be barred. The filing of an administrative action does not suspend the period for filing the appropriate judicial proceeding. Rationale for the one-year period: Title to public office should not be subjected to uncertainties but should be determined as speedily as possible.

REMOVAL Removal Ouster of an incumbent public officer before the expiration of his term. It implies that the office exists after the ouster. Another term used is dismissal.

It is the forcible and permanent separation of the incumbent from office before the expiration of his term. Modes of Removal Removal from office may be express or implied. (1) Appointment of another officer in the place of the incumbent operates as a removal if the latter was notified. (2) The transfer of an officer or employee without his consent from one office to another, whether it results in promotion or demotion, advancement or reduction in salary, is equivalent to his illegal removal or separation from the first office. (3) Demotion to a lower position with a lower rate of compensation is also equivalent to removal if no cause is shown for it. Limitations (1) Constitutional guarantee of security of tenure. No officer or employee of the civil service shall be

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removed or suspended except for cause provided by law. [Sec. 2(3), Art. IX-B, 1987 Constitution] Removal or resignation from office is not a bar to a finding of administrative liability [Office of the President v. Cataquiz (2011)] Removal not for a just cause, o r non-compliance with the prescribed procedure constitutes a reversible error and entitles the officer or employee to reinstatement with back salaries and without loss of seniority rights.

Elements of Removal for Cause (1) The cause is a legal cause (2) As a general rule, the cause must be connected to the functions and duties of the office (3) The cause must be of a substantial nature as to directly affect the interest of the public (4) The removal must be after due process Extent of President’s Removal Power (1) With respect to non-career officers exercising purely executive functions whose tenure is not fixed by law, the President may remove them with or without cause and Congress may not restrict such power. (2) With respect to officers exerci sing quasi-legislative or quasi-judicial functions, they may be removed only on grounds provided by law to protect their independence. (3) With respect to constitutional officers removable only by means of impeachment, and judges of lower courts, they are not subject to the removal of the President.

efficient to be valid, it must pass the test of good faith; otherwise, it is void ab initio. Reorganization is valid provided they are pursued in good faith. Attrition It is the reduction of personnel as a result of resignation, retirement, dismissal in accordance with existing laws, death, or transfer to another office.

CONVICTION OF A CRIME

When the penalties of perpetual or temporary absolute disqualification or penalties of perpetual or temporary special disqualification are imposed upon conviction of a crime, termination of official relation results, for one of the effects of the imposition of said penalties is the deprivation of the public office which the offender may have held. Conviction means conviction in a trial court. It contemplates a court finding guilt beyond reasonable doubt followed by a  judgment upholding and implementing such finding. The  judgment must be final and executory.

NON-USER

The office of any official elected who fails or refuses to take his oath of office within six (6) months from his proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his control.

ABOLITION

RECALL

Requisites (1) Abolition must be done in good faith (2) Clear intent to do away with the office (3) Not for personal or political reasons (4) Cannot be implemented in a manner contrary to law

It is a method of removal prior to the expiration of the term of a public officer on account of loss of confidence exercised directly by the registered voters of a local government unit.

Limitations (1) Except when restrained by the Constitution, the Congress has the right to abolish an office, even during the term for which an existing incumbent may have been elected. Valid abolition of office does not constitute removal of the incumbent. (2) No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its members. (3) The fundamental principle afforded to civil service employees against removal “except for cause as provided by law” does not protect them against abolition of the positions held by them in the absence of any other provision expressly or impliedly prohibiting abolition thereof. Reorganization It is the reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. It could result in the loss of one’s position through removal or abolition of an office. However, for a reorganization for the purpose of economy or to make the bureaucracy more

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FILING OF A CERTIFICATE OF CANDIDACY BY AN APPOINTIVE OFFICIAL

An appointive official is ipso facto resigned from his office upon the filing of a certificate of candidacy. An elective official who files a certificate of candidacy is not deemed resigned from his position. [Quinto v. COMELEC (2010)] Rationale: Substantial distinctions exist between elective officials and appointive officials. The former occ upy their office by virtue of the mandate of the electorate. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Also, under the Revised Administrative Code, appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote. Elective officials, by the very nature of their positions, may engage in partisan political activities.

THE CIVIL SERVICE

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SCOPE Exceptions: Appointments to the following positions are exempt from the competitive examination requirement (i)  Policy determining – where the officer is vested with the power of formulating policies for the government or any of its agencie s, subdivisions, or instrumentalities (ii)  Primarily confidential –  the officer enjoys primarily such close intimacy with the appointing authority which insures freedom intercourse without embarrassment or freedom of misgiving of betrayal or personal trust on confidential matters of the state. [De Los Santos v.  Mallare (1950)] The position characterized by the close proximity of positions of the appointee as well as the high degree of trust and confidence inherent in their relationship. [Civil Service Commission v. Javier (2008)]

It embraces all branches, subdivisions, instrumentalities, and agencies of the Government, i ncluding government-owned and controlled corporations with original charters.

 JURISDICTION OF THE CIVIL SERVICE COMMISSION Exclusive Jurisdiction (1) Disciplinary cases (2) Cases involving “personnel action” affecting the Civil Service employees: A. Appointment through certification B. Promotion C. Transfer D. Reinstatement E. Reemployment F. Detail G. Reassignment H. Demotion I. Separation (3) Employment status (4) Qualification standards

It is the nature  of the position which determines whether a position is policy determining, primarily confidential, or highly technical. (2)

Power of the CSC to Review an Appointee’s Qualifications The only function of the CSC is to review the appointment in the light of the requirements of the Civil Service Law, and when it finds the appointee to be qualified and all other legal requirements have been otherwise satisfied, it has no choice but to attest to the appointment. [Lapinid v. CSC (1991)] Limitations (1) It cannot order the replacement of the appointee simply because it considers another employee to be better qualified. (2) The CSC cannot co-manage or be a surrogate administrator of government offices and agencies. (3) It cannot change the nature of the appointment extended by the appointing officer. The authority of city or municipal mayors to exercise administrative supervision over city or municipal civil registrars is not exclusive, but concurrent with the CSC. The Civil Service Commission, as the central personnel agency of the government, has the power to appoint and discipline its officials and employees and to hear and decide administrative cases instituted by or brought before it directly or on appeal.

APPOINTMENTS TO THE CIVIL SERVICE

Non-Career Service – Entrance on bases other than those of the usual tests. Tenure limited to a period specified by law or which is coterminous with the appointing authority or the duration of a particular project.

Recall of Appointments Grounds (1) Non-compliance with the procedures or criteria provided by the agency’s Merit Promotion Plan (2) Failure to pass through the agency’s Selection or Promotion Board (3) Violation of existing collective agreement between management and employees relative to promotion (4) Violation of other existing civil service laws, rules, and regulations

The above grounds are available despite initial approval by the CSC of the appointment. Distinguished from recall under the Local Government Code. The CSC has the power to recall an appointment which has been initially approved when it is shown that the same was issued in disregard of pertinent CSC laws, rules, and regulations. In contrast, under the LGC, recall is a mode of re moval of a public official by the people before the end of his term of office.

Classification of Positions in the Civil Service

(1)

Career Service – characterized by A. Entrance based on merit and fitness to be determined as far as practicable by competitive examinations, or based on highly technical qualifications, B. Opportunity for advancement to higher career positions, and C. Security of tenure General Rule: Appointments to the Career Service is to be determined as far as practicable by competitive examination.

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Appointments Not Requiring CSC Approval (1) Presidential appointments (2) Members of the AFP (3) Police forces (4) Firemen (5)  Jail guards Limitations on Power to Appoint (1) Constitutional limitations A. Prohibition on nepotic appointments by the President B. Midnight appointments ban

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C.

Grant of power of appointment to officers and bodies other than the President D. Grant of exclusive power to appoint officials and employees of the judiciary to the SC E. Recommendation of the JBC for appointments to the SC and lower courts F. Grant of exclusive power to appoint officials and employees of the Constitutional Commissions to the same G. One-year appointments ban for losing candidates H. Non-appointment or designation of elective officials I. Prohibition on holding multiple offices for appointive officials  J. Grant of exclusive power to appoint officials and employees of the Ombudsman ot the same K. Recommendation of the JBC for appointments of the Ombudsman and his deputies (2) Limitations found in statutes (3) Restrictions as developed under jurisprudence A. Appointing authority cannot preempt appointing power of successor B. Appointing authority cannot appoint himself to a vacancy C. No appointment to a post which is not vacant

PERSONNEL ACTION Promotion It is the movement from one position to another with increase in duties and responsibilities as authorized by law and is usually accompanied by an increase in pay.

(1)

Next-in-Rank Rule The person next in rank shall be given  preference in promotion when the position immediately above his is vacated.

BUT the appointing authority still exercises discretion and is not bound by this rule, although he is required to specify the “special reason or reasons” for not appointing the officer next-in-rank. (2)

Automatic Reversion Rule All appointments involved in a chain of promotions must be submitted simultaneously for approval by the Commission.

The disapproval of the appointment of a person proposed to a higher position invalidates the promotion of those in the lower positions and automatically restores them to their former positions. However, the affected persons are entitled to payment of salaries for service actually rendered at a rate fixed in their promotional appointments. Requisites A. Series of promotions B. All promotional appointments are simultaneously submitted to the Commission for approval

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C.

The Commission disapproves the appointment of a person to a higher position

Transfer It is a movement from one position to another which is of equivalent rank, level, or salary without break in service.

This may be imposed as an administrative remedy. General Rule: If transfer is without consent, it violates security of tenure. Exceptions: (1) Temporary appointee (2) Career Executive Service Personnel whose status and salaries are based on ranks, not on position

Reinstatement It is technically the issuance of a new appointment and is discretionary on the part of the appointing power.

It cannot be the subject of an application for a writ of mandamus. Requisites for Validity (1) Any permanent appointee of a career service position (2) No commission of delinquency or m isconduct, and is not separated (3) The reinstatement is to a position in the same level for which the officer is qualified Reinstatement has the same effect as executive clemency, which completely obliterates the adverse effects of the administrative decision which found him guilty of dishonesty. He is restored ipso facto upon grant of such. Application for reinstatement is unnecessary.

Detail It is the movement of an employee from one agency to another without the issuance of an appointment. Requisites for Validity (1) Only for a limited period (2) Only for employees occupying technical, and scientific positions (3) Temporary in nature

professional,

An Employee May Be Reassigned from One Organizational Unit to Another in the Same Agency It is a management prerogative of the CSC and any department or agency embraced in the Civil Service and does not constitute removal without cause. Requisites for Validity (1) No reduction in rank, status, or salary. (2) The reassignment is from one organizational unit to another in the same agency. (3) Should have a definite date or duration. Otherwise, a floating assignment would be tantamount to a diminution in status or rank.

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Reemployment Names of persons who have been appointed permanently to positions in the career service and who have been separated as a result of reduction in force and/or reorganization, shall be entered in a list from which selection for reemployment shall be made.

ACCOUNTABILITY OF PUBLIC OFFICERS

IMPEACHMENT

A method of national inquest into the conduct of public men. It is the power of Congress to re move a public official for serious crimes or misconduct as provided in the Constitution (Corona v. Senate, 2012). Purpose To protect the people from official delinquencies or malfeasances. It is primarily intended for the protection of the State, not for the punishment of the offender. Impeachable Officers (1) President (2) Vice President (3) Members of the Supreme Court (4) Members of the Constitutional Commissions (5) Ombudsman

All other public officers and employees may be removed from office as provided by law but not by impeachment (Sec. 2, Art. XI, Constitution). NOTE: Impeachment is not an exclusive remedy by which an invalidly appointed or invalidly elected impeachable official may be removed from office. The language of Sec. 2, Art. XI, 1987 Constitution does not foreclose a quo warranto action against impeachable officers. The provision uses the permissive term “may” which denotes discretion and cannot be construed as having a mandatory effect, indicative of a mere possibility, an opportunity, or an option. Quo warranto  as a remedy to oust an ineligible public official may be availed of when the subject act or omission was committed prior to or at the time of appointment or election relating to an official’s qualifications to hold office as to render such appointment or election invalid acts.

Quo warranto proceedings are essentially judicial in character – it calls for the exercise of the Supreme Court’s constitutional duty and power to decide cases and settle actual controversies. This constitutional duty cannot be abdicated or transferred in favor of, or in deference to, any other branch of the government including the Congress, even as it ac ts as an impeachment court through the Senate. [Republic v. Sereno, G.R. No. 237428 (2018)] Grounds for Impeachment (1) Culpable violation of the Constitution (2) Treason (3) Bribery (4) Graft and corruption (5) Other high crimes, or (6) Betrayal of public trust

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Procedure The House of Representatives has the sole power to initiate all cases of impeachment while the Senate sits as a court for the trial of impeachment cases.

No impeachment proceedings shall be initiated against the same official more than once within a perio d of one year (Sec. 3,  Art. XI, Constitution). The term “to initiate” refers to: (1) The filing of the impeachment complaint, coupled with (2) Congress’ taking initial action of said complaint (i.e. referral to the House Committee on Justice) [Francisco v. House of Representatives (2003)].  Judgment  Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law (Sec. 3, Art. XI, Constitution).

OMBUDSMAN

The Ombudsman is a constitutional officer duty-bound to investigate on its own or on complaint by “any person, any act or omission of a public officer or employee when such act or omission appears to be illegal, unjust, improper, or inefficient.” [ Antonio King v. Francisco Robles, G.R. No. 197096-97 (2013)] Functions under the Constitution  (Sec. 13, Art. XI, Constitution) (1) Investigate any act or omission of any public official, employee, office, or agency which appears to be illegal, unjust, improper, or inefficient. This may be done by the Ombudsman on its own or upon complaint. (2) Direct any public official or employee, or any government subdivision, agency or instrumentality, as well as of any government-owned or controlled corporation with original charter: A. To perform and expedite any act or duty required by law, or B. To stop, prevent, and correct any abuse or impropriety in the performance of duties. (3) Direct the officer concerned: A. To take appropriate action against a public official or employee at fault, and B. To recommend the latter’s removal, suspension, demotion, fine, censure, or prosecution, and C. To ensure compliance therewith. (4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties. The Ombudsman can also report any irregularity to the Commission on Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents.

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(6) (7)

(8)

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Publicize matters covered by its investigation when circumstances so warrant and with due prudence. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.

Functions under R.A. No. 6770  (Sec. 15, RA 6770) (1) Administer oaths, issue subpoena and subpoena duces tecum, and take testimony in any i nvestigation or inquiry, including the power to examine and have access to bank accounts and records. (2) Punish for contempt in accordance with the Rules of Court and under the same procedure and with the same penalties provided therein. (3) Delegate to Deputies, or its investigators or representatives such authority or duty as shall ensure the effective exercise or performance of the powers, functions, and duties herein or hereinafter provided. (4) Investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealth amassed after February 25, 1986 and the prosecution of the parties involved therein  Judicial Review in Administrative Proceedings Remedy Petition for review under Rule 43 of the Rules of Court with the Court of Appeals.

The second paragraph of Sec. 14, RA 6770, which states that “no court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court, on pure question of law” is unconstitutional. Effectively, Congress increased the appellate jurisdiction of the Supreme Court without its advice and concurrence. By confining the remedy to a Rule 45 Appeal, the provision takes away the remedy of Certiorari, grounded on errors of jurisdiction, in denigration of the judicial power constitutionally vested in courts [Carpio-Morales v. Court of Appeals, G.R. No. 217126-27 (2015)]. Decisions on resolutions of the Ombudsman in administrative cases absolving the respondent of the charge or imposing upon him the penalty of public censure or reprimand, suspension of not more than one month, or a fine equivalent to one-month salary, is final and unappealable (Agpalo, 2005).  Judicial Review in Penal Proceedings General Rule : Courts cannot review the exercise of discretion of the Ombudsman in prosecuting or dismissing a criminal complaint filed before it [Loquias v. Ombudsman, G.R. No. 139396 (2000)]. Exception: When the Ombudsman’s findings are tainted with grave abuse of discretion. [Carpio-Morales v. Court of Appeals, G.R. No. 217126-27 (2015)].

Nature and Composition The Sandiganbayan is created under PD 1606, as amended by RA 8249. It is a special court, of the same level as the Court of Appeals and possessing all the inherent power of a court of  justice.

It is composed of a presiding justice and 20 associate justices, They sit in 7 divisions of 3 members each. (RA No. 10660) Exclusive Original Jurisdiction (1) Over the following crimes, when committed by public officials and employees classified as Salary Grade 27 or higher: A. Violations of R.A. No. 3019 and No. 1379; B. Crime committed by public officers and employees embraces in Chapter II, Sec. 2, Title VII, Book II of the Revised Penal Code; C. Other offenses or felonies, whether simple or complexed with other crimes, committed in relation to their office. (2) Civil and criminal cases filed pursuant to and in connection with Executive Orders No. 1, 2, 14, and 14a issued in 1986 Provided that the Regional Trial Court shall have exclusive original jurisdiction where the information: (1) Does not allege any damage to the government or any bribery; or (2) Alleges damage to the government or bribery arising from the same or closely related transactions or acts in an amount not exceeding One Million Pesos (Php 1,000,000). [RA 10660 (2015)]

In the absence of any allegation that the offense charges were necessarily connected with the discharge of the duties or functions of a public officer, the ordinary court, not the Sandiganbayan has jurisdiction to hear and decide the case. What is controlling is not whether the phrase “committed in relation to public office” appears in the Information. What determined the jurisdiction of the Sandiganbayan is the specific factual allegation in the Information that would indicate close intimacy between the discharge of the accused’s official duties and the commission of the offense charged in order to qualify the crime as having been committed in relation to public office. The relation between the crime and the office must be direct and not accidental, that is, the re lation has to be such that, in the l egal sense, the offense cannot exist without the office. Officials and Private Individuals Subject to its Jurisdiction Under Section 4(a, b) of PD 1606, as amended, the Sandiganbayan shall exercise exclusive original jurisdiction over the cases mentioned in (1) above where one or more of the accused are officials occupying the following positions in government, whether permanent, acting or interim capacity at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 (RA 6758), specifically including: A. Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial

SANDIGANBAYAN

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treasurers, assessors, engineers, and other provincial department heads; B. City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; C. Officials of the diplomatic service occupying the position of consul and higher; D. Philippine army and air force colonels, naval captains, and all officers of higher rank; E. Officers of the Philippines National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher; F. City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; Members of Congress and officials thereof classified as Grade 27 and up under the Compensation and Position Classification Act of 1989; Members of the judiciary without prejudice to the provisions of the Constitution; Chairpersons and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989.

Recovery of Ill-Gotten Wealth The right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches or estoppel. (Sec. 15, Art. XI, Constitution)

In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government -owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them.

The provision applies only to civil actions for recovery of illgotten wealth and not to criminal cases. Thus, prosecution of offenses arising from, relating or incident to, or involving illgotten wealth in the said provision may be barred by prescription (Presidential Ad-Hoc Fact Finding Committee on Behest Loans v. Desierto).

Exclusive Appellate Jurisdiction The Sandiganbayan shall exercise exclusive appellate  jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise o f their own original  jurisdiction or of their appellate jurisdiction.

Plunder (Sec. 2, RA 7080)

(2)

(3)

(4) (5)

(6)

Appellate Jurisdiction of the Supreme Court The appellate jurisdiction of the Supreme Court is limited to questions of law over decisions and final orders of the Sandiganbayan. [Republic v. Sandiganbayan (2002)]

ILL-GOTTEN WEALTH Ill-Gotten Wealth Any asset, property, business enterprise or material possession of any person acquired by himself directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: (1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasurer;

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(2)

(3)

(4)

(5)

(6)

By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer; By the illegal and fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries; By obtaining, receiving, or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; By establishing agricultural, industrial, or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or By taking undue advantage of official position, authority, relationship, connection of influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. (Sec. 1, RA 7080).

Punishable Acts (1) Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other person, amasses, accumulates, or acquired illgotten wealth through a combination or series of overt or criminal acts in the aggregate amount or total value of at least P50,000,000.00 (as amended by Sec. 12 or RA 7659). (2) Any person who participated with the said officer in the commission of plunder shall likewise be punished. Penalty Life imprisonment with perpetual absolute disqualification from holding any public office. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived

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from the deposit or investment thereof forfeited in favor of the State. [ Agpalo]

TERM LIMITS

ALL ELECTIVE LOCAL OFFICIALS (Sec. 8, Art. X, Constitution; Sec. 43, LGC ) Term of Office 3 years from noon of June 30, 1992 or the date provided by law.

All local officials first elected during the local elections immediately following the ratification of the 1987 Constitution shall serve until noon of June 30, 1992; (1) No official shall serve for more than 3 consecutive terms for the same position; (2) Voluntary renunciation of the office for any length of time is not an interruption in the continuity of his service for the full term for which he was elected. BARANGAY AND SANGGUNIANG KABATAAN  OFFICIALS Term of Office 3 years

No barangay  elective officials shall serve for more than 3 consecutive terms in the same position (1) Reckoned from the 1994 Barangay elections; (2) Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

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ADMINISTRATIVE LAW

It is the branch of modern law under which the executive department acting in a quasi-legislative or quasi-judicial capacity interferes with the conduct of the individual for the purpose of promoting the well-being of the community. It is the branch of public law which fixes the organization, determines the competence, of administrative authorities, and indicates the remedies for violations of an individual’s rights. SOURCES OF ADMINISTRATIVE LAW 1. 2. 3. 4.

Constitution; Statutes creating administrative bodies; Court Decisions interpreting the charters of administrative bodies; Rules, Regulations, and Orders issued by administrative agencies. SCOPE OF ADMINISTRATIVE LAW

ADMINISTRATIVE LAW

1. 2. 3. 4. 5. 6. 7. 8. 9.

Fix the administrative structure and organization of government; Execution or enforcement of those matters entrusted to administrative bodies; Covers  public officers including their competence, rights, duties, election, appointment, etc. Create administrative agencies; Define their powers and functions; Prescribes their procedures; Provide remedies to those aggrieved by administrative actions or decisions; Covers rules, regulations, decisions and orders made by administrative bodies; Covers judicial decisions and doctrines dealing with any of the above matters.

CLASSIFICATIONS OF ADMINISTRATIVE LAW 1.

2.

3.

AS TO SOURCE a. Law that controls administrative bodies b. Law made by administrative bodies AS TO PURPOSE a. Procedural b. Substantive AS TO APPLICABILITY a. General b. Special or particular

ADMINISTRATIVE AGENCY –  it is a body endowed with quasi-legislative or quasi-judicial powers or both for the

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purpose of enabling it to carry out laws entrusted to it for enforcement or execution. CREATION OF ADMINISTRATIVE AGENCIES 6. GENERAL RULE: It is primarily a legislative function. EXCEPTION: Offices created by the Constitution. (Eugenio v. CS, G.R. No. 115863, March 31, 1995)

administration which the President desires to bring to the attention of all or some of the departments, agencies, bureaus, or offices of the Government for information or compliance. EXECUTIVE ORDERS –  acts of the President providing for rules of general or permanent character in the implementation or execution of constitutional or statutory powers. EXTENT OF PRESIDENT’S POWERS

DIFFERENT WAYS OF CREATING PUBLIC OFFICE 1. 2. 3. 4. 5.

Constitutional provision; Legislative enactment; Authority of law; (Sec. of DOTC v. Mabalot, G.R. No. 138200, February 27, 2002) Power of the President to create public office by valid delegation from Congress; Power of the President to create public office under the faithful-execution clause. (CONST. Art. VII, Sec. 17)

Extent of President’s Powers As to Executive As to LGUs departments, bureaus, and offices Control and supervision. Only general supervision.

KINDS OF ADMINISTRATIVE AGENCIES A.

AS TO FUNCTION

1. 2.

Those that grant privileges; (e.g. Bureau of Lands) Those that carry out the actual business of the Government; (e.g. BIR) Those that perform some business service to the public; (e.g. Bureau of Posts which is now defunct) Those that regulate businesses affected with public interest; (e.g. LTFRB) Those that regulate private businesses and individuals under police power; (e.g. SEC) Those that adjudicate individual controversies because of some strong social policy  involved such as labor; (e.g. NLRC, NCMB) Those that make the government a private party; (e.g. GSIS) Those that adjudicate and decide election cases . (e.g. COMELEC)

FAITHFUL-EXECUTION CLAUSE

SECTION 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. ADMINISTRATIVE AGENCIES DIRECTLY CREATED BY THE 1987 CONSTITUTION

3. 4. 5.

1. 2. 3. 4. 5.

Civil Service Commission (Art. IX-B) Commission on Elections (Art. IX-C) Commission on Audit (Art. IX-D) Office of the Ombudsman and his Deputies (Art. XI, Sec. 5) Commission on Human Rights (Art. XIII, Sec. 17)

6.

7. 8.

ORDINANCE POWER OF THE PRESIDENT – it is the executive’s rule-making authority in implementing or executing constitutional or statutory powers. (ABAKADA GURO Party List, et al. v. P urisima, G.R. No. 166715, August 14, 2008)

B.

AS TO TITLE OR DESIGNATION

1.

AGENCY – refers to any of the various units of the Government including departments, bureaus, offices, instrumentalities, GOCCs, local government unit or a distinct unit therein. DEPARTMENT –  an executive department created by law. It includes any instrumentality as having the rank of a department, regardless of its designation. BUREAU –  it is a principal subdivision of a department. It includes any instrumentality as having the rank of a bureau, regardless of its designation. OFFICE – refers to any major functional unit of a department or bureau, including regional offices. It may also refer to any position held or occupied by individual persons, whose functions are defined by law or regulation. INSTRUMENTALITY – any agency of the National government not integrated within the department framework with special functions or jurisdiction by law, endowed with corporate powers, with special funds, and enjoying operational autonomy usually through a charter. It includes regulatory agencies, chartered institutions, and GOCCs.

HOW THE PRESIDENT’S ORDINANCE POWER IS EXERCISED 1.

2.

3.

4.

5.

PROCLAMATIONS – acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend. They have the force of an executive order. GENERAL or SPECIAL ORDERS – acts and commands of the President in his capacity as Commander-in-Chief of the AFP. ADMINISTRATIVE ORDERS –  acts of the President which relate to particular aspects of governmental operations in pursuance of his duties as administrative head. MEMORANDUM ORDERS – acts of the President on matters of administrative detail or of subordinate or temporary interest which only concern a particular officer or office of the Government. MEMORANDUM CIRCULARS –  acts of the President on matters relating to internal

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2.

3.

4.

5.

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a.

b.

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REGULATORY AGENCY –  any agency expressly vested with jurisdiction to regulate, administer, or adjudicate matters affecting the substantial rights and interests of private persons. Its principal powers are exercised by a collective body such as a commission, board, or council. GOVERNMENT OWNED or CONTROLLED CORPORATION – any agency organized as a stock or non-stock corporation vested with functions related to public needs, whether governmental or proprietary in nature, and owned by the government directly or through its instrumentalities either wholly or, in the case of stock corporations, at least a majority (51%) of its capital stock must be owned by the government. (People v. Morales, G.R. No. 166355, May 30, 2011)

Power vs. Function Power Function Means by which a That which one is bound function is fulfilled. or is one’s business to do. ADMINISTRATIVE FUNCTION –  those functions which involve the regulation and control over the conduct and affairs of individuals for their own welfare, and the promulgation of rules and regulations to better carry out the policy of the legislature or the policies that devolve upon administrative agencies by the laws creating them. (In re: Rodolfo U. Manzano,  Adm. Matter No. 88-7-1861-RTC, October 5, 1988)

to implement the law and legislative policy fixed by the legislature. It necessarily includes the power to amend, revise, alter, or repeal such rules and regulations. DOCTRINE OF SUBORDINATE LEGISLATION – the power of administrative officials to promulgate rules and regulations in the implementation of a statute is necessarily limited only to carrying into effect what is provided in the legislative enactment. A regulation that goes beyond the source of the statute may be declared as void. (Fort Bonifacio Development Corporation v. CIR, G.R. Nos. 158885 and 170680, October 2, 2009) LEGISLATIVE vs. QUASI-LEGISLATIVE POWER Legislative Power vs. Quasi-legislative Power Legislative Quasi-legislative Power of the legislative Power of administrative body to make laws and agencies to issue rules to fix a legislative policy. and regulations It cannot be delegated by intended to implement the legislature to the the law and legislative administrative agencies. policy fixed by the legislature. KINDS OF ADMINISTRATIVE RULES AND REGULATIONS 1.

2.

EXPRESS AND IMPLIED POWERS Express vs. Implied Powers Express Implied  Jurisdiction and powers  Jurisdiction and powers conferred expressly by necessary for the the Constitution or by effective exercise of law. express powers.

3.

LEGISLATIVE RULES –  are in the nature of subordinate legislation and are designed to implement a primary legislation by providing the details thereof. They usually implement an existing law, imposing general or extra-statutory obligations pursuant to the authority delegated to i t by Congress. INTERPRETATIVE RULES –  are intended to interpret, clarify, or explain existing statutory regulations under which the administrative body operates. Their purpose is merely to construe the statute being administered. CONTINGENT RULES –  those issued by an administrative authority based on the existence of certain facts or things upon which the enforcement of a law depends. LEGISLATIVE vs. INTERPRETATIVE RULES

DOCTRINE OF NECESSARY IMPLICATION –  All powers necessary for the effective exercise of express powers are deemed impliedly granted.

An express grant of power to formulate implementing rules and regulations carries with it the implied power to amend, modify, alter, or repeal them. (Yazaki Torres Manufacturing v. CA, G.R. No. 130584, June 27, 2006)

Legislative vs. Interpretative Rules Legislative Interpretative As to purpose Implement and provide Merely clarifies the details in the law. statute being administered.

POWERS OF ADMINISTRATIVE AGENCIES 1. 2. 3.

Quasi-legislative or rule-making powers; Quasi-judicial or adjudicatory powers; Investigatory or inquisitorial powers.

QUASI-LEGISLATIVE POWERS –  it is also known as the power of subordinate legislation. It is the power of administrative agencies to issue rules and regulations intended

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As to effect Have the force and effect Only advisory because of law. the courts have the final say in interpreting the statute. As to nature It is an express power It is an implied power because it is issued because it is issued as an pursuant to a valid incident of the delegation of legislative administrative body’s power.

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power to enforce the law. As to the publication requirement Must be published. Need not be published.

REQUISITES FOR A VALID ADMINISTRATIVE REGULATION 1. Issued under authority of law. There must be a valid delegation of legislative power. TESTS OF VALID DELEGATION a.

b.

COMPLETENESS TEST – the law must be complete in all its terms and conditions when it leaves the legislature so that when it reaches the delegate, the delegate will have nothing to do but enforce it. (U.S. v. Ang Tang Ho, G.R. No. 17122, February 27, 1922) SUFFICIENT STANDARD TEST –  the law must offer a sufficient standard to specify the limits of the delegate’s authority, announce the legislative policy, and specify the conditions under which it is to be implemented.

2.

 Within the scope and purview of legislative authority. The regulation must be germane to the purposes of the law. It must not contradict but must conform to the standards prescribed by law. (Public Schools District Supervisors  Association v. De Jesus, G.R. No. 157299, June 19, 2006) 3.

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EXCEPTIONS: Interpretative rules and regulations; a. b. When the regulation is merely internal in nature; Letters of instruction issued by an administrative c. agency concerning rules and guidelines to be followed by subordinates in the performance of their duties. (Association of Southern Tagalog Electric Cooperatives, Inc. v. Energy Regulatory Commission, G.R. No. 192117, September 18, 2012) d. Department orders addressed only to institutions under their supervision. (Balbuna v. Sec. of Education, G.R. No. L-14283, November 29, 1960) ADDITIONAL PUBLICATION REQUIREMENTS a.

b.

Administrative issuances which are not published or filed with the Office of the National Administrative Register at the UP Law Center are ineffective and may not be enforced. The effectivity of administrative rules and regulations is 15 days after publication and not 15 days from the date of filing with the UP Law Center. (Republic v. Express Telecommunications, G.R. No. 147096, January 15, 2002)

4. It must be reasonable. It must not be arbitrary and capricious. Reasonableness depends on the reason or the purpose for which a regulation is issued. STANDARDS OF REASONABLENESS:

Promulgated in accordance with the prescribed procedure. There must be notice, hearing, and publication.

a. b.

AS TO NOTICE AND HEARING

REQUISITES FOR A VALID ADMINISTRATIVE REGULATION WITH PENAL SANCTIONS

GENERAL RULE: Notice and hearing is not required. EXCEPTIONS: When the legislature itself requires it and mandates a. that the regulation shall first require the ascertainment of facts as determined from an appropriate investigation; b. When the regulation is a settlement of a controversy between specific parties since it is considered as administrative adjudication; The administrative regulation is in the nature of a c. subordinate legislation designed to implement a law by providing its details; (CIR v. CA, G.R. No. 119761,  August 29, 1996) d. When the administrative rule substantially increases the burden of the governed; (CIR v. M.J. Lhuillier Pawnshop Inc., G.R. No. 150947) If the regulations are prescribed in the exercise of e. quasi-judicial functions. (Philippine Consumers Foundation v. Sec. of Education, Culture, and Sports, G.R. No. 78385, August 31, 1987) AS TO PUBLICATION GENERAL RULE: Administrative rules and regulations must be published in order to be effective. (Tañada v. Tuvera, G.R. No. L-63915, December 29, 1986)

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1. 2. 3.

Lawful subject – must involve public welfare; Lawful means – must not be arbitrary.

The law itself must declare as punishable the violation of an administrative rule or regulation; The law itself must fix a penalty therefore; The administrative rule and regulation must be published in full.

QUASI-JUDICIAL POWERS –  it is the power of the administrative agency to hear, determine questions of fact, make findings of facts, and to resolve cases presented to it on the basis of such findings of fact s to which the legislative policy is to apply, in accordance with the standards laid down by the law itself. REASON FOR GRANT OF QUASI-JUDICIAL POWERS

It is justified by the expediency or the need of the government to respond swiftly and competently to the pressing problems of the modern world. (C.T. Torres Enterprises, Inc. v. Hibionada, G.R. No. 80916, November 9, 1990) REQUISITES FOR THE VALID EXERCISE OF QUASI JUDICIAL POWER

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1. 2. 3.

 Jurisdiction over the subject matter must be conferred by the law or by the Constitution.  Jurisdiction over the person must be properly acquired by the administrative body. Due process must be observed in the conduct of the proceeding.

DOCTRINE OF ADHERENCE OF JURISDICTION –  also called the doctrine of continuity of jurisdiction. It means that when judicial or quasi-judicial body has acquired jurisdiction, that jurisdiction continues until the judicial or quasi-judicial body has done all that it can do in the exercise of that jurisdiction

When an administrative body is conferred quasi-judicial functions, all controversies relating to the subject matter pertaining to its specialization are deemed to be included within its jurisdiction. (Tejada v. Homestead Property Corporation, G.R. No. 79622, September 29, 1989) SCOPE OF QUASI-JUDICIAL POWER 1.

2.

3.

4.

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PRESCRIBE RULES OF PROCEDURE –  power to prescribe rules of procedure which are effective until disapproved by the Supreme Court. (CONST. Art. VIII, Sec. 5, par. 5) SUBPOENA POWER –  power to issue subpoena ad testificandum and subpoena duces tecum  may only be exercised if allowed by law and only in connection with the matter the administrative body is authorized to investigate. CONTEMPT POWER –  power to cite in contempt may only be exercised if expressly granted by law and only in relation to quasi-judicial functions and not ministerial functions. (Masangcay v. COMELEC, G.R. No. L-13827, September 28, 1962) –  power of DETERMINATIVE POWER administrative agencies to better enable them to exercise their quasi-judicial authority. a. ENABLING POWERS – powers that permit the doing of an act which the law undertakes to regulate and which would be unlawful without government approval. (e.g. issuance of a driver’s license by the LTO) b. DIRECTING POWERS – powers that order the doing or performance of particular acts to ensure compliance with the law. They are often exercised for corrective purposes. (e.g. order of reinstatement by the NLRC) i. DISPENSING POWER –  allows the administrative officer to relax the general operation of a law to an individual or corporation. (e.g. exemptions granted by the BIR) ii. EXAMINING POWER –  power to require the production of books, papers, the attendance of witnesses, compelling their testimony, etc. Also called investigatory power. iii. SUMMARY POWERS –  power to apply compulsion or force against persons or property to effectuate a legal purpose without judicial warrants to authorize such actions. (e.g. summary abatement of nuisance per se)

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c.

EQUITABLE POWERS –  permits the administrative tribunal to consider and make a proper application of the rules of equity. (Cariño v. CHR, G.R. No. 96681, December 2, 1991) ADMINISTRATIVE DUE PROCESS

The essence of due process in administrative proceedings is the opportunity to explain one’s side or seek a reconsideration of the action or ruling complained of, and to submit any evidence a party may have in support of his defense. The demands of due process are sufficiently met when the parties are given the opportunity to be heard before judgement is rendered. (Lacson v. Executive Secretaty, G.R. No. 165399, May 30, 2011) RIGHT TO BE HEARD - “To be heard” does not mean only verbal arguments in court; one may also be heard through pleadings. (Casimiro v. Tandog, G.R. 146137, June 8, 2005) REQUISITES OF ADMINISTRATIVE DUE PROCESS (RIPE-De-De-know) 1. 2.

3. 4.

5. 6.

7.

Right to hearing; Tribunal, body, or any of its judges must act on its own Independent consideration of the law and the facts of the controversy and not simply accept the views of its subordinate; Tribunal must consider the evidence Presented; Evidence must be substantial which means relevant evidence that a reasonable mind might accept as adequate to support a conclusion; Decision must have something to support itself; Decision must be based on evidence presented during hearing or at least contained in the record and disclose to the parties; Decision must be rendered in a manner that the parties can know the various issues involved and the reason for the decision rendered. (Ang Tibay v. CIR, G.R. No. L-46496, February 27, 1940)

RIGHT AGAISNT SELF-INCRIMINATION –  applicable in administrative proceedings. (Pascual v. Board of Medical Examiners, G.R. No. L-25018, May 26, 1969) NOTICE AND HEARING GENERAL RULE: Notice and hearing is necessary in administrative proceedings. EXCEPTIONS: a. Summary proceedings of distraint and levy upon the property of a delinquent taxpayer; b. Grant of provisional authority for increase of rates or to engage in a particular line of business; Cancellation of passport where no abuse of discretion c. is committed; d. Summary abatement of nuisance per se which affects safety of persons or property; Preventive suspension of an officer or employee e. pending investigation; Grant or revocation of licenses or permits to operate f. certain businesses affecting public order or morals; g. Where the right of notice and hearing has been previously offered but the right to exercise them had not been claimed;

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h. i.

Removal of acting or temporary employees; and Application for installation, establishment, operation of a radio system.

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1.

or

RULES IN ADMINISTRATIVE APPEAL AND REVIEW 1.

2.

3.

4.

5.

6.

Where provided by law, appeal from an administrative determination may be made to a higher or superior administrative officer or body. Unless otherwise provided by law or executive order, an appeal from a final decision of an administrative agency may be taken to the Department head. If the law that created the agency provides for an appeal as well as the procedure and the requisites for taking that appeal, the specific relief provided for in the law itself can be obtained. If the law does not provide for an appeal or for  judicial relief or review, the q uestioned decision can be the subject of judicial review under Rule 65 of the Rules of Court. By virtue of the President’s power of control, the President himself or through the Department Head may affirm, modify, alter, or revers the administrative decision of a subordinate. (Administrative Order No. 18, Series of 1987) An appellate administrative agency may conduct an additional hearing in appealed cases if deemed necessary. (Reyes v. Zamora, G.R. No. L-46732, May 5, 1979)

ADMINISTRATIVE RES JUDICATA – forbids the reopening of a matter that has already been determined by competent authority. Decisions and orders of administrative agencies, rendered pursuant to their quasi-judicial authority, have the force and binding effect of a final judgement upon their finality. (Brillantes v. Castro, G.R. No. L-9223, July 30, 1956) GENERAL RULE:  Administrative res judicata only applies to  judicial and quasi-judicial proceedings, not in the exercise of purely administrative functions. (Montemayor v. Bundalian, G.R. No. 149335, July 30, 1956) EXCEPTIONS: Res judicata  may not be invoked in labor relations a. proceedings. (Nasipit Lumber Company v. NLRC, G.R. No. 54424, August 31, 1989) b. When judgement is rendered upon a null contract. (B.F. Goodrich Philippines, Inc. v. Workmen’s Compensation Commission, G.R. No. L-38569, March 28, 1988)

2. 3. 4. 5. 6. 7. 8.

Conduct inspection of accounts, records, documents, and other papers relative to its investigation; Obtain other information which it finds relevant to a matter being investigated; Issue subpoena and notices; Swear and interrogate witnesses; Inspect premises; Require written answers to questionnaires; Require periodic or special reports; Require the filing of statements.

BASIC PRINCIPLES IN ADMINISTRATIVE INVESTIGATIONS INITIATED BY COMPLAINT 1.

2. 3.

The burden is on the complainant to prove his allegations which must be supported by substantial evidence; Findings of facts made therein are to be respected as long as they are supported by substantial evidence; The administrative decisions/findings can only be set aside on proof of grave abuse of discretion, fraud, or error of law. RIGHT TO COUNSEL IN ADMINISTRATIVE INVESTIGATIONS IS NOT MANDATORY

The right to counsel in administrative investigations is not mandatory in because the hearing conducted by the investigating administrative authority is not part of a criminal prosecution. (Remolona v. CSC, G.R. No. 137473, August 2, 2001) TEST TO DETERMINE WHETHER EXERCISE OF POWE R IS INVESTIGATIVE OR ADJUDICATIVE

If the only purpose for investigation is to evaluate the evidence submitted based on the facts and circumstances presented, and if the administrative agency is not authorized to make a final pronouncement affecting the parties, then the exercise of power is merely investigatory. The power to investigate does not carry with it the power to adjudicate. (Cariño v. CHR, G.R. No. 96681, December 2, 1991)

 JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS – an administrative decision may be appealed to the courts of  justice only if the Constitution or the law permits it or if the issues to be reviewed involve questions of law. REQUISITES OF JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS

INVESTIGATORY POWERS –  it is the power of an administrative body to inspect the records and premises and investigate the activities of persons or entities coming under its  jurisdiction, or to secure or to require the disclosure of information by means of accounts, records, reports, statements, testimony of witnesses, production of documents, etc. SCOPE OF INVESTIGATORY POWERS

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1. Finality of the Administrative Action. The administrative action has already been fully completed and therefore has become final. 2.

Exhaustion of Administrative Remedies.

DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES –  where the enabling statute indicates a procedure for administrative review and provides a system of administrative appeal or reconsideration, the courts for reasons of law, comity, and convenience will not

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entertain a case unless available administrative remedies have been resorted to and the appropriate authorities have been given the opportunity to act and correct errors committed in the administrative forum. (Teotics v. Ageda Jr. G.R. No. 87437, May 29, 1991) DOCTRINE OF PRIMARY JURISDICTION – courts will not determine a controversy where the issues for resolution demand the exercise of sound administrative discretion requiring the special knowledge, experience, and services of the administrative tribunal to determine technical and intricate matters of fact. (Nestle Philippines v. Uniwide Sales Inc., G.R. No. 87437, May 29, 1991) DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES vs. DOCTRINE OF PRIMARY JURISDICTION Doctrine of Exhaustion of Administrative Remedies vs. Doctrine of Primary Jurisdiction Exhaustion of Primary Jurisdiction Administrative Remedies As to issues that can be passed upon It is the administrative Both the court and the agency that has administrative agency authority to pass upon has authority to pass the question raised by upon the question raised the person resorting to by the person resorting  judicial relief. to judicial relief as an original matter.

As to jurisdiction to take cognizance of the case The matter is cognizable The matter is cognizable in the first instance by in the first instance by the administrative both the court and the agency alone. administrative agency. As to purpose Control the timing of Determine the proper  judicial relief. tribunal to take cognizance of the matter.

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DEFINITION

The right to vote in the election of officers chosen by the people and in determination of questions submitted to the people; it includes election, plebiscite, referendum, initiative and recall. SCOPE OF SUFFRAGE

(1)

(2) (3)

ELECTION –  the means by which people choose their officials for definite and fixed periods and to whom they entrust, for the time being as their representatives, the exercise of powers of government. PLEBISCITE – the electoral process by which an initiative on the Constitution is approved or rejected by the People. REFERENDUM – the power of the electorate to approve or reject legislation through an election called for the purpose.

CLASSES OF REFERENDUM  Referendum on statutes A petition to approve or reject an act or law, or part thereof, passed by Congress; and  Referendum on local law ii. A petition to approve or reject a law, resolution or ordinance enacted by regional assemblies and local legislative bodies INITIATIVE – the process whereby the people directly propose and enact laws. RECALL –  method by which a public officer may be removed from office during his tenure or before the expiration of his term by a vote of the people after registration of a petition signed by a required percentage of voters. i.

ELECTION LAW (4) (5)

KINDS OF ELECTION

(1)

REGULAR/GENERAL – one provided by law for election of officers either nationwide or in certain subdivisions thereof, after the expiration of the full term of the former members; participated in by those who possess the right of suffrage, are not otherwise disqualified by law, and who are registered voters. There is a simultaneous conduct of elections for national and local officials once every 3 years. Under R.A. 7166, regular elections are held on the 2nd  Monday of May.

(2)

SPECIAL – one held to fill a vacancy in office before the expiration of the full term for which the incumbent was elected.

UALIFICATION AND DIS UALIFICATION QUALIFICATIONS OF VOTERS

ALL citizens of the Philippines not otherwise disqualified by law who are: a. At least eighteen (18) years of age;

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b. c.

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Resided in the Philippines for at least one (1) year; Resided in the place wherein they propose to vote for at least six (6) months immediately preceding the election.

The right to vote is not a natural right but is a right created by law. Suffrage is a privilege granted by the State to such person or classes as are most likely to exercise it for the public good [People v. Corral (1936)].

There is no literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage (1987 Constitution,  Art. V, Sec. 1).

The State, in the exercise of its inherent police power, may enact laws to safeguard and regulate the act o f voter’s registration for the ultimate purpose of conducting honest, orderly, and peaceful election [Akbayan Youth v. COMELEC (2001)].

The age and residence requisites must be complied with on the day of the election. Any person, who, on the day of registration may not have reached the required age or period of residence but who, on the day of the election shall possess such qualifications, may register as a voter (R.A. 8189, Sec. 9). In election cases, the Court treats domicile and residence as synonymous terms. Both import not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention [Pundaodaya v. COMELEC (2009)]. DISQUALIFICATIONS OF VOTERS

The following shall be disqualified from voting: Any person who has been sentenced by final judgment to a. suffer imprisonment for not less than one year, such disability not having been removed by plenary pardon or granted amnesty. Note: Any person disqualified to vote under this paragraph shall automatically reacquire the right to vote upon expiration of five (5) years after service of sentence. b. Any person who has been adjudged by final judgment by competent court or tribunal of having committed any crime involving disloyalty to the duly constituted government such as rebellion, sedition, violation of the anti-subversion and firearms laws, or any crime against national security, unless restored to his full civil and political rights in accordance with law. Note:  Any person disqualified to vote under this paragraph shall automatically reacquire the right to vote upon expiration of five (5) years after service of sentence. Insane or incompetent persons as declared by competent c. authority. (Sec. 118, B.P. 881, Omnibus Election Code)

REGISTRATION, DEFINITION

The act of accomplishing and filing of a sworn application for registration by a qualified voter before the election officer o f the city or municipality wherein he resi des and including the same in the book of registered voters upon approval by the Election Registration Board [Sec. 3a, RA. 8189].

Biometrics validation requirement is not an unconstitutional substantive requirement: Even if there is failure to comply with the biometrics validation of the voter’s registration (under RA 10367 or the Biometrics Law of 2013), it is not unconstitutional. The requirement is a “mere aspect of the registration procedure, of which the State has the right to reasonable regulate.” [Kabataan Partylist v. COMELEC (2015)]. EFFECT OF TRANSFER OF RESIDENCE Any person who transfers residence solely by reason of his occupation, profession or employment in private or public service, education, etc. shall not be deemed to have lost his original residence [Asistio v. Aguirre (2010)]. SYSTEM OF CONTINUING REGISTRATION OF VOTERS PERIOD OF REGISTRATION GENERAL RULE Daily. COMELEC allows a continuing system of registration, conducted daily in the office of the Election Officer during regular office hours. EXCEPTION No registration shall be conducted within: a. 120 days before a regular election b. 90 days before a special election [Sec. 8, RA 8189].

A party can file a petition to extend the deadline of the voter’s registration, provided it is within the 120-day prohibitive period for the conduct of voter registration under Sec tion 8 of RA 8189. [Akbayan vs COMELEC (2001)]. MANNER OF REGISTRATION FOR ILLITERATE OR DISABLED VOTERS ILLITERATE PERSONS Registration is with the assistance of the Election Officer or any member of an accredited citizen’s arms.

Registration does not confer the right to vote but is a condition precedent to the exercise of the right [Yra v. Abano (1928)].

PHYSICALLY DISABLED PERSONS Application for registration may be prepared by: a. Any relative within the 4th civil degree of consanguinity or affinity; b. By the Election Officer; or Any member of an accredited citizen’s arm [Sec. 14, c. RA 8189]

REGISTERED VOTER

ELECTION REGISTRATION BOARDS

In order that a qualified elector may vote in any election, plebiscite or referendum, he must be registered in the Permanent List of Voters for the city or municipality in which he resides [Sec. 115, B.P. 881].

There shall be in each city and municipality as many Election Registration Boards (“ERB”) as there are election officers therein [Sec. 15, RA 8189]. CHANGE OF RESIDENCE OR ADDRESS

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Change of residence to another city or municipality   - The registered voter may apply with the Election Officer of his new residence for the transfer of his resignation records. [Sec. 12, RA 8189]. Change of address in the same municipality or city   - Voter shall immediately notify the Election Officer in writing [Sec. 13, RA 8189].

The trial court has no power to order the change or transfer of registration from one place of residence to another for it is the function of the election Registration Board as provided under Section 12 of R.A. No. 8189 [Domino v. COMELEC (1999)]. REMEDY IN CASE OF APPROVAL/DISAPPROVAL OF APPLICATION FOR REGISTRATION

A petition for Exclusion or Inclusion, whichever is applicable, may be filed by the aggrieved party with the MTC of their respective city or municipality. DEACTIVATION OF REGISTRATION

PERIOD Any time not later than 120 days before a regular election and 90 days before a special election. [R.A. 8189 Sec. 28] OVERSEAS ABSENTEE VOTER ABSENTEE VOTING Process by which qualified citizens of the Philippines abroad exercise their right to vote. [Sec. 3a, R.A. 9189, The Overseas  Absentee Voting Act] OVERSEAS ABSENTEE VOTER, DEFINITION Citizen of the Philippines who is qualified to register and vote under this Act, not otherwise disqualified by law, who is abroad on the day of elections. [Sec. 3f, R.A. 9189] COVERAGE OF THE RIGHT TO VOTE Elections for president, vice-president, senators and party-list representatives [Sec. 3f, R.A. 9189] Note: Registration as an overseas absentee voter shall be done in person in the Philippine Consulate of Embassy nearest to the place of residence of the voter. [Sec.5, R.A. 9189]

DEFINITION

Process of deactivating the registration of certain persons, removing their registration records from the corresponding precinct book of voters and placing the same in the i nactive file, properly marked “deactivated” and dated in indelible ink. [R.A. 8189, Sec. 27]. GROUNDS OF DEACTIVATION

(1)

(2)

(3) (4) (5) (6)

Sentenced by final judgment to suffer imprisonment for not less than 1 year (unless granted a plenary pardon or an amnesty) Note: The right to vote is reactivated automatically upon the expiration of 5 years after the service of sentence as certified by the clerk of court Adjudged by final judgment for having committed any crime involving disloyalty to the duly constituted government (e.g. rebellion, sedition, violation of the firearms law) or any crime against national security (unless restored to full civil and political rights in accordance with law) Note: The right to vote is reactivated automatically upon the expiration of 5 years after the service o f sentence as certified by the clerk of court. Insane or incompetent persons as declared by competent authority Did not vote in 2 successive preceding regular elections (excluding SK elections) Registration has been ordered excluded by the Court Loss of Filipino citizenship [Sec. 27, R.A. 8189] REACTIVATION OF REGISTRATION

PROCEDURE Any voter whose registration has been deactivated may file with the Election Officer a sworn application for reactivation of his registration in the form of an affidavit stating that the  grounds for the deactivation no longer exist.

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INCLUSION AND EXCLUSION PERIOD FOR FILING THE PETITION FOR INCLUSION OR EXCLUSION PROCEEDING

The petition for inclusion of voters in the list shall be filed: any time  o except one hundred five (105) days prior to a regular election or seventy-five (75) days prior to a special election, and shall be decided within fifteen (15) days after its  filing. (Sec. 34, R.A. No. 8189) The petition for exclusion of voters in the list shall be filed: any time  o except one hundred (100) days prior to a regular election or sixty-five (65) days before a special election, and shall be decided within ten (10) days from its  filing. (Sec. 35 R.A. No. 8189) A challenge to the right to register as a voter may be instituted by any voter, candidate or representative of a registered political party . The challenge must be: a. in writing; b. specifying the grounds for the objection to register; c. under oath; and d. attached to the application, together with the proof of notice of hearing to the challenger and the applicant. COURT WITH JURISDICTION OVER INCLUSION AND EXCLUSION PROCEEDING ORIGINAL AND EXCLUSIVE JURISDICTION over all cases of inclusion and exclusion of voters is vested in the Municipal and Metropolitan Trial Courts (MTC) of their respective cities or municipalities.

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APPELLATE JURISDICTION is vested with the Regional Trial Court (RTC). Decisions of the Municipal or Metropolitan Trial Courts may be appealed by t he aggrieved party to the Regional Trial Court within five (5) days from receipt of notice  thereof. Otherwise, said decision shall become final and executory. i) The RTC shall decide the appeal within 10 days from the time it is received ii) The decision shall immediately become final and executory iii) No motion for reconsideration shall be entertained. (Sec. 33, R.A. 8189)

POLITICAL PARTY; DEFINITION

An organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates certain of its leaders and members as candidates for public office [Sec. 60, BP 881 and Sec. 3(c) of RA 7941]. PARTY Either a political party or a sectoral party or a coalition of parties [Sec. 3(b), RA 7941, Party-List System Act].

NO RES JUDICATA KINDS OF POLITICAL PARTIES

A decision in an exclusion or inclusion proceeding, even if final and unappealable, does not acquire the nature of res judicata. Exception: The decision is res judicata as to the right to remain in the list of voters or for being excluded therefrom for the particular election in relation to which the proceedings had been held [Domino v. COMELEC (1999)]. COMMON RULES GOVERNING JUDICIAL PROCEEDINGS IN MATTER OF INCLUSION, EXCLUSION AND CORRECTION OF NAMES OF VOTERS

a) b)

c) d)

e)

f)

g)

It should be filed during office hours Notice of the place date and time of the hearing of the petition shall be served upon the members of the Board and the challenged voter upon filing of the petition, using any of the modes of service: i. Personal delivery ii. Registered mail, or iii. Posting in the bulletin board of city or municipal hall and in 2 other conspicuous places within the city of municipality A petition shall refer only to one (1) precinct and implead the Board as respondents Generally, no costs shall be assessed against any party. However, the court may order a party to pay the costs and incidental expenses of the suit should it find that the application was filed solely to harass the adverse party and to cause him to incur expenses Any voter, candidate or political party who may be affected by the proceedings may intervene and present his evidence The decision shall be based o n the evidence presented and in no case rendered upon a stipulation of facts. i. If the question is whether or not the voter is real or fictitious, his non-appearance on the day set for hearing shall be prima facie evidence that the challenged voter is fictitious The petition shall be heard and decided: i. Within ten (10) days from the date of its filing ii. Within ten (10) days from receipt of the appeal iii. In all cases, the court shall decide these petitions not later than fifteen (15) days before the election and the decision shall become final and executor (Sec. 32, R.A. No. 8189)

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(1)

NATIONAL PARTY  - constituency is spread over the geographical territory of at least a majority o f the regions. (2) REGIONAL PARTY  - constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region. (3) SECTORAL PARTY –  organized group of citizens belonging to any of the following sectors: labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers and professionals whose principal advocacy pertains to the special interests and concerns of their sector. Note: The enumeration of marginalized and underrepresented sectors is not exclusive. The crucial element is not whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of the Constitution and RA 7941 [Ang Ladlad LGBT Party v. COMELEC (2010)]. PARTY-LIST SYSTEM

Mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions registered with the COMELEC [Sec. 3(a), RA 7941]. SECTORAL ORGANIZATION Group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics, employment, interests or concerns. COALITION An aggrupation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes [Sec. 3, R.A. 7941, Party-List System Act].  JURISDICTION OF THE COMELEC OVER POLITICAL PARTIES

(1)

(2)

Registration: a. Of Political Parties as provided in Sec. 60, BP 881 b. Of party-lists as provided in Secs. 5-7, R.A. 7941 (Party-List System Act,). Resolution of Intra-Party Disputes: “[T]he COMELEC’s powers and functions under Section 2, Article IX-C of the Constitution, "include the ascertainment of the identity of the political party and its legitimate officers responsible for its acts." [T]he COMELEC’s power to register political parties necessarily involved the determination of the persons

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who must act on its behalf. Thus, the COMELEC may resolve an intra-party leadership dispute, in a proper case brought before it, as an incident of its power to register political parties.” [Atienza v. COMELEC, (2010)]. ENTITIES WHICH CANNOT BE REGISTERED AS POLITICAL PARTIES (1) Religious denominations and sects (2) Groups which seek to achieve their goals through violence or unlawful means (3) Entities which refuse to uphold and adhere to the Constitution (4) Associations supported by foreign governments [Art. IX-C, Sec. 2 (5), Constitution]

(1) (2) (3)

PURPOSE OF REGISTRATION To acquire juridical personality To entitle it to rights and privileges granted to political parties To participate in the party-list system

GROUNDS FOR REFUSAL/CANCELLATION OF REGISTRATION

The COMELEC may, motu propio or upon verified complaint of any interested party, refuse or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the follo wing grounds: a. Religious sect or denomination, organization or association, organized for religious purposes b. Those advocating violence or unlawful means to seek its goal c. Foreign party or organization d. Those receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly t hrough third parties for partisan election purposes e. Those which violate or fail to comply with laws, rules or regulations relating to elections f. Those which declare untruthful statements in its petition g. Those which ceased to exist for at least one (1) year h. Those which fail to participate in the last two (2) preceding elections or i. Those which fails to obtain at least 2% of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered [Sec. 6, R.A. 7941] EFFECT OF CHANGE OF PARTY LIST AFFILIATION Any elected party-list representative who changes his political party or sectoral affiliation during his term of office shall forfeit his seat within six (6) months before an election shall not be eligible for nomination as party-list representative under his new party or organization [Sec. 15, R.A. 7941]. SEAT ALLOCATION

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The combined number of all party-list congressmen shall not exceed 20% of the total membership of the House of Representatives, including those elected under the party-list. Only those parties garnering a minimum of 2% of the total votes cast for the party-list system shall be entitled to one guaranteed seat each. Each party, regardless of the number of votes it actually obtained, is entitled to a maximum of three (3) seats [Banat v. COMELEC {2009)]. RULES ON THE COMPUTATION OF THE SEATS

Step 1: Compute the total number of seats allocated for party-list representatives Step 2:  Rank all party-list candidates based on the number of votes they garnered from highest to lowest Step 3:  Compute for each party-list candidate’s percentage of votes garnered in relation to the total number of votes cast for party-list candidates. Step 4:  First –  Allocate 1 seat each for party-list that garnered at least 2% of the total number of votes.  Step 5:  Second –  Assign additional seats from the balance by: (a) Allocating 1 seat for every whole integer then (b) Allocating the remaining seats (i.e. total seats minus Round 1 and Round 2a allocations) to those next in rank until all seats are completely distributed. Step 6:  A maximum of 3 seats per political party is allowed. Apply if necessary. [BANAT v. COMELEC, supra]

CANDIDATE, DEFINITION

Any person who files his certificate of candidacy within prescribed period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy [Sec. 15, R.A. 9369]. A.

QUALIFICATIONS OF CANDIDATES

Qualifications prescribed by law are continuing requirements and must be possessed for the duration of the officer's active tenure [Labo v. COMELEC (1989)]. QUALIFICATIONS TO RUN FOR PRESIDENT AND VICEPRESIDENT

(1) (2) (3) (4) (5)

(1) (2) (3) (4)

Natural-born citizen of the Philippines Registered voter Able to read and writer At least 40 years of age at the day of election Resident of the Philippines for at least 10 years immediately preceding such election  (Sec. 63, Omnibus Election Code) QUALIFICATIONS TO RUN FOR SENATOR Natural-born citizen of the Philippines Registered voter Able to read and write At least 35 years of age at the day of election

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(5)

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Resident of the Philippines for at least 2 years immediately preceding such election

QUALIFICATIONS TO RUN TO BE A MEMBER OF THE HOUSE OF REPRESENTATIVES

(1) (2) (3) (4) (5)

Natural-born citizen of the Philippines Registered Voter Able to read and write At least 25 years of age at the day of the election Resident of the same district for a period of not less than 1 year immediately preceding such election.

QUALIFICATIONS TO RUN TO BE A LOCAL ELECTIVE OFFICIAL

(1) (2)

(3)

(4)

(5)

A.

Must be a citizen of the Philippines A registered voter in the barangay, municipality, city, or province, or in the case of a member of the sangguniang panlalawigan, panglungsod or bayan, the district where he intends to be elected Able to read and write Filipino or any other local language or dialect (Sec. 39, R.A. No. 7160 Local Government Code) On the day of the election must at least be: a. 23 years of age for Governors, Vice Governors, Members of the Sangguniang Panlalawigan, mayor, vice mayor and member of the sangguniang panglungsod ng Highly Urbanized City b. 21 years of age for mayors or vice mayors of ICC, CC or municipalities c. 18 years of age for members of the sangguniang panlungsod, or bayan or punong baranggay or members of the sangguniang d. 15 but not more than 18 years of age for Sangguniang Kabataan Resident therein for at least 1 year immediately preceding the day of election. FILING OF CERTIFICATES OF CANDIDACY EFFECT OF FILING

FOR APPOINTIVE OFFICIALS Any person holding an appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in GOCCs, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Such resignation is irrevocable. (Sec. 66, Omnibus Election Code) FOR ELECTIVE OFFICIALS Elective officials, upon the filing of his certificate of candidacy, shall not be considered resigned for the same or any other elective office or position. (Sec. 4, Comelec Resolution No. 8678, Guidelines on the Filing of Certificates of Candidacy and Nomination of Official Candidates of Registered Political Parties in Connection with the May 10, 2010 National and Local Elections)

SUBSTITUTION IN CASE OF DEATH, WITHDRAWAL AND DISQUALIFICATION GROUNDS

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If after the last day for filing of candidacy, an official candidate of a registered political party (a) dies, (b) withdraws or (c) is disqualified for any cause, He may be substituted by a candidate belonging to and nominated by the same political party. LIMITATION

If candidate belongs to a political party: ONLY a person belonging to, and certi fied by, the same  political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political  party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If candidate does not belong to a political party.  PERIOD

Before the election and mid-day of Election Day: Certificate may be filed: 1. with any board of election inspectors in the political subdivision where he is a candidate, or, 2. With the COMELEC, in the case of candidates to be voted for by the entire electorate of the country.

MINISTERIAL DUTY OF COMELEC TO RECEIVE CERTIFICATE GENERAL RULE The COMELEC shall have the ministerial duty to receive and acknowledge receipt of the certificates of candidacy provided said certificates are: (1) under oath; (2) contains all the required data and (3) in the form prescribed by the Commission. EXCEPTION COMELEC may go beyond the face of the certificate of candidacy of – (1) Nuisance candidates (2) Petition to deny due course to or cancel a cert ificate of candidacy Note: 





While the COMELEC may look into patent defects in the certificate, it may not go into matters not appearing on their face [Abcede v. Imperial, (1958)]. Even without a petition to deny course to or cancel a certificate of candidacy, the COMELEC is under a legal duty to cancel the CoC of anyone suffering from the accessory penalty of perpetual special disqualification to run for public office by virtue of a final judgment of conviction. [Jalosjos v. COMELEC,(2012)]. The final judgment of conviction is notice to the COMELEC of the disqualification of the convict from running for public office. [Ibid].

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NUISANCE CANDIDATE  WITHDRAWAL OF CANDIDACY DEFINITION A nuisance candidate is one who: a. Puts the election process in mockery or disrepute; or b. Causes confusion among the voters by the similarity of the names of the registered candidates, or c. Clearly demonstrates that he/she has no bona fide intention to run for the office which the certificate of candidacy has been filed, and thus prevents a faithful determination of the true will of the electorate. (Sec.69, Omnibus Election Code)

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. (Section 73, Omnibus Election Code) EFFECT OF WITHDRAWAL

(1)

 WHO can file - Candidate for the same elective position.  WHEN to file - within five (5) days from deadline/last day of filing Certificate of Candidacy GROUND FOR DENYING AND CANCELLING A CERTIFICATE OF CANDIDACY

(2)

If a candidate files a certificate of candidacy for m ore than 1 office, he shall not be eligible for any of them. However, he may declare under oath the office for which he desires to be eligible and cancel the certificate o f candidacy for the other office or offices provided that this is done before the expiration of the period for the filing of certificates of candidacy. (Sec. 73, BP 881) The filing of the withdrawal shall not affect whatever civil, criminal, or administrative liabilities which a candidate may have incurred. (Sec. 73, BP 881)

A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground of falsity in any material representation contained therein (Sec 78, Omnibus Election Code) PREMATURE CAMPAIGN

FILING OF PETITION FOR DENIAL AND CANCELLATION OF CERTIFICATE OF CANDIDACY

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

“Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, that, unlawful acts or omissions applicable to a candidate shall take effect only upon that start of the aforesaid campaign period.” [Panera v. COMELEC (2009)].

DISQUALIFICATIONS OF CANDIDATES

The following shall be disqualified from registering: (1) Sentenced by final judgment to suffer imprisonment for not less than 1 year (unless granted a plenary pardon or an amnesty) shall automatically reacquire right to vote upon the expiration of 5 years after the service of sentence; (2) Adjudged by final judgment for having committed any crime involving disloyalty to the duly constituted government (e.g. rebellion, sedition, violation of the firearms law) or any crime against national security (unless restored to full civil and political rights in accordance with law) shall automatically reacquire the right to vote upon the expiration of 5 years after the service of sentence; or  (3) Insane or incompetent persons as declared by competent authority. [Sec. 11, R.A. 8189, Voter’s Registration Act of 1996] 

Note:  Simple RULE: NO Certificate of Candidacy filed, NOT yet a candidate – THUS NO premature c ampaigning.  A candidate is liable for an election offense only for acts done during the campaign period, not before. [Panera v. COMELEC (2009)]. GENERAL RULE It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period. EXCEPTION Political parties may hold political conventions or meetings to nominate their official candidates within 30 days before the commencement of the campaign period and 45 days for Presidential and Vice Presidential election.

EFFECTS OF DISQUALIFICATION  Judgement Before Election - Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and all votes cast for him shall not be counted. (Section 72, Omnibus Election Code)  Judgement After Election - A candidate who is not declared by final judgment before an election to be disqualified may be voted for and may receive the winning number of votes in such election and his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption to office.

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PROHIBITED CONTRIBUTIONS

No contribution for purposes of partisan political activity shall be made directly or indirectly by any of the following (Sec. 95, Omnibus Election Code) : i.

General Rule: Public or private financial institutions Exception: public or private financial institutions legally in the business of lending money are not prohibited from

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making any loan to a candidate or political party by any such, if the same is made in accordance with laws and regulations and in the ordinary course of business;

1. 2.

Normal and customary religious dues or contributions; or Periodic payments for legitimate scholarships established and school contributions [Sec. 97, B.P. 881]

ii.

Natural and juridical persons operating a public utility or in possession of or exploiting any natural resources of the nation;

iii.

Natural and juridical persons who hold contracts or subcontracts to supply the government or any of its divisions, subdivisions or instrumentalities, with goods or services or to perform construction or other works;

LAWFUL ELECTION PROPAGANDA

iv.

Natural and juridical persons who have been granted franchises, incentives, exemptions, allocations or similar privileges or concessions by the government or any of its divisions, subdivisions or instrumentalities, including government-owned or controlled corporations;

Includes: 1. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials Allowable size:  Not more than eight and one-half inches in width and fourteen inches in length

v.

Natural and juridical persons who: a. within one year prior to the date of the election, b. have been granted loans or accommodations in excess of P100,000 by the government or any of i ts divisions, subdivisions or instrumentalities including government-owned or controlled corporations;

2.

Handwritten or printed letters urging voters to vote for or against any particular candidate:

3.

Cloth, paper or cardboard posters, whether framed or posted,

vi.

Allowable size: General Rule: area not exceeding two feet by three feet.

Educational institutions which have received grants of public funds amounting to no less than P100,000.00;

vii.

Officials or employees in the Civil Service, or members of the Armed Forces of the Philippines; and

viii.

Foreigners and foreign corporations

Exception: not exceeding three feet by eight feet in size at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers

Note: Said streamers may not be displayed except 1 week before the date of the meeting or rally and that it shall be removed within 72 hours after said meeting or rally.

PROHIBITED DONATIONS

For any person or organization, civic or religious, directly or indirectly, to solicit and/or accept from any candidate or from his campaign manager, agent or representative, or any person acting in their behalf, any gift, food, transportation, contribution or donation in cash or in kind from the start of the election period up to and including election day

4.

Paid advertisements in print or broadcast media. Such advertisements must comply with the following requirements: a.

Any published or printed political matter and any broadcast of election propaganda by TV or radio for or against a candidate or group of candidates to any public office shall bear and be identified by the reasonably legible or audible words “political advertisement paid for” followed by the true and correct name and address of the candidate or party for whose benefit the election propaganda was printed or aired. (Sec. 4.1, R.A. 9006)

b.

If the broadcast is given free of charge by the radio or TV station, it shall be identified by the words "airtime for this broadcast was provided free of charge by" followed by the true and correct name and address of the broadcast entity. (Sec. 4.2, R.A. 9006)

REQUISITES OF A PROHIBITED DONATION

1.

2.

Who:  By candidate, spouse, relative within 2nd civil degree of consanguinity or affinity, campaign manager, agent or representative; treasurers, agents or representatives of political party When: During campaign period, day before and day of the election Directly or indirectly : 1. Donation, contribution or gift in cash or in kind; or 2. Undertake or contribute to the construction or repair of roads, bridges, school buses, puericulture (health) centers, medical clinics and hospitals, churches or chapels cement pavements, or any structure for public use or for the use of any religious or civic organization. Exceptions:

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c. Print, broadcast or outdoor advertisements donated to the candidate or political party shall not be printed, published, broadcast or exhibited without the written acceptance by the said candidate or political party. Such written acceptance must be

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attached to the advertising contract and submitted to the COMELEC within 5 days after its signing. 5.

All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due notice to all interested parties and hearing where all the interested parties were given an equal opportunity to be heard: Requirement: That the Commission's authorization shall be published in two newspapers of general circulation throughout the nation for at least twice within one week after the authorization has been granted. (Sec. 92, Omnibus Election Code)

Any published or printed political matter for or against a candidate or group of candidates to any public office shall bear and be identified by the words "paid for by" followed by the true and correct name and address of the payor and by the words "printed by" followed by the true and correct name and address of the printer. (Sec. 84, Omnibus Election Code)

The aggregate amount that a candidate or registered political party may spend for an election campaign shall be as follows: For Candidates 1. -

2. -

3. -

President and Vice-President P10 for every voter currently registered Other Candidates P3  for every voter current registered in the constituency where he filed his certificate of candidacy Candidates Without a Political Party P5 for every voter

For Political Parties -

P5  for every voter currently registered in the constituency or constituencies where it has official candidates ( Sec. 13, R.A. 7166)

STATEMENT OF CONTRIBUTIONS UNLAWFUL ELECTION PROPAGANDA

It shall be unlawful: 1. To print, publish, post or distri bute any poster, pamphlet, circular, handbill, or printed matter urging voters to vote for or against any candidate unless they bear the names and addresses of the printer and payor as required in Section 84 hereof;

DUTY TO FILE

Every candidate and the treasurer of the political party must file with the COMELEC: 1. duplicate copies of the full, true and itemized statement of all contributions and e xpenditures 2. within 30 days after election day DUTY OF ELECTION REGISTRAR

2.

3.

4.

5.

To erect, put up, make use of, attach, float or display any billboard, tinplate-poster, balloons and the like, of whatever size, shape, form or kind, advertising for or against any candidate or political party; To purchase, manufacture, request, distribute or accept electoral propaganda gadgets, such as pens, lighters, fans of whatever nature, flashlights, athletic goods or materials, wallets, shirts, hats, bandanas, matches, cigarettes and the like, except that campaign supporters accompanying a candidate shall be allowed to wear hats and/or shirts or T-shirts advertising a candidate; To show or display publicly any advertisement or propaganda for or against any candidate by means of cinematography, audio-visual units or other screen projections except telecasts which may be allowed as hereinafter provided; and For any radio broadcasting or television station to sell or give free of charge airtime for campaign and other political purposes except as authorized in this Code under the rules and regulations promulgated by the Commission pursuant thereto. (Sec. 85,BP 881)

LIMITATIONS ON EXPENSES

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It is the duty of the city or municipal election registrar to advise in writing, either by personal delivery or by registered mail, within 5 days from the election date, all candidates to comply with the obligation to file their statements. (Sec 14, RA 7166)

 FORMS OF STATEMENT  The statement shall be: 1. in writing, subscribed and 2. sworn to by the candidate or by the treasurer of the party, 3. complete as of the date next preceding the date of filing (Sec. 109, Omnibus Election Code)

CONTENTS OF STATEMENT  It shall set forth in detail the following: 1. the amount of contribution, date of receipt, and the full name and exact address of the person from whom the contribution was received 2. the amount of every expenditure, the date thereof, the full name and exact address of the person to whom payment was made, and the purpose of the expenditure 3. any unpaid obligation, its nature and amount, and to whom said obligation is owing; and

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such other particulars which the COMELEC may require. If the candidate or treasurer of the party has received no contribution, made no expenditure, or has no pending obligation, the statement shall reflect such fact (Sec. 109, Omnibus Election Code)

PLACE OF FILING STATEMENT

Statements of contributions and expenditures shall be filed as follows: 1. With the COMELEC: Presidential and Vice-Presidential candidates General Rule:  Provincial Election Supervisor: for candidates of being Members o f the Batasang Pambansa Exception: Regional Election Director of said region: for candidates in the National Capital Region.

2.

Provincial Election provincial offices.

Supervisor:

for

candidates

COMPOSITION OF ELECTION INSPECTORS The Board of Election Inspectors is composed of three (3) persons, namely: 1. Chairman 2. Poll clerk 3. Member GENERAL RULE The entire Board shall be composed of public school teachers , priority to be given to those with permanent appointments. (Sec. 164, BP 881, as amended by Sec. 13, R.A. 6646) EXCEPTION In case there are not enough public school teachers, the following may be appointed for election duty: (1) Teachers in private schools; (2) Employees in the civil service; or (3) Other citizens of known probity and competence who are registered voters of the city or municipality.

QUALIFICATIONS

of

EFFECT OF FAILURE TO FILE GENERAL RULE No person elected to any public office shall enter upon the duties of his office until he has filed the statement of contributions and expenditures. (Sec. 14, R.A. 7166) The same prohibition also applies if the political party of the winning candidate fails to file the statement within the required period

(1) (2) (3) (4) (5)

 DISQUALIFICATIONS (1)

ADMINISTRATIVE FINES Failure to file the required statements or reports constitutes an administrative offense. Offenders are liable to pay an administrative fine ranging from P 1,000.00 to P 30,000.00 to be paid within 30 days from receipt of notice of such failure; otherwise, the COMELEC shall enforce the same by issuing a writ of execution against the properties of the offender. The commission of a second or subsequent offense under this section subjects the offender to an increased fine ranging from P 2,000.00 to P 60,000.00, and to a perpetual disqualification to hold office. (Sec. 14, RA 7166)

(2)

EXCEPTION Candidates for elective barangay office.

(3)

Must not be related within the 4 th  civil degree by consanguinity or affinity to any member of the BEI or to any candidate to be voted for in the polling places Must not engage in any partisan political activity

POWERS OF THE BOARD OF ELECTION INSPECTORS

(1) (2)

BOARD OF ELECTION INSPECTORS AND

Conduct the voting and counting of votes in their respective polling places; Act as deputies of t he Commission in the supervision and control of the election in the polling places wherein they are assigned, to assure the holding of the same in a free, orderly and honest manner; Perform such other functions prescribed by the Omnibus Election Code or by the rules and regulations promulgated by the COMELEC

BOARD OF CANVASSERS

At least 30 days before  the date when the voters list is to be prepared, in the case of a regular election or 15 days  before a special election, the COMELEC shall, directly or through its duly authorized representatives, constitute a board of election inspectors for each precinct.

COMPOSITION OF BOARD OF CANVASSERS a.

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Public school teachers Be of good moral character and irreproachable reputation A registered voter of the city or municipality Never been convicted of any election o ffense or any other crime punishable by more t han 6-month imprisonment Able to speak and write English or the local dialect

Commission on Elections as National Board of Canvassers. For Senators and Party-List Representatives i. he chairman and members of the Commission on Election sitting en banc.

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ii. iii.

b.

c.

It shall canvass the results by consolidating the certificates of canvass electronically transmitted. Thereafter, the national board shall proclaim the winning candidates for senators and party-list representatives.

Congress as National Board of Canvassers. President and Vice President i. The Senate and the House of Representatives in joint public session shall compose the national board of canvassers for president and vice-president. ii. The certificate of canvass for president and vicepresident duly certified by the board of canvassers of each province or city, shall be electronically transmitted to the Congress, directed to the president of the Senate. iii. Upon receipt of the certificates of canvass, the President of the Senate shall: a. open all certificates in the presence of the Senate and House of Congress upon determination of the authenticity and due execution, in the manner provided by law, b. canvass all the results for president and vice-president and thereafter c. proclaim the winning candidates. d. Period for opening certificates of canvass: not later than thirty (30) days after the day of the election, Provincial Board of Canvassers. i. Chairman- Provincial Election Supervisor or a senior lawyer in the regional office of the Commission, ii. Vice Chairman- Provincial Fiscal iii. Members provincial superintendent of schools, and one representative from each of the ruling party and the dominant opposition political party in the constituency concerned entitled to be represented

d. i.

City board of canvassers. Chairman-city election registrar or a lawyer of the Commission ii. Members the city fiscal and the city superintendent of schools, and one representative from each of the ruling party and the dominant opposition political party entitled to be represented, as members.

e. i. ii.

District board of canvassers of Metropolitan Manila Chairman- lawyer of the Commission and Members a ranking fiscal in the district and the most senior district school supervisor in the district to be appointed upon consultation with the Ministry of Justice and the Ministry of Education, Culture and Sports, respectively, & one representative from each of the ruling party and the dominant opposition political party in the constituency concerned

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f.

Municipal board of canvassers. i. Chairman- the election registrar or a representative of the Commission ii. Members the municipal treasurer, the district supervisor or in his absence any public school principal in the municipality and one representative from each of the ruling party and the dominant opposition political party entitled to be represented

g.

Board of canvassers for newly created political subdivisions the Commission shall constitute a board of canvassers and appoint the members thereof for the first election in a newly created province, city or municipality in case the officials who shall act as members thereof have not yet assumed their duties and functions

 JURISDICTION OF THE COMELEC OVER BOARD OF CANVASSERS (1)

(2)

COMELEC has direct control and supervision over the board of canvassers. Any member of the Board may, at any time, be relieved for cause and substituted motu propio by the COMELEC. (Sec. 227, B.P. 881) COMELEC has the power to investigate and act on the propriety or legality of the canvass of election returns made by the board of canvassers.

 DUTIES OF THE BOARD OF CANVASSERS (1)

(2)

To compile and add the results as they appear in the election returns transmitted to it (Guiao v. COMELEC, 137 SCRA 366). During the canvass, the Board of Canvassers prepares the Statement of Voters, which is tabulation per precinct of the votes obtained by the candidates as reflected in the election returns. The Statement of Votes forges the basis of the certificate of canvass and of the proclamation.

 MINISTERIAL DUTIES OF THE BOARD OF CANVASSERS No irregularities in the election returns:  The duty of the Board in canvassing the votes on the election returns submitted to it consists in the simple matter of arithmetic. And once the COMELEC or the board of canvassers is satisfied in the authenticity of the returns, it has no power to look beyond the face thereof, and its task of tallying is merely ministerial.  With error in the computation discovered after proclamation: the board of canvassers can simply correct the error; the re medy being purely administrative. QUASI-JUDICIAL DUTIES OF THE BAORD OF CANVASSERS The board of canvassers must be satisfied that the election returns submitted to it are genuine and authentic. Thus, the

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board of canvassers will not be compelled to canvass the returns when they are found to be: (1) Obviously manufactured; (2) Contrary to probabilities; (3) Clearly falsified; or (4) Not legible

(1)

(2) PERIOD TO COMPLETE CANVASS

Subject to reasonable exceptions, the Board of Canvassers is required to complete their canvass within the following periods: Period to Complete Canvass

Municipa lities Cities not comprisi ng at least 1 legislativ e district Cities comprisi ng at least 1 legislativ e district Provinces

36 hours

36 hours

48 hours

72 hours

REMEDIES AND URISDICTION IN A.

PETITION NOT TO GIVE DUE COURSE TO CANCEL A CERTIFICATE OF CANDIDACY

GROUNDS FOR FILING (1)

(2)

False material representation in the CoC on any of the contents required under Section 74 of the Omnibus Election Code. If the certificate filed is a substitute CoC, and it is not a proper case of substitution under Sec. 77 of BP 881 (Sec. 2, Rule 24, COMELEC Rules of Procedure)

Procedure for Cancellation of certificate of candidacy Any citizen of voting age, or a duly Who may file registered political party, organization, or coalition of political parties Within 25 days from the last day for the When filed filing of certificates of candidacy (Sec. 79, Omnibus Election Code) With the Law Department of the Where filed COMELEC

(3)

The Commission may motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if the following situations are extant: if it is shown that said certificate has been filed to put the election process in mockery or disrepute; or if said certificate was filed to cause confusion among the voters by the similarity of the names of the registered candidate; or if there are other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been and thus prevent a faithful determination of t he true will of the electorate B. DISQUALIFICATION CASES

Procedure for Cancellation of certificate of candidacy Any citizen of voting age, or a duly Who may file registered political party, organization, or coalition of political parties Any day after the last day for filing of When filed certificates of candidacy, but not later than the date of proclamation With the Law Department of the Where filed COMELEC

EFFECTS OF DISQUALIFICATION AFTER FINAL JUDGMENT Any candidate declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. BEFORE FINAL JUDGMENT If 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 complaint 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.

Suspension of proclamation/continuation of hearing: the Commission may legally suspend the proclamation of the winning candidate even if he received the winning number of votes [ Labo, Jr. v. COMELEC (1989)]. Note: The use of the word “may” indicates that the suspension is merely permissive. What is mandatory though, under this provision is the continuation of the trial and hearing of the action, inquiry or protest. PURPOSE OF DISQUALIFICATION PROCEEDING To prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws.

CANCELLATION OF CERTIFICATE OF CANDIDACY BY THE COMELEC

PRINCIPLE OF REJECTION OF SECOND PLACER

(NUISANCE CANDIDATE)

The fact that the candidate who obtained the highest number of

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votes is later declared to be disqualified or not eligible for the office to which he was elected, does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office.

a special election to be held within sixty days after the vacancy occurs to elect the Member to serve the unexpired term. 

The candidate obtaining the second highest number of votes for the contested office could not assume the office despite the disqualification of the first placer because the second placer was “not the choice of the sovereign will.” Surely, a minority or defeated candidate could not be deemed elected to the office. [Talaga vs. Commission on Elections (2012)]

EXCEPTION TO SECOND-PLACER DOCTRINE

The only time that a second placer is allowed to take the place of a disqualified winning candidate is when 2 requisites concur, namely: (a) the candidate who obtained the highest number of votes is disqualified; and (b) the electorate was fully aware in fact and in law of that candidate’s disqualification as to bring such awareness within the realm of notoriety but the electorate still cast the plurality of the votes in favor of the ineligible candidate. C. FAILURE OF ELECTION

A special action and the declaration of which falls under the exclusive jurisdiction of the COMELEC sitting En Banc.

Dissolution of the Batasang Pambansa: The President shall call an election which shall not be held earlier than fortyfive nor later than sixty days from the date of such dissolution then the Commission shall send sufficient copies of its resolution for the holding of the election to its provincial election supervisors and election registrars for dissemination, who shall post copies thereof in at least three conspicuous places preferably where public meetings are held in each city or municipality affected. (Sec. 7, Omnibus Election Code)

PROCEDURE FOR FILLING A PETITION TO DECLARE FAILURE OF ELECTIONS Petitioner files verified petition with the Law Department of the COMELEC.

Unless a shorter period is deemed necessary by circumstances, within 24 hours, the Clerk of Court concerned serves notices to all interested parties, indicating therein the date of hearing, through the fastest means available.

Unless a shorter period is deemed necessary by the circumstances, within 2 days from receipt of the notice of hearing, any interested party may file an opposition with the Law Department of the COMELEC.

WHEN MAY FAILURE OF ELECTION BE DECLARED (1) (2) (3)

When election in any polling place has not been held on the date fixed; When election has been suspended before the hour fixed by law for the closing of the voting; or When after the voting and during the preparation and the transmission of the election returns or in the custody, or canvass thereof, the same results in a failure in the election on account of: b. force majeure, c. violence, d. terrorism, e. fraud or f. other analogous causes. (Sec.6, Omnibus Election Code)

The COMELEC proceeds to hear the petition. The COMELEC may delegate the hearing of the case and the reception of evidence to any of its officials who are members of the Philippine Bar.

The COMELEC then decides whether to grant or deny the petition. This lies within the exclusive prerogative of the COMELEC.

 REQUISITES FOR DECLARATION OF FAILURE OF  ELECTION  1.

2.

No voting has taken place in the precincts concerned on the date fixed by law, or even if there was voting, the election nonetheless resulted in a failure to elect; and The votes cast would affect the results of the election. ( Mitmug v. COMELEC, 230 SCRA 54) CALL OF SPECIAL ELECTION



For vacancies in the Batasang Pambansa eighteen months or more before a regular election: the Commission shall call

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D. PRE-PROCLAMATION CONTROVERSY

Refers to any question or matter pertaining to or affecting the proceedings of the board of canvassers, or any matter raised under Sec. 233-236 of BP 881  in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. [Sec. 241, BP 881]. (1) Delayed, lost or destroyed election returns (2) Material defects in election returns

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Tampered with, altered or falsified election returns Discrepancies in election returns

proclamation.

 ISSUES THAT CANNOT BE RAISED  POSITIONS NOT ALLOWED (1) (2) (3) (4)

 Jurisprudence has held that the following issues are not proper in a pre-proclamation controversy: (1) Appreciation of ballots, as this is performed by the Board of Election Inspectors at the precinct level and is not part of the proceedings of the Board of Canvassers [Sanchez v. COMELEC, 153 SCRA 67]

President Vice President Senator Member of the House of Representatives (Sec. 15, R.A. 7166)

Note:  However, this does not preclude the authority of the appropriate canvassing body motu propio  or upon written complaint of an interested person to correct manifest errors in the certificate of canvass or election returns before it.

(2)

Technical examination of the signatures and thumb marks of voters [Balindong v. COMELEC, 260 SCRA 494; Matalam v. COMELEC, 271 SCRA 733].

(3)

Prayer for re-opening of ballot boxes [Alfonso v. COMELEC (1994)].

(4)

Padding of the Registry List of Voters of a municipality, massive fraud and terrorism [Ututalum v. COMELEC, 181 SCRA 335].

(5)

Challenges directed against the Board of Election Inspectors [Ututalum v. COMELEC, 181 SCRA 335].

(6)

Fraud, terrorism and other illegal electoral practices. These are properly within the office of election contests over which electoral tribunals have sole, exclusive  jurisdiction [Loong v. COMELEC].

NATURE OF THE PROCEEDINGS

Summary Proceeding heard summarily by the COMELEC after due notice and hearing. Reason:  This is because canvass and proclamation should be delayed as little as possible. Questions which require more deliberate and necessarily longer consideration are left for examination in the corresponding election protest [Sison v. COMELEC (1999)]. Remedy: Parties adversely affected by a ruling of the board of canvassers may appeal the matter to the Commission within 3 days from a ruling thereon. The Commission shall summarily decide the case within 5 days from the filling thereof (Sec 19 RA 7166)

 ISSUES THAT MAY BE RAISED

The election returns were: a. prepared under duress, threats, intimidation or b. obviously manufactured or not authentic

coercion,

(3)

Substituted or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate(s)

(4)

Manifest errors in the Certificates of Canvass or Election Returns [Sec. 15, R.A. 7166; Chavez v. COMELEC, 211 SCRA 315].

Note:  The enumeration is restrictive and exclusive . The complete election returns whose authenticity is not questioned must be prima facie considered valid for purposes of canvass and proclamation. To allow a re-count or a re-appreciation of the votes in every instance would paralyze canvass and

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Procedure for filing a pre-proclamation controversy Questions involving the composition or proceedings of the board of canvassers, or correction of manifest errors Where The controversy may be initiated either in the Board of Canvassers or directly with the COMELEC [Sec. 17, R.A. 7166]. When It depends 1. If petition involves the illegal composition or proceedings of the board, it must be filed immediately when the board begins to act as such , or at the time of the appointment of the member whose capacity to sit as such is objected to if it comes after the canvassing of the board, or immediately at the point where the proceedings are or begin to be illegal [Laodeno v. COMELEC, 276 SCRA 705]. (a)

Illegal composition or proceedings of the board of election canvassers (1) Canvassed election returns are either: a. incomplete b. contain material defects c. appear to be tampered with or falsified d. contain discrepancies in the same returns or in other authentic copies (2)

PROCEDURE

Otherwise, by participating in the proceedings, the petitioner is deemed to have acquiesced in the composition of the Board o f Canvassers. 2.

If the petition is for correct ion, it must be filed not later than 5 days following the date of proclamation, and must implead all candidates who may be adversely affected thereby [Sec. 5(b), Rule 27, COMELEC Rules of Procedure].

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PROCEDURE If filed with the Board first: 1. Petitioner submits his / her objection to the chairman of the board of canvassers. 2. The Board makes its ruling. 3. Within 3 days from the ruling, the parties adversely affected may appeal the matter to the COMELEC. 4. Upon appeal, the COMELEC shall summarily decide the case within 5 days from the filing thereof [Sec. 19, R.A. 7166].

If initiated directly with the COMELEC 1. Petitioner files petition with the COMELEC. 2. Upon the docketing of such petition, the Clerk of Court concerned shall issue summo ns with a copy of the petition to respondents. 3. The Clerk of Court concerned shall immediately set the petition for hearing. The COMELEC shall hear and decide the petition en banc. 

The Board of Canvassers shall not commence, proceed or resume canvass unless otherwise ordered by COMELEC [Sec. 5, Rule 27, COMELEC Rules of Procedure].

(b) Matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns and certificates of canvass Where Only with the Board of Canvassers When At the time the questioned return is presented for inclusion in the canvass. Who Any candidate, political party or coalition of political parties Procedure 1. The contesting party makes an oral objection to the chairman of the Board of Canvassers at the time the questioned return is presented for inclusion in the canvass. Such objection is recorded in the minutes of canvass. Simultaneous with the oral objection, the objecting party enters his objection in the form for written objections prescribed by the COMELEC. 2.

3.

Upon receipt of such objection, the Board automatically defers the canvass of the contested returns and proceeds to canvass the returns, which are not contested by any party. Within 24 hours from and after the presentation of such objection, the objecting party submits the evidence in support of the objection, which shall be attached to the form for written objections. Within the same 24-hour period, any party may file a written and verified opposition to the objection in the prescribed COMELEC form, attaching supporting evidence, if any. The Board shall not entertain any objection or opposition unless reduced t o writing in the prescribed forms.

4.

The Board chairman immediately and formally admits the evidence attached to the objection or opposition by affixing his signature at the back of each and every page thereof.

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5.

Upon receipt of the evidence, the Board considers the objection and the opposition, and summarily rules on the objection. The Board then enters its ruling on the prescribed form and authenticates the same by entering the signatures of all its members.

6.

The parties adversely affected by the ruling immediately inform the Board if they intend to appeal the ruling. Such information is then entered in the minutes of canvass.

7.

The Board then sets aside the returns and proceeds to consider the other returns. The Board then suspends the canvass after all the uncontested returns have been canvassed and the contested return ruled upon by it.

8.

Within 48 hours from the ruling, the party adversely affected files a written and verified notice of appeal with the Board. The party then files an appeal with the COMELEC within a non-extendible period of 5 days thereafter.

9.

Immediately upon receipt of the notice of appeal, the Board makes an appropriate report to the COMELEC, elevating therewith the complete records and evidence submitted in the canvass, and furnishing the parties with copies of the report.

10. The COMELEC summarily decides the appeal within 7 days from receipt of the record and evidence elevated to it by the Board. 11. The COMELEC's decision becomes executory after the lapse of 7 days from receipt thereof by the losing party. 12. The COMELEC then authorizes the Board of Canvassers to proceed with the proclamation of the winner. Any proclamation made without COMELEC authorization is void ab initio, unless the contested returns do not adversely affect the results of the election. (Sec. 20, R.A. 7166) Note: Mandatory procedure and non-compliance would be fatal to the pre-proclamation petition.

EFFECT OF FILING PRE-PROCLAMATION CONTROVERSIES

The period to file an election contest shall be SUSPENDED during the pendency of the pre-proclamation contest in the COMELEC or the Supreme Court [Sec. 248, Omnibus Election Code]. EFFECT OF THE PROCLAMATION OF WINNING CANDIDATE 



A pre-proclamation controversy shall no longer be viable after the proclamation and assumption into office by the candidate whose election is contested. The remedy is an election protest before the proper forum [Mayor v. COMELEC (1989)]. The prevailing candidate may still be unseated even though he has been proclaimed and installed in

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office if: i.

ii.

iii.

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4. The opponent is adjudged the true winner of the election by final judgment of court in an election contest; The prevailing party is declared ineligible or disqualified by final judgment of a court in a quo warranto case; or The incumbent is removed from office for cause.

5. 6.

(1)

Supreme Court sitting as the Presidential Electoral Tribunal The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and disqualifications of the President, Vice-President, and may promulgate its rules for such purpose. ( Art. VII, Sec. 4, 1987 Constitution)

E. ELECTION PROTEST

Adversarial proceedings by which matters involving the title or claim to an elective office, made before or after proclamation of the winner, is settled whether or not the contestant is claiming the office in dispute [Javier vs. COMELES (1986)]. Purpose: To ascertain the candidate lawfully elected to office. NATURE OF THE PROCEEDING It is an ordinary action governed by Rule 20 of the Rules of Procedure of the Comelec [Banaga, Jr. v. COMELEC (2000)]. Note: An En banc decision of the COMELEC in an ordinary action becomes final and executory after 30 days from its promulgation. An election contest is imbued with public interest. The election contest must be liberally construed to favor the will of the people. An election contest may not be defeated by mere technical objections. Until and unless the election protest is decided against him, a person who has been proclaimed as duly elected has the lawful right to assume and perform the duties and functions of the office.



 



PRE-PROCLAMATION CONTROVERSIES and ELECTION PROTEST [Comparative table]

Pre-Proclamation Controversy Before proclamation of candidate  Jurisdiction of COMELEC is administrative/quasi judicial It is governed by the requirements of administrative due process

Election Contest

After proclamation of candidate  Jurisdiction of COMELEC is  judicial It is governed by the requirements of judicial process

HRET – over election contests involving members of the House of Representatives SET – over election contests i nvolving members of the Senate PET – over election contests i nvolving presidential and vice-presidential candidates

(2) Electoral Tribunals of the Senate and House of Representatives The Senate and the House of Representatives have their own electoral tribunals.

COMPOSITION OF SENATE OR HOUSE OF  REPRESENTATIVE ELECTORAL TRIBUNAL Each electoral tribunal has 9 members: a. 3 Supreme Court Justices, b. 6 members of the Senate or House of Representatives, as the case may be, c. chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. ( Art. VI, Sec. 17, 1987 Constitution) For purposes of election contests cognizable by the Electoral Tribunals, the rules of procedure of such tribunals shall prevail over the provisions of the Omnibus Election Code. (Lazatin v. HRET, 168 SCRA 39) (3)

COMELEC

Exclusive Original Jurisdiction Over all election contests relating to the elections, returns, and qualifications of all elective: (1) Regional Officials; (2) Provincial Officials; and (3) City Officials Note: General Rule: Appeal for decisions in these cases may be taken to the Supreme Court [Section 7, Article IX of the 1987 Constitution].

 JURISDICTION OVER ELECTION CONTESTS

1. 2. 3.

MeTC or MTC –  over election contests involving barangay officials [Sec. 252. BP 881] RTC - over contests involving municipal officials [Sec. 251. BP 881] COMELEC – over all contests relating to the elections, returns and qualifications of all elective regional, provincial and city officials [Sec. 250. BP 881]

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Exception:  Section 7, Article IX of the 1987 Constitution, although it confers on the Court the power to review any decision, order or ruling of the COMELEC, limits such power to a final decision or resolution of the COMELEC en banc, and does not extend to an interlocutory order or even a final resolution issued by a Division of the COMELEC [Cagas vs. COMELEC]. Appellate Jurisdiction Over all contests involving elective municipal officials decided by trial courts of general jurisdiction (i.e., RTC) or involving elective barangay officials decided by trial courts of limited  jurisdiction (i.e., the MTC)

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 WHEN APPEAL IS NOT ALLOWED Decisions, final orders, or rulings of the COMELEC on election contests involving elective municipal and barangay offices shall be final, executory and not appealable [1987 Constitution, Sec. 2,  Art. IX-C]. Note:  This, however, does not preclude a recourse to the Supreme Court by way of a special civil action for certiorari [Galido v. COMELEC, 193 SCFA 78]. (4)

3.

The COMELEC may not entertain a counter-protest filed beyond the reglementary period to file the same. [Kho v. COMELEC (1997)]. 4.

Regional and Municipal Trial Courts

Exclusive original jurisdiction Over election contests involving municipal and barangay officials, respectively. Note:  Cases involving qualifications of candidates for the Sangguniang Kabataan filed before the election are decided by the Election Officer, while those filed after the election are decided by the MTCs. (Nachura, p. 389)

The power includes the power to determine the validity or nullity of votes. The COMELEC has the power to issue writs of certiorari, prohibition, and mandamus. However, this power can only be exercised in aid of its appellate jurisdiction. [Relampagos v. Cumba, 243 SCRA 690].



Protestant has 5 days from receipt of the answer or answer with counterclaim or counter-protest to file his reply or answer to counter-protest or counterclaim, respectively. If no answer is filed to the protest or counter -protest, a general denial is deemed to have been entered.

5.

After the issues have been joined, the case shall be set for hearing and presentation and reception of evidence.

6.

After the case has been submitted for decision, the COMELEC shall render its decision. If the case is being heard by a Division, the case shall be decided within 10 days. If it is being heard by the COMELEC en banc, it shall be decided within 30 days.

7.

The decision of a division becomes final and executory after the lapse of 15 days following its promulgation. The aggrieved party may file a timely motion for reconsideration within 5 days from promulgation of the decision on the grounds that the evidence is insufficient to justify the decision; or that the said decision is contrary to law.

POWER OF COMELEC OVER ELECTION CONTESTS 

Protestee must file an answer within 5 days from service of summons and a copy of the petition. The protestee may incorporate in his answer a counterprotest or counterclaim.

PROCEDURE FOR ELECTION CONTESTS

For the COMELEC en banc, the decision becomes final and executory 30 days from its promulgation.

Election Contest Any candidate who has filed a certificate of candidacy and has been voted upon for the same office, and who has not himself caused or contributed to the irregularities or frauds of which he complains Fraud, terrorism, irregularities or illegal acts committed before, during or after the casting and counting of votes Within 10 days from proclamation of the results of the election

b. For protests filed with the Regional Trial Court (Rule 35, COMELEC Rules of Procedure) 1. Protestant files a verified petition with the RTC within 10 days from proclamation.

Where, after 5 days from the proclamation of the winning candidate, the loser files a motion for reconsideration in the preproclamation controversy, there are only 5 days which remain of the period within which to file an election protest [Roquero v. COMELEC, 289 SCRA 150].

3.

Filing of Counter-Protest:  Protestant has 5 days from receipt of the counter-protest to file his answer to such counter-protest.

4.

Filing of Intervention: Any other candidate for the same office may intervene in the case within 5 days from filing of the protest by filing a verified petition-inintervention.

Procedure a. For protests filed with the COMELEC 1. Protestant files a verified petition with the COMELEC within 10 days from proclamation and pays the required docket fees. Failure to pay the basic docket fee will result in the dismissal of the protest [ Gatchalian v. COMELEC, 245 SCRA 208].

5.

Filing of answer to protest-in-intervention: The protestant or protestee shall answer the protest-in-intervention within 5 days after notice.

6.

If no answer is filed to the protest, counter-protest or protest-in-intervention within the specified time limits, a general denial is deemed to have been entered.

2.

7.

After the issues have been joined, the case shall be set for hearing.

 Who file

may

Grounds

Period filing

for

The Clerk of Court of the COMELEC or the division concerned issues the corresponding summons to the protestee within 3 days from the filing of the petition

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2.

Filing of answer: Protestee must file an answer within 5 days after receipt of notice of the filing of the petition and a copy of the petition. Should the protestee desire to impugn the votes received by the protestant in other precincts, he may file a verified counter-protest within the same period fixed for the filing of the answer.

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Period for presentation of evidence:  Presentation and reception of evidence shall be completed within 30 days from the date of the commencement thereof. 8.

9.

Rendition of decision: The Court shall decide the election contest within 30 days from the date it is submitted for decision, but in every case within 6 months after its filing. Such decision shall declare who among the parties has been elected, or in a proper case, that none of them has been legally elected. Finality of decision: The decision becomes final 5 days after its promulgation. No motion for reconsideration shall be entertained.

2.

1.

Knowingly inducing or abetting such misrepresentation of a disqualified or nuisance candidate ( Sec. 27f, R.A. 6646)

3.

Coercing, bribing, threatening, harassing, intimidating, terrorizing, or actually causing, inflicting or producing violence, injury, punishment, torture, damage, loss or disadvantage to discourage any other person or persons from filing a certificate of candidacy in order to eli minate all other potential candidates from running in a special election (Sec. 5, R.A. 8295)

E. QUO WARRANTO

AWARD OF DAMAGES

Actual or compensatory damages may be granted in all election contests or in quo warranto proceedings in accordance with law [Sec. 259, Omnibus Election Code].

 PREFERENTIAL DISPOSITION OF CONTESTS GENERAL RULE Courts shall give preference to election contests over all other cases.

1.

Use of armored land, water or aircraft during the campaign period (Sec. 261r, B.P. 881)

3.

Unlawful electioneering (Sec. 261k, B.P. 881)

4.

Acting as bodyguards or security in the case of policemen and provincial guards during the campaign period (Sec. 261t, B.P. 881)

5.

Removal, destruction, obliteration, or tampering of lawful election propaganda, or preventing the distribution thereof (Sec. 83, vis-à-vis Sec. 262, B.P. 881)

1.

Voting  Vote-buying and vote-selling (Sec. 261a, B.P. 881)

2.

Conspiracy to bribe voters (Sec. 261b, B.P. 881) A disputable presumption of a conspiracy to bribe voters is created when there is proof that at least 1 voter in different precincts representing at least 20% of the total precincts in any municipality, city or province has been offered, promised or given money, valuable consideration or other expenditure by a candidate's relatives, leaders and/or sympathizers for the purpose of promoting the election of such candidate. (Sec. 28, R.A. 6646)

EXCEPTION

ELECTION OFFENSES

The various election offenses are enumerated primarily under Sec. 261 of B.P. 881. However, other election laws provide for other election offenses. Some of the more significant offenses include the following: ELECTION OFFENSES

1.

Registration Failure of the Board of Election Inspectors to post the list of voters in each precinct. (Sec. 9, R.A. 7166)

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Election Campaign Appointment or use of special policemen, special agents or the like during the campaign period (Sec. 261m, B.P. 881)

2.

Habeas corpus cases.

PERIOD TO DECIDE Court shall without delay, hear and, within thirty days (30) from the date of their submission for decision, but in every case within six months after filing, decide the same.

Certificate of Candidacy Continued misrepresentation or holding out as a candidate of a disqualified candidate or one declared by final and executory judgment to be a nuisance candidate (Sec. 27f, R.A. 6646)

2.

10. Filing of Appeal: The aggrieved party may appeal the decision to the COMELEC, by filing a notice of appeal within 5 days from promulgation of the decision.

Quo Warranto (Sec. 253, Omnibus Election Code)  Who may Any registered voter in the constituency file Grounds Ineligibility or disloyalty to the Republic of the Philippines Period for Within 10 days from proclamation of the filing results of the election

Change or alteration or transfer of a voter's precinct assignment in the permanent list of voters without the express written consent of the voter (Sec. 4, R.A. 8189)

3.

Coercion of subordinates to vote for or against any candidate (Sec. 261d, B.P. 881)

4.

Dismissal of employees, laborers, or tenants for refusing or failing to vote for any candidate (Sec. 261d(2), B.P. 881)

5.

Being a flying voter (Sec. 261z (2), B.P. 881)

1.

2.

Counting of Votes Tampering, increasing, decreasing votes, or refusal to correct tampered votes after proper verification and hearing by any member of the board of election inspectors (Sec. 27b, R.A. 6646)

Refusal to issue to duly accredited watchers the certificate of votes cast and the announcement of the election, by any member of the board of election inspectors (Sec. 27c, R.A. 6646)

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Canvassing  Any chairperson of the board of canvassers who fails to give notice of meeting to other members of the board, candidate or political party as required (Sec. 27e, R.A. 6646)

1.

2.

1.

Acts of government or public officers Appointment of new employees, creation of new positions, promotion, or giving salary increases within the election period (Sec. 261g, B.P. 881)

Transfer of officers and employees in the civil service within the election period without the prior approval of the COMELEC (Sec. 261h, B.P. 881) Other prohibitions Unauthorized printing of official ballots and election returns with printing establishments that are not under contract with the COMELEC (Sec. 27a, R.A. 6646)

2.

Wagering upon the results of elections (Sec. 261c, B.P. 881)

3.

Sale, etc. of intoxicating liquor on the day fixed by law for the registration of voters in the polling place, or the day before the election or o n election day (Sec. 261dd (1), B.P. 881)

 JURISDICTION GENERAL RULE Regional trial court shall have the exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of this Code EXCEPTION Metropolitan or Municipal Trial Code for offenses relating to the failure to register or failure to vote which shall be under the  jurisdiction of the metropolitan or municipal trial courts.

From the decision of the courts, appeal will lie as in other criminal cases (Sec. 268, Omnibus Election Code) Note: COMELEC has exclusive jurisdiction to investigate and prosecute cases involving violation of election laws [1987 Constitution, Sec. 2 (6), Art. IX-C].

However, it may validly delegate the power to the Provincial Prosecutor or to the Ombudsman.

4.

Opening booths or stalls within 30 meters of any polling place (Sec, 261dd (2), B.P. 881)

5.

Holding fairs, cockfights, etc. on election day (Sec. 261dd (3), B.P. 881)

THE POLICY OF NON-INTERFERENCE

6.

Refusal to carry election mail during the election period (Sec. 261dd (4), B.P. 881). In addition to the prescribed penalty, such refusal constitutes a ground for cancellation or revocation of certificate of public convenience or franchise.

7.

Discrimination in the sale of air time (Sec. 261dd (5), B.P. 881) In addition to the prescribed penalty, such refusal constitutes a ground for cancellation or revocation of the franchise.

GENERAL RULE The COMELEC, as the body tasked by no less than the 1987 Constitution to investigate and prosecute violations of election laws, has the full discretion to determine whether or not an election case is to be filed against a person and, consequently, its findings as to the existence of probable cause are not subject to review by courts. [Guzman vs COMELEC (2009)]. EXCEPTION This policy of non-interference does not apply where the COMELEC, as the prosecuting or investigating body, was acting arbitrarily and capriciously, like herein, in reaching a different but patently erroneous result (Ibid).

OTHER ELECTION OFFENSES UNDER RA 6646 (1)

(2)

Person who violated provisions against prohibited forms of election propaganda If the chairman of the BEI fails to affix his signature at the back of the official ballot, in the presence of the voter, before delivering the ballot to the voter. (under RA 7166)

PRESCRIPTION

Five years from the date of their commi ssion. If the discovery of the offense is made in an election contest proceeding, the period of prescription commences on the date on which the judgment in such proceedings becomes final and executory [Sec. 267, Omnibus Election Code].

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SOURCES OF ELECTION LAW  1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

1987 Constitution BP 881 (Omnibus Election Code) RA 6646 (Electoral Reforms Law of 1987) RA 6679 (Barangay Elections) RA 6735 (Law Providing for Initiative and Referendum) RA 7166 (1991 Synchronized Elections Law) RA 7941 (Election of Party-List Representatives) RA 8189 (Continuing Registration) RA 8436 (Automated Election System) RA 8524 RA 9006 (Fair Election Act of 2001)

INTERPRETATION OF ELECTION LAWS Liberally construed in favor of right of suffrage.

 POWERS AND FUNCTIONS OF THE COMELEC 1. 2. 3.

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Enforcement and administration of election laws and regulations Quasi-judicial powers Decide all questions affecting elections

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4.

Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government for the exclusive purpose of ensuring free, orderly, honest, peaceful and credible elections 5. Register political parties, etc. 6. Accredit citizens' arms 7. Investigation and prosecution of cases of violation of election laws 8. Filing of petitions in court for inclusion or exclusion of voters 9. Recommendatory: a. To Congress Effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates. (Art. IX-C, Sec. 2, 1987 Constitution) b. To the President For removal of any officer or employee it has deputized (Sec. 52a, Omnibus Election Code 10. Supervision / Regulation, for the duration of the election period, of use of all franchises or permits for operation of: a. transportation and other public utilities; b. media of communication or information; c. all grants, special privileges, or concessions granted by the Government or any instrumentality thereof. DATE OF ELECTION

There is a simultaneous conduct of elections for national and local officials once every 3 years. Under R.A. 7166, elections shall be held on the 2nd  Monday of May. 1.

President and Vice-President elected on the same day every 6 years.

2.

Senators, Elective Members of the House of Representatives, and Elective Provincial, City and Municipal Officials same day every 3 years, except with respect to the Senators, only 12 of whom shall be elected every 3 years.

3.

Barangay Elections Barangay and sangguniang kabataan elections shall be held on the last Monday of October and every three (3) years thereafter and the term of office of all barangay and sangguniang kabataan officials after the effectivity of this Act shall be three (3) years. Provided that, no barangay elective official shall serve for more than three (3) consecutive terms in the same position (RA 9164) TIME OF ELECTION

Must be fixed by the authoritative power. (i.e. the Constitution; laws in the case of regular elections; the executive or other designated power in the case of special elections). PLACE OF ELECTION

Shall be fixed by general law or by a proclamation or by the notice by which the election is called. Such designated place shall be mandatory. In case of emergencies which necessitate the

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changing of a polling place, adequate general notice must be given. PRE-ELECTION REQUIREMENTS

1. Establishment of Precincts The COMELEC shall establish all election precincts. Each barangay shall have at least 1 such precinct . (Sec. 149, Omnibus Election Code) The COMELEC may introduce adjustments, changes or new divisions or abolish precincts if necessary. But no changes shall be introduced within 45 days before a regular election and 30 days before a special election or referendum or plebiscite. (Sec. 149, Omnibus Election Code) Where it is not practicable to divide a precinct by territory, the COMELEC may adjust or split the precinct by assigning the registered voters alphabetically and equitably among the adjusted or split precinct. The polling places of the said precincts must be in the same building. (Sec. 8, R.A. 7166) 2. Publication of Maps of Precincts At least 5 days before the first registration day and until after the election, referendum, or plebiscite, the COMELEC shall post in the city or municipal hall and in 3 other conspicuous places and on the door of each polling place, a map of the city or municipality showing its division into precincts. Such maps shall be kept posted until after the election, referendum or plebiscite. (Sec. 151, BP 881) 3. Designation of polling places The COMELEC may introduce changes in the location of polling places when necessary after notice to the registered political parties and candidates affected i f any, and hearing. No location shall be changed within 45 days before a regular election and 30 days before a special election, referendum or plebiscite except when it is destroyed or it cannot be used. (Sec. 153, BP 881) 4. Arrangements and Contents of Polling Places Each polling place shall have at least 10 voting booths of such size, specifications and materials as the COMELEC may provide to enable the voters to fill out their ballots secretly. (Sec. 158, BP 881) The polling place shall be so arranged that the booths, the table, the ballot boxes and the whole polling place, except what is being written within the booths, shall be in plain view of the board of election inspectors, the watchers and other persons who may be within the polling place. (Sec. 159 (d), BP 881) The COMELEC shall post inside each voting booth and elsewhere in the polling place on the day before the election, referendum, or plebiscite and during the voting period a list containing the names of all candidates or the issues or questions to be voted for. (Sec. 158; BP 881)

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There shall be a guard rail between the voting booths and the table for the Board of Election Inspectors. (Sec. 159; BP 881) 5. Inspection of polling places Before the day of the election, referendum or plebiscite, the Chairman of the COMELEC shall, through its authorized representatives, see to it that all polling places are inspected and such omissions and defects as may be found are corrected. (Sec. 163, BP 881)

POLITICAL PARTIES

 RIGHTS OF POLITICAL PARTIES i.

ii. iii.

iv.

v.

vi. vii. viii.

To be voted upon as a party,  provided that it is registered under the party-list system ( Art. IX-C, Sec. 7, 1987 Constitution) To have a watcher in every Election Registration Board (Sec. 15, R.A. 8189) To inspect and/or copy at its expense the accountable registration forms and/or the list of registered voters in the precincts constituting the constituency at which the political party is fielding candidates (Sec. 42, R.A. 8189) To have a watcher and/or representative in the procurement and watermarking of papers to be used in the printing of election returns and official ballots and in the printing, numbering, storage and distribution thereof (Sec. 8, R.A. 6646) To have watchers who shall verify the contents of the boxes containing the shipment of official ballots, election returns and sample official ballots received by the provincial, city and municipal t reasurers Sec. 189, BP 881. Note that this privilege is only available to the ruling party and the dominant opposition  party. To have one watcher in every polling place and canvassing center (Sec. 26, R.A. 71660) To be present and to have counsel during the canvass of the election returns (Sec. 25, R.A. 6646) To receive the 4th copy (if the dominant majority party) or the 5th copy (if the dominant minority party) of the election returns (Sec. 27, R.A. 7166 as amended by R.A. 8045 and R.A. 8173)

FORFEITURE OF STATUS Any registered political party that, singly or in coalition with others, fails to obtain at least 10% of the votes cast in the constituency in which it nominated and supported a candidate or candidates in the election next following its registration shall, after notice and hearing be deemed to have forfeited such status as a registered political party in such constituency. (Sec. 60, BP 881)

CANCELLATION OF REGISTRATION  The following are grounds for cancellation  of registration of a political party:

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(1) Accepting financial contributions from foreign governments or their agencies (Art. IX-C, Sec. 2 (5), 1987 Constitution) (2) The party is a religious sect or denomination, organization or association organized for religious purposes (3) The party advocates violence or unlawful means to seek its goal (4) The party is a foreign party or organization (5) The party is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes (6) The party violates or fails to comply with laws, rules or regulations relating to elections (7) The party declares untruthful statements in its petition for registration (8) The party has ceased to exist for at least 1 year (9) The party fails to participate in the last 2 preceding elections (10) If registered under the party-list system, the party fails to obtain at least 2% of the votes in the 2 preceding elections for the constituency in which it has registered. (Sec. 6 (1), R.A. 7941) (11) Under the party-list system, the COMELEC may refuse or cancel registration either motu propio  or upon verified complaint of any interested party, after due notice and hearing. PROCEDURE PETITION Petition verified by the party/ organization/ coalition's president or secretary. The petition must state its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations.  WHEN Not later than 90 days before the election

1. 2. 3. 4. 5. 6.

ATTACHMENTS: Constitution By-laws; Platform or program of government List of officers Coalition agreement (as applicable) Other relevant information as may be re quired by the COMELEC

After due notice and hearing, the COMELEC shall resolve the petition within 15 days from the date it was submitted for decision, but not later than 60 days before election. (Sec. 5, R.A. 7941)

 NOMINATION OF PARTY-LIST REPRESENTATIVES Each registered party, organization or coalition shall submit to the COMELEC a list of not more than 5 names from which party-list representatives shall be chosen in case it obtains the required number of votes. This list must be submitted not later than 45 days before the election. (Sec. 8, R.A. 794)

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The nomination of party-list representatives is subject to the following limitations: 1. The nominee must have all of the qualifications and none of the disqualifications for the exercise of the right of suffrage. Moreover, he/she must be a registered voter, able to read and write, and at least 25 years on the day of the election. In case of youth sector nominees, such nominees must be at least 25 but not more than 30 yrs. old on the day of the election. (Sec. 9, RA. 7941) 2.

The nominee must be a bona fide member of the party or organization which he/she seeks to represent for at least 90 days preceding the day of the election.

3.

An elected party-list representative who changes his political party or sectoral affiliation within 6 months before an election is not eligible for nomination as partylist representative under his new party or organization.

4.

A person may be nominated in 1 list only.

5.

Only persons who have given their consent in writing may be named in the list.

6.

The list cannot include any candidate for any elective office or any person who has lost his bid for an elective office in the immediately preceding election.

7.

Changes of name or alterations in the order of nominees are generally not allowed after the list has been submitted to the COMELEC. However, these may be allowed when the nominee either: a. Dies b. Withdraws his nomination in writing c. Becomes incapacitated in which case the substitute nominee shall be placed last in the list

 ABSENTEE VOTING Under RA 7166, absentee voting as provi ded for in EO 157 shall apply to the elections for President, Vice-President, and Senators ONLY and shall be limited to: 1 2 3

Members of the AFP Members of the PNP Other government officers and employees

Who are duly registered voters and who, on election day, may temporarily be assigned in connection with the performance of their election duties to places where they are not registered voters.

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BLOCK VOTING There is no longer block voting under current Philippine Election Laws, having been expressly prohibited by Art. IX-C, Sec. 7 of the 1987 Constitution.

However, it must be noted that under the party-list system, votes may be counted in favor of political parties, organizations or coalitions rendered under said system. This, in a way, may be construed as the exception to the prohibition on block voting.

VOTING HOURS General rule: The casting of votes shall be at 7 a.m. and shall end at 3 p.m. Exception: When there are voters present within 30 meters in front of the polling place who have not yet cast their votes, in which case the voting shall continue but only to allow said voters to cast their votes without interruption.

The poll clerk shall prepare a complete list containing the names of said voters consecutively numbered, and the voters so listed shall be called to vote by announcing each name repeatedly three times in the order in which they are listed. Any voter in the list who is not present when his name is called out shall not be permitted to vote.

VOTING PROPER i. Voter must vote in person. The voter must personally deposit his ballot. By the principle that what is done in one’s presence and by his express direction is, in law, his act, an infirm or aged voter may undoubtedly employ another to perform the mechanical act of depositing in the voter’s presence the ballot which the latter has himself selected. ii. Voter must vote but once. Each voter shall vote but once, at any election, for each office or measure to be voted for. iii. Voter need not vote the whole ticket. It is entirely optional with the voter whether he will vote at all or not, and he may vote for such offices as he chooses and for such of the several persons to be chosen to the same office as he prefers.

QUALIFICATION OF WATCHERS 1. 2. 3. 4. 5.

 RIGHTS AND DUTIES OF WATCHERS: 1. 2. 3.

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Qualified voter of the city or municipality Good reputation Never been convicted of any election offence or any crime Knows how to read and write English, Pilipino or any of the prevailing local dialects Not related within the 4th  civil degree by consanguinity or affinity to any member of the BEI in the polling place where he seeks appointment as watcher.

Stay in the space reserved for then inside the polling place Witness and inform themselves of the proceedings of the BEI Take notes, photographs of proceedings

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File protests against any irregularities or violation of law Be furnished with a certificate of the number of votes cat for each candidate, duly signed and thumb marked by the members of the BEI.

CASTING OF VOTES In every case, before delivering an official ballot to the voter, the chairman of the Board of Election Inspectors shall affix his signature at the back of the ballot in the presence of the voter. (Sec. 24, R.A. 7166)

Failure to authenticate shall be noted in the minutes of the Board of Election Inspectors and shall constitute an election offense.

BALLOT AND VOTING 1.

The voter, upon receiving his folded ballot, shall forthwith proceed to one of the empty voting booths and shall there fill his ballot by writing in the proper space for each office the name of the individual candidate for whom he desires to vote.

Voters are not allowed to: To enter a booth occupied by another, nor enter a. the same accompanied by somebody, except as provided for in the succeeding section hereof;  b. To stay therein for a longer time than necessary c. To speak with anyone other than as herein provided while inside the polling place. Unlawful Acts: a. To prepare the ballot outside the voting booth b. To exhibit its contents to any person c. To erase any printing from the ballot d. To intentionally tear or deface the same or put thereon any distinguishing mark e. To use carbon paper, paraffin paper, or other means for making a copy of the contents of the ballot; f. To make use of any other means to identify the vote of the voter.

1. 2.



If a voter should accidentally spoil or deface a ballot in such a way that it cannot lawfully be used, he shall surrender it folded to the chairman who shall note in the corresponding space in the voting record that said ballot is spoiled. The voter shall then be entitled to another ballot which the chairman shall give him after announcing the serial number of the second ballot and recording the serial number in the corresponding spaces in the voting record. 

No voter shall change his ballot more than once. (Sec . 14, R.A. 8436)



The spoiled ballot shall, without being unfolded and without removing the detachable coupon, be distinctly marked with the word "spoiled" and signed by the board of election inspectors on the endorsement fold thereof and immediately placed in the compartment for spoiled ballots.

2.

After the voter has filled his ballot he shall fold it in the same manner as when he received it and return it to the chairman.

3.

In the presence of all the members of the board of election inspectors, he shall affix his thumbmark on the corresponding space in the coupon, and deliver the folded ballot to the chairman.

4.

The chairman, in the presence and view of the voter and all the members of the board of election inspectors, without unfolding the ballot or seeing its contents, shall verify its number from the voting record where it was previously entered. 

A voter who is illiterate or physically unable to prepare the ballot by himself may be assisted in the preparation of his ballot by t he following: a. b.

a relative by affinity or c onsanguinity within the fourth civil degree, or If (a) is not available, then any person of his confidence who belongs to the same household; or

c.

Any member of the board of election inspectors.

A violation of these 2 duties shall constitute an election offense. SPOILED BALLOTS

Preparation of Ballots for Illiterates and Disabled Persons (Sec. 196, B.P. 881) No voter shall be allowed to vote as an illiterate or as  a physically disabled unless it is so indicated in his registration record. 

prepare the ballot for the illiterate or disabled voter inside the voting booth; bind himself in a formal document under oath to fill out the ballot strictly in accordance with the instructions of the voter and not to re veal the contents of the ballot prepared by him.

Any ballot whose number does not coincide with the number of the ballot delivered to the voter, as entered in the voting record, shall be considered as spoiled and shall be so marked and signed by the members of the board of election inspectors.

5.

The voter shall affix his thumbmark by the side of his signature in the space intended for that purpose in the voting record and the chairman shall apply silver nitrate and commassie blue on the right forefinger nail or on any other available finger nail, if there be no forefinger nail.

6.

The chairman shall sign in the proper space beside the thumbmark of the voter.

In no case shall an assistor assist more than 3 times. The person assisting shall:

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7.

Any ballot returned to the chairman whose detachable coupon has been removed not in the presence of the board of election inspectors and of the voter, shall be considered as spoiled and shall be so marked and signed by the members of the board of election inspectors.

COUNTING OF VOTES The counting of votes is conducted by the Board of Election Inspectors, which shall not adjourn or postpone or delay the count until it has been fully completed, unless otherwise ordered by the COMELEC. COUNTING MUST BE IN PUBLIC AND WITHOUT INTERRUPTION As soon as the voting is finished, the board of election inspectors shall publicly count in the polling place the votes cast and ascertain the results. The Board shall not adjourn or postpone or delay the count until it has been fully completed, unless otherwise ordered by the COMELEC. VENUE FOR COUNTING The COMELEC in the interest of free, orderly, and honest elections, may order the board of election inspectors to count the votes and to accomplish the election returns and other forms prescribed under the Omnibus Election Code in any other place within a public building in the same municipality or city.



2.

The chairman of the board of election inspectors shall take the ballots of the first pile one by one and read the names of candidates voted for and the offices for which they were voted in the order in which they appear thereon, assuming such a position as to enable all of the watchers to read such names.

3.

The chairman shall sign and affix his right hand thumb mark at the back of the ballot immediately after it is counted.

4.

The poll clerk, and the third member, respectively, shall record on the election returns and the tally board or sheet each vote as the names voted for each office are read. (The election returns are mandated by law to be prepared simultaneously with the counting of the votes.)

5.

After finishing the first pile of ballots, the board of election inspectors shall determine the total number of votes recorded for each candidate, the sum being noted on the tally board or sheet and on the election returns. In case of discrepancy such recount as may be necessary shall be made. The ballots shall then be grouped together again as before the reading. Thereafter, the same procedure shall be followed with the second pile of ballots and so on successively.

6.

After all the ballots have been read, the board of election inspectors shall sum up the totals recorded for each candidate, and the aggregate sum shall be recorded both on the tally board or sheet and on the election returns.

7.

It shall then place the counted ballots in an envelope provided for the purpose, which shall be closed signed and deposited in the compartment for valid ballots.

8.

The tally board or sheet as accomplished and certified by the board of election inspectors shall not be changed or destroyed but shall be kept in the compartment for valid ballots.

The voter shall then depart.

NON-CONCLUSIVENESS OF ADMISSION OF CHALLENGED VOTE It must be noted that the admission of the challenged vote shall not  be conclusive upon any court as to the legality of the registration of the voter challenged or his vote in a criminal action against such person for illegal registration or voting [Sec. 201, B.P. 881].



shall be held together with rubber bands, with cardboard of the size of the ballots to serve as folders.

Note that the absence of the signature of the chairman in the ballot given to a voter as proof of the authenticity of the ballot, is fatal.

The chairman, after finding everything to be in order, shall then detach the coupon in the presence of the board of election inspectors and of the voter and shall deposit the folded ballot in the compartment for valid ballots, and the detached coupon in the compartment for spoiled ballots. 

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The public building shall not be located within the perimeter of or inside a military or police camp or reservation nor inside a prison compound. If it becomes necessary to transfer the counting of votes to a safer place on account of imminent danger of violence, terrorism, disorder or similar causes, the Board of Election Inspectors may effect such transfer by unanimous approval by the Board and concurrence by the majority of the watchers present. (Sec. 18, R.A. 6646)

MARKED BALLOTS, DEFINITION

Marked ballots are ballots containing a distinguishing mark which would tend to identify the voter who cast such ballot.

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MANNER OF COUNTING VOTES 1.

The board of election inspectors shall unfold the ballots and form separate piles of one hundred ballots each, which

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PURPOSE OF DISALLOWING MARKED BALLOTS Some unscrupulous persons taking advantage of their influence or political prestige may require voters to place a distinguishing “mark” on their ballot, in consideration of some promise, reward or other valuable consideration and to which the voters would have no escape because of the distinguishing marks required of them to place on their ballots.

This threatens the independence of the voters in the exercise of their right to vote. Hence, the prohibition on marked ballots. EFFECTS OF MARKED BALLOTS Marked ballots are invalidated in their entirety, and none of the votes therein are counted.

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DETERMINTAION OF MARKED BALLOTS In discounting marked ballots, great care should be used in rejecting them. Election laws are designed to effectuate the will of the electorate. Only in an unmistakable case where the ballot appeared to be marked, should it be rejected.

The determinative factor in the nullification of ballots for being marked as following a design or pattern, is the existence of evidence aliunde tending to show the intention or purpose in the use of the contested manner or means of voting, which is to identify the ballots. In the absence of evidence aliunde clearly showing the intention or plan was for purposes of identification, signs on ballots are presumed accidental. A majority vote of the board of election inspectors shall be sufficient to determine whether a ballot is marked or not. All marked ballots shall be placed in an envelope labeled "marked ballots" which shall be sealed and signed by the members of the board of election inspectors and placed in the compartment for valid ballots and shall not be co unted. APPLICABLE INSTANCES

Non-official ballots which the board of election inspectors may find, EXCEPT those which have been used as emergency ballots, are considered as marked ballots. Other examples of marked ballots include the following:

12. Writing impertinent, expression

irrelevant

and

unnecessary

13. Placing the fingerprint of the voter without reason. 14. The presence of an arrow together with the words “and party”. 15. Instances when Ballot is not Considered Marked 16. Writing the word “sorry” after the name of a candidate as an expression of regret for committing a mistake. 17. Canceling names and re-writing them to conform with a sample ballot. 18. Misspelling the name of a candidate. 19. Illegible writings, being imprints of other names written on the ballot caused by the folding of the same. 20. Writing crosses and circles signifying the desistance of the voter to write any other name. 21. Writing a word before the name of a candidate as an appellation of affection or friendship. 22. Affixing the nickname of a candidate. 23. Innocent erasures in the spaces for the candidates. 24. Corrected name written over the canceled one on the space for councilor although he is a candidate for mayor.

1.

Where 170 ballots were voted for in the same manner and there is evidence aliunde to prove that such manner of voting was planned.

2.

Where the name of 1 candidate is clearly and markedly indented to the right to make the ballot easily distinguishable.

3.

Use of two or more kinds of writing deliberately put by the voter to serve as identification marks.

27. Accidental placing of a stain.

4.

Writing the name of a person who is not a candidate 3 times on 3 spaces provided for in different offices.

28. Voting names of non-candidates in the absence of evidence that these names were used as identifying marks.

5.

Expressions opposite the space for candidates written for the purpose of identification.

6.

The inclusion of the names of 2 well-known movie stars who were not candidates.

APPRECIATION OF BALLOTS GUIDELINES FOR APPRECIATION OF BALLOTS DOUBTS are to be resolved in FAVOR of the validity of  ballots. The purpose is of election laws is to give effect and not to frustrate the WILL of the voter.

7.

Writing the name of a registered voter who is not a candidate.

8.

The placing, without explanation of initials, after the corrected names of candidates for mayor and vice-mayor.

9.

Placing a big letter “X” immediately after the  name of a candidate for councilor.

25. Mistakes in writing names of local c andidates in spaces for senators and writing again the names of his candidates fo r councilors in the proper spaces. 26. Unintentional, accidental, unintelligible marks or words.

10. The capital letter “N” opposite the printed words for senators. 11. Writing the word “sinador” in a place far and separate from the proper spaces for candidates.

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LIBERAL CONSTRUCTION in reading the ballots, and intendments should be in favor of a reading which render the ballot EFFECTIVE rather than in favor of a conclusion which on some technical grounds would render it ineffective.

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Minor blemishes should not affect the validity of the ballot where the intention of the voter to vote for certain persons is discernible in the ballot.

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Errors in spelling, honest mistakes due to ignorance or illiteracy should not defeat the intention of the voter. However, if the ballot is so defective as to fail to show any intention, it must be disregarded.

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GENERAL RULE Every ballot shall be PRESUMED VALID

4.

To allow a respondent to raise belated questions before the COMELEC as to the returns during the review of a case before the COMELEC, which question has not been raised before the board of canvassers, would mean undue delays in the pre-proclamation proceedings.

5.

The Supreme Court can review the decisions o f COMELEC ONLY in cases of grave abuse of discretion in the discharge of QUASI-JUDICIAL POWERS and not in the exercise of its administrative duties.

EXCEPTION UNLESS there is clear and good reason to reject it.

ELECTION RETURNS, DEFINITION

The official document containing the date of the election, the province, municipality and the precinct in which it is held, and the votes received by each candidate written in figures and in words.



It is the document on which the Certificates of Canvass are based, and is the only document that constitutes sufficient evidence of the true and genuine results of the el ections. ANNOUNCEMENT OF RESULTS The chairman of the Board of Election Inspectors shall make an ORAL and PUBLIC ANNOUNCEMENT of the TOTAL number of votes in the polling place for EACH candidate by the upon the completion of the election returns



As to all other collateral matters, the findings of the board are conclusive. However, such findings are not conclusive in a direct proceeding to try title to the office.



The fact of having a plurality of votes lawfully cast is what confers title to the office UNLESS one is allowed to go behind the certificate or returns to establish title to the office before the appropriate tribunal.

ISSUANCE OF CERTIFICATES OF VOTES CERTIFICATE OF VOTES, DEFINITION The certificate of votes is a document which contains the number of votes obtained by each candidate written in words and figures, the number of the precinct, the name of the city or municipality and province, the total number of voters who voted in the precinct, and the date and time issued. 







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Refusal to do so constitutes an election offense. (Sec. 27, R.A. 6646) CANVASSING

PRINCIPLES GOVERNING CANVASS PROCEEDINGS 1. There must be a strong prima facie case backed up by a specific offer of evidence, and an indication of its nature and importance has to be made out to warrant the reception of evidence aliunde, for the presentation of witnesses and the delays necessarily entailed thereby. 2. When COMELEC has determined after investigation and examination of the voting and registration records that ACTUAL VOTING and ELECTION took place in the questioned precincts, election returns cannot be disregarded but are accorded prima facie status as bona fide reports of the result of voting for canvassing and proclamation purposes. 3.

PREPARATION OF CANVASS AND STATEMENT OF VOTES

It must be signed and thumb marked by each member of the Board. (Sec. 16, R.A. 6646) DUTY OF BOARD TO ISSUE CERTIFICATE It is the duty of the board of election inspectors to issue a certificate of the number of the votes received by a candidate upon request of the duly-accredited watchers. (Sec. 16, R.A. 6646)

COMELEC should guard against PROCLAMATION GRABBING and against attempts to paralyze the canvassing and proclamation.

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CONCLUSIVENESS OF FINDINGS The findings of the board of canvassers and the certificate of election issued by them are not conclusive but are merely PRIMA FACIE evidence of the result and title to the office of those declared elected.

CERTIFICATE OF CANVASS The respective board of canvassers shall prepare a certificate of canvass duly signed and affixed with the imprint of the thumb of the right hand of each member, supported by a statement of the votes received by each candidate in each polling place and, on the basis thereof, shall proclaim as elected the candidates who obtained the highest number of votes cast in the province, city, municipality or barangay. (Sec. 231, B.P. 881)

Failure to comply with this requirement shall constitute an election offense.

STATEMENTS OF VOTES, DEFINITION

The statement of votes is a tabulation per precinct of votes garnered by candidates as reflected in the election returns; its preparation is an administrative function of the board, purely a mechanical act over which COMELEC has direct control and supervision. 

The Statement of Votes supports the certificate of canvass and is the basis of proclamation. Consequently, any error in the Statement of Votes would affect the proclamation made on the basis thereof.



Failure to object to the Statement of Votes be fore the Board of Canvassers does not constitute a bar to raising the issue for the first time before the COMELEC, as the law is silent as to when such objection may be raised.

PROCLAMATION

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DUTIES OF THE BOARD OF CANVASSERS After the canvass of election returns, in the absence of a perfected appeal to the COMELEC, the Board of Canvassers shall  proclaim the candidates who obtained the highest number of votes cast   in the province, city, municipality or barangay, on the basis of the certi ficates of canvass. Failure to comply with this duty constitutes an election offense. (Sec. 231, B.P. 881)



The board of canvassers shall forthwith make a certificate stating the name of the candidate who had been favored by luck and his proclamation on the basis thereof.



Nothing in the above shall be construed as depriving a candidate of his right to contest the election.

The Board of Canvassers shall not proclaim any candidate as winner unless authorized by the COMELEC  after the latter has ruled on any objections brought to it on appeal by a losing party.



Upon the expiration of the deadline for the filing of certificates of candidacy in a special election called to fill a vacancy in an elective position other than for President and Vice-President, when there is only one (1) qualified candidate for such position, the lone candidate shall be proclaimed elected to the position by proper proclaiming body of the COMELEC without holding the special election upon certification by the COMELEC that he is the only candidate for the office and is therefore deemed elected.



In the absence of any lawful ground to deny due course or cancel the certificate of candidacy in order to prevent such proclamation, as provided for under Sec. 69 and 78 of the Omnibus Election Code, the lone candidate shall assume office not earlier than the scheduled election day. (Sec. 3)



The COMELEC shall decide petitions for disqualification not later than election day. Otherwise, such petitions shall be deemed dismissed. (Sec. 3)

PROCLAMATION OF A LONE CANDIDATE (RA 8295)

Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election. 

Once the Board of Canvassers has completed its duty, the board cannot meet again and re-canvass the votes or reverse their prior deci sion and announce different results.

VOID PROCLAMATION A proclamation is void when it is: 1. Based on incomplete returns (Castromayor v. COMELEC, 250 SCRA 298) or 2. When there is yet no complete canvass ( Jamil v. COMELEC, G.R. No. 123648, Dec. 15, 1997). 

A void proclamation is no proclamation at all, and the proclaimed candidate’s assumption into office cannot deprive the COMELEC of its power to annul the proclamation.

PARTIAL PROCLAMATION Notwithstanding the pendency of any pre-proclamation controversy, the COMELEC may summarily order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy. (Sec. 21, R.A. 7166) ELECTION RESULTING TO A TIE A tie occurs when: 1. 2 or more candidates receive an equal and highest number of votes; or 2. 2 or more candidates are to be elected for the same position and 2 or more candidates received the same number of votes for the LAST PLACE in the number to be elected [Sec. 240, B.P. 881]. 

The board of canvassers, by resolution, upon 5 days notice to all tied candidates, shall hold a special PUBLIC MEETING at which the board shall proceed to the DRAWING OF LOTS of the candidates who have ti ed and shall proclaim as elected the candidates who may be favored by luck.



The candidates so proclaimed shall have the right to assume office in the same manner as if he had been elected by plurality of vote.

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PUBLIC CORPORATIONS

General Principles Corporation

It is an artificial being created by operation of law, having the right of succession and the powers, attributes and properties expressly authorized by law or incident to its existence.

public corporations

(1) (2)

LOCAL GOVERNMENT AND PUBLIC CORPORATIONS

(3) (4) (5)

Corporations formed and organized for governing a portion of a State Those formed or organized by the State to accomplish part of its public functions Instruments of the government subject to the control of the legislative Formed for political purposes connected with public good for administration They are governed by charters enacted by legislature

Test to determine whether it is a public or private Corporation

Totality of the relation of the corporation to the State. If the [1] corporation is created by the State as the latter’s [2] own agency or instrumentality to [3] help it in carrying out its governmental functions, then that corporation is considered public; otherwise, it is private. 

Applying the above test, provinces, chartered cities, and barangays can best exemplify public corporations. They are created by the State as its own device and agency for the accomplishment of parts of its own public works. (Philippine Society for the Prevention of Cruelty to Animals vs COA, G.R. No. 169752, September 25, 2007) Public Corporation

Private Corporation

Definition created by the state, by formed for private a general or special act, for purposes of purposes, profit or administration of local advantage government or rendering service in the public interest.

Purpose of creation

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Established for purposes connected with the administration of civil or local governments

Created for private aim, gain, or benefits for its members

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Creators

Nature

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Public Corporation

Private Corporation

Creations of the State either by general or special act

Created by the will of the incorporators with recognizance of State.

Involuntary consequence of legislation

Constitutes a voluntary agreement by and among its members

Governed by the legislative charters creating them

Governed by the special laws creating them and the Corporation Code

Government control through legislative charters

Government control through stock ownership (stock) or membership (non-stock)

Test to determine whether it is a GOCC or a Private Corporation 



In the case of Boy Scouts of the Philippines vs COA, BSP is a public corporation; thus, subject to the CoA’s audit jurisdiction. The purpose of the BSP as stated in its amended charter shows that it was created for a public purpose - in order to inculcate in the youth “patriotism and nationalism” as declared in Section 13, Article II of the Constitution. Article XII, Section 16 of the 1987 Constitution prohibits the creation of private corporations except by a general law applicable to all citizens but a public corporation intended for a public purpose is not prohibited. As a public corporation, it is not subject to the test of ownership or control and economic viability but to a different criteria relating to their public purpose or constitutional policies and objectives and their administrative relationship to the government or any of its offices. (Boy Scouts of the Philippines vs. Commission on Audit, G.R. No. 177131, June 7, 2011)

Public Corporations as Distinguished from governmentowned or controlled corporations

GOCCs are private corporations, either stock or non-stock, performing governmental or propriety functions. They may be formed either through the Corporation Code of the Philippines (CCP) or special laws. When formed under the CCP, the government would have control through ownership of at least majority of the outstanding capital stock. PUBLIC CORPORATION

GOCC (GovernmentOwned or Controlled Corp)

Formed by the State through charters by the legislature – special act or general act

Formed under either the Corporation Code or special charter Formation under special charters in the interest of common good and subject to economic viability

Public entity

Private entity

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Is it created by its own charter for the exercise of a public function, or by incorporation under the general corporation law? Those with special charters are government corporations subject to its provisions, and its employees are under the jurisdiction of the Civil Service Commission, and are compulsory members of the Government Service Insurance System. (Baluyot vs Holganza, G.R. No. 136374. February 9, 2000, citing Camporedondo v. National Labor Relations Commission) Exception:  In a legal regime where the charter test doctrine cannot be applied, the mere fact that a corporation has been created by virtue of a special law does not necessarily qualify it as a public corporation. (Philippine Society vs COA, supra)

Classifications QUASI-PUBLIC

Corporations are private corporations that render public service or supplies public wants. They may be o rganized for gains, but they are required to execute public-benefit functions. Examples are water districts and utility companies. A quasi-public corporation is a specie of private corporations, but the qualifying factor is the type of service the former renders to the public: if it performs a public service, then it becomes a quasi-public corporation. (Philippine Society for the Prevention of Cruelty to Animals vs COA, supra)

Quasi-corporations

Public corporations created as agencies of State for narrow and limited purpose.

Municipal corporations

Political and corporate bodies constituted by incorporation of inhabitants of city or town for purposes of local government or

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as agency of State to assist i n civil government of the country. It is one formed and organized for the government of a portion of the State.

(Rodriguez, pp 4--8, 55-56) 

MUNICIPAL CORPORATIONS



CONCEPT A “body politic and corporate constituted by the incorporation of the inhabitants for purposes of local government thereof; it i s established by law partly as an agency of the state to assist in the civil government of the country, but chiefly to regulate and administer the local or internal affairs of the city, town or district which is incorporated.” (Rodriguez, (Rodriguez, The Local Government Code of 1991 Annotated., p 4 , citing Dillon, citing Dillon, Mun.  Mun. Corp., Vol. 2, pp 5859)



The Municipal Laws of such country continue to be in force until abrogated or changed by a new government. A Municipal Corporation is not totally dissolved as a mere consequence of military occupation or territorial cessation. (Villas vs City of Manila, supra)



A municipality, as a juridical person, may acquire patrimonial property under its own independent personality  and not as a mere agent of the Central Government. (Municipality of Catbalogan vs Director of Lands, 17 Phil 216, October 17, 2010)

The term municipal corporation has gradually given way to the more recent term, local government . (Rodriguez, The Local Government Code of 1991 Annotated., p. 4)

Elements OF A MUNICIPAL CORPORATION

A legal creation or incorporation; A corporate name by which the artificial personality or legal entity is known and in which all corporate acts are done; (3) Inhabitants constituting the population who are invested with the political and corporate power which are executed through duly constituted officers; (4) A place or territory within which the Local Civil Government and corporate functions are exercised. (Rodriguez, The Local Government Code of 1991  Annotated., p. 4)

(1) (2)

AUTHORITY TO CREATE LOCAL GOVERNMENT

 Who has the power to create LGU? LGU?

1. 2.

Nature (dual nature) and ITS functions

Definition

Purpose

Example

Public or Governmental (Political) An agent of the state for the government of the territory and the inhabitants within the local government limits.

To exercise a part of the sovereignty of the state through delegation (executive, legislative, judiciary) Establishment and operation of schools; regulations against fire and diseases; Preservation of public peace

Private or Corporate (Proprietary) Acts in a similar category as a business corporation, performing functions not strictly governmental or political. For the special benefit and advantage of the community

Establishment of markets and slaughter houses; operation of telephone system; operation of ferry service

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The mere change of the sovereign authority governing a country does not necessarily dissolve the municipal corporation organized under the former sovereign. The argument that by the change of sovereignty the old city was extinguished in the same manner as the agent dies upon the death of the principal, loses sight of the dual character of municipal corporations, corporate and governmental. Only such governmental functions as are compatible with the present sovereignty may be considered suspended. (Villas vs. City of Manila, 42 Phil 935, April 3, 2011)

Congress – It has the power to create or abolish a province municipality, or any other political subdivision. Sangguniang Panlalawigan or Sangguniang Panlungsod – It has the power to create and abolish barangays located within its territorial jurisdiction. (Rodriguez, p 44.) 

The Province of Shariff Kabunsuan, created by ARMM Regional Assembly is invalid for only the Congress can create a province. (Bai Sema vs COMELEC, supra)

Delegation of power to create LGUs Under its plenary legislative powers, Congress can delegate to local legislative bodies the power to create local government units, subject to reasonable standards and provided no conflict arises with any provision of the constitution and it is subject to the criteria established by the LGC (Income, Population, Land Area) (Bai Sema vs COMELEC, supra) In the case of the creation of barangays by the  Sangguniang Panlalawigan, the recommendation of the Sangguniang Bayan concerned shall be necessary.

Authority

Means

Unit created or abolished

Congress

By law

Province, municipality, or any other political subdivision

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Sangguniang Panlalawigan or Panlungsod

By ordinance

DE JURE MUNICIPAL CORPORATIONS

Barangays located within its territorial jurisdiction

De Jure Municipal Corporation are those created or recognized under operation of law. MUNICIPAL CORPORATION BY PRESCRIPTION

TYPES OF MUNICIPAL CORPORATIONS

(1) (2) (3)

Municipal Corporations by prescription are those that exercised powers from time immemorial, with a charter which is presumed to have been lost or destroyed.

De Jure Municipal Corporation Municipal Corporation by Prescription De Facto Municipal Corporations

Indicators: (1) Community has claimed and exercised corporate functions (2) Knowledge and acquiescence of legislature (3) Without objection or interruption for a period long enough to afford title by prescription

CREATION ESSENTIAL REQUISITES (1) Law or Ordinance (2) Income (3) Population Indicators (4) Land Area (5) Attestation from DOF, NSO, LMB & DENR (6) Plebiscite

The central policy considerations in the creation of local government units are economic viability, efficient administration, and capability to deliver basic services to their constituents. The criteria prescribed by the LGC (income, population and land area) are all designed to accomplish this results. (Navarro vs. Ermita, 648 648 SCRA 400, April 12, 2011.) Exception: When the local government unit to be created consists of one or more island, it is exempt from the land area requirement if the local government unit to be created is a municipality or a component city. Essential Requisites

Attested by:

Law or ordinance

By Congress or Sanggunian By law By DOF, NSO, LMB, DENR By affected political unit

Verifiable Indicators Attestation Plebiscite

VERFIABLE INDICATORS OF VIABILITY (PROJECTED CAPACITY TO PROVIDE SERVICES)

DE FACTO MUNICIPAL CORPORATION

De facto municipal corporations are those organized under color of law, with the rights of its inhabitants dependent on the acquiescence as much as on the regularity of origin. Requisites: (1) Valid law authorizing incorporation (2) Attempt in good faith to organize under said law (3) Colorable compliance with the law (4) Assumption of corporate powers ATTACK AGAINST VALIDITY OF INCORPORATIONS

A De facto Municipal Corporation’s validity of incorporation cannot be questioned only through a quo warranto proceeding and cannot be collaterally attacked. BEGINNING OF CORPORATE EXISTENCE OF MUNICIPAL CORPORATIONS General Rule:  Corporate Existence starts upon the election and qualification of its chief executive, majority of Sanggunian members. Exception: Commencement is provided in the law creating it.

Verifiable Indicators Income

Population

Land Area

Qualifications

Exception

Sufficient for essential government facilities/services commensurate with population size Total number of inhabitants in the territory a. Must be contiguous b. Must identify metes and bounds c. Must be sufficient to provide basic services and facilities

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Division and Merger

Requirements for division and merger of LGUs are the same with Creation, provided that: (Sec. 8 of the LGC) a. Comprised with 2 or more islands

(1) 

Division shall not reduce the income, population or land area to less than the minimum requirement; Must not fall below its current income classification; income classification shall be updated every 6 months.



(2) Plebiscite Conducted by the COMELEC within 120 days from the date of the effectivity of the law or ordinance effecting

b. Separated by another LGU

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such action, unless said law or ordinance fixes another date (Sec. 10, LGC). (3)

Income

Equitable distribution of assets and liabilities; or turnover of all property rights to the local government in case of fusion.

Qualifications Sufficient for essential government facilities/services commensurate with population size

Provided a.

b. Methods Congress may alter or dissolve municipal corporations: (1) Fixing, altering, changing its boundaries; (2) Dividing a municipal corporation into two or more separate municipalities; (3) Merging or consolidating two or more municipalities into one; (4) Annexing one municipal corporation to another; or (5) Repealing its charter.

c.

Population

Total number of inhabitants in the territory

Shall not be reduced to less than minimum requirement after division

Land Area

a.

Shall not be reduced to less than minimum requirement after division

DISSOLUTION  When: Income population, or land area has been irreversibly reduced to less than the minimum standards.

1.

The law abolishing it must specify which LGUs will be incorporated or merged (Sec. 9, LGC).

Verifiable Indicators Income

Qualifications

Provided

Has been irreversibly reduced to less than the minimum standards prescribed for its creation

The law or ordinance abolishing the LGU shall specify which unit the one sought to be abolished will be incorporated or merged with

Shall not be reduced to less than minimum requirement after division Must not fall below current income classification Classification be updated every 6 months

Must be contiguous b. Must identify metes and bounds c. * Must be sufficient to provide basic services and facilities reduced to less than the minimum standards prescribed for its creation

abolishing the LGU shall specify which unit the one sought to be abolished will be incorporated or merged with

Plebiscite Requirement

Population

Land Area

Has been irreversibly reduced to less than the minimum standards prescribed for its creation

The law or ordinance abolishing the LGU shall specify which unit the one sought to be abolished will be incorporated or merged with

Has been irreversibly

The law or ordinance

Essential Requisites Law or ordinance Verifiable Indicators Attestation Plebiscite

By Congress By law By DOF, NSO, LMB, DENR By affected political unit

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While the Constitution mandates that the creation of local government units must comply with the crite ria laid down in the LGC, it cannot be justified to insist that the Constitution must have to yield every amendment to the LGC despite such amendment imminently producing effects contrary to the original thrusts of the LGC to promote autonomy, decentralization, countryside development, and the concomitant national growth. (League of Cities of the Philippines vs COMELEC, GR No. 176951, February 15, 2011)



No conflict between the power of the President to merge administrative regions with the constitutional provision, requiring plebiscite in the merger of local government units because the requirement of the plebiscite in a merger expressly applies only to provinces, cities, municipalities or barangays, not to administrative regions. (Abbas vs COMELEC, 179 SCRA 287, November 10, 1989)

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Submit to Sangguniang Panlalawigan/Panglungsod Submit to Sangguniang Bayan for Metro  Manila/ other Metropolitan subdivisions (Section 386, Local Government Code) 

MANNER OF CREATION

Barangays

Barangay may be – (1) Created (2) Divided (3) Merged (4) Abolished (5) Substantially alter its boundaries How: By law or Ordinance promulgated by the Sangguniang Panlalawigan/Panglungsod 

Recommendation by Sangguniang Bayan is necessary for those created by t he Sangguniang Panlalawigan



Subject to plebiscite conducted by COMELEC to those LGUs or units directly affected

“It is clear that in granting autonomy, priority is to be accorded the smallest unit, the barangay. That enables its residents the fullest development as a self-reliant co mmunity, with a distinct personality of its own. Adherence to such a philosophy compels the conclusion that when there are indications that the inhabitants of several barangays are inclined to separate from a parent municipality they should be allowed to so. What is more logical than to ascertain their will in a plebiscite called for that purpose. It is they, and they alone, who shall constitute the new unit.” (Paredes vs Executive Secretary, 126 SCRA 6, March, 2, 1984)

MUNICIPALITIES

Municipality may be – (1) Created (2) Divided (3) Merged (4) Abolished (5) Substantially alter its boundaries How: By an Act of Congress Subject to plebiscite conducted by COMELEC to those  LGUs or units directly affected Plebiscite shall be held within 120 days from the Act’s  effectivity. Exception: A different period provided in the Act.

The absence of the Local Government Code at the time of its enactment was not intended to cripple legislative com petence to create municipal corporations. Section 3, Article XI of the 1973 Constitution does not proscribe nor prohibit the modification of territorial and political subdivisions before the enactment of the Local Government Code. What the Constitutional provision means is that once said Code is enacted, the creation, modification or dissolution of local government units should conform with the criteria thus laid down. (Torralba vs Municipality of Sibagat, 147 SCRA 390, January 29, 1987)

Requisites for Creation Requisites for Creation

(1)

Annual Income –  2, 500,000 pesos for the last 2 consecutive years based on the 1991 constant prices. To be certified by the provincial treasurer; Shall include the income accruing to the general fund of the municipality concerned, exclusive of special funds, transfers and non-recurring income.

(2)

Population – 25,000 Certified by NSO

(3)

Land Area – at least 50 sq. km; contiguous Certified by Lands Management Bureau

(1) Population - 2,000 To be certified by the NSO Exceptions: a. Cities and Municipalities in Metro Manila/other Metropolitan political subdivisions b. Highly urbanized cities –  at least 5,000 inhabitants c. Provided –  population of the original barangay shall not be less than 2,000 d. Barangays in Indigenous Cultural Communities e. This will be created by an act of Congress to enhance the delivery of basic needs to them. (2)

Territorial Jurisdiction Identified by metes and bounds/permanent natural boundaries; out of contiguous territories. Exception: it need not be contiguous if c omprised by 2/ more islands

(3)

Consolidation Plan Prepared by the mayor/governor;

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Provided: These three requisites shall not be reduced to less than the minimum requirements at the time of creation. Territorial Jurisdiction Identified by metes and bounds; out of contiguous territories Exceptions: a. It need not be contiguous if comprised by 2 or more islands b. It need not comply with the Land Area requirement if comprised by 1 or more islands 

Existing municipalities shall continue to operate and exist as such.

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Those organized pursuant to presidential issuances/executive orders shall be considered regular municipalities. (Section 442, Local Government Code) Section 442(d) of the Local Government Code converted municipal districts organized pursuant to presidential issuances or executive orders into regular municipalities.





(3)

CITIES

City may be – (1) Created (2) Divided (3) Merged (4) Abolished (5) Substantially alter its boundaries

Population – 150, 000 Certified by NSO Provided: These three requisites shall not be reduced to less than the minimum requirements at the time of creation. Territorial Jurisdiction – identified by metes  and bounds; out of contiguous territories. Exception: it need not be contiguous if comprised by 2/more islands 

It need not comply with the Land Area requirement if comprised by 1/more islands. (Section 450, Local Government Code)

 Requisites to be classified as Highly Urbanized City How: By an Act of Congress a. Subject to plebiscite conducted by COMELEC to those LGUs or units directly affected b. Plebiscite shall be held within 120 days from the Act’s effectivity.

Exception: a different period provided in the Act.

Types of Cities

Component City Absence of requisites to be highly urbanized will make the city a component of the province in which it is located; or where it used to be a municipality if located within a boundary. (Section 452, Local Government Code)

Highly Urbanized City

Qualified Voters shall remain excluded from provincial elections Exception: those who acquired the right to vote on provincial elections before the effectivity of LGC (Id.) Independent Component City (Independent from the province) Voters shall be governed by its specific charter. (Id.)

 Requisites for Creation of a Component City (1)

Annual Income – 20,000,000 for the last 2 consecutive years based on 1991 prices. to be certified by the Department of Finance  shall include the income accruing to the general  fund of the municipality concerned, exclusive of special funds, transfers and non-recurring income. AND either:

(2)

Land Area – 100 sq. km Certified by Land Management Bureau

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(1)

Annual Income – 50,000,000 pesos (latest) based on 1991 constant prices Certified by city treasurer

(2)

Population – 200,000 Certified by NSO

The President shall have the duty to declare a city as highly urbanized within 30 days from meeting the requirements – application and ratification in a plebiscite. (Sec. 453, Local Government Code of 1991) PROVINCES

Province may be – (1) Created (2) Divided (3) Merged (4) Abolished (5) Substantially alter its boundaries How: By an Act of Congress Subject to plebiscite conducted by COMELEC to those  LGUs or units directly affected Plebiscite shall be held within 120 days from the Act’s  effectivity. Exception: A different period provided in the Act. REQUISITES FOR CREATION

1.

Annual Income –  20,000,000 pesos based on 1991 constant prices Certified by DOF Shall include the income accruing to the general fund of the municipality concerned, exclusive of special funds, transfers and non-recurring income.

AND either: 2.

Land Area – 2,000 sq. km Certified by Land Management Bureau Exception: it need not be contiguous if comprised by 2/more islands; or separated by a chartered city which do not contribute to its income

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Population – 250, 000 Certified by NSO Provided  : These three requisites shall not be reduced to less than the minimum requirements at the time of creation. (Section 416, Local Government Code)

SUB-PROVINCES Requisite for conversion from sub-province to province Majority vote in a plebsicite held in said sub-province and original provinces directly affected. This shall be conducted by COMELEC simultaneous to national elections. Consequences on officials Sub-province officials shall continue holding office  until June 30, 1992. Negative plebiscite results:  President shall appoint  officials if there’s vacancy Appointees shall hold office until the next regular election. Positive plebiscite results:   President shall appoint  the Governor, Vice-governor and member of the Sangguniang Panlalalwigan if there’s no one appointed yet. Their office will last until the next regular elections.

AUTONOMOUS REGIONS

The Constitution provides that it shall be the President who will supervise the implementation of the act creating an autonomous region.

(1) (2)

(3) (4)

(5)

(6)

REQUISITES FOR CREATION An organic act passed by the Congress A Regional Consultative Commission (representatives from multi-sectoral bodies appointed by the President) shall assist in drafting the act. It shall define the government structure (executivelegislative) It shall provide specific courts (personal, family, and property law jurisdiction) (Section 18, Article X, 1987 Constitution) It shall provide legislative powers over: Administrative organization  Creation of sources of revenues  Ancestral domain and natural resources  Personal, family and property relations  Regional urban and rural planning  development Economic, social, and tourism development  Educational policies  Preservation and development of cultural  heritage Other matters authorized by law for the  promotion of general welfare (Section 20, Article X, 1987 Constitution) Plebiscite Provided : only provinces, cities, and geographical areas voting favorably shall be included. (Section 18, supra)

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

The term “region” used in its ordinary sense means two or more provinces. Congress never intended that a single province may constitute the autonomous region. Otherwise, we would be faces with the absurd situation of having two sets of provincial officials. (Ordillo vs COMELEC, 192 SCRA 100)



Example: RA 6734 as amended by RA 9054 (An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao) or the “Organic Act.” Local Government Unit

Income

Barangay

-

Municipality Component City Highly Urbanized City Province

Population

Land Area (sq. km)

2.5 M

2,000 x-Metro Manila; HUC(5,000); ICC 25,000

50

20 M

150,000

100

50 M

200,000

-

20 M

250,000

250

-

PRINCIPLES OF LOCAL AUTONOMY The LGC declared that is shall be the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self -reliant communities and make them more effective partners i n the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the national government to the local government units. Local Autonomy

Break up monopoly of the National Government over affairs of local government

Regional Autonomy

Cede some powers of the National Government to the Autonomous Government to effectuate a veritable autonomy (Disomangcop v. Datumanong) Permit certain groups with common tradition and shared social-cultural character powers of the National Government.

Autonomy is relative

“Municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by Congress as the national law

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making body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that local government units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the stature.” (Magtajas vs Pryce Propertes Corporation 232 SCCRA 255 (1994)) “When indeed the Constitution has expanded the autonomy of local governments, they have not been thereby made imperium in imperio. Congress may still impose limits on their powers. Thus they may not violate the statutory limits on their powers.” (Tan vs Pereña, GR No. 149743, February 18, 2005)

Decentralization of Administration

power (III, A) and decentralization of administration . (Ganzon vs CA, GR No. 93252, August 5, 2011)

Operative Principles of Decentralization

(1) (2)

(3)

(4)

The central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process make local governments “more responsive and accountable”. It relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns.

Decentralization of Power

(5)

(Political Decentralization)

(6)

Involves abdication of political power in favor of LGU’s declared autonomous. (Limbona vs. Mangelin, 170 SCRA 786)

(7)

Forms of decentralization

(8) Devolution

It is the transfer of power and authority from the national government to LGUs as the territorial and political subdivisions of the State. The nature of power transfer is political and the approach is territorial or areal.

Deconcentration

It is the transfer of power, authority or responsibility, or the discretion to plan, decide and manage from central point or local levels, but within the central or national government itself. The nature of the transfer is administrative and the approach is sectoral.

(9)

(10)

(11)

(12)

(13) Debureaucratization

It is the transfer of some public functions and responsibilities, which the government may perform, to private entities or nongovernmental organizations; it is people’s empowerment or participation in local governance. Decentralization means devolution of national administration, but not power, to the local levels. There’s decentralization of

Features of Local government units  

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Effective allocation of powers, responsibilities and resources among different local government units; An accountable, efficient, and dynamic organizational structure and operating mechanism that will meet the priority needs and service requirements of each community; Local officials and employees paid wholly or mainly from local funds shall be appointed or removed, according to merit and fitness, by the appointing authority; The vesting of duty, re sponsibility, and accountability in local government units shall be accompanied with provision for reasonably adequate resources to discharge their powers and effectively carry out their functions: hence, they shall have the power to create and broaden their own sources of revenue and the right to a  just share in national taxes and an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas; Provinces/cities shall ensure that the acts of their component units are within the scope of their prescribed powers and functions; LGUs may group themselves, consolidate or coordinate their efforts, services, and resources commonly beneficial to them; The capabilities of local government units, especially the municipalities and barangays, shall be enhanced by providing them with opportunities to participate actively in the implementation of national programs and projects; A continuing mechanism to enhance local autonomy by legislative acts, administrative and organizational reforms; LGUs shall share with the national government the responsibility in the management/ maintenance of ecological balance within their territorial jurisdiction; Effective mechanisms for ensuring the accountability of LGUs to their constituents shall be strengthened to upgrade the quality of local leadership; Facilitated by improved coordination of national government policies and programs as an extension of adequate technical and material assistance to less developed local government units; Private sector participation (delivery of basic services) in local governance shall be encouraged to ensure local autonomy as an alternative for sustainable development; and 13 National government shall ensure that decentralization contributes to the continuing improvement of LGUs and the quality o f community life. (Section 3, Local Government Code)

Sensitive to the needs of the locality Through initiative and referendum Accountable to the electorate of the locality

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Through recall Freed from central government interference (Bernas, pp 1117-1118) 

Purpose of Police Power

(1) (2) (3)

Powers devolved to the Local Government Unit

(1) (2)

(3)

(4) (5) (6) (7)

(8)

Public Works a. Distributed responsibility on Roads Health a. Maintenance of health and day-care centers b. Delivery of health care services c. Establishment and operation of hospitals Agriculture a. Conservation projects b. Agricultural support services c.  Jurisdiction over cooperatives Social Welfare Certain Tourism functions Construction of School Buildings and Facilities Local Taxation Increase in tax share  Increase in taxing power  Common revenue powers among province,  municipality, city, and barangay (e.g. Toll fees) Distribution of Shares from Natural Resources (Rodriguez, pp 31-36)

Control and Supervision, distinguished Control Power of an officer to alter or modify or nullify or set aside what a subordinate officer ha[s] done in the performance of his duties and to substitute the judgment of the former for that of the latter. Officers in control lay down the rules in the performance  or accomplishment of an act. If these rules are not followed, they may, in their discretion, order the act undone or redone by their subordinates or even decide to do it themselves.

To promote the general welfare, comfort and convenience of the people; To promote and preserve public health To protect public morals

General Rule:  The general welfare provisions shall be liberally interpreted to give more powers to LGU in accelerating economic development and upgrading the quality of life for the people in the community Limitation in Exercise of Police Power

An ordinance enacted by virtue of the general welfare clause is valid Exception: a. If it contravenes the fundamental law of the Philippine Islands, b. An Act of the Philippine Legislature, c. Against public policy, d. Is unreasonable, oppressive, partial, discriminating, or in derogation of common right (Batangas CATV v CA, G.R. no. 138810). Based on the hierarchy of constitutionally protected rights, the right to life enjoys precedence over the right to property. The reason is obvious: life is irreplaceable, property is not. When the state or LGU’s exercise of police power clashes with a few individuals’ right to property, the former should prevail. (Social  Justice Society v Atienza, G.R. no. 187836). Test for Valid Exercise of Police Power 1. 2.

The interests of the public, not a mere particular class, require the exercise of police power (Lawful subject) The means employed is reasonably necessary for the accomplishment of the purpose and not unduly oppressive to individuals (Lawful Means)

Power to issue license and permits Supervision Power of mere oversight over an inferior body. Supervising officials merely see to it that the rules are  followed, but they themselves do not lay down such rules, nor do they have the discretion to modify or replace them.

POWERS OF LOCAL GOVERNMENT UNITS POLICE POWER (GENERAL WELFARE CLAUSE)

The power inherent in the State to regulate li berty and property for the promotion of the general welfare. Police power is the plenary power vested in the legislature to make, ordain, and establish wholesome and reasonable laws, statutes and ordinances, not repugnant to the Constitution, for the good and welfare of the people. Power to prescribe regulations flows from the recognition that the welfare of the people is the supreme law.

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Issuance of license is regulatory rather than an exercise of taxation. Kinds of Licenses: Regulation of Useful Occupation  Regulation of Non-Useful Occupation  Exception: For Revenue purposes  A license tax for regulation is not a tax on property but rather a burden imposed for the right to exercise a franchise or privilege of which the holder may not be deprived without due process and when public interest so require. i. While it is true that the matter of determining whether there is a pollution in the environment that requires control if not prohibition of the operation of a business, is essentially addressed to the Environmental Management Bureau of DENR, it must be recognized that the mayor of a town has as much responsibility to protect its inhabitants from pollution and by virtue of his police power, he may deny the application of permit to operate business (the mayor here has factual basis). (Technology Developers, Inc. vs CA, GR No. 94759, January 21, 1991)

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But if the basis for issuance of permit to operate business is a special law, the latter shall govern over the Local Government Code. A general law cannot repeal a special law. (Laguna Lake Development Authority vs CA, GR No. 120865-71, December 7, 1995.)

Power to issue permits for rallies (BP 880, The Public Assembly Act of 1985) 

“No permit, no rally” rule is constitutional. While the freedom of speech and assembly were recognized by the court, such rights are not absolute. It is regulated by police power in promoting health, morals, peace, education, good order or safety, and general welfare of the people. (Bayan vs Ermita, GR No. 169838, April 25, 2006)

KATARUNGANG PAMBARANGAY

(Section 399-422, Local Government Code) Barangay based dispute settlement mechanism Lupong Tagapamayapa Shall exercise administrative supervison over conciliation matters.

(1) (2)

(3) (4)

Composition: Punong Barangay/Lupon Chairman and 1020 members Punong Barangay shall appoint or accept recommendations for members 10 days after 3-weeks notice (with list of names), which shall be made 15 days from commencement of office. A member’s term will end on the 3rd  year from his appointment. The Barangay secretary shall also be the Lupon secretary

Abatement of Nuisance

A Public Nuisance may be abated by a: (1) Prosecution (Penal Code or other laws) (2) Civil Action (3) Extrajudicial Abatement Private Nuisance would only allow 2 and 3. But in case it’s a private nuisance, the following rules will still apply. a.

b.

District health officer –  to ensure that one or all the remedies for public nuisance are availed of. He shall also determine whether an extrajudicial abatement is the best remedy. Local Police – assist in executing the abatement

Pangkat Tagapagkasundo

3 members from Lupon shall be chosen by the parties (to a dispute) to conciliate. If there’s no agreement, the Chairman shall draw lots. Two of the 3 members shall be the chairman and the  secretary. Secretary shall prepare the minutes of Pangkat proceedings (attested to by the Chairman to the Lupon Secretary and proper court i.e. MTC). Notices shall be served to the parties and certified true  copies of public record (except confidential records) shall be issued.

 Who can commence an action 



City/Municipal Mayor – he shall commence the action if the civil action is for the maintenance of a public nuisance Private person – if the public nuisance is specially injurious to himself, he may abate by: Availing the remedies cited above Removing or destroying the thing without committing breach of peace or doing unnecessary injury. BUT: There’s a demand to the owner/possessor  (of the nuisance) Rejected demand  Health officer and police executed their  duties (see above) Value of destruction is less than 3,000 PhP. 

Nuisance per se is a nuisance under any and all circumstances while nuisance per accidens   becomes such under certain conditions and circumstances. (Aquino, T., Tort s and Damages, 2005, p. 746 citing Salao vs Santos.) The Mayor cannot claim authority to summarily abate  nuisance under the General Welfare Clause of LGC. This only applies to nuisance per se or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity. (Estate of Gregorio Francisco vs CA, GR No. 95279, July 25, 1991)

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GENERAL RULE AND EXCEPTIONS ON THE POWER OF THE LUPONG TAGAPAMAYAPA GENERAL RULE: The Lupon shall have the authority to bring together parties residing in the same city/municipality for amicable settlement of all disputes. EXCEPTIONS: (1) One party is the government/subdivision/instrumentality (2) One party is a public officer disputing his performance of official functions (3) offenses punishable by imprisonment more than 1 year or fine more than 5,000 (4) No private offended party (5) Real properties located in different cities/municipalities (6) UNLESS, parties agreed to submit to Lupon (7) Parties residing in different cities UNLESS, their barangays are adjoing and they agreed to submit (8) Other matters suggested by President or Sec. of Justice

 Which Lupon?

Venue: Same Barangay, Same Lupon

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Different Barangays but same City: Where the respondent resides at complainant’s election Real Property: In its location or where the larger portion is.

(2)

Upon making a deposit.

The principle of res judicata does not apply in eminent domain cases. (Moday v. CA)

Workplace/Institution: Location of such place.

GENERAL RULE AND EXCEPTIONS ON REQUISITE CONCILIATION AND SETTLEMENT BEFORE THE LUPON

GENERAL RULE: No complaint, petition, action, or proceeding involving any matter within the authority of the lupon shall be filed or instituted directly in court or any other government office for adjudication. EXCEPTIONS: (1) No settlement was reached after confrontation of the parties before the l upon chairman or the pangkat (2) Accused is under detention (3) Deprivation of personal liberty (Habeas Corpus) (4) Actions with Provisional Remedies (Preliminary Injunction etc.) (5) Statute of Limitations

 When Private Property is Taken

(1) (2) (3) (4) (5)

(1)

(2) 



There is no need of prior referral of the dispute to the barangay lupon or pangkat in the absence of showing in the complaint itself that the parties reside in the same city or municipality. (Boleyley vs Villanueva, GR No. 128734, September 14, 1999) The conciliation process is not a jurisdictional r equirement, so that non-compliance therewith cannot affect the  jurisdiction which the court has otherwise acquired over the subject matter. (Aquino vs Aure, GR No. 15356) EMINENT DOMAIN

The power to expropriate private property has been delegated by Congress to LGUs under Section 19, LGC. The exercise by LGUs of the power of eminent domain are subject to the usual constitutional limitations such as necessity, private property, taking, public use, just compensation and due process of law. Eminent Domain is the inherent right of the State to condemn or to take private property for public use upon payment of just compensation while police power is the power of the state to promote public welfare by restraining and regulating the use of liberty and property without compensation. The determination of whether there is genuine necessity for the exercise of the power of eminent domain is a justiciable question when exercised by the LGUs and generally a political question when exercised by Congress.

Requirements of Eminent Domain

(1) (2) (3)

Taking of property For public use/purpose With just compensation

(3) (4)

Expropriator must enter into private property For more than a momentary period Entry into property should be under warrant of color or legal authority Property must be devoted to a public use or informally appropriated or injuriously affected Utilization of the property for public use must be in such a way as to oust the owner and deprive him of all beneficial enjoyment of the property (Heirs of Mateo Pidacan and Romana Eigo v. Air Transportation Office, G.R. No. 162779, 15 June 2007) EMINENT DOMAIN REQUISITE BY AN LGU: An ordinance [not a mere resolution]is enacted by the local legislative council authorizing the local Chief Executive t o exercise the power of eminent domain; The power is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless; There is payment of just compensation based on the fair market value of the property at the time of taking; and, A valid and definite offer was previously made to the owner of the property, but the offer was not accepted (Municipality of Paranaque v V.M Realty Corporation, G.R. no. 127820)

A LGU may exercise the power to expropriate private property only when authorized by Congress and subject to the latter’s control and restraints, imposed through the law conferring the power or in other legislations.  Just compensation is to be determined at the time of actual taking. LGC should prevail over Rules of Court. Thus,  General Rule is DATE OF FILING OF COMPLAINT; Exception is DATE OF ACTUAL TAKING.  TAXING POWER GENERAL RULE, EXCEPTION, AND EXCEPTION TO THE EXCEPTION ON THE RULES OF INTERPRETATION

In case of doubt, any tax ordinance or revenue measure shall be construed strictly against the LGU enacting it, and liberally in favor of the taxpayer. Any tax exemption, incentive or relief granted by any LGU shall be construed strictly against the person claiming it. Exception (to being in favor to L GU): STRICTLY AGAINST LGU; liberally in favor of Taxpayer Exception to the exception:  STRICTLY AGAINST THE TAX PAYER – if he’s claiming exemption

Note: Can the LGU enter the property? YES. (1) Upon filing of expropriation proceedings; and

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Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments. (Sec. 5, Art. X, 1987 Constit ution The basic rationale for the current rule is to safeguard the viability and self-sufficiency of local government units by directly granting them general and broad tax powers. The Constitutional objective obviously is to ensure that, while local government units are being strengthened and made more autonomous, the legislature must still see to it that: (1) the taxpayer will not be over-burdened or saddled with multiple and unreasonable impositions; (2) each local government unit will have its fair share of available resources; (3) the resources of the national government will not be unduly disturbed; and (4) local taxation will be fair, uniform, and just. Fundamental Principles: (Section 130, Local Government Code) Uniformity within the territorial jurisdiction  Equitable – as far as practicable on the ability to pay; for  public purposes; not unjust, excessive, oprressive or confiscatory; not contrary to law, public policy, national economic policy, or in restraint of trade Shall not be left to any private person  Solely for the benefit of the LGU  Progressive  Sources of Revenues (1) Under the Constitution taxes, fees and charges (Section 5, Art. X)  share in the national taxes- Internal Revenue  Allotment share in the proceeds of the utilization and  development of the national wealth within their areas (Section 7, Art. X) (2) Under the Local Government Code (3) floating of bonds (4) grants/aids Local Governments being mere agents of the State, have no power to tax instrumentalities of the National Governments. PAGCOR being an instrumentality of the State is therefore exempt from local taxation. This is in consonance to the doctrine of State supremacy over local governments. Share of LGUs in national taxes: 40% on the Internal Revenue Provinces and Cities – 23% Municipalities – 34% Barangays – 20% 20% of each allocation should be for development projects RA 7160 removed the tax exemptions of some co rporations thus placing them under the taxing authority of local governments. Since, however, the power of local governments to tax is subject to limitations imposed by Congress, exemptions granted by Congress after RA7160 bind local governments.

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Constitutional Law I

CLOSURE AND OPENING OF ROADS

A municipality has the unassailable authority to: • prepare and adopt a land use map • promulgate a zoning ordinance which may consider, among other things, the municipal roads to be constructed, maintained, improved or repaired • close any municipal road A road may be: a) permanently closed b) temporarily closed c) opened Types (must be within jurisdiction and through and ordinance): a) local road b) alley c) park d) square

(1) (2) (3) (4) (5)

Requisites for Permanent closure: The ordinance must be approved by 2/3 of Sanggunian Provisions for public safety A substitute for public facility shall be provided when necessary May be used or conveyed for any purpose (like how LGUs legally dispose their property) Qualify: FREEDOM PARK – there must be a provision on its relocation

Temporary Closure: When: • Actual emergency • Fiesta celebrations • Public rallies • Agricultural or industrial fairs • Undertaking of public works and highways, telecommunications, and waterworks projects • Shopping malls, Sunday, flea or night markets, or shopping areas may be established and where goods, merchandise, foodstuffs, commodities, or articles of commerce may be sold to the public. Duration shall be specified by the local chief executive in a written order ATHLETIC, CULTURAL, CIVIC ACTIVITIES – must be officially sponsored/recognized/approved by the LGU

Opening: Provincial roads and city streets are property for public use  under Art. 424 of the Civil Code, hence under the absolute control of Congress. They are outside the commerce of man and cannot be disposed of to private persons. The properties of provinces, cities, and municipalities are  divided into property for public use and patrimonial property. Those properties for public use and made available to the public in general are outside the commerce of man and cannot be disposed of or leased by the local government unit to private persons. LEGISLATIVE POWER Products of legislative action (1) Ordinance - prescribes a rule of conduct.

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Resolution - of temporary character, or expresses sentiment.

The power to enact ordinances carries with it the power to change or repeal them Provided:  vested rights are not thereby impaired and repeals are valid only when passed in a certain manner which should be definite and should relate specifically to the ordinance which should be repealed. Congress has an implied power to repeal any municipal ordinance either in express terms or by necessary implication for the rule is that, if the subsequent statute is necessarily repugnant to an ordinance and the intention to repeal it is obvious, then the ordinance is thereby impliedly repealed.  Jurisdiction on cases involving validity of a municipal ordinance: • Provincial board –  has the authority to disapprove an ordinance within its jurisdiction on one ground: ordinance is not within the powers granted by the charter. • Court of First Instance –  Civil Action case to question the validity • Supreme Court – appellate jurisdiction



 

Veto on particular item/s of appropriation for ordinance, adoption of local development plan and public investment plan, or ordinance directing payment of money o r creating liability Veto only once Veto communicated to Sanggunian 15 days (province) and 10 days (city/municipality); otherwise the ordinance shall be deemed approved Exception: BARANGAY CHAIRMAN – no veto power; he shall sign upon the approval of the majority of Sangguniang Barangay (Section 54-55, Local Government Code)

Where petitioner was charged with falsification of a public document for approving a resolution which purportedly appropriated money to pay for the terminal leave of 2 employees when actually no such resolution was passed, the petitioner argued that his signature on the resolution was merely ministerial. The Supreme Court disagreed, saying that the grant of the veto power accords the Mayor the discretion whether or not to approve the resolution. (De Los Reyes vs Sandiganbayan, G.R. No. 121215, November 13, 1997)

Review Requisites for Valid Ordinance

(1) (2) (3) (4) (5) (6)

(a)

Must not contravene the Constitution and any statute Must not be unfair or oppressive Must not be partial or discriminatory Must not prohibit but may regulate trade Must be general and consistent with public policy Must not be unreasonable (City of Manila v. Laguio, Jr, G.R. No. 118127, April 12, 2005)

How:

Within 3 days after approval, the secretary of the sangguniang panlungsod (in component cities) or sangguniang bayan shall forward to the sangguniang panlalawigan for review copies of approved ordinances and resolutions approving the local development plans and public investment programs formulated by the local development councils. The sangguniang panlalawigan shall review the same within 30 days; if it finds that the ordinance or resolution is beyond the power conferred upon the sangguniang panlungsod or sangguniang bayan concerned, it shall declare such ordinance or resolution invalid in whole or in part. If no action is taken within 30 days, the ordinance or resolution is presumed consistent with law, and therefore, valid.

Rationale that ordinances should not contravene a statute: Governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local government units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute. (Magtajas vs Pryce Properties Corp., Inc., 234 SCRA 255, July 20, 1994) 

Local Ordinances cannot overcome Presidential Decree prohibiting the confiscation of license plate and driver’s license. (Solicitor General vs Metropolitan Manila Authority, GR No. 102782, December 11, 1991)

Approval-Veto

Local chief executive affixes his signature on each page. If the local chief executive vetoes, it may be overridden by 2/3 vote of all Sanggunian members; Grounds for veto: ordinance is ultra vires or prejudicial to  public welfare

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The sangguniang panlalawigan shall review ordinances and resolution of cities and municipalities to determine if they are within their power. (Section 56, Local Government Code)

(b)

The sangguniang panlungsod or bayan shall review sangguniang barangay ordinances to determine if they are lawful. (Section 57, Local Government Code) How: Within 10 days from enactment, the sangguniang barangay shall furnish copies of all barangay ordinances to the sangguniang panlungsod or sangguniang bayan for review. If the reviewing sanggunian finds the barangay ordinances inconsistent with law or city or municipal ordinances, the sangguniang concerned shall, within 30 days from receipt thereof, return the same with its comments and recommendations to the sangguniang barangay for adjustment, amendment or modification, in which

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case the effetivity of the ordinance is suspended until the revision called for is effected. If no action is taken by the sangguniang panlungsod or sangguniang bayan within 30 days, the ordinance is deemed approved.

Rules to be observed in VOTING: Two-Thirds (2/3) Vote Required Extending loans or entering into contracts;  Issuance of bonds or securities;  Authorizing the lease of public property;  Grant of franchises;  Creation of LGU liability or indebtedness  Over-ride the veto of the Mayor;  Grant of tax exemptions;  Levy of taxes;  Discipline / suspend a member of the sanggunian;  Opening or closing of roads;  Selection and transfer of government site or offices;  and Concurrence in the appointment of personnel  1. (DILG Opinion No. 107-2003, dated 15 August 2003) To change the name of public structure will historical, cultural and ethnic significance, a UNANIMOUS vote is required.

  

To sue and be sued GENERAL RULE AND EXCEPTION ON THE RULE OF PRIVATE LAWYERS REPRESENTING MUNICIPALITIES

Private lawyers may not represent m unicipalities on their own, and neither may they do so even in collaboration with authorized government lawyers. Only the provincial fiscal, provincial attorney, and municipal attorney should represent a municipality in lawsuits. Exception:  May expressly adopt the work already performed in good faith by such private lawyer, which work is beneficial to it Exception to the exception: b. No injustice is made to the adverse party c. No compensation in any guise is paid to the private lawyer (Ramos vs CA, G.R. No. 99425, March 3, 1997)

Local Initiative and Referendum Local Initiative It is the legal process whereby the registered voters of a local government unit may directly propse, enact or amend any ordinance. It may be exercised by all registered voters of the provinces, cities, municipalities and barangays. (a) Can be exercised only once a year (b) Shall extend only to matters within the powers of the Sanggunian (c) If at any time before the initiative is held, the Sanggunian concerned adopts in toto the proposition presented and the local chief executive approves the same, the initiative shall be cancelled. However those against such action may apply for initiative in the manner provided by law

To acquire and sell property

(1)

(2) (3)

(4)

Local Referendum

The legal process whereby the registered voters of the local government units may approve, amend or reject any ordinance. a. COMELEC shall hold and direct: a. Provinces – 60 days b. Municipalities – 45 days c. Barangays – 30 days CORPORATE POWERS Corporate Powers: To have continuous succession in its corporate name  To acquire, hold and convey real or personal property  To borrow money  To issue municipal bonds 

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To have and use a corporate seal LGUs may continue using, modify, or change their  existing corporate seals. Newly established LGU/those without corporate  seals: may create their own corporate seals which shall be registered with the DILG Any change of corporate seal shall also be registered. To enter into contracts Appropriate and spend money only for public purposes To sue and be sued 

(5)

The local government unit may acquire real or personal, tangible or intangible property, in any manner allowed by law, e.g., sale, donation, etc. The local government unit may alienate only patrimonial property, upon proper authority. In the absence of proof that the property was acquired through corporate or private funds, the presumption is that it came from the State upon the creation of the municipality and, thus, is governmental or public property. (Salas vs Jarencio, 48 SCRA 734, August 30, 1972)) Town plazas are properties of public dominion; they may be occupied temporarily, but only for the duration of an emergency. (Espiritu vs Municipal Council of Pozorrubio, Pangasinan, 102 Phil 866, January 21, 1958) A public plaza is beyond the commerce o f man, and cannot be the subject of lease or other contractual undertaking. And, even assuming the existence of a valid lease of the public plaza or part thereof, the municipal resolution effectively terminated the agreement, for it is settled that the police power cannot be surrendered or bargained away through the medium of a contract. (Villanueva vs Castaneda, 154 SCRA 142, February 27, 1969)

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To enter into contracts

4. Rules of Interpretation:

Rights and obligations already existing and arising out of contracts or any other source of presentation involving a local government unit shall be governed by the original terms and conditions of said contracts or the law in force at the time such rights were vested (Section 5, Local Government Code) General Rule:  Contracts entered into by the LGU shall be governed by the stipulations of the contract or the law in force at the time rights and obligations arose

Requisites

(1) (2)

(3) (4) (5)

The LGU has the express, implied or inherent power to enter into the particular contract. The contract is entered into by the proper department, board, committee, officer or agent. a. Unless otherwise provided by the Code, no contract may be entered into by the local chief executive on behalf of the local government unit without prior authorization by the sanggunian concerned. The contract must comply with certain substantive requirements. The contract must comply with the formal requirements of written contracts, e.g., the Statute of Frauds. Those entered into by the local chief executive shall require a prior authorization from Sanggunian

LIABILITIES OF LGUs

Liability for Tort

Public or Government Functions. The local government unit engaged in governmental functions, it is NOT liable for the acts of its officers or agents in the performance of its governmental functions. This is based on the sovereign character of the state and its agencies. (Rodriguez, R.B., The Local Government Code of 1991: Annotated, p105) Corporate, Private or Propriety Functions If engaged in proprietary functions, local government unit is liable. The LGU is to be regarded as a private corporation or individual as to its liability to third persons on contract or in tort.

Test to determine if Public or Private function 



Ultra Vires contracts

When a contract is entered into without compliance with the substantive requirements and has no inherent power, the same is ULTRA VIRES and is null and void. Such contract cannot be ratified or validated. Ratification of defective municipal contracts is possible only when there i s non-compliance with the second and/or fourth requirements above. Ratification may be express or implied. Local Chief Executive may negotiate and secure financial grants or donation in kind: 1. Upon authority of the Sanggunian 2. In support of the basic services and facilities enumerated under Section 17 (Basic Services and Facilities) 3. From local and foreign assistance agencies without necessity of securing clearance or approval from any department, agency, or office of the national government or from any higher local government unit a. Projects financed by such grants with national security implications shall be approved by the national agency concerned. i. When such national agency fails to act within 30 days from

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receipt, it shall be deemed approved The local chief executive shall, within 30 days, upon signing of such grant agreement or deed of donation, report the nature, amount, and terms of such assistance to both Houses of Congress and the President.

The true test is where the public corporation is performing governmental functions as an agency of the state, it shares the state’s exemption from tort liability; where it is attending to what primarily are local matters, it is liable. (Mendoza vs. de Leon, 33 Phil 508) Holding of town fiesta is a proprietary function. The Municipality of Malasique, Pangasinan, was held liable for the death of a member of the zarzuela group when the stage collapsed, the councilors themselves are not liable for the negligence of their employees or agents. A municipal corporation exercising propriety functions is on the same footing as a private corporation. Its governing board or municipal council is not liable solidarily for acts committed by its employees unless there is bad faith or wanton negligence on their part. (Torio vs. Fontanilla, 85 SCRA 599) Personal Liability of local officials 

Liability for Violation of Law 

The Municipality of Bunawan, Agusan del Sur, through the Mayor, was held in contempt and fined P1,000.00 with a warning, because of the refusal of the Mayor to abide by a Temporary Restraining Order issued by the Court. (Moday vs. CA, 243 SCRA 152)

Liability for Contracts

Ultra Vires General Rule: A municipal corporation, like an ordi nary person, is liable on a contract it enters into, provided that the

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contract is intra vires. If the contract is ultra vires, the municipal corporation is not liable. A private individual who deals with a municipal corporation is imputed constructive knowledge of the extent of the power or authority of the municipal corporation to enter into contracts. Ordinarily, the doctrine of estoppel does not lie against municipal corporation.





 Doctrine of Implied Municipal Liability The doctrine applies to all cases where money or property of a party is received under such circumstances that the general law, independent of an express contract, i mplies an obligation to do justice with respect to the same. A municipality may become obligated upon an implied contract to pay the reasonable value of the benefits accepted or appropriated by it as to which it has the general power to contract. (Province of Cebu vs. I AC, 147 SCRA 447) SETTLEMENT OF BOUNDARY DISPUTES PROCEDURE (1) Disputes on boundary settlements shall be brought to the respective Sanggunian: DISPUTING UNITS SANGGUNIAN

Baranggays in the same city or municipality



Municipalities in the same province Municipalities or component cities of different provinces Component city or municipality AND Highly urbanized cities



(2)

(3) (4) (5) (6)







The President shall DIRECTLY SUPERVISE: Provinces  Component Cities and Municipalities  Barangay (Section 29&32, Local Government Code) Provincial/City Supervision: a. Review of Executive Orders (Section 30, Local Government Code – submit 3 days from issuance and 30 days to decide on. Otherwise EO is deemed valid.) b. Submission of legal questions to higher LGU’s legal official (Section 31, Local Government Code) o Highly Urbanized Cities o Independent Component Cities o Autonomous Regions (CAR and ARMM) (Section 16, Article X, 1987 Constitution) *LGUs can consolidate and coordinate among themselves (Section 33, Local Government Code) LGUs may request for financial or technical assistance from the President. The latter shall direct the appropriate agency with no extra cost burdened on the LGU. National Agencies shall coordinate and consult (Section 2 (c) and Section 27, Local Government Code) with LGUs through their branches to ensure their participation in project implementation. This is important as national agencies also have the duty to maintain ecological balance. (Section 26, Local Government Code)

Sangguninang Panlungsod or Sangguninang Bayan

People’s organizations and NGOs also has a role in promoting autonomy and so LGUs are encouraged to ensure the establishment, create linkages and provide assistance to such NGOs. (Section 34-36, Local Government Code)

Sangguninang Panlalawigan  JOINTLY referred in the Sanggunian of the provinces involved  JOINTLY referred for settlement to the Sanggunian of the parties, respectively

Congress has the power to control: creation/division/merger, qualifications of officials, share in the national taxes

If the Sanggunian is unable to bring amicable settlement within 60 days, it must issue a certification stating so. The 60 days begin from the date of referral of the dispute. The Sanggunian will then try the dispute and decide within 60 days from the date of issuing a certification. Any of the parties may appeal the decision of the Sanggunian to the RTC with jurisdiction on the area. The RTC will decide the appeal within 1 year from the filing. The disputed area will be maintained and continued as it is while pending the case resolution.

Power of General Supervision

The President shall exercise general supervision over the local government units to see to it that acts of local officials are within their prescribed powers and functions.

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President and its agencies have the power to supervise: suspension of officials, oversight, investigation (4)

Control is the power of an officer to alter, modify, nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for test of the latter. Supervision  is overseeing or the power/authority of an officer to see that subordinate officers perform their duti es. (Ganzon vs CA, GR No. 93252, August 5, 1991 citing Mondano vs Silvosa)

(5)

Investigating   is consistent with overseeing, although it is a lesser power than “altering”. Previous jurisprudence did not categorically ban the Chief Executive from exercising acts of disciplinary authority not because she did not exercise control powers, but because no l aw allowed her to exercise disciplinary authority. (Ganzon vs CA, supra)

(6)

Secretary of Justice to review only the constitutionality or legality of the tax ordinance and, if warranted, to revoke it on either or both of these grounds. When he alters or modifies or sets aside a tax ordinance, he is not also permitted to substitute his own judgment for the judgment of the local government that enacted the measure. (Drilon vs Lim, GR No. 112497, August 4, 1994)

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Term and Manner of Election

(7)

An administrative order does not apply to LGUs but only to government offices/agencies and GOCCs which are under the control of the President. (Province of Negros Occidental vs COA, GR No. 182574, September 28, 2010)

(Section 41-43, Local Government Code)

ELECTED AT LARGE BY QUALIFIED VOTERS

LOCAL OFFICIALS Qualifications and Disqualifications of Elective Local Official

Qualifications Disqualifications 1. Filipino Citizen 1. Sentenced by final 2. Registered voter in the  judgment: respective LGU or 2. offenses involving moral district (Sanggunian turpitude Member) 3. offense punishable by 1 3. Resident for at least 1 year imprisonment (or year more) within 2 year after 4. able to read and write in service of sentence Filipino/local 4. removed from office due dialect/language to an administrative case 5. Age Requirement: 5. convicted by final 6. Governor, Vice  judgment; violation of Governor of Provinces; oath of allegiance Mayor, Vice Mayor, 6. dual citizenship Sangguniang 7. fugitives; criminal or Panglungsod of HUC– non-political; here or 23 y/o abroad 7. Mayor, Vice Mayor of 8. permanent resident ICC, Component Cities abroad/continues to and Municipalities – 21 avail an acquired right to y/o reside abroad 8. Sangguniang 9. insane/feeble-minded Panglungsod, Sangguiniang Bayan – 18 y/o 9. Punong Barangay, Sangguniang Pambarangay – 18 y/o 10. Sangguniang Kabataan – 18-24 y/o (Section 39&40, Local Government Code) (Section 10, Sangguniang Kabataan Reform Act of 2015) The use of foreign passport after renouncing one’s foreign citizenship is a positive and voluntary act of representation as to one’s nationality and citizenship; it does not divest Filipino citizenship regained by repatriation but it recants the Oath of Renunciation required to qualify one to run for an elective position. (Maquiling vs. COMELEC, G.R. No. 195649. April 16, 2013)

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(1) (2) (3) (4) (5) (6) (7) (8)

Governor Vice Governor City Mayor City Vice Mayor Municipal Mayor Municipal Vice Mayor Punong Barangay Sangguniang Barangay

ELECTED BY DISTRICT

(1) (2) (3)

Sangguniang Panlalawigan Sangguniang Panlungsod Sangguniang Bayan

Elected by regist ered voters of Katipunan ng Kabataan (which is per chapter): Sangguniang Kabataan THE SANGGUNIAN MUST HAVE:

(1) (2) (3)

1 sectoral representative from the women 1 sectoral representative from the workers 1 sectoral representation from any: urban poor, indigenous cultural communities, disabled persons, other sector -> (deemed by the Sanggunian within 90 days prior the next local elections)

NEED NOT BE ELECTED 



President of Leagues of Sanggunian Members of component cities –  ex officio members of Sangguniang Panlalawigan President of Liga ng mga Barangay and Pederasyon ng mga Sangguniang Kabataan –  ex officio members of Sangguniang Panlalawigan, Panlungsod and Bayan.

ELECTION DATE Second Monday of May, every 3 years

TERM OF OFFICE

Local elected official after the effectivity of LGC (after 1992) a) 3 years from June 30, 1992 (12 noon). b) Those elected within the ratification of 1987 Constitution and June 30 1992 shall end their office on the latter date. Exception : Barangay Officials – 3 years. Starting on second Monday of May 1994.

No official shall serve for more than 3 consecutive terms for the same position

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For the three-term limit for elective local government officials to apply, two requisites must concur, to wit: That the official concerned has been elected for three consecutive terms in the same local government post, and That he has fully served three consecutive terms. (Ong v. Alegre, G.R. No. 154829, January 23, 2006) 



Voluntary Renunciation is not considered an interruption of the running of 3 consecutive terms not considered a voluntary renunciation. A permanent vacancy occurred in the office of the vice mayor due to the retirement of Vice Mayor Mendoza. Potenciano, being the highest ranking councilor, succeeded him in accordance with law. It is clear that his assumption of office as a vice mayor can in no way be considered as a voluntary renunciation of his office as a municipal councilor. (Montebon vs COMELEC, G.R. No. 180444, April 8, 2008) Preventive suspension of an elected local official is not considered an interruption of the term. Preventive suspension, by its nature, is a temporary incapacity to render service during an unbroken term. It is not a valid interruption. To constitute as valid, the interruption o f the service should occur after there has been a break in time. The best indicator of the suspended o fficial’s continuity in office is the absence of a permanent replacement and the lack of authority to appoint one since no vacancy exists. Furthermore, preventive suspension does not involve a voluntary act on the part of t he official. By its very nature, it is involuntary. (Aldovino vs COMELEC, G.R. No. 184836, December 23, 2009)

(2)

Appear as a counsel in any criminal case wherein an officer or employee of the government is accused of an offense in relation to his office; (3) Collect any fee in administrative procee dings involving the LGU wherein he is an official; (4) Use property and personnel of the government except when defending the interest of the government. (Section 90, Local Government Code)

Succession of elective officials RULES ON SUCCESSION

Permanent Vacancies A permanent vacancy arises when an elective local official: fills a higher vacant office,  refuses to assume office,  fails to qualify,  dies  is removed from office,  voluntarily resigns, or  is permanently incapacitated to discharge the  functions of his office (Sec. 44, Local Government Code of 1991)

OFFICES OF THE GOVERNOR, VICE GOVERNOR, MAYOR, VICE MAYOR Limitations (Both Elective and Appointive)



Vacant Office

Next Successor (if successor unable) Governor, OR Highest Ranking Mayor Sanggunian member OR Second Highest if highest is permanently unable ViceHighest-ranking Second highest Governor; or Sangguniang ranking Vice-Mayor member sangguniang member Punong Highest Ranking Second Highest if Baranggay Sanggunian highest is member, OR permanently unable Successors shall only serve the unexpired term 

PROHIBITED BUSINESS

Business transactions with the LGU in which he is an official or has supervisory power on. It shall be unlawful for any local officials to: (1) Engage in business transaction with LGU; (2) Engage in cockpit or other licensed games; (3) Purchase of real estate forfeited in favor of the LGU; (4) Be surety for a person engaged in business with the LGU; (5) Use/Possess public property of LGU

RULES ON PRACTICE OF PROFESSION OF LOCAL GOVERNMENT OFFICIALS

GENERAL RULE: Local officials are prohi bited from practicing their profession or any other related business during their term. EXCEPTION: Sanggunian members, but not during session hours. Members of the Bar shall not: (1) Appear as a counsel in any civil case wherein the LGU is the adverse party;

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“Automatic Succession” takes place in case of such permanent vacancies in these offices



 

Successor in Office Vice-Governor, OR Vice Mayor

HIGHEST RANKING SANGGUNIAN Determined on the basis of the proportion of the votes obtained to the number of registered votes in each district. In case of a tie , it is resolved by drawing of lots Ranking in the sanggunian:  Determined on the basis of the proportion of the votes obtained by each winning candidate to the total number of registered voters of each district. It does not mention anything about factoring the number of the voters who actually voted. In such case, the

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Court has no recourse but to merely apply the law. The courts may not speculate as to the probable intent of the legislature apart from the words. (Pascual vs. PascualBautista, 207 SCRA 561 (1992))

SANGGUNIAN (2)

(3)



“Filled by Appointment” where automatic succession does not apply Successor appointed/ Appointee should be from the same political party as the one causing the vacancy, EXCEPT for the Sangguniang Barangay There is only one rule governing appointments to the Sangguniang Barangay. Any vacancy caused by the cessation from office of a member must be made by the mayor upon the recom mendation of that Sanggunian. The reason is that members of the Sangguniang Barangay are not allowed to have party affiliations. (Fariñas vs. Barba, 256 SCRA 396 (1996))

Vacant Sanggunian Sangguniang Panlalawigan AND Sangguniang Panlungsod

Sangguniang Panlungsod AND Sangguniang Bayan Sangguniang Barangay

LGU

Appointing Officer

Highly Urbanized cities, AND Independent Component Cities Component City

The President, through Executive Secretary

City OR Municipality

City or municipal Mayor UPON recommendation of the Sangguniang Barangay concerned







“The votes cast in favor of the ineligible candidate are not considered at all in determining the winner of an election. Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still respected, and even more so. The votes cast in favor of an ineligible candidate do not constitute the so le and total expression of the sovereign voice. The votes cast in favor of eligible and legitimate candidates form part of that voice and must also be respected. The disqualified candidate has already been proclaimed and has assumed office is of no moment. The subsequent disqualification based on a substantive ground that existed prior to t he filing of the certificate of candidacy voids not only the COC but also the proclamation. Arnado's disqualification, although made long after the elections, reaches back to the filing of the certificate of candidacy. Arnado is declared to be not a candidate at all in the May 201 0 elections. A rnado being a non-candidate, the votes cast in his favor should not have been counted. This leaves Maquiling as the qualified candidate who obtained the highest number of votes. Therefore, the rule on succession under the Local Government Code will not apply.” (Maquiling vs. COMELEC, G.R. No. 195649. April 16, 2013)

REPRESENTATION OF THE YOUTH AND BARANGAY SANGGUNIAN

Governor

Vacancy in the representation of the youth and the barangay in the sanggunian shall be filled by the official next in rank of the organization. RESIGNATION OF ELECTIVE OFFICIALS

 From the Same Political Party 

sine qua non for the validity of the appointment, by analogy of Sec 45(b). (Fariñas vs Barba, supra)

A nomination and a 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 certificate shall be null and void ab initio and shall be a ground for administrative action against the official responsible. In case the official has no political party:  the local chief executive shall appoint a qualified person to fill, upon recommendation of the sanggunian concerned. (Section 45, Local Government Code) The appointing authority is not bound to appoint anyone recommended to him by the Sanggunian concerned. The power of appointment is discretionary power. On the other hand, neither is the appointing power vested with so large a discretion that he can disregard the recommendation of the Sanggunian concerned. Since the recommendation takes the place of nomination by political party, the recommendation must likewise be considered a condition

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Resignation is deemed effective only upon acceptance by the following authorities: Resignation by Governors and vicegovernors; Mayors and vice-mayors of HUCs and ICCs Mayors and vice-mayors of component cities and municipalities Sanggunian members Barangay officials

Approved by President

Governors

Sanggunian concerned City or municipal mayor

Exceptions: (1) Resignation shall be deemed accepted if not acted upon by the authority concerned within 15 working days from the receipt thereof. (2) Irrevocable resignations by sanggunian members shall be deemed accepted upon presentation before an open session of the sanggunian concerned and duly entered in its records. (3) This does not apply to sanggunian members who are subject to recall elections or to cases where existing laws prescribed the manner of acting upon such resignations. (Section 82, Local Government Code)

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TEMPORARY VACANCY

Legal reason (ie suspension)

MANNER of SUCCESSION OF LOCAL CHIEF EXECUTIVE Local Chief Executive Officer

Cause of Vacancy (INCAPACITY)

Temporary Successor

Governor, Mayor, OR Punong Barangay

Physical or Legal reasons (LOA, abroad, suspension)

Vice-Governor Vice-Mayor, OR Highest Ranking Sanggunian member

By submission of written declaration AND necessary documents showing the cause no longer exists

Discipline of local officials

AUTOMATICALLY assumes Exercises all duties and powers EXCEPT: Power to suspend, appoint, dismiss employees. These powers can only be exercised if the power temporary incapacity exceeds 30 working days.

LOCAL CHIEF EXECUTIVE IS TRAVELLING WITHIN THE COUNTRY FOR NO MORE THAN THREE DAYS, BUT OUTSIDE HIS TERRITORIAL JURISDICTION Local Chief Executive Officer Local Chief Executive is travelling within the country but is outside his territorial jurisdiction for a period not exceeding three consecutive days

Temporary Successor

1. The person designated as an officer-in-charge; OR 2. If the local chief executive fails to issue an authorization, the Vicegovernor, Vice-mayor, or highest ranking Sangguniang Barangay member shall have the right to assume his powers on the fourth (4 th) day of his absence.

EXCEPT: Power to suspend, appoint, or dismiss employees. EXCEPT AS PROVIDED, the local chief e xecutive shall not authorize any local official to assume the powers, duties and functions of the office, other than the vice governor, the vice-mayor, or the highest ranking sanggunian member (as the case may be).

TERMINATION OF TEMPORARY SUCCESSION

CAUSE OF VACANCY OR INCAPACITY Physical reason (ie LOA)

TERMINATION OF INCAPACITY By submission of local chief executive of a written declaration to the appropriate Sanggunian that he has reported back to office

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Elective officials An elective local official may be disciplined, suspended, or removed from office on any of the following grounds: 1) Disloyalty to the Republic of the Philippines; 2) Culpable violation of the Constitution; 3) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty; 4) Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor; 5) Abuse of authority; 6) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay; 7) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and 8) Such other grounds as may be provided in this Code and other laws. An elective local official may be removed from office  on the grounds enumerated above by order of the proper court. (Chapter 4, Sec. 60, RA 7160)

 JURISDICTION Filing of Verified Complaint Government Office Elective Officials to be Disciplined Office of the President Provincial; Highly Urbanized City; Independent Component City; Component City Sangguniang Municipal Panlalawigan

APPEAL: Office of the President Sangguniang Panlungsod or Sangguniang Bayan (final and executory)

Barangay

(Section 61, Local Government Code)

PREVENTIVE SUSPENSION Preventive suspension may be imposed by:

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Respondent is an elective official of a province, a highly urbanized or an independent component city Governor Respondent is an elective official of a component city or municipality Mayor Respondent is an elective barangay official (Section 63, Local Government Code)

Constitutional Law I

President

 WHEN PREVENTIVE SUSPENSION MAY BE IMPOSED: 1. at any time after the issues are joined, 2. when the evidence of guilt is strong, 3. and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence.

SUSPENDED ELECTIVE OFFICIAL WHEN DEEMED REINSTATED

Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within one hundred twenty (120) days from the time he was formally notified of the case against him. However, if the delay in the proceedings of the case is due to his fault, neglect, or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case. Any abuse of the exercise of the power o f preventive suspension shall be penalized as abuse of authority.

Salary of Respondent Pending Suspension The respondent official preventively suspended from office shall receive no salary or compensation during such suspension; BUT, upon subsequent exoneration and reinstatement, he shall be paid full salary or compensation including such emoluments accruing during such suspension. (Section 64, Local Government Code) RIGHTS OF RESPONDENT The respondent shall be accorded: 1) full opportunity to appear and defend himself in person or by counsel, 2) to confront and cross-examine the witnesses against him, and 3) to require the attendance of witnesses and the production of documentary evidence in his favor through the compulsory process of subpoena or subpoena duces tecum. (Section 65, Local Government Code) FORM AND NOTICE OF DECISION The investigation of the case shall be terminated within ninety (90) days from the start thereof. Within thirty (30) days after the end of the investigation, the Office of the President or the sanggunian concerned shall render a decision in writing stating clearly and distinctly the facts and the reasons for such decision. Copies of said decision shall immediately be furnished the respondent and all interested parties.

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The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long as he meets the qualifications required for the office. (Section 66, Local Government Code)

REMOVAL

The penalty of removal from office as a result of an administrative investigation shall be considered a bar to the candidacy of the respondent for any elective position.

ADMINISTRATIVE APPEALS

Decisions in administrative cases may, within 30 days from receipt thereof, be appealed to: 1) The sangguniang panlalawigan, in the case of decisions of the sangguniang panlungsod of component cities and the sangguniang bayan; and 2) The Office of the President, in the case of decisions of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities. Decisions of the Office of the President shall be final and executory. (Section 67, Local Government Code) EXECUTION PENDING APPEAL

An appeal shall not prevent a decision from becoming final or executory. If the respondent wins the appeal

He shall be considered as having been placed under preventive suspension during the pendency of the appeal.

If the appeal results in an exoneration

He shall be paid his salary and such other emoluments during the pendency of the appeal.

(Section 68, Local Government Code)

DOCTRINE OF CONDONATION

A public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner. (Aguinaldo vs Santos, G.R. No. 94115, August 21, 1992)

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A reelected local official may not be held administratively accountable for misconduct committed during his prior term of office. The rationale for this holding is that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds. (Garcia vs Mojica, G.R. No. 139043, September 10, 1999 The electorate's condonation of the previous administrative infractions of the reelected official cannot be extended to that of the reappointed coterminous employees, the underlying basis of the rule being to uphold the will of the people expressed through the ballot. In other words, there is neither subversion of the sovereign will nor disenfranchisement of the electorate to speak of, in the case of reappointed coterminous employees. In other words, the doctrine of condonation does not extend to appointive officials. (Salumbides vs Office of the Ombudsman, G.R. No. 180917, April 23, 2010) ABANDONMENT OF THE DOCTRINE OF CONDONATION

In the Morales case (Morales vs CA, G.R. No. 216871, December 6, 2017), the Court abandoned this doctrine. The Court held that the Doctrine of Condonation is actually bereft of any legal basis. The concept of public office is a public trust is and the corollary requirement of accountability to the people at all times, as mandated under the 1987 Constitution, is plainly inconsistent with the idea that an elective official’s administrative liability for a misconduct committed during a prior term can be wiped off by the fact that he was elected to a second term of office or even another elective post. Appointive officials

Common to all Municipalities, Cities, and Provinces: 1)

Secretary to the Sanggunian (Sec. 469, RA7160)

2)

Treasurer (Sec. 470, RA 7160)

3)

The Assessor (Sec. 472, RA 7160)

4)

The Accountant (Sec. 474, RA 7160)

5)

The Budget Officer (Sec. 475, RA 7160)

6)

The Planning and Development Coordinator (Sec. 476, RA 7160)

7)

The Engineer (Sec. 477, RA 7160)

8)

The Health Officer (Sec. 478, RA 7160)

9)

The Civil Registrar (Sec. 479, RA 7160)

10) The Administrator (Sec. 480, RA 7160) 11) The Legal Officer (Sec. 481, RA 7160) 12) The Agriculturist (Sec. 482, RA 7160) 13) The Social Welfare and Development Officer (Sec. 483, RA 7160) 14) The Environment and Natural Resources Officer (Sec. 484, RA 7160) 15) The Architect (Sec. 485, RA 7160)

17) The Cooperatives Officer (Sec. 487, RA 7160) 18) The Population Officer (Sec. 488, RA 7160) 19) The Veterinarian (Sec. 489, RA 7160) 20) The General Services Officer (Sec. 490, RA 7160)

Recall

Recall is the termination of official relationship of an elective official for loss of confidence prior to the expiration of his term through the will of the electorate. (Section 69, Local Government Code)

By whom exercised

The power of recall for loss of confidence shall be exercised by the registered voters of a local government unit to which the local elective official subject to such recall belongs.

Initiation of Recall Process (Section 70, Local Government Code)

How to initiate: (1) by a preparatory recall assembly or (2) by the registered voters of the local government unit to which the local elective official subject to such recall belongs (3) Preparatory Recall Assembly There shall be a preparatory recall assembly in every: (1) PROVINCE (composing of) All mayors  Vicemayors  Sangguniang barangay members of the  mmunicipalities and component cities (2) CITY (composing of) All punong barangay  Sangguniang barangay members in the city  (3) LEGISLATIVE DISTRICT In cases where sangguniang panlalawigan members  are elected BY DISTRICT: All elective municipal officials in the district  In cases where sangguniang panglungsod member  are elected by district All elective barangay officials in the districts  (4) MUNICIPAL (composing of) All punong barangay  Sangguniang barangay members in the municipality  Procedure for initiating Recall Assembly A majority of all the preparatory recall assembly members may convene in session in a public place and initiate a recall

16) The Information Officer (Sec. 486, RA 7160)

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proceeding against any elective official in the local government unit concerned. Recall of provincial, city, or municipal officials shall be validly initiated through a resolution adopted by a majority of all the members of the preparatory recall assembly concerned during its session called for the purpose.



C. Matters related to Barangay Affairs 



Initiation by Registered Voters

Recall of any elective provincial, city, municipal, or barangay official may also be validly initiated upon petition of at least twenty-five percent (25%) of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected.

Procedure for initation by registered voters

1)

2)

A written petition for recall duly signed before the election registrar or his representative, and in the presence of a representative of the petitioner and a representative of the official sought to be recalled, and in a public place in the province, city, municipality, or barangay, as the case may be, shall be filed with the Comelec through its office in the local government unit concerned. The Comelec or its duly authorized representative shall cause the publication of the petition in a public and conspicuous place for a period of not less than ten (10) days nor more than twenty (20) days, for the purpose of verifying the authenticity and genuineness of the petition and the required percentage of voters. Upon the lapse of the aforesaid period, the Comelec or its duly authorized representative shall announce the acceptance of candidates to the position and thereafter prepare the list of candidates which shall include the name of the official sought to be recalled.

Section 512 – Withholding of Benefits Accorded to Barangay Officials Section 515 – Refusal or Failure of Any Party or Witness to Appear before the Lupon or Pangkat

D. Prohibitions on Local Government Officials and Staff 



Section 514 – Engaging in Prohibited Business Transactions or Possessing Illegal Pecuniary Interests Section 520 – Prohibited Acts Related to the Award of contracts under the Provisions of Credit Financing

E. Miscellaneous Provisions   





Section 521 – 5-year Mandatory Review of the LGC Section 522 – GSIS Coverage of Barangay Officials Section 523 – Receipt of Personnel Retirement and/or Benefits of Affected Employees upon effectivity of the LGC Section 524 – Periodic Inventory of Infrastructure and other Community Facilities Section 525 – Transfer of Records and Properties affected by the Adoption of the LGC

F. Transitory Provisions (Sections 526-533, LGC) 









ACTS PUNISHABLE UNDER THE LOCAL GOVERNMENT CODE

Section 519 – Failure to Dispose of Delinquent Property at Public Auction



Section 526 – Applicability of LGC to Autonomous Regions Section 527 – Treatment of Regular and Recurring Transactions Section 528 – Decentralization of Powers from National Government Agencies Section 529 – Treatment of Existing Tax Ordinances or Revenue Measures Section 530 – Devolution of Powers to Local Water Districts Section 531 – Debt Relief for Local Government Units

A. Matters related to publication and posting 



Section 511 – Posting and Publications of Ordinances with Penal Sanctions Section 513 – Failure to Post and Publish the Itemized Monthly Collections and Disbursements

B. Matters related to local tax measures  



Section 516 – Penalties for Violation of Tax Ordinances Section 517 – Omission of Property from Assessment or Tax Rolls by Officers and other Acts Section 518 – Government Agents Delaying Assessment of Real Property and Assessment Appeals

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International law A body of rules and principles of action which are  binding upon civilized states in their relations to one another.3 

These rules of law emanate from the States’ own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between those co-existing independent communities or with a view to the achievement of common aims. 4

Public International Law It governs the relationships between and among  states and also their relations with international organizations and individual persons. 

PUBLIC INTERNATIONAL LAW

It is traditionally defined as the law between sovereign nation-states, hereinafter, states, especially within the context of the laws of war, peace and security, and protection of territories.5

Basis of International Law Sovereign consent of States 

A. Concepts

A.1. Obligations erga omnes

While States may have obligations towards other States, Obligations erga omnes of a state towards the international community as a whole, where all states have legal interest in the protection of these obligations.6

A.2. Jus cogens

Customary international law that has attained the status of a peremptory norm, accepted and recognized by the international community of states as a rule from which no derogation is permitted and can be modified only by a subsequent norm having the same character. 7 (Art. 53 VCLT)

A.3. Concept of ex aequo et b ono

It is a principle of international law used by international tribunals in deciding disputes based on equitable considerations. The International Court of Justice can only

3

Bernas, Joaquin, S.J. (2009). Introdiction to Public International Law. Rex Printing Company, Inc. 4 Lotus Case, Series A, No. 10, PCIJ, 1927, p. 18. 5Vinopal, Kelly, Researching Public International Law,

2015,

American Society of International Law, accessed on June 12,

6

at

http://www.asil.org/sites/default/files/ERG_PUBLIC_INT. pdf

7

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available

Barcelona Traction Case, ICJ Reports, 1970. Article 53, Vienna Convention on the Law of Treaties.

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decide a case ex aequo et bono if the parties to the dispute agree to its use.8

law by operation of law, without a positive act to adopt it.

Types of Ex aequo et bono 1.

2.

Equity infra legem A form of equity which constitutes a method of  interpretation of the law in force, and which is based on law.9 Equity praeter legem When fairness supplements the law or fills in its  gaps.

B.3. Conflict between International law and Municipal Law GR: Both must be harmonized to give effect to both systems of law. It is presumed that municipal law is enacted with due regard for international law. EXP: 

If a local court decides: o Constitution v. International Law prevails

2. Equity contra legem o



When principles of equity are deployed to strike down a law.

B.1. Theories on the Relationship between International Law and Municipal Law

2.

Dualist/Pluralist Theory International law and municipal law are  essentially different from each other. They differ as to source, relations they regulate and substance. In case of conflict, municipal law prevails based on state sovereignty. Monistic Theory International law and municipal law belong to  only one system of law. Two monist theories:10  o Municipal law subsumes and is superior to international law; o International law is superior to domestic law.  This view is supported by Kelsen.

 

Doctrine of Transformation International law becomes part of domestic law  through the appropriate legal machinery such as an act of Congress.

2.

Doctrine of Incorporation International law is adopted as part of municipal 

Primary

e. Treaties f. (Art. 38(a) ICJ Statute) e.g United Nations Convention on the Law of the Sea Customary International Law (Art.38 (b) ICJ Statute) Generally Accepted Principles of International

12

9

13

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The validity of treaties, as well as their proper adoption into municipal law, are proper subjects of judicial review.12 Treaties have the same status as  domestic laws. However: On the international level, a  state, under the principle of pacta sunt servanda, is obliged to comply with the treaty. Local statute v. International Law  Equal in status.13 If an international court decides   International law prevails. [From the standpoint of International Law; VCLT Art. 27, ILC Articles Art. 31]

C.1. The Sources of International Law are as follows:

8

Article 38(2), Statute of the International Court of Justice Frontier Dispute Case (Burkina Faso/Republic of Mali), ICJ Reports, 1986. 10 Bernas, Joaquin, S.J. (2009). Introduction to Public International Law. Rex Printing Company, Inc. 11 Ichong v. Hernandez, G.R. No. L-7995, May 31, 1957.

Constitution v. Treaty   Treaty is subject to qualification or amendment by a subsequent law.11

C. Sources

B.2. Theories as to Adoption of International Law and Domestic Law

1.

Constitution



B. Relationship of International and national law

1.

 

13

Secondary used as ‘subsidiary means’ in determining rules of international law g. h. i.  j. k.  Judicial Decisions and Legal Scholarship l. (Art. 38 (d) ICJ Statute)

Gonzalez v. Hechanova, G.R. L-21897, October 22, 1963. Secretary of Justice v. Lantion, G.R. 139465, October 17, 2000. Nicargua vs. United States of America

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2.

Law accepted by Civilized Nations (Art.38 (c) ICJ Statute) e.g. Estoppel

C.2. Classification of Sources

Formal sources Refer to various processes by which rules come into existence; confer upon the rules an obligatory character.

Material sources Refer to the actual substance and content of the obligation.

The International Court of Justice affirmed the independence of the sources of international law, and rejected the US argument that since the US made a reservation to a treaty with the same normative content as customary international law it is thus not bound to the said obligation under customary international law. 14

C.5. Customary International Law 





Rules: Conflict between the Sources

2.

Between primary and secondary sources   primary sources prevail. Between two or more primary sources  treaties prevail over customs, and customs prevail over general principles of law.

Opinion Juris Necessitatis o The belief of a State that it is bound under by a certain legal obligation.



State Practice o It covers acts, statements, omissions or silence of a state from which views about customary law may be inferred. o Evidence of State Practice (non-exhaustive): Historical records;  Official publications;  Official manuals on legal questions;  Diplomatic interchanges; or  Opinions of national legal advisors  o Consideration of State Practice Duration  Consistency  Repetition; and  Generality 



Customary rule must be in accordance with a constant and uniform usage practiced by the States.20 Some degree of uniformity amongst state practices is essential before a custom could come into existence.21 State practice must be both extensive and virtually uniform.22

C.4. TREATIES & AGREEMENTS

Private International Law Domestic law which deals with cases where foreign law  intrudes in the domestic sphere where there are questions of the applicability of foreign law or the role of foreign courts

1. 

Law-making treaties Treaties which are intended to have universal or general relevance.





18 19 15 16 17

North Sea Continental Shelf Cases, ICJ Reports, 1969. Shaw, 2003. North Sea Continental Shelf Cases, p. 41.

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State Practice (Material facts or actual behavior of States); and The substance of customary law must be looked for primarily in the actual practice and opinio juris of states.19



Exception:  Jus cogens  norms are of the highest status. (Article 53,  VCLT)

Types of Treaties

Consists of rules of law derived from the consistent conduct of States acting out of the belief that this conduct is obligatory upon them. Elements 1. Opinio Juris (Psychological or subjective belief that such behavior is law); 2.

C.3. Sources of International Law under the Statute of the International Court of Justice

1.

Treaty Contracts Treaties that apply only as between two or a small  number of States. Parties that do not sign and ratify a particular treaty  are not bound by its terms.15 When treaties reflect customary law, then non-parties  are bound.16 One way of creating new customary law is treaty,  coupled by opinio juris  and must be fundamentally norm-creating.17 When a treaty incorporates or covers customary law,  such customary law will maintain its separate existence.18

20 21 22

Shaw, p. 91, citing Nicaragua Case, ICJ Reports, 1986. Libya/Malta Case, ICJ Reports, 1985. Asylum Case, ICJ Reports, 1950. Anglo-Norwegian Fisheries Case, ICJ Reports, 1951. North Sea Continental Shelf Cases, p. 14.

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GR: 

Conduct of states should be consistent with customary rules, and state conduct inconsistent with a given rule should be treated as breaches of that rule, not as indications of the recognition of a new rule.23



determining the rules of international law ( Art 38, ICJ Statute). For a writer to be classifie d as a most highly qualified publicist: The writer must have made publications, o and o An International Tribunal must have recognized the writer to be a most highly qualified publicist.

EXP: Persistent Objector Rule A rule of international law which posits that a State,  which has persistently objected to the status as custom of a particular practice in the process of evolving into a custom, is not bound by that customary rule. It is essential that the state’s objection arises prior to  the formation of the rule, and continues consistently thereafter.

D. Subjects

C.5. General Principles of Law

D. 1. States







Principles of municipal law common to the legal systems of the world.24 These are rules generally accepted by municipal systems and not to the municipal law of a particular State.25 The spirit of general principles of law as source of international law is the principles of non-liquet, a situation where there is no applicable law.

Entities endowed with rights and obligations in the international order and possessing the capacity to take certain kinds of action on the international plane.30

What is a State? It is a community which consists of a territory and a  population subject to an organized political authority; it is characterized by sovereignty.31 Elements/Qualifications of Statehood:  32

1.

People or Permanent Population A community of persons sufficient in number  and capable of maintaining the permanent existence of the community and held together by a common bond of law. The population does not have to be  homogeneous racially, ethnically, tribally, religiously, linguistic, or otherwise. But, it must be a settle population, although the  presence of certain nomadic inhabitants does not matter.

2.

Territory Geographic base in the exercise of state  sovereignty.33 Territorial control is the essence of a state.34 

Examples of General Principles of Law: Obligation to make reparations26  Res judicata27  Estoppel28  Principle of good faith29  Equity 

C.6. Judicial Decisions and Teachings of the M ost Highly Qualified Publicists

 Judicial Decisions While not constituting stare decisis (Art 59, ICJ Statute),  these are subsidiary means for the determination of the rules of international law (Art 38, ICJ Statute).  Not binding, but are highly persuasive sources.

Modes of Acquiring Territory Occupation  o Effective exercise of sovereignty over a terra nullius territory, and not mere discovery Effective occupation means continued display o of authority. It involves: •

Most Highly Qualified Publicists They have the same persuasive effect as Judicial  Decisions and are similarly subsidiary means of

Nicaragua Case, p. 98. Bernas, p. 18. 25 Barcelona Traction Case, ICJ, 1964. 26 Chorzow Factory Case, PCIJ, Series A., No, 9, 1928. 27 Administrative Tribunal Case, ICJ, 1954. 28 Temple of Preah Vihear Case, ICJ, 1962. 29 Nuclear Tests Case, ICJ, 1974. 30 Bernas, Joaquin, S.J. (2009). Introduction to Public International Law. Rex Printing Company, Inc. 24

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Some actual exercise or display of such authority The exercise of sovereignty must be peaceful, •

o

23

Intention and will to act as sovereign or animus occupandi,

31

Conference on Yugoslavia Arbitration Commission: Opinions on Questions Arising From the Dissolution ofYugoslavia, Opinion No. 1 of November 29, 1991, published on December 7, 1991, 31 ILM 1494, at 1495-96 (1992). 32 1933 Montevideo Convention on Rights and Duties of States. 33 Magallona, Merlin M. (2005). Fundamentals of Public International Law. C & E Publishing, Inc. 34 Island of Las Palmas Case, 2 U.N. Rep. Intl. Arb. Awards 829

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actual, continuous, sufficient to confer valid title to sovereignty

4.

Sovereignty and the capacity to enter into relations with other states.

s. Prescription o Title is acquired by continuous and undisturbed exercise of sovereignty over a period of times. Requisites: o m. 1. Must be exercised under á titre de souverain; n. 2. Peaceful and uninterrupted; o. 3. Public and enduring for a certain length of time p. 4. Territory must not be terra nullius.





t. 



Cession o Transfer of territory from one state to another by treaty. o The only bilateral form of acquiring territory. o Validity of cession depends on the valid title of the ceding state.



3.





q.

Two Theories of State Recognition Declaratory theory o Recognition is merely “declaratory” of  the existence of the state and that its being a state depends upon its possession of the required elements and not upon recognition. o Constitutive theory Recognition constitutes a state, that is, it  is what makes a state a state and confers legal personality on the entity.

v. 

Government An institution by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them.35 The government must be a central government  operating as a political body within the law of the land and in effective control of the territory. Exception: States that undergo a period of civil strife or internal chaos

Extinction of a State o A state may be extinguished in a legal sense through merger, absorption, dismemberment of an existing state, complete loss of population or emigration en masse of the population.

w.





Recognition of Other States The act of acknowledging the capacity of an o entity to exercise rights belonging to statehood.36

u.

Accession or Accretion o Accession or accretion is the natural process of land formation resulting in the increase of territory o Key factor: No act of any party necessary to increase the territory. o This is a natural action of the environment, resulting in the increase of the territory of a state.



Principles of State Continuity The State continues as a juristic being o notwithstanding changes in its government or administration, even if such changes are extralegal or unconstitutional o Provided: such changes do not result in the loss of any of its essential elements



State Succession o When one state assumes the rights and some of the obligations of another state because of certain changes in the condition of the latter.

x. 

y. z. aa. bb. cc.

2 Kinds of Government o De Jure  government: Government with a color of legitimacy o De facto government: Government without a mandate of law Failed state One which does not have a government in o control of most of the territory for several years.  Jus Postlimium Acts of the government done under the control of a de facto government, when they are not of a political complexion remain good even upon the restoration of the legitimate government. (See Co Kim Cham v Valdez Tan 1945)



Fundamental Rights of the State 1. Right to Existence and Self-Defense; 2. Right of Sovereignty and Independence; 3. Right of Equality; 4. Right to Territorial Integrity and Jurisdiction Protectorates Dependent states which have control over their o internal affairs but whose external affairs are controlled by another state.37 

dd. 

Mandates and Trust Territories These are non-self-governing territories which have been placed under international supervision to insure their economic, political, social and educational advancement.

o

ee. 



Statehood and its attendant rights exist independently of the will of other states.38 Restrictions upon the independence of States cannot be presumed.39

r. 35 36 37 

Bacani v. NACOCO, 100 Phil. 468, 471 (1956). Bernas, p. 74. Bernas, p. 85.

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38 39

Bosnian Genocide Case, Judgment, ICJ General List No. 91 (2007). S.S. Lotus (France v. Turkey), P.C.I.J, Series A, No. 10 (1927)

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

Between independent states, respect for territorial sovereignty is an essential foundation of international relations.40

Constitutional Law I



ff.

D. 2. International organizations

Organizations that are set up by treaty among two or more states.41 Belligerent community  o A group of rebels under an organized civil government who have taken up arms against the legitimate government. International Administrative Bodies  o Certain administrative bodies created by agreement among states may be vested with international personality when two conditions concur: 1. Their purposes are mainly non-political; 2. They are autonomous and not subject to the control of any state United Nations  o An organization of states regarded as an international person for certain purposes. o It is an entity capable of availing itself of obligations incumbent upon its members. 42



Diplomatic Law o The totality of legal norms regulating the method of appointing and recalling diplomatic representatives and of fixing diplomatic ranks, functions, and legal status o Section of international law dealing with diplomatic privileges and immunities (1961 Vienna Convention on Diplomatic Relations) Consular Law The body of principles and norms (of domestic o legislation as well as of international law) regulating the activities of consuls o It is the state that defines the scope of the functions of its consular representatives, taking into account the legislation of the host country. o Source of Consular Law Consular agreements o Concluded by individual countries;  Definte the legal status of consuls and  down the basic rules under which they function. Treaties o Contain provisions regulating  consular activity dealing with trade and navigation, legal assistance, and social security o Code of consular law is the multilateral Vienna Convention of 1963 on Consular Relations.

D.3. Individuals

Individuals have limited locus standi in international law; have limited rights and obligations (limited legal capacity). Same status as non-State international subjects such  as insurgents, international organizations and national liberation movements.43 Notable Exception:  o ECHR – While it is an international tribunal, it allows individuals to file petitions for violations of human rights within its jurisdiction. 44 E. Basic Principles of Diplomatic and consular law

Vienna Convention on Diplomatic Relations Codifies the rules for the exchange of embassies  among sovereign States. Protects the sanctity of ambassadors to enable them  to carry out their functions The oldest established and the most fundamental  rules of international law. This is a relationship between at least two sovereign,  autonomous and independent states; we can basically say that diplomacy has started his long way. 

BILATERAL DIPLOMACY

MULTILATERAL DIPLOMACY

Embassies, consular posts, and unconventional resident missions such as interests sections and representative offices

 Ad hoc and standing conferences. Questions of procedure: venue, membership, agenda, transparency, and above all decision-making

Why they are the major part of the modern counter-revolution in diplomatic practice.

The triumph of “consensus-decision making” and its various techniques.

Vienna Convention of 1963 on Consular Relations 

Defines the privileges, immunities, and basic functions of career consuls, as well as the legal status of honorary consuls.

Bilateral and Multilateral Diplomacy

40

Corfu Channel Case (UK v. Albania), Merits, ICJ, General List No. 1 (1949) 41 Bernas, p. 87. 42 Reparations Case, ICJ Reports, 1949. 43 Cassese, Antonio. (2001). International Law. Oxford University Press.

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44 Art.

34, European Convention for the Protection of Human

Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950

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Elements of Diplomatic and Consular Law 1. Immunity of diplomatic staff The person of a diplomatic agent is inviolable.  Diplomats may not be detained or arrested, and enjoy  complete immunity from criminal prosecution in the receiving state, although there is no immunity from the jurisdiction of the sending state 2. The inviolability of the diplomatic mission and its grounds The private residence, papers, correspondence and  property of diplomats are also inviolable. It is an absolute rule that the premises of the mission  are inviolable and agents of the receiving state cannot enter them without the consent of the mission. 3. The security of diplomatic correspondence and diplomatic bags – The receiving state is required to permit and protect  free communication on behalf of the mission for all official purposes. Official communication is inviolable and may include  the use of diplomatic couriers and messages in code and in cipher, although the consent of the receiving state is required for a wireless transmitter. 7 Sources of Diplomatic and Consular Law 1. Customary law Traditional common rule or practice that has become  an intrinsic part of the accepted and expected conduct in a community, profession, or trade and i s treated as a legal requirement. 2. General legal principles Essentially provide a mechanism to address  international issues not already subject either to treaty provisions or to binding customary rules. 3. Agreement (conventions, treaties, etc) A settlement, especially one that is legally  enforceable; covenant; treaty. 4. Acts That which is done or doing; the exercise of,  or the effect, of which power exerted is t he cause; a performance; a deed. 5. Analogy A resemblance of relations; an agreement or likeness  between things in some circumstances or effect, when the things are otherwise entirely different. 6. Comitas Gentium, International Comity, Courtesy, Precedence, and Etiquette, Protocol (customary source) and Diplomatic Practice A set of rules of conduct for states that have  international relations Examples: granting of immunity; Protocol,  Ceremonial, diplomatic practice. 7. Other Sources: Doctrines and Jurisdiction A rule or principle of law, especially when  established by precedent.

Difference of Diplomatic Officer from Consular Officer Diplomatic Officer Consular Officer Look after the political Commercial interests. interests of their state and its nationals Functions: Sent by a state to foreign ports and cities To represent his state  in negotiations with Mainly for ff purposes:

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the state to which he is accredited To observe and report  occurrences which may affect his state To protect the rights of the nationals of his state





To watch over and promote the commercial and industrial interests of the appointing state and its citizens or subjects To protect its nationals travelling or residing in those regions.

Art. 14, 1963 Vienna Convention on Diplomatic Relations: 1. Heads of mission are divided into three classes, namely: a. That of ambassadors or nuncios accredited to Heads of State, and other heads of mission of equivalent rank; b. That of envoys, ministers and internuncios accredited to Heads of State; c. That of chargés d’affaires accredited to Ministers for Foreign Affairs. 2. Except as concerns precedence and etiquette, there shall be no differentiation between heads of mission by reason of their class.

Art. 38, Vienna Convention a. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. International custom, as evidence of general practice accepted as law; c. General principles of law recognized by civilized nations; d.  Judicial decisions and teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Personnel of the Diplomatic Representative The personnel of generally made up of two groups: 1. The members of his/her family and others of his/her household; 2.

Those directly in the service of the mission, they may include: A counselor  Secretaries  Military, naval, and economic attaches  Interpreters and dragomans  Clerks  Couriers  Chaplains  Doctors  Other persons distinctly in the official  service.

Privileges and Immunities of a Diplomat 1. Inviolability The privilege extends to diplomats of all  grades, suites, officials and non-officials, official residence, archives and letters, and

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

2.

3.

4.

5.

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to all that belong to the mission and are necessary for its maintenance. The same inviolability is accorded to a diplomat while passing to or from his post through a third state as long as he retains his official character.

Exemption of person from criminal and civil  jurisdiction A diplomatic representative is exempt from  the criminal and civil jurisdiction of local courts, and free from arrest, prosecution, and punishment for violation of criminal law. If he fails to observe the law, usual  procedure is for the local state to demand his recall or in extreme cases to expel him. As long as he remains a diplomatic officer,  the local courts are without authority to try a case in which he is defendant  or to make his property the subject of seizure or attachment. He is exempt from witness duty  although  he may waive such exemption where there is no instruction of his home government to the contrary. As a matter if courtesy, however, it is  common for diplomatic representatives to give testimony in the form of a deposition. Immunity of residence from local jurisdiction The domicile of a diplomatic officer,  including his house, grounds, buildings, and appurtenances, and also his carriages, is considered exempt from local jurisdiction upon the theory that it is considered an extension of the territory of his state. These cannot be entered without the consent  of the diplomatic officer, even for the arrest of criminals who seek refuge therein. Usual procedure is to request the di plomat  to surrender them and if he refuses to do so, to ask for his recall by the home government  Jurisdiction within his residence Because his residence is exempt from local   jurisdiction, he is accorded the right to exercise jurisdiction within his residential and official domicile; including the right to arrest and send home a member of his suite, to hold religious services, etc Precedence, ceremonial prerogatives (according to rank) Diplomatic representatives and precedence  vary according to their grades. These have been defined by practice in the course of diplomatic intercourse.

Articles 20 to 40 of the 1961 Vienna Convention on Diplomatic Relations Provides for the entire Facilities, Privileges and immunity of a Diplomat and the personnel of the diplomatic representatives. Expanded Functions of the Consul

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(a) Protecting interests of the sending State and its citizens, within the bounds of law. (b) Promoting good relations and development between the State-parties; (c) Reporting on the development and current conditions of the receiving State; (d) Issuing required travel documents to travel to and from the sending State; (e) Providing assistance to nationals of the sending State; (f) Acting as notary & civil registrar; (g) Protecting interests of sending State nationals in cases of succession mortis causa; (h) Protecting citizen-minors of the sending State; (i) Representing nationals of the sending State in tribunals to preserve the rights and interests of these nationals; (j) Transmission of evidence for the courts of the sending State, when lawful; (k) Inspecting sea- or aircraft, and their crews, registered to the sending State; (l) Settling disputes between crew and officers of the craft, as the law of the sending State allows; and, (m) All other functions entrusted to a consular post which are not prohibited by the laws of, or objected to by the receiving State. (Art. 5, 1963 Vienna Convention on Consular Relations) 4 Classes of Heads of Consular Posts (Article 9 of the 1963 Vienna Convention on Consular Relations) 1. Consuls-general; 2. Consuls; Consuls general and consuls are usually  appointed by a commission or patent from the head of the state, which is communicated to the government where he is to reside. 3. Vice-consuls; 4. Consular agents. Vice consuls and consular agents are  commissioned generally by the minister of foreign affairs. The aforementioned does not restrict the right  of any of the Contracting Parties to fix the designation of consular officers other than the heads of consular posts. The classification is left to the municipal law. Exequator The term exequator is applied to the written official  recognition issued by the local state authorizing a foreign consul to perform therein his functions as such.

 Art. 12, 1963 Vienna Convention on Consular Relations provides the following: 1.

Exequator: Authorization that the head of a consular post is admitted to the exercise of his functions

2.

State refusing to grant an exequator must give to the rejected State reasons for such refusal. Subject to the provisions of articles 13 and 15, the head of a consular post shall not enter upon his duties until he has received an exequatur

3.

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or be fined of not more than P5,000 (Sec 2, RA 75) GENERAL PROVISIONS RELATING TO FACILITIES, PRIVILEGES AND IMMUNITIES



Any writ or process for the arrest or seizure of goods of any ambassador or public minister or any of their domestic servant/s shall be void. Every person concerned with the execution of such writ or process shall be punished by imprisonment of not more than three years and a fine not exceeding two hundred pesos (Sec 4, RA 75)



Instances wherein Sec 4 is inapplicable:

1. Articles 28, 29, 30, 34, 35, 36, 37, 38 and 39, par. 3 of Article 54 and par. 2 and 3 of Article 55 shall apply to consular posts headed by an honorary consular officer. I n addition, the facilities, privileges and immunities of such consular posts shall be governed by Articles 59, 60, 61 and 62. 2. Articles 42 and 43, Article 44(1), Articles 45 and 53 and Article 55(par.1) shall apply to honorary consular office rs. In addition, the facilities, privileges and immunities of such consular officers shall be governed by Articles 63, 64, 65, 66 and 67. 3. Privileges and immunities provided in the present Convention shall not be accorded to members of the family of an honorary consular officer or of a consular employee employed at a consular post headed by an honorary consular officer. 4. The exchange of consular bags between two consular posts headed by honorary consular officers in different States shall not be allowed without the consent of the two receiving States concerned. (Art. 58, Chap. III, Vienna Convention on Consular Relations 1963)

o

o

GR: The Receiving State may declare any member of the diplomatic staff of the mission of the Sending State persona non grata at any time and without having to explain its decision and may be declared such before arriving in the territory of the Receiving State. o



If the Sending State fails or re fuses to carry out said declaration, the Receiving State may refuse to recognize the person concerned.

REASON: If the Receiving State is of the opinion that the member’s appointment will not affect a harmonious relations between two states due to the member’s personal obnoxious toward the sovereign and its pronounced hostility to its public institutions (Art. 9 of the 1961 Vienna Convention on the Law of Treaties

R.A. No. 75 “An act to penalize acts which would impair the proper observance by the re public and inhabitants of the Philippines of the immunities, right, and privileges of duly accredited foreign diplomatic and consular agents in the Philippines”, provides: 

Unauthorized persons are those other than diplomatic or consular officer who acts in the RP as an agent of foreign government without prior registration with the Sec of Foreign Affairs shall be penalized by imprisonment of not more than 5 years

Domestic servants of an ambassador or public minister unless registered with the DFA (Sec 5, RA 75)



Penalty: Assault or any form of violence against an ambassador or public minister shall be imprisoned for not more than three years, pay a fine not exceeding P200.00, in addition to the penalties provided for by the RPC (Sec 6, RA 75)



Foreign reciprocity rule: The provision of RA 75 shall only be applicable to cases where the country of the ambassador or public minister also provides for the same protection to the duly accredited diplomatic or consular representatives of the Philippines (Sec 7, RA 75)

PERSONA NON GRATA 

Debt contracted by ambassador or public minister BEFORE entering service.

Three (3) classes of persons who may invoke immunity from writ and legal process as well as from arrest: 1. Diplomats, 2. Agents, representatives or officials of states, and or representatives of international 3. Officials organizations, such as the United Nations and specialized agencies. (Public International Law by Ruben  Agpalo) 

The Court in World Health Organization vs. Aquino, applied RA 75 to nullify the search warrant issued by a trial court for the search and seizure of personal effects of an official of the World Health Organization (WHO).

F. General Principles of Treaty Law

F.1 Treaty An international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instrument.45

45

 Article 2, Vienna Convention on the Law of Treaties (VCLOT), 1969.

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TYPES OF TREATIES 

8. Multilateral treaties open to all states; create norms as basis for general rule of law; they are either codification of treaties or law-making treaties.



9. Bilateral treaties (contract treaties) gg. treaties between two States which are contractual in nature which create reciprocal expectations.

TREATY-MAKING PROCESS

NEGOTIATION  SIGNATURE RATIFICATION 10. Negotiation This is the process where provisions of provisions of a proposed treaty are discussed by the representatives of the contracting states possessing full powers. 

that conference, organization or organ. The power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate is limited only to giving or withholding its consent or concurrence to the ratification. It is within the authority of the President to refuse to submit a treaty to the Senate, or, having secured its consent for its ratification, refuse to ratify it.46

2. Signature It serves as authentication of the document; it makes the text authoritative and definitive. Under international law, although a mere Signatory is not strictly bound to the provisions of a treaty, nonetheless they are bound not to defeat the object and purpose of the treaty (Art.18(a) VCLT) 3. Consent (to be bound to the treaty) Consent may be expressed by47:  o

An act relating to the conclusion of a treaty by one who has no proper authorization has no legal effect unless confirmed by his state.

o

o o

Authority to negotiate a) Authorization must be secured by the lead agency from the President through the Secretary of Foreign Affairs; b) The request for authorization must be in writing, proposing the composition of the Philippine delegation and recommending the range of positions to be taken by that delegation. (Secti on 3 of Executive Order No. 459) For the negotiations of agreements, changes of  national policy or international arrangements of a permanent character entered into in the name of the Government of the Republic of the Philippines:  Authorization shall be in the form of full powers and formal instructions. For other agreements: Written authorization from the  President shall be sufficient.

o o

Persons with authority to negotiate or sign a treaty or an executive agreement: 1. Secretary of the Department of Foreign Affairs; 2. Heads of Philippine diplomatic missions, for the purpose of adopting a text of a treaty or an agreement between the Philippines and the State to which they are accredited; or 3. Representatives accredited by the Philippines to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in



The Vienna Convention only covers agreements between States which are in writing and which are governed by international law. 49



States which did not participate in the initial negotiation may express their consent to be bound by accession.50



The following are excluded51  from the Vienna Convention on the Law of Treaties:

3. Those which are governed by the national law of one of the parties or by any other national law system chosen by their parties. 4. Reservation It is a unilateral statement, however phrased or  named, made by a State when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to the State. Reservation is not allowed:  o When the treaty prohibits it;

49

47

50

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No form is required for treaties. Exchange of notes between the two heads of state may be considered as an international agreement.48

2. Those agreements not in written form;

46

 Pimentel vs. Executive Secretary, G.R. No. 158088, July 6, 2005.  Article 2, VCLOT, 1969. 48  Qatar v. Bahrain, Jurisdiction and Admissibility, Judgment, ICJ Reports, 1994.



1. Those concluded between states and other subjects of international law;

Full Powers It is the authority granted unto a representative o f the  state to enter into, negotiate, sign and seal a treaty. This may be delegated by the President to the Secretary of Foreign Affairs. (E.O. 459) 

Signature; Exchange of instruments constituting a treaty; Ratification; Acceptance; Approval or accession; or Any other means if so agreed

 Magallona, supra 30.  Article 15, VCLOT, 1969. 51  Ibid.

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o

o

Only specified reservations may be made; or Reservation is incompatible with the object and purpose of the treaty.52

2. Amendment and Modification of a Treaty Amendment 

It is a formal revision done with the participation, at least in its initial stage by all the parties to a treaty.

Principles •

•

Pacta sunt servanda53 - Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Modification

Pacta tertiis nec nocent nec prosunt - A State is not bound to act in accordance with a treaty if it is not a party to a treaty

GR: The consent of all parties is required. Exception: If allowed by the treaty itself, two states may modify a provision only inofar as they are concerned.

Except if that treaty codifies customary international law.

1. 2. 3.

Desistance of parties by mutual consent (express); Expiration of term; Accomplishment of purpose; a. Material breachMaterial breach consists of: i. A repudiation of the treaty not sanctioned by the VCLT; or 4. Violation of a provision essential to the accomplishment of the object or purpose of the treaty; Supervening impossibility of performance Requisites: a. Must result from the permanent disappearance or destruction of an object indispensable for the execution of the treaty; b. Impossibility of performance must not be a result of a breach by the party invoking it, either of an obligation under the treaty or of any other international obligation owed to any other party or the treaty; 5. Loss of subject matter; 6. Novation; 7. Rebus sic stantibus; 8. Fundamental change of circumstance59 9. Outbreak of war; or 10. Violation of jus cogens.

Originally called for treaties signed by the Chinese with Western Powers after suffering military defeat, this doctrine implies that they were establishing a system of benefits for the “civilized” powers, while restricting the sovereignty of the “uncivilized” and subordinate states.54 Rebus sic stantibus  - legal principle that justifies nonperformance of treaty obligations where unforeseen or substantial changes occur which would render one of the parties thereto unable to undertake treaty obligations as stipulated therein.

•

F.3. Invalidity of Treaties The following are grounds to invalidate treaties under VCLT:

11. Error55 hh. It must relate to a fact or situation which was assumed by the State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. Cannot be invoked if the State contributed by its own  conduct to the error or if the circumstances were such as to put that state on notice of a possible error. Fraud56  - It must be through the fraudulent act of  another  negotiating state. Corruption of a representative of a state - It must be  corruption, direct or indirect, by another negotiating state. Coercion of a state by the threat or use of force. 57  Violation of a peremptory norm of international law  (jus cogens) Violation of internal law of a state 58 - The violation  must be manifest and concern a rule of its internal law of fundamental importance.

Distinction between a treaty and an executive agreement 



55

53

56

 Article 19, VCLT, 1969.  Article 26, VCLT 54 Unequal Treaties in International Law, Perez and Yaneva, on

June

28,

2017,

available

at

Treaty Involves political issues or changes of national policy o Involves international agreeements of a political character Executive agreement o Adjustments of detail carrying out wellestablished national and international policies and traditions and those involving o

52

accessed

It involves only some of the parties

3. Termination of Treaties

Doctrine of unequal treaties

•



 Article 48, VCLT.  Article 49, VCLT. 57  Article 52, VCLT. 58  Article 46, VCLT. 59  Article 62, VCLOT.

http://www.oxfordbibliographies.com/view/document/ob o-9780199796953/obo-9780199796953-0131.xml

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arrangements of a more or less temporary nature.60

G. Nationality and Statelessness

H.1. Doctrine of State Responsibility

This doctrine posits that a state is responsible for every internationally wrongful act committed by it and is liable for the acts of its officials only when the act is attributable to the state.

Elements of State Responsibility Nationality

ii.

It is the ties that binds an individual to his state, from which he can claim protection and whose laws he is obliged to obey. It i s membership in a political community with all its concomitant rights and obligations.61

Multiple Nationality

Elements of An Internationally Wrongful Act

Possession by an individual of more than one nationality. It is acquired as the result of the concurrent application to him of the conflicting municipal laws of two or more states claiming him as their national.62 Nationality is within the domestic jurisdiction of the state, which settles by its own legislation, the rules relating to the acquisition of its nationality.

•

When two states confer their nationality upon the same person, this becomes an issue of international law.63

•

Existence of an international legal obligation in force as between the two states; Act or omission which violates that obligation and  which is imputable to the state responsible; and Loss or damage has resulted from the unlawful act or  omission.67

1.

2.

The act or omission is attributable to the State under international law - need not be punishable by local law; may be deemed l awful in internal law; and The act constitutes a breach of an international obligation of the State (international delinquency)

H.2. Treatment and Protection of Aliens States are not obliged to admit aliens to their territory, but if they permit aliens to come, they must treat them in a civilized manner.68

Doctrine of Indelible Allegiance An individual may be compelled to retain his original nationality notwithstanding that he has already renounced or forfeited it under the laws of a second state whose nationality he has acquired.64

Standard of Protection of Aliens

1. Doctrine of “national treatment” or “equality treatment” Aliens are treated in the same manner as nationals of the state where they reside.69

Effective/Genuine link rule: Nationality constitutes the  juridical expression of the fact that an individual is more closely connected with the population of a particular state.65

•

2. Minimum international standard Aliens should be protected by certain minimum standards of human protection.70

Statelessness It is the condition or status of an individual who is born without any nationality or who loses hi s nationality without retaining or acquiring another.66

Right of Diplomatic Protection 

The state of an injured alien may make a claim against the other state to obtain compensation or some other forms of redress. o May be done through negotiation, arbitration or judicial settlement. o Must first exhaust all local remedies, and may seek diplomatic protection only if all local remedies fail.71



States have no duty to provide diplomatic protection

H. State Responsibility and Treatment of Aliens

60

 Bernas, Joaquin, S.J., “ Constitutional Structure and Powers of Government: Notes and Cases, Part I.” 61  Cruz, Isagani, A. (2003) International Law. Central Lawbook Publishing Co., Inc. 62  Cruz, p. 184 63  Nottebohm Case, Second Phase (Liechtenstein v. Guatemala), Judgment, ICJ, 1955. 64  Cruz, supra.

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 Nottebohm Case.  Cruz, p. 189. 67  Shaw, 2003. 68 Malanczuk, P. (1997) Akehurst’s Modern Introduction to International Law, 7th Revised Ed. Routledge. 69  Bernas, p. 225. 70  Bernas, p. 226. 71  Malanczuk 66

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for their nationals abroad. It is the right of the State to exercise it or not.72 



Customary international law provides that before international proceedings are instituted or claims or representations made, the remedies provided by the local state should have been exhausted.73 The rule on the exhaustion of local remedies only apply when the state is complaining of injury to its nationals; it does not apply where one state has been guilty of a direct breach of international law causing immediate injury to another.74

Methods to Avoid Liability

(b) When the boundary between two states is a nonnavigable river or a lake, its location is the middle of the river or lake. Las Palmas case: to have jurisdiction, occupation is not enough; control must also be established. Effects Doctrine An aspect of the territoriality principle. A state also has  jurisdiction over acts occurring outside its territory but having effects within it. This was enunciated in the Lotus case, an early case dealing with territorial jurisdiction. The effects doctrine itself consists of two principles: 1. Subjective territorial principle - gives a State jurisdiction to prosecute and punish for crimes commenced within the state 2. Objective territorial principle - gives a State jurisdiction to prosecute and punish for crimes consummated within its territory. (Lotus case)

1.

Calvo clause A stipulation by which an alien waives his ri ght to appeal to his own state i n connection with any claim arising from the contract and agrees to limit himself to the remedies available under the laws of the local states.

2.

Deportation The removal of an alien from the host state.

i. 2. Nationality principle and statelessness

3.

Exclusion The denial of entry of the alien to the host state.

Nationality

4.

Extradition The surrender of an individual accused or convicted of a crime by a State within whose territory he is found and his delivery to the State where he allegedly committed crime or was convicted of a crime.75

Each state has the right to decide who are its nationals using either the principle of jus sanguinis or jus soli or naturalization laws. However, for a state to claim a person as a national, the  state must have reasonable connection or an “effective link” with that person (Nottebohm  case, Liechtenstein v. Guatemala76).

I. Jurisdiction of States

Statelessness

i. 1. Territoriality principle

Stateless persons are those who do not have a nationality. They are either de jure (with lost nationality) or de facto (with nationality, but denied state protection) stateless.

The fundamental source of jurisdiction is sovereignty over territory. A state has absolute, but not necessarily exclusive, power to prescribe, adjudicate and enforce rules for conduct that occurs within its territory. Hence, it is necessary that boundaries be determined. Summary of the rules on boundaries where states are not islands but parts of a larger land mass (Third Restatement): (1) The boundary separating the land areas of two states is determined by acts of the states expressing their consent to its location. (2) Unless a consent to a different rule has been expressed, (a) when the boundary between two states is a navigable river, its location is the middle of the channel of navigation (Thalweg doctrine)',

72

 Interhandel Case, Judgment, ICJ Reports, 1957.  Shaw, 2003. 74  Shaw, 2003. 75  Magallona, 2005. 73

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i. 3. Protective principle

A state may exercise jurisdiction over conduct outside its territory that threatens its security, as long as that conduct is generally recognized as criminal by states in the international community. (Restatement 402[3]) Excludes acts committed in exercise of the liberty  guaranteed an alien by the law of the place where the act was committed.

i. 4. Universality principle

Certain activities, universally dangerous to states and their subjects, require authority in all community members to 76 

Bernas, Joaquin, S.J. (2009). Introdiction to Public

International Law. Rex Printing Company, Inc.

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punish such acts wherever they may occur, even absent a link between the state and the parties or the acts in question. The International Criminal Court defines the crimes which Universality principle applies: a) Genocide; b) Crimes against humanity; and c) War Crimes

i. 5. Passive personality principle

A State may apply its criminal law when the victim of an act is its national, even if the same is committed outside its territory Usually applicable to terrorist and other organized  attacks (§ 402 of Third Restatement).

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regulation, the likelihood of conflict with regulation by another state.

Forum non conveniens If in the whole circumstances of the case it be discovered that there is a real unfairness to one of the suitors in permitting the choice of a forum which is not the natural or proper forum, either on the ground of convenience of trial or the residence or domicile of parties or of its being the locus contractus, or locus solutionis, then the doctrine of  forum non conveniens is properly applied. 

Application is discretionary with the court. Interests which the court needs to weigh are divided into private interest factors and public interest factors. Forum non conveniens presumption is with the plaintiff. Piper Aircraft Co. v. Reyno,5 is a leading application of the principle.

i.6. Conflicts of jurisdiction  J. Treatment of aliens

Since there are various accepted principles for assuming  jurisdiction, more than one state may have a valid claim to  jurisdiction. U.S. courts have attempted to develop more sophisticated modes of resolving conflict of jurisdiction. Three modes:

The Balancing Test 1.

Was there an actual or intended effect o n American foreign commerce?

2.

Is the effect sufficiently large to present a cognizable injury to the plaintiffs and, therefore, a civil violation of the antitrust laws?

3.

Are the interests of, and link to, the United States . . . including effects on American foreign commerce sufficiently strong, vis-d-vis those of other nations, to justify an assertion of extraordinary authority.

 J. 1. Extradition Extradition The removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in co nnection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government. (P.D. 1069, the Philippine Extradition Law)

 j.1. A. Principles

Principle of Specialty If the answer is yes to all these, then the court will assume  jurisdiction. (Timberlane Lumber Co. v. Bank of America)

The fugitive may be tried only for the crime specified in the request for extradition, and only when the crime is included in the list of offenses in the treaty.

International Comity Even when a state has basis for exercising jurisdiction, it will refrain from doing so if its exercise will be unreasonable (Hartford Fire Insurance Co. v. California, Third Restatement §§ 403). Unreasonableness is determined by evaluating various factors, such as the link of the activity to the territory of the regulating state, the connection, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, the character of the activity to be regulated, the existence of  justified expectations that might be protected or hurt by the

77

 Cruz, p. 203, citing Fenwick.  Cruz, 2003, citing Oppenheim and Lauterpacht.

Basis of Extradition Extradition is based on the consent of the state of asylum as expressed in a treaty or manifested as an act of goodwill. 77 Any person may be extradited, whether he be a national of the requesting State, of the state or refuge or of another state. 78 Political and religious offenders are generally not subject to extradition.79

79

 Cruz, p. 203.

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Attentat Clause

K.1. Universal Declaration of Human Rights

The murder of the head of state or any member of his family is not to be regarded as a political offense for purposes of extradition.80

It was adopted by the U.N. General Assembly, composing of 48 countries, on December 10, 1948. The UDHR is considered as a “common standard of achievement for all peoples and all nations.”82

In the absence of special agreement, the offense must have been committed within the territory or against the interests of the demanding state.

k.2. International Covenant on Civil and Political Rights

Rule of Double Criminality The act for which the extradition is sought must be punishable in both the requesting and requested states. Extradition may be resorted to when only if there is an extradition treaty between the two states. If there is no extradition treaty, the host state has the right to grant asylum; the individual has no right t o demand asylum.



ICCPR was adopted and opened for signature, ratification and accession by the U.N. General Assembly Resolution 2200 of December 16, 1966. It entered into force on March 23, 1976.

Substantive Rights under ICCPR 3.

 j.1.C. Distinction between Extradition and Deportation

Extradition 





Surrender of a fugitive by one state to another where he is wanted for prosecution or, if already convicted, for punishment. Surrender is made at the request of the latter state on the basis of extradition treaty. Alien will be surrendered to the state asking for his extradition.



State of origin that initiates the proceedings



Nature of offense: criminal

Deportation 





Expulsion of an alien considered undesirable by local state, usually but not necessarily to his own state. It is a unilateral act of the local state and is made in its own interests. Undesirable alien may be sent to any state willing to accept him.



Resident/host state that initiates deportation



Nature of offense: administrative

 Article 4 (1) of the ICCPR. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to ICCPR may take measures derogating from their obligations under the Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

Non-derogable83 Rights under ICCPR 1. 2. 3. 4.

K. International Human Rights Law

5. 6.

Human rights are those i nalienable and fundamental rights which are essential for life as human beings.81

7.

80

82

81

83

 Cruz, p. 204  Bernas, p. 248.

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Right to life, liberty and property 4. Right to equality 5. Freedom from torture and ill-treatment 6. Right to adequate prison conditions 7. Freedom of movement 8. Recognition and protection of legal personality and privacy 9. Freedom of thought, conscience, religion and expression 10. Freedom of association 11. Protection of minorities 12. Right to self-determination

Right to life (Article 6) Freedom from torture and other inhuman punishment (Article 7) Freedom from enslavement and servitude (Article 8 (1) and (2)) Protection from imprisonment for inability to fulfill contractual obligations (Article 11) Protection from ex post facto laws (Article 15) Right to recognition everywhere as a person before the law (Article 16) Freedom of thought, conscience and religion (Article 18)

 Preamble, UDHR  Article 4(2)

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p.

Optional Protocols to the International Covenant on Civil and Political Rights

q. r. s. t.

First Optional Protocol It was entered into force on March 23, 1976. It is designed to enable private parties who are victims of human rights violations.84 Second Optional Protocol It was entered by General Assembly Resolution 44/128 on December 15, 1989. It is adopted to abolish the death penalty.

2.

Second Generation (Economic, Social and Cultural Rights) a. Right to work, to free choice of employment, to  just and favorable conditions of work and to protection against unemployment. b. Right to rest and leisure c. Right to a standard of living adequate for the health and well-being of himself and of his family d. Right to education e. Right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

3.

Third Generation a. Right to peace b. Right to a clean e nvironment c. Right to self-determination d. Right to the common heritage of mankind e. Right to development f. Minority rights

k.3. international Covenant on Economic, Social and Cultural Rights

Substantive Rights under ICESCR 1. 2. 3. 4. 5. 6. 7. 8. 9.

Right to work Right to favorable conditions of work Right to form free trade unions Right to social security and insurance Right to adequate standard of living Right to special assistance for families Right to the highest standard of physical and mental health Right to education including compulsory primary education Right to the enjoyment of cultural and scientific benefits and international contacts

L. Basic Principles of International Humanitarian Law and neutrality

International humanitarian law provides for instances when the use of armed force is justifiable ( jus ad bellum) and it regulates the conduct of armed conflict ( jus in bello).85

Three Generations of Human Rights 1.

First Generation (Civil and Political Rights or Fundamental Rights. a. Right to life, liberty and security of person b. from slavery or servitude c. Freedom from torture or to cruel, inhuman or degrading treatment or punishment d. Right to equal protection of the law e. Right to recognition everywhere as a person before the law f. Right to an effective remedy by the competent national tribunals g. Freedom from arbitrary arrest, detention or exile h. Right to a fair and public hearing by an independent and impartial tribunal i. Right to be presumed innocent until proved guilty  j. Freedom from arbitrary interference with his privacy, family, home or correspondence k. Freedom of movement and residence within the borders of each state l. Right to leave any country, including his own, and to return to his country. m. to seek and enjoy in other co untries asylum from persecution n. Right to a nationality o. Right to marry and found a family

 Jus in bello

The rules of international law governing the legality of the use of force by States. These constitute the legal  justifications for the use of force under international law.

Rules by which international law regulates the actual conduct of hostilities once the use of force has begun.

Armed conflicts exist whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state. 87

•

L.1. Categories of armed conflicts 

86

85

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 Jus ad bellum

International humanitarian law applies from the initiation of such armed conflicts and extends beyond the c essation of hostilities until a general conclusion of peace is reached.86

•

84

 Bernas, p. 259.  Bernas, p. 307.

Right to own property alone as well as in association with others Freedom of thought, conscience and religion Freedom of opinion and expression Freedom of peaceful assembly and association Right to take part in government of his country, directly or through freely chosen representatives; right of equal access to public service in his country.

International Armed Conflict

 Prosecutor v. Tadic  Prosecutor v. Tadic, Appeals Chamber, Case No. IT-94-1-AR 72

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Persons hors de combat

A state of war between two or more states, even if one does not recognize it. It may take the form of a direct conflict between States or of intervention.88 Internal or Non-international Armed Conflict (NIAC) o Non-international armed conflict under Common Article 3 of the Geneva Conventions Armed conflict not of an  international character occurring in the territory of one of the Hi gh Contracting Parties. Non-international armed conflict under o Additional Protocol II to the Geneva Conventions Conflicts that take place in the  territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations. War of National Liberation o Armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of selfdetermination.89 o





A person is hors de combat if: 1. 2. 3.

He is in the power of an adverse party; He clearly expresses an intention to surrender; or  He has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself.

Fundamental Guarantees92 1. 2. 3. 4.

5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

Core international obligations of states in International Humanitarian Law

Civilians and persons hors de combat must be treated humanely Adverse distinction in the application of international humanitarian law is prohibited. Murder is prohibited Torture, cruel or inhuman treatment and outrages upon personal dignity, in particular humiliating and degrading treatment, are prohibited. Corporal punishment is prohibited. Mutilation, medical or scientific experiments are prohibited. Rape and other forms of sexual violence are prohibited. Slavery and the slave trade in all their forms are prohibited. Uncompensated or abusive forced labour is prohibited. The taking of hostages is prohibited. The use of human shields is prohibited, Enforced disappearance is prohibited. Arbitrary deprivation of liberty is prohibited. No one may be convicted or sentence, except pursuant to a fair trial affording all essential judicial guarantees.

Civilian Any person not a combatant; in case of doubt whether a person is a civilian, that person shall be considered to be a civilian.90

Principles of International Humanitarian Law

The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.

•

Civilian population It comprises all persons who are civilians. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.91

There must be a distinction between civilian objects and military objectives. No attacks may be directed against civilian objects.

•

•

Indiscriminate attacks are prohibited.

•

There must be proportionality in attack. In the conduct of military operations, co nstant care must be taken to spare the civilian population.

•

88

 Common Artice 2 of the Geneva Conventions  Article 1(4), Additional Protocol I to the Geneva Coneventions 90  Article 50(1) of Additional Protocol I to the Geneva Conventions. 91  Article 50(2) and (3) of Additional Protocol I of the Geneva Conventions 89

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There must be precautions against the effects of attacks.

•

Medical personnel exclusively assigned to medical duties

92

 Henckaerts, J.-M. (2005). “Study on customary international humanitarian law”, International Review of the Red Cross, Vol. 87, No. 857.

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must be respected and protected in all circumstances.

1. Abstain from taking part in the hostilities and from giving assistance o either belligerent; 2. Prevent its territory and other resources from being used in the conduct of hostilities by the belligerents; 3. Acquiesce in certain restrictions and limitations that the belligerents may find necessary to impose, especially in connection with international commerce95

Religious personnel exclusively assigned to religious duties must be respected and protected in all circumstances.

•

Cultural property must be respected.

•

There must be no superfluous or unnecessary suffering in the use of means and methods of warfare.

•

•

The use of poison or poisoned weapons is prohibited.

•

The use of biological weapons is prohibited.

Prisoners of war

Rights and Duties of Belligerent States

Prisoners of war are persons enumerated under Article 4 of the Third Geneva Convention, who have fallen into the power of the enemy.

Belligerents are bound to: 1. Respect the status of the neutral state; 2. Submit to any lawful measures it make take to maintain or protect its neutrality.

Prisoners of war must at all times be humanely treated (Article 13, paragraph 1).

•

Prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity (Article 13, paragraph 2).

•

Prisoners of war are entitled in all circumstances to respect for their persons and their honour (Article 14).

•

Neutral Territories War activities by or on behalf of any of the belligerents may not be undertaken in the territory of the neutral state.

•

Neutral territories cannot be used by the belligerents for the movement of troops, transports of military supplies, erection of wireless stations for exclusively military purposes, recruiting soldiers and military operations.96

•

Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment favorable as that granted to men (Article 14, paragraph 2)

•

Prisoners of war shall retain full civil capacity which they enjoyed at the time of their capture (Article 14, paragraph 3).

•

Contraband It is a term applied to goods which, although neutral property, may be seized by a belligerent because they are useful for war and are bound for a hostile destination. 97

Law on neutrality

Doctrine of Ultimate Consumption

Neutrality It is a condition where a state does not take part, directly or indirectly, in a war between other states.93 Neutrality exists during the time of war.  Only states may become neutral. 

Goods intended for civilian use which may be ultimately find their way to and be consumed by the belligerent forces are also liable to seizure on the way. 98

Doctrine of Infection Contrabands shipped together with innocent goods belonging to the same owner may be confiscated.99

Neutralization It is a result of a treaty wherein the duration and the other conditions of the neutralization are agreed upon by the neutralized state and other powers. Neutralization operates both in times of peace and in  times of war. 94

Doctrine of Ultimate Destination Liability of contraband to capture is determined not by their ostensible but by their real destination.100

Rights and Duties of Neutral States A neutral state has the right and duty to:

93

 Cruz, p. 242.  Cruz, p. 243. 95  Cruz, p. 243-4, citing Schwarzenberger. 96  Cruz, p. 244, citing the Hague Convention of 1907 94

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 Cruz, p. 249.  Cruz, p. 250. 99  Cruz, p. 250. 100  Cruz, p. 251. 98

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Doctrine of Continuous Voyage

c.

When the goods are reloaded at the i ntermediate port on the same vessel.101

Doctrine of Continuous Transport When the goods are reloaded on another vessel or other form of transportation.

Blockade It is a hostile operation by means of which the the vessel and aircraft of one belligerent prevent all other vessels including those of neutral states, from entering or leaving the ports or coats of the other belligerent, the purpose being to shit off the place from international commerce and communication with other states.102

2.

3.

Unneutral Service

Willfully causing great suffering, or serious injury to body or health; d. Extensive destruction and appropriation of property not justified by military necessity; e. Willful deprivation of a prisoner of war its rights of fair and regular trial; f. Arbitrary deportation or forcible transfer of population or unlawful confinement; g. Taking of hostages h. Compelling a prisoner of war or other protected person to serve in the forces of a hostile power; i. Unjustifiable delay in repatriation of prisoners of war Any of the following act shall be considered as war crime when committed in times of non- international armed conflict Genocide: acts with intent to destroy, in whole or in part, a national, ethnic, racial, religious, social or any other similar stable and permanent group as such:

It consists of acts, of a more hostile character than carriage of contraband or breach of blockade, which are undertaken by merchant vessels of a neutral state in aid of any of the belligerents.103

Killing or injuring members of the group physically and mentally;

o

Imposing measures intended to prevent births within the group; and

o

Forcibly transferring children of the group to another group

o

 Angary By the right of angary, a belligerent may, upon payment of just compensation, seize, use or destroy, in case of urgent necessity for purposes of offenses or defense, neutral property found in its territory, in enemy territory, or on the high seas. 104



o

Other Crimes Against Humanity: 

Termination of Neutrality, when: 1. When the neutral state itself joins the war; or 2. Upon the conclusion of peace.

Crimes Against L.2. RA No. 9851 -  Philippine Act on Crimes  International Humanitarian Law, Genocide, Genocide, and Other Crimes  Against Humanity 



War crimes – Shall only be applicable in times of war.



Any of the following act shall be considered as war crime when committed in times of an international armed conflict a. b.

Enslavement;

•

103

102

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•

•

101

 Cruz, p. 252.  Cruz, p. 252.

Extermination;

•

Willful killing; Torture or inhuman treatment

any of the following acts when committed as part of a widespread or systematic attack directed against any ci vilian population, with knowledge of the attack:

•

•

Its primary purpose is to (1) uphold the principles provided under International Law, (2) renounces was as an instrument of national policy (3) upholds dignity and human rights

It shall be unlawful for any person to directly and publicly incite others to commit genocide. (Sec. 5, RA 9851)

Arbitrary deportation or forcible transfer of population; Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;Torture; Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, sexual orientation or other grounds that are universally recognized as impermissible

 Cruz, p. 253.  Cruz, p. 254.

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under international law, in connection with any act referred to in this paragraph or any crime defined in this Act; •

•

•



o

o

Enforced or involuntary disappearance of persons;

o

Apartheid; and Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. (Sec. 6, RA 9851)

o

Penalties Imposed o

o

Criminal Liability Such as:



Individual Criminal Responsibilities (Sec. 8, RA 9851)

o

Irrelevance of Official Capacity (Sec. 9, RA 9851)

o

Responsibility of Superiors (Sec. 10, RA 9851)



Non-prescription of the Crimes Committed under this law (Sec. 11, RA 9851)



Orders from a Superior (Sec. 12, RA 9851): o

o

Relevant and applicable international human rights instruments; Other relevant international treaties and conventions ratified or acceded to by the Republic of the Philippines; and Teachings of the most highly qualified publicists and authoritative commentaries on the foregoing sources as subsidiary means for the determination of rules of international law. (Sec 15, RA 9851)

The Revised Penal Code and other General and Special Penal Law shall be suppletory application to the provisions of RA 9851 (Sec. 16, RA 9851)  Jurisdiction: o



The judicial decisions of international courts and tribunals;

The State shall exercise jurisdiction over persons, whether military or civilian, suspected or accused of a crime defined and penalized in this Act, regardless of where the crime is committed, provided, any one of the following conditions is met: ▪

(a) The person was under a legal obligation to obey orders of the government or the superior in question;

▪

(b) The person did not know that the order was unlawful; and ▪

o

(c) The order was not manifestly unlawful.

Note: For the purposes of this section, orders to commit genocide or other crimes against humanity are manifestly unlawful. unlawful. Protection of Victims and Witnesses (Sec. 13, RA 9851)  

Reparation to Victims and Reparations (Sec. 14, RA 9851)



Applicability of International Law – The Philippine Courts shall be guided by the following sources of International Law: o

o

o

o

o

Procedural

Rules

for

The 1948 Genocide Convention; The 1949 Geneva Conventions I-IV, their 1977 Additional Protocols I and II and their 2005 Additional Protocol III; The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, its First Protocol and its 1999 Second Protocol; The 1989 Convention on the Rights of the Child and its 2000 Optional Protocol on the Involvement of Children in Armed Conflict; The rules and international law;

principles

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of

The accused is a Filipino citizen; The accused, regardless of citizenship or residence, is present in the Philippines; or The accused has committed the said crime against a Filipino citizen. (Sec. 17, RA 9851)

Note: No criminal proceedings shall be initiated against foreign nationals suspected or accused of having committed the crimes defined and penalized in this Act if they have been tried by a competent court outside the Philippines in respect of the same offense and acquitted, or having been convicted, already served their sentence.

M. Law of the sea

It is the branch of public international law which regulates the relations of states with respect to the use of the oceans.

M.1. Baselines Baselines The baseline is the water line along the coast as marked on large scale charts officially recognized by the coastal State. It is

customary

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a line from which the width of the territorial sea is measured.105

Two Ways of Drawing the Baseline 1. Normal baseline This line follows the curvatures of the coast and therefore would normally not consist of straight lines.106

Constitutional Law I

M.3. Internal waters All waters landwards from the baseline of the territory. Sovereignty over internal waters is the same as sovereignty over land, and internal waters are not subject to the right of innocent passage.112 When straight baseline is established, enclosing areas as internal waters which were nor previously considered as part of internal waters, a right of innocent passage shall exist in those areas or waters. waters.113

2. Straight baseline This line is drawn connecting selected points on the coast without appreciable departure from the general shape of the coast.107 Under R.A. 3046 and R.A. 5446, straight baselines are drawn around the Philippines.

M.2. Archipelagic states An archipelagic State is a State constituted wholly by one or more archipelagos and may include other islands.108

M.2.a) Straight archipelagic baselines An archipelagic state may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago Provided: Within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. 109

m.2.b) Archipelagic waters Waters enclosed by the archipelagic baselines drawn in accordance with Article 47 of UNCLOS, regardless of their depth or distance from the coast.110

M.2.c) Archipelagic sea lanes passage It is the exercise of the rights of navigation and over flight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.111

M.4. Territorial sea It is a belt of sea outwards from the baseline and up to 12 nautical miles beyond. Sovereignty of a coastal state extends to the air space  over the territorial sea as well as to its bed and subsoil, but sovereignty over the territorial sea is exercised subject to UNCLOS and other rules of international law. 114 When the application of the 12-mile rule to  neighboring littoral states results in overlapping, a median line equidistant from the opposite baselines will baselines  will be applied instead.115 o Exception: Median-line rule does not apply where historic title or other special circumstance requires a different rule of delimitation of territorial seas.116

M.5. Exclusive economic zone It is an area extending not more than 200 nautical miles beyond the baseline. The coastal state has rights over the economic resources of the sea, seabed and subsoil, but the right does not affect the right of navigation and overflight of other states. 117

M.6. Continental shelf Continental shelf, archipelagic shelf or insular shelf for archipelagos, refers to the seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea, to a depth of 200 meters, or, beyond the limit, to where the depth allows exploitation, and the seabed and subsoil of areas adjacent to islands.118

Extended continental shelf Under Art. 76 of the UNCLOS, every coastal nation is entitled to delineate the outer limit of its continental shelf beyond 200 nautical miles from shore. Within this extended continental

105

112

106

113

 Bernas, p. 120.  Bernas, p. 120. 107  Bernas, p. 121. 108  Article 46, United Nations Convention on the Law of the Sea (UNCLOS). 109  Article 47, UNCLOS. 110  Article 49(1), UNCLOS 111  Article 53(2), UNCLOS.

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 Bernas, p. 124.  Article 8(2), UNCLOS. 114  Article 2, UNCLOS. 115  Bernas, p. 120. 116  Article 15, UNCLOS. 117  Bernas, p. 128. 118  Bernas, p. 128.

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shelf, the coastal state has sovereign rights over the natural resources on and beneath the seabed.

M.7. International Tribunal for the Law of the Sea The Tribunal has jurisdiction over all disputes and all applications submitted to it in accordance with the UNCLOS and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.119 N. International environmental law

It is the branch of public international law comprising those substantive, procedural, and institutional rules which have as their primary objective the protection of the environment, the term environment being understood as encompassing ”both the features and the products of the natural world and those of human civilization”

consequence and the injury is established by clear and convincing evidence.” General Duty of Co-operation “States have the duty to co-operate with one another, irrespective of the differences in their political, economic and social systems, in the various spheres of international relations, in order to maintain international peace and security and to promote international economic stability and progress, the general welfare of nations and international co-operation free from discrimination based on such differences.”122 Polluter-pays Principle “National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.”123

Principle of Common but differentiated responsibility In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. Developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command. (Principle 7, Rio Declaration) It was formulated in 1972 in the UN Conference on the Human Environment by 113 states. 120 Principle 21 of the Stockholm Declaration States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. Precautionary Principle The point of the precautionary principle is to anticipate and avoid environmental damage before it occurs. This preventive measure, which is novel in many ways, would ultimately serve to lower mitigation costs of resultant environmental damage.121 ‘No harm’ principle Trail Smelter Case (United States v. Canada): “No State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious

119

 Shaw, p. 1006  Bernas, p. 323 121 The Precautionary Principle in the International Arena, 120

Mary Stevens, Vol. 2 Issue 2 Spring/ Summer 200 2, accessed on

June

28,

2017,

available

at

122 Principle

4 of General Assembly Resolution 2625 (XXV) on

the ‘Principles of International Law Concerning Friendly Relations and Cooperation among States’ 123 Principle

16, Rio Declaration

http://digitalcommons.wcl.american.edu/cgi/viewcontent .cgi?article=1278&context=sdlp

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