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ART. I. THE NATIONAL TERRITORY

states. However, other nations have the right of navigation and overflight over this area, subject to the regulation of the coastal state. (has to be proclaimed by the State).

Section 1. 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 submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. < Constitution  municipal law  binding only within the territorial limits of the sovereignty < BASELINE METHOD: 1) Normal- the breadth of the territorial sea is measured from the low waterline, following the indentations of the coast 2) Straight- drawn as straight lines connecting appropriate points on the coast, without departing to any appreciable extent from the general direction of the coast Internal Waters – ABSOLUTE SOVEREIGNTY. Waters around, between and connecting the islands of the Phil. Archipelago, regardless of their breadth and dimensions, including the waters in bays, rivers and lakes. No right of innocent passage for foreign vessels exists. Also known as waters on the landward side of baselines from which the breadth of the territorial sea is calculated. Territorial Sea – [12 n.m.] an adjacent belt of sea with a breadth of 12 nautical miles measured from the baselines of a state and over which the state has sovereignty. Ships of all states enjoy right of innocent passage. Right of Innocent Passage: 1.International Straits (see Corfu channel case) 2.Territorial Sea – NO air passage for aircraft generally allowed 3.Archipelagic Waters – air passage allowed Contiguous zone – [24 n.m.] over which the coastal state may exercise limited control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea. Exclusive economic zone – [200 n.m.] A coastal nation has control of all economic resources within this zone, including fishing, mining, oil exploration, and any pollution of those resources, which include the sea, seabed, and subsoil to the exclusion of other %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

Continental Shelf - This is the seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea. The continental shelf extends 200 n.m., and in some cases may extend up to 350 n.m., following the natural prolongation of the soil. The coastal state has the right to explore and exploit the natural resources in this area, but does not extend to other materials such as shipwrecks. I.

UNCLOS

Archipelagic state

A State constituted wholly by 1 or more archipelagos and may include other islands Archipelago A group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such form an intrinsic geographical, economic and political entity, or which historically have been regarded as such Territorial sea A marginal belt of maritime water adjacent to the base lines extending 12 nm outward Subject to the right of innocent passage* by other states Baselines Low waterline along the coast as marked on large scale charts officially recognized by the coastal state Internal All parts of the sea landwards from the baseline and inland waters/territorial rivers and lakes [under 1973 Consti, no right of innocent waters passage] (ALL criminal laws Established right of innocent passage apply) BUT: this new rule only applies to areas NOT previously considered as internal waters Insular shelf Composed of: 1) Seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea 2) Seabed and subsoil adjacent to islands Right to: 1) Explore and exploit natural resources 2) Erect installations needed 3) Erect safety zone with radius of 500 m. *Innocent passage- passage not prejudicial to the interest of the coastal state or contrary to the principles of international law. Test – WON it is an intrusive entry or is threatening to the sovereignty of the State. II. National Territory under the 1987 Consti ..all other territories over which the Philippines has sovereignty or jurisdiction … its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas

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Changed wording from the 1973 version

1) 2) 3)

Terrestrial- all surfaces of land above the sea Fluvial- inland waters: bays and rivers, streams, internal waters, sea waters landwards from the baseline Aerial- air directly above its terrestrial and fluvial domains

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Magallona vs. Ermita [Baselines Law, Art. I, UNCLOS, RA9522] RA9522 adjusted the country’s archipelagic baselines and classified the baseline regime of nearby territories. Amended the old Baselines law (RA3046), which was compliant to UNCLOS I and codified the sovereign right of states parties over their territorial sea but did not determine its breadth. RA9522, is compliant with UNCLOS III, which prescribes the water-land ratio, length and contour of baselines of archipelagic states like the Philippines and sets the deadline for the application for the extended continental shelf. RA9522 therefore shortened 1 baseline, optimized the location of some basepoints around the archipelago and classified adjacent territories, namely the Kalayaan Island Group (KIG) and the Scarborough Shoal, as “regimes of islands” whose islands generate their own applicable maritime zones. Constitutional. First, RA9522 is a statutory tool to demarcate the country’s maritime zones and continental shelf under the UNCLOS III, and not to delineate Philippine territory. UNCLOS III has nothing to do with the acquisition or loss of territory. It is a multilateral treaty regulating sea-use rights over maritime zones, contiguous zone, and continental shelves that UNCLOS III delimits. On the other hand, baselines laws such as RA9522 are enacted by the state parties to mark out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. Thus, they are nothing but statutory mechanisms for the states parties to delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which states parties exercise treaty-based rights. Second, RA9522’s use of the framework of regime of islands to determine the maritime zones of the KIG and the Scarborough Shoal are not inconsistent with the Philippines’ claim of sovereignty. Petitioners believe that such weakens our territorial claim. A look at RA3046 and RA9522 show that the latter mainly followed the base points mapped by the former; under both, the KIG and the Scarborough Shoal are still outside of the baselines drawn around the Philippine archipelago. RA9522, by optimizing the location of the basepoints, increase the Philippines’ total maritime space. Congress, if they included both islands inside our baselines, might be accused of “departing to an appreciable extent from the general configuration of the archipelago.” Third, RA9522 and UNCLOS III are not incompatible with the Constitution’s delineation of internal waters. Petitioners contend that the law converts internal waters into archipelagic waters, hence subjecting them to the right of innocent passage. Philippines still exercises sovereignty over these waters under UNCLOS III. The political branches of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage. In the absence of municipal legislation, international law norms in UNCLOS III operate to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treaty’s limitations and conditions for their exercise.

ARTICLE II: DECLARATION OF PRINCIPLES AND STATE POLICIES: PRINCIPLES: Sec. 1: The Philippines is a democratic and Republican State. Sovereignty resides in the people and all government authority emanates from them.

A community of persons more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing an organized government to which the great body of inhabitants render habitual obedience (people, territory, sovereignty, government). People: Community of persons sufficient in number and capable of maintaining the continued existence of the community and held together by a common bond of law. Sovereignty: o Legal sovereignty: supreme power to affect legal interests either by legislative, executive or judicial action (lodged in the people and exercised by state agencies). o Political sovereignty: sum total of all the influences in a state, legal and non-legal which determine the course of law. 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. Can Muslims have a state? Yes based on the definition it is possible. Self executing v. non-self executing: When there is a specific right (OPOSA) then it can be a source of rights and obligation. Presidential form of government: there is a separation of powers -- legislative, executive and judicial. Parliamentary government: 1. The members of the government or cabinet or the executive arm are also members of the legislature. 2. The government or cabinet consisting of the political leaders of the majority party or of a coalition who are also members of the legislature, is in effect a committee of the legislature. 3. The government or cabinet has a pyramidal structure at the apex of which is the prime minister. 4. The government or cabinet remains in power only for as long as it enjoys the support of the majority of the legislature. 5. Government and legislature are possessed of control devices with which each can demand the other immediate political responsibility. Republican State: wherein all government authority emanates from the people and exercised by representative chosen by the people. The Philippines is not only a representative or republican state but also shares some aspects of direct democracy such as initiative and referendum. State: is the corporate entity Government: is one of the elements of a state and is the institution through which the state exercises its powers. Administration: consists of the set of people without a change in either state or government (changes) Tondo Medical v. CA In 1999, the DOH launched the Health Sector Reform Agenda (HSRA). Petitioners questioned the first reform agenda involving the fiscal autonomy of government hospitals, particularly the collection of socialized user fees and the corporate restructuring of government hospitals. Petitioners alleged that the implementation of the aforementioned reforms had resulted in making free medicine and free medical services inaccessible to economically disadvantaged Filipinos. Posited that the HSRA is void for being in violation

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of the following constitutional provisions: Art. II, Sections 5, 9, 10, 11, 13, 15, and 18. The SC dismissed the petition since the abovementioned provisions do not contain judicially enforceable rights. BCDA v. COA: Congress passed an act that created the Bases Conversion and Development Authority (BCDA). The Board had the power to make compensation scheme for its employees. BCDA adopted a 10,000peso year-end benefit (YEB) grant for contractual, regular and permanent employees following that of the BSP’s scheme. BSP then increased its YEB to 30,000-35,000. The BCDA then increased to 30,000 and granted the same to BCDA members and consultants this was disallowed by COA. The SC held that under the law the BCDA members are only allowed to receive per diems of 5,000 per meeting and not to exceed 4 meetings in one month. YEB is only granted to the employees, but consultants do not have an employee-employer relationship with the BCDA. The claim of petitioners that under Art. 2 of the Constitution under the declaration of policies they should be granted the benefits because they have mouths to feed and stomachs to fill. The SC held the provisions in Article 2 are non-self executing and therefore cannot be used to support their argument. Functions of government: 1. Constituent: compulsory functions which constitute the very bonds of society (peace and order from violence and robbery etc.). 2. Ministrant: Optional functions of the government (for public welfare that private wont usually do or that the government can do better than private). Due to complexities of modern society more things are considered governmental functions such as housing, water supply etc. Bacani v. NACOCO NACOCO is NOT a government entity within the purview of section 2 of the Revised Administrative Code of 1917. Corporations performing certain functions of government do not acquire that status for the simple reason that they do not come under the classification of municipal or public corporation. While the National Coconut Corporation was organized with the purpose of “adjusting the coconut industry to a position independent of trade preferences in the United States” and of providing “Facilities for the better curing of copra products and the proper utilization of coconut by-products”, a function the government chose to exercise to promote the coconut industry; it was given a corporate power separate and distinct from government, for it was made subject to the provisions of Corporation Law in so far as its corporate existence and the powers that it may exercise are concerned. It may sue and be sued in the same manner as any other private corporations, and in this sense it is an entity different from our government. Unincorporated Corp. ACCFA v. CUGCO: ACCFA was charged with ULP by the Union because of violations of the CB. ACCFA then became ACA. Union sought to be declared as exclusive bargaining unit (EBU). The Court of Industrial Relations (CIR) granted this. ACA filed certiorari contesting the jurisdiction of the CIR. The SC held that the ACA was doing government functions now not constituent but ministrant (optional for government welfare due to complexities of modern society). Therefore being a government agency cant have an EBU because the right to strike cannot be granted to them. GOCC VFP vs. Reyes The issue is whether the VFA’s officers have been delegated some portion of the sovereignty of the country, to be exercised for the public benefit. The Court ruled that the functions of petitioner corporation enshrined in Section 4 of Rep. Act No. 264031 should %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

most certainly fall within the category of sovereign functions. The protection of the interests of war veterans is not only meant to promote social justice, but is also intended to reward patriotism. All of the functions in Section 4 concern the well-being of war veterans, our countrymen who risked their lives and lost their limbs in fighting for and defending our nation. Instrumentalities MIAA v. CA MIAA is not a government-owned or controlled corporation but an instrumentality of the National Government and thus exempt from local taxation; it does not have capital stock that is divided into shares. It is also a non-stock corporation because it has no members. MIAA is a government instrumentality vested with corporate powers to perform efficiently its governmental functions. It is like any other government instrumentality, except MIAA is vested with corporate powers. MIAA exercises the governmental powers of eminent domain, police authority and the levying of fees and charges, at the same time, MIAA exercises "all the powers of a corporation under the Corporation Law, insofar as these powers are not inconsistent with the provisions of this Executive Order. Likewise, when the law makes a government instrumentality operationally autonomous, the instrumentality remains part of the National Government machinery although not integrated with the department framework. Quasi-Public Corp. Phil. Society v. COA: The Philippine Society for the Prevention of Cruelty to Animals was incorporated as a corporation by special law since at the time of its creation there was no corporation code yet. Under the law they had the power to fine violators of the law (half would go to the municipality and the other half to them). These powers however were subsequently revoked. An EO was made that wanted to examine their books by COA. They claimed that they are not a GOCC that would be subject to that. The SC held that they are NOT a GOCC but a private corporation. The charter test does not apply here because during that time there was no corporation code yet. Petitioner’s charter also shows that it is not subject to any control or supervision by any government agency of the state and lastly just because their functions redound to the public does not necessarily make it a public corporation. Serana vs. SB Petitioner contends that she is not a public officer. She does not receive any salary or remuneration as a UP student regent. In Aparri v. Court of Appeals, the Court held that: 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 exercise by him for the benefit of the public. The administration of the UP is a sovereign function in line with Article XIV of the Constitution. UP performs a legitimate governmental function by providing advanced instruction in literature, philosophy, the sciences, and arts, and giving professional and technical training. Moreover, U is maintained by the Government and it declares no dividends and is not a corporation created for profit. Legitimacy of Governments: 1. De jure: Established by authority of a legitimate sovereign a. Cory government was de jure since established by the authority of the legitimate sovereign, the people. b. GMA’s was also de jure 2. De facto: established in defiance of a legitimate sovereign a. Government gets possession and control of or usurps by force or by the voice of the majority.

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b. c.

Established and maintained by invading military forces Established as an independent government by inhabitants of a country who rise in insurrection against the parent state. Co Kim Cham v. Valdez Tan Khe: The issue in this case was WON the proceedings during the Japanese period still apply or continue after the occupation? The SC held yes because the governments established in the Philippines under the names of the Philippine Executive Commission and Republic of the Philippines during the Japanese military occupation or regime were de facto governments. It is classified as a de facto government of the second kind or a government of paramount force. The judicial acts and proceedings of the courts of justice of those governments, which are not of a political complexion, were good and valid, and, by virtue of the well-known principle of postliminy (postliminium) in international law, remained good and valid after the liberation or reoccupation of the Philippines. It is part of international law that acts and proceedings of the legislative, executive, and judicial departments of a de facto government are valid. There are several kinds of de facto governments: 1. That 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. 2. That which is established and maintained by military forces who invade and occupy a territory of the enemy in the course of war (government of paramount force—this was the kind of government in this case). a. Its existence is maintained by active military power within the territories and against the rightful authority of an established and lawful government. b. That while it exists it must necessarily be obeyed in civil matters by private citizens who by acts of obedience rendered in submission to such force, do not become responsible as wrongdoers for those acts, though not warranted by the laws of the rightful government. 3. Established as an independent government by the inhabitants of a country who rise in insurrection against the parent state. Letter of Associate Justice Puno The CA is a new entity, different and distinct from the CA or the IAC existing prior to EO 33, for it was created in the wake of the massive reorganization launched by the revolutionary government of Corazon Aquino in the aftermath of the people power (EDSA) revolution in 1986. A revolution has been defined as “the complete overthrow of the established government in any country or state by those who were previously subject to it” or as “a sudden, radical and fundamental change in the government or political system, usually effected with violence or at least some acts of violence.” In Kelsen's book, General Theory of Law and State, it is defined as that which “occurs whenever the legal order of a community is nullified and replaced by a new order . . . a way not prescribed by the first order itself.” From the natural law point of view, the right of revolution has been defined as “an inherent right of a people to cast out their rulers, change their policy or effect radical reforms in their system of government or institutions by force or a general uprising when the legal and constitutional methods of making such change have proved inadequate or are so obstructed as to be unavailable.” It has been said that “the locus of positive lawmaking power lies with the people of the state” and from there is derived “the right of the people to abolish, to reform and to alter any existing form of government without regard to the existing constitution.” %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

It is widely known that Mrs. Aquino’s rise to the presidency was not due to constitutional processes; in fact, it was achieved in violation of the provisions of the 1973 Constitution as a Batasang Pambansa resolution had earlier declared Mr. Marcos as the winner in the 1986 presidential election. Thus it can be said that the organization of Mrs. Aquino’s Government which was met by little resistance and her control of the state evidenced by the appointment of the Cabinet and other key officers of the administration, the departure of the Marcos Cabinet officials, revamp of the Judiciary and the Military signaled the point where the legal system then in effect, had ceased to be obeyed by the Filipino. Q: Was the Bill of Rights in effect during the interregnum after the actual and effective take-over of power by the revolutionary government following the cessation of resistance by loyalist forces up to 24 March 1986 (immediately before the adoption of the Provisional Constitution). NO. The government in power was concededly a revolutionary government bound by no constitution, there was no Bill of Rights during the interregnum. Nevertheless, the Filipino people continued to enjoy, under the ICCPR and the UDHR, almost the same rights found in the Bill of Rights of the 1973 Constitution. The revolutionary government, after installing itself as the de jure government, assumed responsibility for the State’s good faith compliance with the Covenant to which the Philippines is a signatory. Article 2(1) of the Covenant requires each signatory State “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.” Under Article 17(1) of the Covenant, the revolutionary government had the duty to insure that “[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence.” The Declaration, to which the Philippines is also a signatory, provides in its Article 17(2) that “[n]o one shall be arbitrarily deprived of his property.” Although the signatories to the Declaration did not intend it as a legally binding document, being only a declaration, the Court has interpreted the Declaration as part of the generally accepted principles of international law and binding on the State. Thus, the revolutionary government was also obligated under international law to observe the rights of individuals under the Declaration. As the de jure government, the revolutionary government could not escape responsibility for the State’s good faith compliance with its treaty obligations under international law. (Republic vs. SB) Sovereignty: People v. Gozo: Gozo bought house and lot inside the US naval reservation. She was told by the Mayor’s office that she didn’t have a permit for reconstruction of her house. Gozo was charged with a violation of a municipal ordinance. She claimed that it was unconstitutional or that it should not apply to her because she was inside the US bases and so the Mayor had no jurisdiction over her since US law governed there. The SC held that the Mayor has jurisdiction even if inside a military base because Philippine sovereign power is still present. The Philippine has not abdicated its sovereignty but has consented (based on comity) to the US to have preferential but NOT EXCLUSIVE jurisidiction of such offenses. “Any state may, by its consent, express or implied, submit to a restriction of its sovereign rights. There may thus be a curtailment of what otherwise is a power plenary in character. That is the concept of sovereignty as auto-limitation, which, in the succinct language of Jellinek, “is the property of a state-force due to which it has the exclusive capacity of legal self-determination and self-restriction.” A state then, if it chooses to, may refrain from the exercise of what otherwise is illimitable competence.” The opinion was at pains to point out though that even then, there is at the most diminution of jurisdictional rights, not its disappearance.

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“Its laws may as to some persons found within its territory no longer control. Nor does the matter end there. It is not precluded from allowing another power to participate in the exercise of jurisdictional right over certain portions of its territory. If it does so, it by no means follows that such areas become impressed with an alien character. They retain their status as native soil. They are still subject to its authority. Its jurisdiction may be diminished, but it does not disappear. So it is with the bases under lease to the American armed forces by virtue of the military bases agreement of 1947. They are not and cannot be foreign territory.” Sec. 2: The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.

countries, rules of international law are given a standing equal, not superior, to national legislation. From the perspective of public international law, a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. Further, a party to a treaty is not allowed to “invoke the provisions of its internal law as justification for its failure to perform a treaty.” Our Constitution espouses the opposing view. As stated in section 5 of Article VIII, the SC has the power over “all cases in which the constitutionality or validity of any treaty, international or executive agreement, is in question.” Ichong v. Hernandez, ruled that the provisions of a treaty are always subject to qualification or amendment by a subsequent law, or that it is subject to the police power of the State.In Gonzales v. Hechanova, it was held that our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.

The Philippines denounces aggressive war NOT defensive war. Some generally accepted principles of international law: 1. right of an alien to be released on bail while awaiting deportation when his failure to leave the country is due to the fact that no country will accept him. 2. The right of a country to establish military commissions to try war criminals. 3. The duty to protect the premises of embassies and legations. Adoption of International law and the doctrine of incorporation: As applied to Treaties and Agreements Tañada v. Angara: [generally accepted principles of law common to civilized nations] Petition seeking to nullify the ratification of the Philippines to the WTO because the WTO would allow foreign market to invade Filipino market to the detriment of the people. They further claimed that the WTO would limit, restrict and impair Philippine economic sovereignty. The SC held that the WTO was not absolute but only regulates some commercial restrictions and that the WTO was the only viable structure for multilateral treaty. By their voluntary act, nations may surrender some aspects of state power in exchange for greater benefits granted or derived from convention or pact. While sovereignty has traditionally been seen absolute it is subject to restrictions and limitations voluntarily agreed upon so it is not isolated from the rest of the world. -

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In its Declaration of Principles and state policies, the Constitution “adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with all nations. By the doctrine of incorporation, the country is bound by generally accepted principles of law, which are considered automatically part of our own laws. Pacta sunt servanda – international agreements must be performed in good faith. A treaty is not a mere moral obligation but creates a legally binding obligation on the parties. A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.

Equal Standing of International Law and Municipal Law Lim vs. Executive Secretary A rather recent formulation of the relation of international law vis-à-vis municipal law was expressed in Philip Morris, Inc. v. Court of Appeals, to wit: x x x Withal, the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied in most %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

Phillip Morris vs. Fortune Tobacco Petitioners claim that an infringement of their respective trademarks had been committed and prayed for the issuance of a preliminary injunction against respondents. They claim that they have registered the aforementioned trademarks in their respective countries of origin and that, by virtue of the long and extensive usage of the same, these trademarks have already gained international fame and acceptance. The Philippines’ adherence to the Paris Convention effectively obligates the country to honor and enforce its provisions as regards the protection of industrial property of foreign nationals in this country. However, any protection accorded has to be made subject to the limitations of Philippine laws. Hence, despite Article 2 of the Paris Convention which substantially provides that (1) nationals of member-countries shall have in this country rights specially provided by the Convention consistent with Philippine laws, and enjoy the privileges that Philippine laws grant to its nationals, and (2) while no domicile requirement in the country where protection is claimed shall be required of persons entitled to the benefits of the Union for the enjoyment of any industrial property rights, foreign nationals must still observe and comply with the conditions imposed by Philippine law on its nationals. Pharmaceutical and Health Care v. Duque: [Soft law] The milk code was passed to give effect to the International code of marketing treaty. DOH made regulations which was claimed to have expanded the coverage of the law (Milk Code). The SC held that it did expand the provisions of the law. Under the treaty it provides a prohibition on advertisement (which was what the regulation was about) but the Milk Code did not adopt this and thus we are not bound to do this. Furthermore, it was not proven or established that it was customary international law, which would make it incorporated in our country/laws. It was propounded that WHA Resolutions may constitute "soft law" or non-binding norms, principles and practices that influence state behavior. "Soft law" does not fall into any of the categories of international law, it is an expression of non-binding norms, principles, and practices that influence state behavior. (ex. UN Declaration of Human Rights, World Intellectual Property Organization (WIPO), a specialized agency on intellectual property, International Labor Organization and the Food and Agriculture Organization). WHO has resorted to soft law during the SARS outbreak. It represented significant steps in laying the political groundwork for improved international cooperation on infectious diseases. These resolutions clearly define WHO member states' normative duty to cooperate fully with other countries and with WHO in connection with infectious disease surveillance and response to outbreaks. The duty is neither binding nor enforceable, but it powerful politically.

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For an international rule to be considered as customary law, it must be established that such rule is being followed by states because they consider it obligatory to comply with such rules (opinio juris). Respondents have not presented any evidence to prove that the WHA Resolutions, although signed by most of the member states, were in fact enforced or practiced by at least a majority of the member states; neither have respondents proven that any compliance by member states with said WHA Resolutions was obligatory in nature. Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary international law that may be deemed part of the law of the land. Legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. The provisions of the WHA Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies without the need of a law enacted by the legislature. Sec. 3: Civilian authority is at all times, supreme over the military. The armed forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory. Civilian Supremacy: IBP v. Zamora: What is being assailed is the constitutional grounds of the order of president Erap in deploying marines to join the PNP in visibility campaignto patrol the metropolis because of high crime rates. The SC held that it was not unconstitutional because of the President’s power as commander in chief. This power is not limited to emergency but also ensuring maintenance of day-to-day peace. Furthermore it does not violate civilian supremacy clause because the marines aren’t doing anything but providing support and cooperation, in fact, the Metro Manila Police Chief is the overall leader of the PNPPhilippine Marines joint visibility patrols. Sec. 4: The prime duty of the Government is to serve and protect the people. The government may call upon the people to defend the State and in the fulfillment thereof, all citizens may be required, under the conditions provided by law, to render personal military or civil service. Sec. 5: The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. Kilosbayan vs. Morato As already stated, however, these provisions are not self-executing. They do not confer rights which can be enforced in the courts but only provide guidelines for legislative or executive action. By authorizing the holding of lottery for charity, Congress has in effect determined that consistently with these policies and principles of the Constitution, the PCSO may be given this authority. That is why we said with respect to the opening by the PAGCOR of a casino in Cagayan de Oro, "the morality of gambling is not a justiciable issue. Gambling is not illegal per se. . . . It is left to Congress to deal with the activity as it sees fit." Sec. 6: The separation of Church and State shall be inviolable. STATE POLICIES: Sec. 7: The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination. %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

Generally, these provisions are that they are not self-executing provisions and thus need some implementing acts of Congress. The government must maintain an independent foreign policy and give paramount consideration to national sovereignty, territorial integrity, national interest, and selfdetermination. Lim v. Executive Secretary: Balikatan exercises between the US and the Philippines (training program after 911) was being conducted based on the Mutual Defense Treaty (MDT). It was claimed that the MDT was only to be enforced in case of armed attack of an external aggressor. The SC held that the Balikatan was covered by the VFA which allows regulatory mechanism allowing the US to visit when approved by the Philippine government. The constitution shows antipathy towards foreign military troops and WON they are engaged in combat is a question of fact (here it is combat related activities and not actual combat itself which justifies the exercise). Sec. 8: The Philippines, consistent with the national interest, adopts and pursues a policy of freedoms from nuclear weapons in its territory. The policy is freedom from nuclear weapons exception to this policy however can be made when made by political departments and justified by demands of the national interest (the policy doesn’t prohibit the use of nuclear energy). Sec. 9: The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living and an improved quality of life for all. Sec. 10: The State shall promote social justice in all phases of national development. Social justice: equalization of economic, political, and social opportunities with special emphasis on the duty of the state to tilt the balance of social forces by favoring the disadvantaged in life. Sec. 11: The State values the dignity of every human person and guarantees full respect for human rights. Sec. 12: The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. Wisconsin v. Yoder: [Compulsory Education] Respondents are members of the Amish community. Wisconsin's compulsory schoolattendance law required them to cause their children to attend public or private school until reaching age 16 but the respondents declined to send their children, ages 14 and 15, to public school after they complete the eighth grade as part of their Amish practice to avoid their modern influences. There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education. Providing public schools ranks at the very apex of the function of a State. Yet even this paramount responsibility was made to yield to the right of parents to provide an equivalent education in a privately operated system. As that case suggests, the values of parental direction of the religious upbringing and education of their children in their early and formative years have a high

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place in our society. Thus, a State's interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children so long as they, in the words of Pierce, prepare (them) for additional obligations. Meyer v. Nebraska: the state may not prohibit the teaching of foreign languages to children. In education, the primary right belongs to the parents. The Constitution affirms the primary right of parents in the rearing of children to prepare them for a productive civic and social life and at the same time it affirms the secondary and supportive role of the State. The State as parens patriae has authority and duty to step in where parents fail to or are unable to cope with their duties to their children. Sec. 13: The State recognizes the vital role of the youth in nation- building and shall promote and protect their physical, moral, spiritual, intellectual and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs. Protection begins from conception in order to prevent the State from adopting the doctrine in the US Supreme Court decisions, which liberalized abortion.

This however does not mean that the government is not free to balance the demands of education against other competing and urgent demands. Neri after appearing and testifying before the Senate refused to answer three questions pertaining to the NBN-ZTE deal invoking executive privilege. After not showing up, he was cited for contempt. The SC ruled that the invocation of executive privilege was properly made and the Senate failed to show a compelling reason in rebutting the presumption of executive privilege for the divulging of the answers. Sec. 18: The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. Sec. 19: The state shall develop a self-reliant and independent national economy effectively controlled by Filipinos. Garcia v. BOI: Taiwanese investors of Bataan Petrochemical Corporation (BPC) wanted to transfer from Bataan to Batangas because they felt there were better labor conditions, LPG gas, and they would partner with Shell. The SC held the right of final choice where to transfer was not with the investors. Under the Constitution there are provisions regarding national economy and patrimony. Petrochemical affects national interest thus government should have final choice and Bataan was the better choice because there their partner would be a local company (PNOC) while if they went to Batangas it would be a foreign company (SHELL). Sec. 20: The State recognizes the indispensable role of the private sector, encourages private enterprise and provides incentives to needed investments.

Sec. 14: The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.

Sec.21: The State shall promote comprehensive rural development and agrarian reform

Sec. 15: The State shall protect and promote the right to health of the people and instill health consciousness among them.

Sec. 22: The state recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.

Sec. 16: The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

Sec. 23: The State shall encourage non-governmental community-based, or sectoral organizations that promote the welfare of the nation.

Oposa v. Factoran: [Inter-generational Responsibility] Minors represented by parents as a class of taxpayers filed a case against the DENR secretary enjoining the latter to cancel all timber licenses and cease and desist from renewing or approving new timber licenses based on right to a balanced and healthful ecology. The SC held that the case involved a class suit where all have a common and general interest – representing their generations and generations yet unborn (intergenerational responsibility). There is a cause of action based on Art. 2, S. 16 of the Constitution which was deemed self-executing.

Sec. 24: The State recognizes the vital role of communication and information in nationbuilding.

These basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the fear of its framers that without such mention, there will come a time when all would be lost. Such right carries with it the correlative duty to refrain from impairing the environment. MMDA Manila Bay Case: Continuing mandamus for environment cases (also upheld the right and related it to the right to life). Sec. 17: The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress and promote total human liberation and development. %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

Sec. 25: The State shall ensure the autonomy of Local Governments. Sec. 26: The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law. Pamatong v. Comelec: Petitioner wanted to run for President but the COMELEC denied his certificate of candidacy. Petitioner, thus, filed this petition alleging that his right to “equal access to opportunities for public service” under Section 26, Article II of the Constitution has been violated. The Supreme Court held that there is no constitutional right to run for or hold public office, Section 26 neither bestows such a right nor elevates the privilege to the level of an enforceable right. There is merely a privilege subject to limitations imposed by law. Moreover, the SC explained, that provisions under Article II are generally considered not self-executing. Equal access to opportunities to public office may be subjected to limitations such as practicality, costs, etc. As long as the limitations apply to everyone without discrimination then equal access clause is not violated.

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Sec. 27: The State shall maintain honesty and integrity in public service and take positive and effective measures against graft and corruption. Sec. 28: Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. Neri vs. Senate Neri after appearing and testifying before the Senate refused to answer three questions pertaining to the NBN-ZTE deal invoking executive privilege. After not showing up, he was cited for contempt. The SC ruled that the invocation of executive privilege was properly made and the Senate failed to show a compelling reason in rebutting the presumption of executive privilege for the divulging of the answers. There are certain types of information which the government may withhold from the public," that there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters"; and that "the right to information does not extend to matters recognized as ‘privileged information’ under the separation of powers, by which the Court meant Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings.” PSB and Garcia vs. Senate Impeachment Court [Carpio Dissent]: Government officials and employees have the “obligation” to disclose their assets to the public, and the public has “the right to know” the assets of government officials and employees. This “obligation” of government officials and employees to disclose all their assets is absolute and has no exception. The right of the public to know the assets of government officials and employees is also absolute and has no exception. In Re: Production of Court Records: In line with the publics constitutional right to information, the Court has adopted a policy of transparency with respect to documents in its possession or custody, necessary to maintain the integrity of its sworn duty to adjudicate justiciable disputes. This grant, however, is not as open nor as broad as its plain terms appear to project, as it is subject to the limitations the laws and the Court’s own rules provide. As heretofore stated, for the Court and the Judiciary, a basic underlying limitation is the need to preserve and protect the integrity of their main adjudicative function. To qualify for protection under the deliberative process privilege, the agency must show that the document is both (1) predecisional and (2) deliberative: A document is “predecisional” under the deliberative process privilege if it precedes, in temporal sequence, the decision to which it relates. Communications are considered predecisional if they were made in the attempt to reach a final conclusion. A material is “deliberative,” on the other hand, if it reflects the give- and-take of the consultative process. The key question in determining whether the material is deliberative in nature is whether disclosure of the information would discourage candid discussion within the agency. If the disclosure of the information would expose the government’s decision- making process in a way that discourages candid discussion among the decision-makers (thereby undermining the courts’ ability to perform their functions), the information is deemed privileged. Gamboa vs. Teves [generally, provisions outside Art. II-self-executing, unless “as may be provided by law”] While some constitutional provisions are self-executing, others are not. A constitutional provision is self-executing if it fixes the nature and extent of the right conferred and the liability imposed such that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

legislature for action. On the other hand, if the provision needs a supplementary or enabling legislation, it is merely a declaration of policy and principle, which is not selfexecuting. ARTICLE VI: THE LEGISLATIVE DEPARTMENT Section 1: The legislative power shall be vested in the congress of the Philippines, which shall consist of a Senate and a House of Representatives, Except to the extent reserved to the people by provision on initiative and referendum. Legislative power is the authority to make laws and to alter or repeal them. Bicameralism: 1. Allows a body with national perspective to check the parochial tendency of representatives. 2. Allows for more careful study of legislation. 3. Serves as training ground for national leaders. Unicameralism: Simplicity of organization resulting in economy and efficiency, facility in pinpointing responsibility for legislation and avoidance of duplication. Kinds of Legislative Power: 1. Original Legislative Power: possessed by sovereign people 2. Derivative Legislative Power: From sovereign delegated to legislative bodies. 3. Constituent: the power to amend or revise the Constitution 4. Ordinary: power to pass ordinary laws. Limits on Legislative Power: 1. Substantive: curtail the contents of law 2. Procedural: curtail manner of passing laws Plenary power is legislative Legislative’s power to legislate is plenary and can legislate on any subject matter. For this reason, Congress cant make irrepealable laws as this would curtain the plenary power of future Congress. The plenary powers of the legislative are subject only to Constitutional limitations. Thus, we have the following examples of Constitutional limitations to legislative power: A law passed by Congress cannot violate the Constitution Congress cannot pass a law that amounts to a usurpation of executive or judicial prerogatives Congress cannot pass a law that allows it to appoint officials in the executive department The Senate cannot initiate appropriation and tariff bills Non-delegability of Legislative Power Legislative power is generally non-delegable under the principle of delegata potestas non potest delegari. The sovereign people saw it fit to delegate legislative powers to Congress. Congress, therefore, cannot abdicate itself of this mandate by further delegating this power to another body. This principle however admits several exceptions in our jurisdiction: 1. Delegation of legislative power to local governments 2. Delegation of rule-making power to administrative bodies 3. Constitutionally recognized exceptions

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Grant of Quasi-Legislative Power to LGUs and Administrative Bodies Rubi v. Provincial Board of Mindoro (1919) Valid vs. Invalid delegation "The true distinction, therefore, is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." Discretion may be committed by the legislature to an executive department or official. The legislature may make decisions of executive departments or subordinate officials thereof, to whom it has committed the execution of certain acts, final on questions of fact. The growing tendency in the decisions is to give prominence to the "necessity," of the case. Legislative delegation to local authorities An exception to the general rule, sanctioned by immemorial practice, permits the central legislative body to delegate legislative powers to local authorities. Instances of Delegation allowed by the Constitution • Congress may, by law, grant the President necessary powers during times of war and national emergencies for a limited period and subject to restrictions. This grant of power may include legislative power. [Art. VI, Sec 23(2)] •

The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. [Art. VI, Sec. 28(2)]

Valid Delegation of Legislative Power Necessity of delegating subordinate legislation The validity of delegating legislative power is now a quiet area in the constitutional landscape. In the face of the increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here. (SJS v. DDB, 2008) Requisites of a valid delegation of legislative power to administrative agencies: It must be made clear that legislative power cannot be delegated to administrative agencies. What is delegated is only rule-making power or law execution. They are allowed to: o “Fill up the details” of an already complete statute through implementing rules and regulations o Or to ascertain facts necessary to bring a contingent law into actual operation. How do you distinguish between delegation of law-making powers and the delegation of law execution powers? There are two accepted tests to determine whether or not there is a valid delegation of legislative power, viz., the completeness test and the sufficient standard test. %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

Under the first test, the law must be complete in all its terms and conditions when it leaves the legislature such that when it reaches the delegate the only thing he will have to do is enforce it. Under the sufficient standard test, there must be adequate guidelines or limitations in the law to map out the boundaries of the delegateÊs authority and prevent the delegation from running riot. Both tests are intended to prevent a total transference of legislative authority to the delegate, who is not allowed to step into the shoes of the legislature and exercise a power essentially legislative. (Eastern Shipping Lines v. POEA) Elements of a Valid Delegation 1. Completeness: • The Law must be complete in itself • It must set forth therein the policy to be carried out or implemented by the delegate What can be delegated is the discretion to determine how the law may be enforced, not what the law shall be. The ascertainment of the latter subject is a prerogative of the legislature. This prerogative cannot be abdicated or surrendered by the legislature to the delegate. (Eastern Shipping Lines v. POEA) 2. The law must fix a sufficient standard Limits of which are sufficiently determinate or determinable These will guide the delegate in the performance of his functions. The standards formulated need not be in precise language rather it can be drawn from the declared policy of the law and from the totality of the delegating statute. It may even be embodied in other states on the same subject as the challenged law. Sufficient standards of delegation of legislative power Parenthetically, it is recalled that this Court has accepted as sufficient standards “public interest” in People v. Rosenthal, “justice and equity” in Antamok Gold Fields v. CIR, “public convenience and welfare” in Calalang v. Williams, and “simplicity, economy and efficiency” in Cervantes v. Auditor General, to mention only a few cases. In the United States, the “sense and experience of men” was accepted in Mutual Film Corp. v. Industrial Commission, and “national security” in Hirabayashi v. United States. (Eastern Shipping Lines v. POEA) “Public Interest” as a standard [T]he term "public interest" is not without a settled meaning. "Appellant insists that the delegation of authority to the Commission is invalid because the stated criterion is uncertain. That criterion is the public interest. It is a mistaken assumption that this is a mere general reference to public welfare without any standard to guide determinations, The purpose of the Act, the requirement it imposes, and the context of the provision in question show the contrary. (People v. Rosenthal, 1939) A legislative standard need not be expressed. It may simply be gathered or implied. Nor need it be found in the law challenged because it may be embodied in other statutes on the same subject as that of the challenged legislation. (Chiongbian v. Orbos, 1995) Others based on case law: Standard Law requiring every public utility to furnish annually a detailed report of finances and operations which the Board may from time to time prescribe.

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Delegation Invalid delegation because it was to general. (Compania general de tabacos v. Board)

Page%10%of%69% % If for any cause conditions arise resulting in an extraordinary rise of palay, the Governor general can promulgate temporary rules and emergency measures fixing the price of cereals A regulation penalizing electro fishing.

RA 6640 decreed a wage increase higher than the CBA increase, DOLE then issued a regulation which provided that salary increases made pursuant to a CBA would not be considered as compliance with the new law. Oil deregulation law provided two factors to consider in effecting full deregulation of oil industries. Another factor however was considered. Secretary of Agricultural by law was authorized to restrict the use of any fishing net or fishing device for the protection of fish fry or fish eggs. Thus, a regulation was passed prohibiting the use of trawls. LOI was issued requiring the use of Early Warning Devices

Law which authorized the Medical Board of Examinations to have tests for entrance to medical schools assailed because no sufficient standards.

Invalid since no standard to guide the Governor General as to what constitutes an extraordinary rise in the price of palay. (United States v. Ang)

Invalid as it was not one of the forms punished in the Fisheries Act. It went beyond the scope. (People v. Maceren) Invalid since it expanded the law itself by providing such condition (Cebu Oxygen & Acetylene v. Sec. Drilon).

Invalid because resulted in the rewriting of the standards set forth under the law. (Tatad v. Sec. Depart of Energy) Valid since details were provided by law (Araneta v. Gatmaitan).

Valid since the standard of “safe transit upon the roads” is sufficient. Furthermore we accept the generally accepted principles of international law (based on Geneva Convention on Roads Signs and Signals). (Agustin v. Edu). Valid, the standard found in the law’s desire for the “standardization and regulation of medical education.” (Tablarin v. Gutierrez).

Contingent Legislation While the power to tax cannot be delegated to executive agencies, details as to the enforcement and administration of an exercise of such power may be left to them, including the power to determine the existence of facts on which its operation depends, the rationale being that the preliminary ascertainment of facts as basis for the enactment of legislation is not of itself a legislative function but is simply ancillary to legislation. (ABAKADA v. Ermita, 2005) Laws may be made effective on certain contingencies. The legislature may delegate a power not legislative which it may itself rightfully exercise. The power to ascertain facts is such a power which may be delegated. There is nothing essentially legislative in ascertaining the existence of facts or conditions as the basis of the taking into effect of a law. (People v. Vera) Where the effectivity of the law is made dependent on the verification by the executive of the existence of certain condition, it is not a delegation of legislative power. This is called %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

contingent legislation. Congress provides the conditions required before a law takes effect; the executive factually determines when those conditions exist. (ABAKADA v. Ermita, 2005) Filling in details There is no undue delegation of legislative power when there is only a grant of the power to “fill up” or provide the details of legislation because Congress did not have the facility to provide for them. To a certain extent matters of detail may be left to be filled in by rules and regulations to be adopted or promulgated by executive officers and administrative boards. As a rule, an act of the legislature is incomplete and hence invalid if it does not lay down any rule or definite standard by which the administrative board may be guided in the exercise of the discretionary powers delegated to it. (People v. Vera, 1937) Undue Delegation The legislature does seemingly on its own authority extend the benefits of the Probation Act to the provinces but in reality leaves the entire matter for the various provincial boards to determine. If a provincial board does not wish to have the Act applied in its province, all that it has to do is to decline to appropriate the needed amount for the salary of a probation officer. This is a virtual surrender of legislative power to the provincial boards. (People v. Vera) Legislative Veto of Implementing Rules and Regulations After the enactment of a law, congressional oversight is limited to scrutiny and investigation. Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. Legislative veto is a statutory provision requiring the President or an administrative agency to present the proposed implementing rules and regulations of a law to Congress which, by itself or through a committee formed by it, retains a “right” or “power” to approve or disapprove such regulations before they take effect. It is unconstitutional Congress, in the guise of assuming the role of an overseer, may not pass upon the legality of IRR’s by subjecting them to its stamp of approval without disturbing the calculated balance of powers established by the Constitution. The discretion to approve or disapprove Rules and Regulations is a judicial power. (Abakada v. Purisima) Rules and regulations may have the force of penal laws if: 1. the delegating statute itself must specifically authorize the promulgation of penal regulations 2. The penalty must not be left to the admin agency but provided by the statute itself. 3. The regulation must be published in the official gazette or a newspaper of general circulation. There should be designated limits of the penalty and it should not be left to the discretion to the judge (penalty of “imprisonment, in the discretion of the court” is invalid because it is not for the court to fix the term of imprisonment where no points of reference have been provided by the legislature- (People v. Dacuycuy). Dagan v. PRC: Phil. Racing Commission (PhilRaCom) made a directive pursuant to law to come up with rules on how to check horses for Equine Infectious Anemia (EIA). The Philippine Racing Club and Manila Jockey Club then came up with their own rules. Race horse owners contested the rules. The SC said that the delegation to PhilRaCom is

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valid pursuant to the need to control the security of racing. Also there was no delegation from PhilRaCom to Philippine Racing Club or Manila Jockey because what was issued was merely a directive and it was up to them how they are to implement it, the duty and obligation to do such coming from their respective franchises. Sec. 2: The senate shall be composed of twenty-four senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law. Sec. 3: No person shall be a senator unless: 1. He is a natural-born citizen of the Philippines 2. On the day of the election is at least thirty-five years of age 3. Able to Read and Write, 4. A Registered voter 5. And a Resident of the Philippines for not less than two years immediately preceding the day of the election. Day of the election means the day the votes are cast Sec. 4: The term of office of the Senators shall be Six years and shall commence, unless otherwise provided by law, at noon on thirtieth of June (June 30) next following the election. No senator shall serve for more than two 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. A person may serve as a senator for more than 2 terms, provided they are not consecutive Sec. 5: (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. (3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative. (4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. Classification of House Representatives 1. District Representatives a. Elected on the basis of geographic divisions called legislative districts 2. Party-List Representatives a. Elected through the party-list system

Party List: Based on underrepresented and marginalized (not geographic based) Registered national, regional and sectoral parties or organizations submit a list of candidates in order of priority. During congressional elections, such parties or organizations are voted for at large and the number of seats a party or organizations will get out of the 20% allocated for partylist representatives will depend on number of votes garnered worldwide. Details for operation of party list will be provided by law. Guidelines for Party List: 1. The party or organization must represent the marginalized and underrepresented. 2. Political parties who wish to participate must comply with this policy. 3. The religious sector may not be represented. (But a religious person/leaders may be elected the prohibition is representation of a religious sect). 4. The party or organization must not be disqualified under RA 7941. a. It is a religious sect or denomination, organization or association organized for religious purposes; b. It advocates violence or unlawful; c. It is a foreign party or organization d. It is receiving support from any foreign government, foreign political party, organization directly or indirectly e. Violates or fails to comply with laws, rules or regulations relating to elections; f. It declares untruthful statements in its petition; g. It has ceased to exist for at least one (1) year; or h. It fails to participate in the last two preceding elections OR fails to obtain at least two percentum of the votes cast under the party-list system in the two preceding elections for the constituency in which it has registered. 5. The part or organization must not be an adjunct of or a project organized or an entity funded or assisted by the government. 6. Its nominees must comply with requirements of law 7. Nominee must be able to contribute to the formulation and enactment of legislation that will benefit the nation. It is for the COMELEC to decide WON a party list system is qualified or not. Qualifications for Party List Representative: 1. Natural born citizen of the Philippines 2. Registered Voter 3. Resident of the Philippines for at least one year immediately preceding the day of the election 4. Able to read and write 5. Bona fide member of the party or organization which he seeks to represent for at least 90d preceding the day of the election 6. At least 25y of age on the day of the election ( If youth sector he must be at least 25y old but not more than 30y of age on the day of the election – If he turns 30y old during his term he will be allowed to continue). Party-list representation The 20% allocation for party-list representatives is not mandatory. It merely provides the ceiling as to the maximum number of party-list seats in Congress. (Veterans Federation Party v. Comelec, 2000)

Legislative Districts Made by law and are based on proportional representation. %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

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Can Congress require parties to obtain at least 2% of the total number of votes before it can be entitled to a seat in Congress? Can Congress prohibit parties from holding more than 3 seats in the house? Yes. Under a republican or representative state, all government authority emanates from the people, but is exercised by representatives chosen by them, but to have meaningful representation, the elected persons must have the mandate of a sufficient number of people. (Veterans) However, this 2% threshold was held unconstitutional in Banat. What are the parameters of the Filipino Party-list system? 1. The twenty percent allocation the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list. 2. The two percent threshold only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are “qualified” to have a seat in the House of Representatives. 3. The three-seat limit-each. A qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one “qualifying” and two additional seats. 4. Proportional representation the additional seats which a qualified party is entitled to shall be computed “in proportion to their total number of votes.”

2.79 2.33

4.74% 1 1.80 3.89% 1 1.48 this until zero na yung additional 17

seat

1 1

3

7.33% 6.14%

Apply cap

Buhay 1,169,234 Bayan 979,039 Muna 3 CIBAC 755,686 4 APEC 621, 171 (etc. it just keeps going like TOTAL

B +C in whole integer (Total rec. seats)

1 2

Addtl Seat (SEC. ROUND) (C)

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Example: Guaranteed Seat (FIRST ROUND) Votes rec. (B) over total votes for party list (A) Votes Rec.

Under the Constitution and Republic Act (RA) 7941, political parties cannot be disqualified from the party-list elections merely on the ground that they are political parties. (Ang Bagong Bayani v. Comelec, 2001)

How do we determine the number of seats for Party representatives? 1. Determine the number of seats allocated for party list representatives. We do this by dividing the total number of legislative Districts by 80% and multiplying the quotient by 20%. The product is the total number of party-list seats. 2. The parties are then ranked on the basis of their percentage of their votes in proportion to the total number of votes cast for party-list candidates. 3. All Parties that garner 2% of the votes qualify for 1 seat in Congress. This is the first round. 4. The second round is to determine the number of additional seats [a two step process]: a. First, multiply the percentage of votes of every party by the number of remaining seats. The product, rounded down, is the number of additional seats that party is entitled to. b. Second, assign one party-list seat to each of the parties next in rank until all available seats are completely distributed. 5. Each party is entitled to no more than 3 party-list seats.

Party

Can political parties participate in the party list system? For purposes of the May 1998 elections, the first five (5) major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the party-list system. (RA 7941)

Can a party nominate a person who is not a member of the sector that is represented by the party? It is not enough for the candidate to claim representation of the marginalized and underrepresented, because representation is easy to claim and to feign. The party-list organization or party must factually and truly represent the marginalized and underrepresented constituencies mentioned in Section 5, and the persons nominated by the party-list candidate-organization must be “Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties.” (Ang Bagong Bayani v. Comelec)

Rank

What are the guidelines for screening party-list participants? 1. First, the political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Section 5 of RA 7941. 2. Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to participate in the party-list system, they must comply with the declared statutory policy enabling Filipino citizens belonging to marginalized and underrepresented sectors to be elected to the House of Representatives. 3. Third, the religious sector may not be represented in the party-list system. 4. Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941. 5. Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by, the government. 6. Sixth, the party must not only comply with the requirements of the law. Its nominees must likewise do so. 7. Seventh, not only candidate party or organization must represent marginalized and underrepresented sectors. So also must its nominees. 8. Eighth, while lacking a well-defined political constituency, the nominee must likewise be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.

However, by a vote of 8-7, the Court decided to continue the ruling in Veterans disallowing major political parties from participating in the party-list elections, directly or indirectly. (BANAT v. Comelec, 2009)

3 3

N.A. N.A

2 2 seats) 55

N.A Na

Why did Banat abandon the formula used in Veterans for determining additional seats? The allocation of additional seats according to the 2% threshold is unconstitutional because it makes it mathematically impossible to achieve the maximum number of available party list seats when the number of available party list seats exceeds 50. Thus, it frustrates the attainment of the 20% permissive ceiling provided in the Constitution. The SC therefore struck down the two percent threshold only in relation to the distribution of additional seats as found in RA 7491 since it is an unwarranted

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obstacle to the full implementation of Sec. 5(2), Article VI of the Constitution to attain “the broadest possible representation of party, sectoral or group interests in the HR.” The 2 percent threshold is therefore struck down only in relation to the distribution of the additional seats. Additional Issues: 1. The reason behind the three-seat cap was in order to prevent any party from dominating the party-list election. 2. Neither the constitution or RA 7941 prohibits major political parties from participating in the party-list system. To be able to be a party-list organization’s nominee he need not be poor or wallow in poverty. It is enough that he belongs to the marginalized or underrepresented sectors (if he is representing fisherfolk he should be a fisherman, if he is representing senior citizens he should be a senior citizen) 3. The constitution does not mandate the filling up of the entire 20% allocation of party list system, but we cannot allow the continued existence of a provision in the law which will systematically prevent the constitutionally allocated 20% party list representatives from being filled.

Aquino v. Comelec (2010) There is no specific provision in the Constitution that fixes a 250,000 minimum population that must compose a legislative district. The Mariano case limited the application of the 250,000 minimum population requirement for cities only to its initial legislative district. In other words, while Section 5(3), Article VI of the Constitution requires a city to have a minimum population of 250,000 to be entitled to a representative, it does not have to increase its population by another 250,000 to be entitled to an additional district. Navarro v. Ermita (2011) Requirements for creating a city or a province: 1. 2.

Average annual income, of not less than Twenty million pesos And either of the following requisites: (i) Contiguous territory of at least two thousand (2,000) square km; or, (ii) Population of not less than 250,000 inhabitants

Apportionment Apportionment - 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

Provided, That the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.

Reapportionment - the realignment or change in legislative districts brought about by changes in population and mandated by the constitutional requirement of equality of representation.

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Gerrymandering: formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party, is not a allowed Sema v. Comelec: The creation of cities and provinces necessarily includes the creation of legislative districts which only congress can do. Thus the creation of the ARMM resolution is unconstitutional since it creates a new province (which necessarily results in the creation of a legislative district a power only the congress can exercise). Thus, reapportionment may be done through a special law or through a city charter. Congress cannot delegate the power to create a province or city because this power inherently involves the power to create a legislative district. A delegate[ARMM] cannot alter the very composition of the Congress by creating legislative districts (or Cities/provinces which are in turn, entitled to legislative representation). (Sema v. Comelec, 2008) Rules on Apportionment 1. It must be in accordance with the number of the respective inhabitants and on the basis of a uniform and progressive ratio 2. Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory 3. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative. 4. Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

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The territory need not be contiguous if it comprises 2 or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. The requirement on land area shall not apply where the city proposed to be created is composed of 1 or more islands. The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income.

Bagabuyo v. Comelec (2008) The Constitution and the Local Government Code expressly require a plebiscite to carry out any creation, division, merger, abolition or alteration of boundary of a local government unit. No plebiscite requirement exists under the legislative apportionment or reapportionment provision. Sec. 6: No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twentyfive years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election. Congress CANNOT Constitution.

increase

or

decrease

the

qualifications

provided

under

the

Bengson v. HRET and Cruz (2001) There are three modes by which Philippine citizenship may be reacquired by a former citizen: (1) by naturalization, (2) by repatriation, and (3) by direct act of Congress. 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. 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. Romualdez-Marcos v. COMELEC:

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In this case the Court clarified what is meant by residence. What is required is not just temporary residence but domicile. A person’s domicile is his domicile of origin and if a person never loses his domicile then the one year requirement is not relevant because one is never deemed to left the place. But if a person loses his domicile and seeks to reestablish domicile then the one year requirement becomes relevant. In this case records show that although she registered in a different place, and many residences in order to follow her husband she still had close ties with her domicile, she still had birthdays there, her ancestral home was there, etc. For domicile there must be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary and the residence at the place chosen for the new domicile must be actual. To establish new domicile of choice, personal presence in the place must be coupled with conduct indicative of that intention. While with residence all that is required is bodily presence in a given place. Domino v. Comelec: Domino had a lease contract in Sarangani which is indicative of intent to reside there but does not show the kind of permanency required to prove abandonment of one’s original domicile. Also Domino still a registered voter of Quezon City, although it is not conclusive it is a strong presumption. Maquera v. Borra: Congress cannot pass a law requiring that candidates for the House must post a bond of one year’s salary. Such amounts to a property qualification which is contrary to the social justice provision in the constitution. The requirement of a mandatory drug testing for Senatorial candidates [and other candidates whose qualifications are prescribed by the Constitution] amounts to an imposition of additional qualifications to the office. Such an imposition is unconstitutional. (SJS v. DDB, 2008) Sec. 7: The Members of the House of Representatives shall be elected for a term of three years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No Member of the House of Representatives shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. A member of the House may serve for more than three terms as long as it is not successive. Fariñas v. Executive Secretary: An elective official who files his certificate of candidacy is not considered ipso facto resigned, an appointive official however who files a COC is deemed ipso facto resigned. (The old rule used to be that any elective official whether local or national would be deemed ipso facto resigned if he runs for any other office other than the one he is holding—this has ben repealed). Term v. Tenure: Term is the period that an official is entitled to hold office while tenure is the period during which the official actually holds the office. Sec. 8: Unless otherwise provided by law, the regular election of the Senators and the Members of the House of Representatives shall be held on the second Monday of May. %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

Sec. 9: In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term. If there is a vacancy it is NOT MANDATORY to have a special election, the matter is left to the discretion of congress. Lucero Case: In case of special elections there is no need to fill in unless Congress decides to. However, if there is a failure of elections Congress MUST fill in the vacancy. Tolentino v. COMELEC: Guingona was appointed by GMA as VP and thus there was a vacancy in senate. Under the law the special elections to fill such would be held during the next election. COMELEC then made the candidate with the 13th highest vote to fill that seat. However it was contended that COMELEC never gave notice regarding it and thus should not be considered. The SC held that the failure to give notice is not a problem since there was already a law, which provides that the next election would have that and thus the date of when the special elections is deemed fix. The people are charged with knowledge as to what the law is and when and where the next elections are. Sec. 10: 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 Members of the Senate and the House of Representatives approving such increase. Increase in emoluments seem to be permitted since the prohibition is with regard to the immediate increase of compensation/salaries. However, if we follow the spirit of Philconsa v. Mathay the prohibition is an absolute ban on any form of direct or indirect increase of salary. Congress may increase limit on allowances for travel and office since such do not form part of the salary or compensation, allowances take effect immediately. Sec. 11: A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof. The privilege against arrest is available only when congress is in session whether regular or special and whether or not the legislator is actually attending a session (thus not available during recess). The privilege of speech granted to Congress is limited only to forums other than Congress but does not protect the speaker from disciplinary authority of the Congress. It is an absolute protection against suits for libel. Speech or debate includes utterances made in the performance of official functions, such as speeches delivered, statements made, votes casts, as well as bills introduce and other acts done in the performance of official duties. Not necessary that congress is in session for privilege of speech what is essential is that the utterance constitutes legislative action. Privilege extends to agents of assemblymen, provided that agency consists precisely in assisting the legislator in the performance of legislative action. People v. Jalosjos:

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Jalosjos was charged with statutory rape and claimed that he should be allowed to attend sessions in Congress to give voice to people of Zamboanga since they elected him. The SC ruled that there is no reason to exempt him from imprisonment as the immunity does not apply to him rape being a crime punishable for more than 6 years. Furthermore, to allow him to attend session five times a week would be a mockery to the justice system. The voters of Zamboanga knew when they voted him that he had limitations due to the imprisonment also there is no substantial distinction between a Congressman and any other person that would give him preferential treatment from other detainees.

Sec. 14: No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office.

Trillanes v. Pimentel Allowing a detained member of Congress to attend congressional sessions and committee meetings for five (5) days or more in a week will virtually make him a free man with all the privileges appurtenant to his position such an aberrant situation not only elevates his status to that of a special class, it also would be a mockery of the purposes of the correction system.

There are three prohibitions under Sec. 14: 1. Personal appearance as counsel before any court, quasi-judicial body, or tribunal 2. Direct or indirect financial interest in any government contract, franchise or special privilege during his term. a. The contracts referred to here are those involving "financial interest," that is, contracts from which the legislator expects to derive some profit at the expense of the government. b. Provision uses the word “term” and not “tenure” 3. Intervention in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office. a. The last sentence restores an inhibition originally imposed by the 1935 Constitution. Although this provision has never been judicially interpreted, it may be surmised that the rule shall apply to the case, say, of the chairman of the committee on banks serving as legislative consultant for a private bank. (Senate.gov.ph)

It is opportune to wipe out the lingering misimpression that the call of duty conferred by the voice of the people is louder than the litany of lawful restraints articulated in the Constitution and echoed by jurisprudence the mandate of the people yields to the Constitution which the people themselves ordained to govern all under the rule of law. Jimenez v. Cabangbang: Plaintiffs sought recovery from Cabangbang for damages based on an open letter claimed to be libelous. Claimed that as a member of the HR at the time such speech was made he is immune. The SC held however that a letter does not fall under the immunity but the message of the letter was actually not libelous because it did not really say that they were liable for anything rather that they were being used as tools in a corrupt plan. Pobre v. Defensor-Santiago: During a speech delivered in Congress, Santiago said she wanted to spit on Chief Justice Panganiban’s face and she criticized the courts. The SC ruled such was privileged since it was pursuant to opening the eyes of people for further investigations in anomalies in the judiciary. But the SC went further to say that senate should have disciplined her and reminded her of her duty to respect the courts. Sec. 12: All Members of the Senate and the House of Representatives 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 authors. 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. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected. Liban v. Gordon: The Philippine red cross is not a GOCC but is a private corporation performing a public function thus the fact that Gordon is the chairman does not mean that he forfeits his seat in the Senate. Even if a member of congress resigns his seat he cannot accept an appointment to an office which may have been created or emolument increased during his term.

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Puyat v. De Guzman (1982) An assemblyman cannot indirectly fail to follow the Constitutional prohibition not to appear as counsel before an administrative tribunal like the SEC by buying a nominal amount of share of one of the shareholders after his appearance as counsel therein was contested. If the legislator is not trying to indirectly appear as counsel for another, can he intervene in a case representing himself? It can be argued that he can. Sec. 15: The Congress shall convene once every year on the fourth Monday of July for its regular session, unless a different date is fixed by law, and shall continue to be in session for such number of days as it may determine until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays, and legal holidays. The President may call a special session at any time. In a special session called by the President is done when legislature is in recess and during the session the legislature can only consider the subject matter designated by the president. Sec. 16: (1) The Senate shall elect its President and the House of Representatives, its Speaker, by a majority vote of all its respective Members. Each House shall choose such other officers as it may deem necessary. (2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner, and under such penalties, as such House may provide. (3) Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days.

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(4) Each House shall keep a Journal of its proceedings, and from time to time publish the same, excepting such parts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at the request of one-fifth of the Members present, be entered in the Journal. Each House shall also keep a Record of its proceedings. (5) Neither House during the sessions of the Congress shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting. Defensor-Santiago v. Guingona: Senators Fernan and Tatad contested for the Senate Presidency. Fernan won by a vote of 20 to 2. With the agreement of Sen. Santiago, Tatad manifested that he was assuming the position of minority leader explaining that those who had voted for Fernan comprised the majority while those who voted for him were minority. However LAKAS senators chose Guingona as minority leader. Fernan recognized G as such and so S and T filed before the SC. The SC held first that they had power and jurisdiction to inquire whether the Senate or its officials committed violation of the Constitution or exercised GAD in exercise of their functions. Art. 6, Sec. 16 is explicit on the manner of electing a Senate President and House speaker but silent on the manner of electing other officers. The method therefore should be left to internal rules prescribed by the Senate. Thus on grounds of respect for separation of powers, courts may not intervene in the internal affairs of the legislature. Avelino v. Cuenco (Quorum) When the constitution states that a majority of each House shall constitute a quorum, “the House” does not mean all the members. There is a difference between a majority of “all the members of the House” and a majority of “the House” the latter requiring less number. Thus an absolute majority of 12 members of the senate is a constitutional majority of the Senate for purpose of a quorum. 1 senator who was in the US was not considered in determining the quorum. This is because he is beyond the jurisdiction of Senate’s compulsory powers. A controversy over the selection of Senate president is not within the jurisdiction of the Supreme Court, in view of the separation of powers, the political nature of the controversy and the constitutional grant to the Senate of the power to elect its own president, which power should not be interfered with nor taken over by the judiciary. The selection of the presiding officer of the Philippine Senate affects only the senators themselves who are at liberty at any time to choose their officers, change or reinstate them. Datu Abas Kida v. Senate (2011) A law that requires a 2/3 supermajority vote by Congress to amend or repeal is unconstitutional. The 2/3 vote is more than what the Constitution demands and gives the law the character of an irrepealable law. The requirement would restrain the plenary powers of future Congress to amend, revise or repeal the laws it had passed. Arroyo v. De Venecia (Internal Rules and Discipline) The validity of a law on tax on cigarettes and beer was assailed as invalid because they failed to get the yeas and nays and didn’t listen to objections of Senator Arroyo when he gave them contrary to the provisions of the Rules of the HR and under the Constitution the HR can make their own internal rules and a violation of such is a violation of the Constitution. The SC ruled that such were merely internal rules and are procedural with which the Court has no concern. They may be waived or disregarded by the legislative body. (Enrolled Bill: Under the Enrolled Bill Doctrine, the signing by the Speaker and the President of the Senate and the certification of the secretaries of both houses are %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

conclusive of its due enactment and is a conclusive presumption except when there is necessity to go behind and consult the journal to determine whether certain provisions of a statute have been approved. In this case however, there is no necessity to go behind the enrolled bill doctrine and so the Court will respect the certification that the bill has been duly passed.) Osmeña v. Pendatum: Osmeña during a privileged speech made accusations about the president and saying that he was corrupt. The Senate however considered it disorderly conduct and suspended him. He claimed privileged immunity. He now claims that he can’t be suspended because under the House rules, can only suspend after the speech before taking up other matters and in this case it was done after other matters were taken up etc. The Court however ruled that the rules adopted by the legislature are subject to revocation, modification, waiver, at the pleasure of the legislature. Mere failure to conform with internal rules will not invalidate the procedure. (With regard to parliamentary immunity, although they may be immune from courts they are not immune from disciplinary action that the legislature may take against them to discipline them). US v. Pons (Duty to keep Journals and Records) In this case Pons was being punished for Act 2381 which penalized illegal importation of opium. Pons claims that the law is invalid because it was made after the session of congress was closed. He claimed that although the date of adjournment of the Senate was on February 28. The law was enacted after midnight or on February 29, he claimed that they stopped the clock etc. so that the records would reveal that the law was made when the legislature adjourned sine die (on the day itself) at 12 midnight of Feb. 28. Thus he seeks to introduce extraneous evidence to prove all of this. The SC said that the courts may not go behind the legislative journal for the purpose of determining the date of adjournment when such journals are clear and explicitly that they adjourned sine die. Casco Philippines v. Gimenez: Casco claims that under the law which exempts from taxation “urea formaldehyde” the raw materials of “urea” and “formaldehyde” are also exempt based on the intent of the senate that can be supported by the statements made during the deliberation of the bill. The SC said that the enrolled bill which uses the term “urea formaldehyde” is conclusive upon the courts as regard the tenor of measure passed by congress and approved by the President. If there is a mistake in the printing etc the remedy is amendment or curative legislation not judicial decree. The wording of the enrolled bill prevails. (If the signatures on the enrolled bill are not complete or are retracted then there is no enrolled bill and you can go to the journals to check). ABAKADA v. Ermita: The Bicameral Conference Committee was meant to harmonize conflicting provisions between the Senate and the House. In this case the following were agreed on (basically Senate amendments were adopted): 1. What rate, 10% or 12%? To bridge the gap they decided 10% first then when other circumstances present 12%. 2. WON VAT on electricity should not be passed on consumers? Denied. No pass on provision. 3. In what manner should input tax credits be limited? 70% credit rather than 100%. 4. NIRC provision on corporate income should be amended. Osmena v. Pendatum: The Court may not exercise judicial review over the disciplinary action taken by Congress against one of its members because the Congress is the sole judge of what disorderly behavior is.

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What is the Enrolled Bill doctrine? The signing of a bill by the Speaker of the House and the Senate President iand the certification of the secretaries of both Houses of Congress that such bill was passed are conclusive of its due enactment. (Arroyo v. De Venecia) The respect due to a co-equal department requires the courts to accept the certification of the presiding officer as conclusive assurance that the bill so certified is authentic. (Casco) But if the officers withdraw their certification, then the presumption is no longer conclusive. Sec. 17: The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. Election Contest: When a defeated candidate challenges the qualification and claims the seat of a proclaimed winner, the respective Electoral Tribunal of each House is the sole judge (Not The SC nor the House of Congress, nor the COMELEC). --- The COMELEC en banc shall determine only the authenticity and due execution of the certificates of canvass. Each house has the power to defer the oath-taking of members until the final determination of election contests filed against them. Electoral Tribunals: Once the candidate or the party-list nominee has been proclaimed, taken his oath, and assumed office, the COMELECÊs jurisdiction over election contests relating to his qualifications ends The jurisdiction transfers from the COMELEC to the Electoral Tribunal once the winning candidate has been proclaimed, taken his oath and assumed office as a member of the HR. Although the HRET decides when a party-list REPRESENTATIVE is qualified, the COMELEC has the authority to decide WON a party-list organization is qualified. Congress does not possess the powers to regulate even the procedural matters of the Electoral Tribunals. Litigants that appear before HRET are bound to know and are expected to properly comply with the procedural requirements laid down by the tribunal and thus there is no grave abuse of discretion if the Electoral Tribunal applies its rules strictly (Garcia v. HRET). The power of ETs as sole judge of contests also gives them the power to make their own rules meaning that they can have different periods then those provided in election code. Vera v. Avelino (Definition of election contest) A Comelec gave a report to the president that there was terrorism and violence in Nueva Ecija and therefore the elections there didn’t really reflect the true and free expression of popular will. Senate then made a resolution because of this and petitioners were not yet allowed to sit in congress. Petitioners filed a case with the electoral tribunal to make them sit. The SC said that it is the Congress itself and not the Electoral Tribunal doesn’t have jurisdiction because they only handle election contests meaning that the person who files %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

wants to replace someone. An Electoral Tribunal was given the power to decide “all contests” (as compared to “all the powers of the House or Senate as the sole judge of the election.”). This definition of relating only to contests limits it to when there are protests to a return or candidate, if it is not given this limitation then they would have the power to look into even the election of members who have not been protested. If a member of the House inquires into the qualification of any member it is NOT A CONTEST because there is no ousting to replace the person and this power is no longer with the Electoral tribunal but a House power itself. The Senate has the power to postpone or suspend their assumption into office, they may suspend a member and the courts cannot order that they be reinstated etc otherwise it would amount to judicial predominance. Abayon v. HRET (Jurisdiction over party-list) The right to examine the fitness of aspiring nominees and, eventually, to choose five from among them after all belongs to the party or organization that nominates them. But where an allegation is made that the party or organization had chosen and allowed a disqualified nominee to become its party-list representative, the resolution of the dispute is taken out of its hand. It is for the HRET to interpret the meaning of this particular qualification of a nominee – the need for him or her to be a bona fide member or a representative of his party-list organization. Bondoc v. Pineda (Non-partisan) As judges, the members of the tribunal must be non-partisan. They must discharge their functions with complete detachment, impartiality, and independence even independence from the political party to which they belong. Hence, “disloyalty to party” and “breach of party discipline” are not valid grounds for the expulsion of a member of the tribunal. Membership in the HRET may not be terminated except for a just cause, such as, the expiration of the member’s congressional term of office, his death, permanent disability, resignation from-the political party he represents in the tribunal, formal affiliation with another political party, or removal for-other valid cause. A member may not be expelled by the House of Representatives for “party disloyalty” short of proof that he has formally affiliated with another political group. Sec. 18: There shall be a Commission on Appointments consisting of the President of the Senate, as ex officio Chairman, twelve Senators, and twelve Members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented therein. The chairman of the Commission shall not vote, except in case of a tie. The Commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. The Commission shall rule by a majority vote of all the Members. Function of the COA: legislative check on appointing authority of the President. Daza v. Singson (political alignments): The House of Representatives may change its representation in the Commission on Appointments to reflect at any time the changes that may transpire in the political alignments of its membership. It is understood that such changes must be permanent and do not include the temporary alliances or factional divisions not involving severance of political loyalties or formal disaffiliation and permanent shifts of allegiance from one political party to another. Coseteng v. Mitra(proportional representation): The apportionment of the House membership in the Commission on Appointments is done on the basis of proportional representation of the political

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parties therein. Even if KAIBA were to be considered as an opposition party, its lone member represents only .4% or less than 1% of the House membership, hence, she is not entitled to one of the 12 House seats in the Commission on Appointments. To be able to claim proportional membership in the Commission on Appointments, a political party should represent at least 8.4% of the House membership Guingona v. Gonzales (undue reduction of representation of another party): LDP was entitled to 7.5 members to sit on COA and was rounded to 8 giving Romulo of LDP a seat. LP was entitled to 0.5 seats so given 1 seat. The SC said such rounding off is violative of the Constitution because it should be based on proportional representation. And if you use this method you increase your share by decreasing other party’s representation. Furthermore, the Constitution doesn’t mandate that all 12 seats in COA should be filled. The may perform their functions as long as there is the required quorum, usually a majority of its membership. The COA may perform its functions and transact its business even if only ten senators are elected thereto as long as a quorum exists. Sec. 19: The Electoral Tribunals and the Commission on Appointments shall be constituted within thirty days after the Senate and the House of Representatives shall have been organized with the election of the President and the Speaker. The Commission on Appointments shall meet only while the Congress is in session, at the call of its Chairman or a majority of all its Members, to discharge such powers and functions as are herein conferred upon it. -

The commission must act on all appointments submitted to it within thirty session days from submission. The commission shall decide by a majority vote. The Commission can meet and act ONLY when Congress is in session.

Sec. 20: The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses incurred for each Member. Sec. 21: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in, or affected by, such inquiries shall be respected. Senate Blue Ribbon v. Judge Majaducon: Anyone except the President and Justices of the Supreme Court may be summoned. Neither the can the court prevent a witness from appearing in such hearings. Senate v. Ermita  Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions fall under the rubric of “executive privilege.” 

When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads.

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Section 1 of E.O. 464, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of any reference to inquiries in aid of legislation, must be construed as limited in its application to appearances of department heads in the question hour contemplated in said Section 22, but could not be applied to appearances of department heads in inquiries in aid of

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legislation. The requirement to secure presidential consent under Section 1, limited as it is only to appearances in the question hour, is valid on its face. 

When an official is being summoned by Congress on a matter which, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary of the possible need for invoking the privilege.

Executive privilege It has been defined as “the power of the Government to withhold information from the public, the courts, and the Congress,” as well as “the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public.” Nature of the information is controlling Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation to certain types of information of a sensitive character. The extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. Privilege as to a class of persons Privilege is properly invoked in relation to specific categories of information and not to categories of persons. Claims of priviliege Due respect for a co-equal branch of government demands no less than a claim of privilege clearly stating the grounds therefor Guidani v. Senga: The President has constitutional authority to prevent a member of the armed forces from testifying before a legislative inquiry, by virtue of her power as commander-in-chief, and that as a consequence a military officer who defies such injunction is liable under military justice. At the same time, any chamber of Congress which seeks the appearance before it of a military officer against the consent of the President has adequate remedies under law to compel such attendance. The President may be commanded by judicial order to compel the attendance of the military officer. Requisites of Inquiry under Sec. 21 Bengzon v. Senate Blue Ribbon The power of both houses of Congress to conduct inquiries in aid of legislation is not absolute or unlimited. The investigation must be: 1. In aid of legislation 2. In accordance with its duly published rules of procedure 3. The rights of persons appearing in or affected by such inquiries shall be respected. The rights of persons under the Bill of Rights must be respected, including the right to due process and the right not to be compelled to testify against one’s self. Inquiry must be in aid of Legislation De la Paz v. Senate: De la paz went with a delegation representing the government in Moscow. On their way back he was found in the airport with 45k Euros, he was allowed to return to the Philippines but the money was confiscated. Upon his return he was subpoenaed by the Senate Committee for investigation. He claimed lack of jurisdiction because it did not involve foreign relations and so they could not pass upon it. The SC ruled however it did involve foreign relations since under Senate rules all matters relating to relations of the Philippines with other nations will be under the jurisdiction on

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the Senate Committee on Foreign Relations. The Moscow incident could create other consequences toward the Philippines and its relation to other countries and our obligation with the international community to comply with our international obligations (UNCAC, etc.). Furthermore, The Senate has decided that legislative inquiry will be jointly conducted with the Blue Ribbon Committee (Committee on Accountability of Public Officers and Investigations). The Senate Rules mandate the Blue Ribbon to conduct investigation on all matters relating to malfeasance, misfeasance, and nonfeasance in office by officers of the govt. The petitioner as a retired PNP General and a member of the delegation had with him millions of public funds. Romero v. Estrada (2009): A legislative investigation in aid of legislation and court proceedings have different purposes. On-going judicial proceedings do not preclude congressional hearings in aid of legislation. Court has no authority to prohibit a Senate Committee from requiring persons to appear and testify before it in connection with an inquiry in aid of legislation in accordance with its duly published rules of procedure. Neri v. Senate:  The right of Congress or any of its committees to obtain information in aid of legislation cannot be equated with the people’s right to public information.  The right to information must be balanced with and should give way, in appropriate cases, to constitutional precepts.  Congress must not require the executive to state the reasons for the claim of privilege with such particularity as to compel disclosure of the information which the privilege is meant to protect.  The power of Congress to conduct inquiries in aid of legislation is broad. To be valid, it is imperative that it is done in accordance with the Senate or House duly published rules of procedure and that the rights of the persons appearing in or affected by such inquiries be respected. The elements of presidential communications privilege: (Citing US v. Nixon) 1. The protected communication must relate to a “quintessential and non-delegable presidential power.” 2. The communication must be authored or “solicited and received” by a close advisor of the President or the President himself. The judicial test is that an advisor must be in “operational proximity” with the President. 3. The presidential communications privilege remains a qualified privilege that 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 investigating authority. ✘

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The Senate cannot immediately cite a witness in contempt when that witness is not unwilling to testify, but refuses to answer a question upon orders of the president to invoke executive privilege. The Senate must first rule on the validity of the claim of privilege. To cite him in contempt without determining the validity of the claim is arbitrary and violative of his rights

Power to punish a person under investigation Arnault v. Nazareno: Since the Court has no power to determine what legislation to approve or not to approve, it cannot say that the information sought from a witness which is material to the subject of the legislative inquiry is immaterial to any proposed or possible legislation. It is not %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

within the province of the Court to determine or imagine what legislative measures Congress may take after the completion of the legislative investigation. Limit to imprisonment for contempt There is no sound reason to limit the power of the legislative body to punish for contempt to the end of every session and not to the end of the last session terminating the existence of that body. While the existence of the House of Representatives is limited to four years, that of the Senate is not so limited. The Senate is a continuing body which does not cease to exist upon the periodical dissolution of the Congress or of the House of Representatives. There is no limit as to time to the Senate's power to punish for contempt in cases where that power may constitutionally be exerted. Why does Congress have the power to cite witnesses in contempt? The power of inquiry – with process to enforce it – is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information - which is not infrequently true - recourse must be had to others who do possess it. Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed. (Arnault v. Nazareno) Sabio v. Gordon: An inquiry in aid of legislation was conducted due to losses incurred by the PHILCOMSAT because of improprieties in the operation of their Board of Directors. Sabio of the PCGG was asked to attend but he declined due to prior commitment and invoked Sec. 4 of EO 1 that said that no member of the Commission will be required to testify in any proceeding concerning matters within its official cognizance. The SC held that Section 4(b) directly repugnant with Article VI, Section 21 and thus cannot be upheld. Section 4(b) exempts the PCGG members and staff from the Congress' power of inquiry. This cannot be countenanced. Nowhere in the Constitution is any provision granting such exemption. The Congress' power of inquiry, being broad, encompasses everything that concerns the administration of existing laws as well as proposed or possibly needed statutes. It even extends "to government agencies created by Congress and officers whose positions are within the power of Congress to regulate or even abolish." PCGG belongs to this class. Congress may keep a contumacious witness in detention until the legislative body ceases to exist upon its final adjournment. Sec. 22: The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session. Is the oversight function under Sec. 22 the same as a Question Hour? No. In the context of a parliamentary system of government, the “question hour” has a definite meaning. It is a period of confrontation initiated by Parliament to hold the Prime Minister and the other ministers accountable for their acts and the operation of the

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government, corresponding to what is known in Britain as the question period. It cannot be imposed in a Presidential system of government because of the separation of powers. What is the difference between Congressional inquiries in aid of legislation under Sec. 21 and inquiries pursuant to its oversight function under Sec. 22? When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. But when the inquiry in which Congress requires their appearance is “in aid of legislation”, the appearance is mandatory. The oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. (Senate v. Ermita) Section 21 relates to the power to conduct inquiries in aid of legislation, its aim is to elicit information that may be used for legislation while Section 22 pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function. (Neri v Senate) Sec. 23: (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. (In connection with Art. 7, s. 18) Here you are just stating a fact: the existence of a state of war NOT declaring a state of war. – To declare war it is not lodge in Congress but with the executive power which holds the sword of the nation. The president can exercise commander in chief powers even if Congress doesn’t declare. What if Congress doesn’t make a law? Then the president can act under Art. 7, s. 18. (DAVID V. ARROYO reconciles it). Sec. 23(2) Is an example of constitutionally sanctioned delegation of Emergency powers by Congress. Congress may even delegate legislative powers to the president if necessary. Sanlakas v. Executive Secretary  Section 18, Article VII does not expressly prohibit the President from declaring a state of rebellion.  The President, in declaring a state of rebellion and in calling out the armed forces, is merely exercising a wedding of her Chief Executive and Commander-in-Chief powers. These are purely executive powers, vested on the President by Sections 1 and 18, Article VII, as opposed to the delegated legislative powers contemplated by Section 23 (2), Article VI. Ampatuan v. DILG Secretary (2011) The President did not proclaim a national emergency, only a state of emergency in the three places mentioned. The calling out of the armed forces to prevent or suppress lawless violence in such places is a power that the Constitution directly vests in the President. There is no need for congressional authority to exercise the same.

Sec. 24: 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. 1. 2. 3. 4. 5.

Appropriation: Money set aside from public – general appropriations act, IRA. Tariff/Revenue Bill: Proposal to earn money for government. Increase of Public Debt: increase ceiling of borrowings to be able to loan money. Bills of local application: Conversion of city, naming street. Private Bill: Relate to private person (citizenship law, etc.).

Tolentino v. Secretary of finance It is not the law—but the revenue bill—which is required by the Constitution to “originate exclusively” in the House of Representatives. It is important to emphasize this, because a bill originating in the House may undergo such extensive changes in the Senate that the result may be a rewriting of the whole. The possibility of a third version by the conference committee will be discussed later. At this point, what is important to note is that, as a result of the Senate action, a distinct bill may be produced. To insist that a revenue statute—and not only the bill which initiated the legislative process culminating in the enactment of the law — must substantially be the same as the House bill would be to deny the Senate’s power not only to “concur with amendments” but also to “propose amendments.” It would be to violate the coequality of legislative power of the two houses of Congress and in fact make the House superior to the Senate. What is the purpose of Sec. 24? The main purpose of the bills emanating from the House of Representatives is to bring in sizeable revenues for the government to supplement our country’s serious financial problems, and improve tax administration and control of the leakages in revenues from income taxes and value-added taxes, and the Senate, approaching the measures from the point of national perspective, can introduce amendments within the purposes of those bills. (ABAKADA v Ermita) Sec. 25: (1) The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law. (2) No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates. (3) The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies. (4) A special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposal therein. (5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. (6) Discretionary funds appropriated for particular officials shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law.

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Page%21%of%69% % (7) If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed re-enacted and shall remain in force and effect until the general appropriations bill is passed by the Congress. Exception – special elections Garcia v. Mata: An appropriations Act providing that “after the approval of this Act, and when there is no emergency, no reserve officer of the Armed Forces of the Philippines may be called to a tour of active duty for more than two years during any period of five consecutive years,” is void for being a rider. Transfer of Funds P.D. No. 1177 empowers the President to indiscriminately transfer funds from one department, bureau, office or agency of the Executive Department to any program, project or activity of any department, bureau or office included in the General Appropriations Act or approved after its enactment, without regard as to whether or not the funds to be transferred are actually savings in the item from which the same are to be taken, or whether or not the transfer is for the purpose of augmenting the item to which said transfer is to be made. It is void and unconstitutional. (Demetria v. Alba) Sec. 26: (1) Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. (2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal. One subject in title is mandatory: But the rule should be interpreted liberally rather than strictly or technically. As long as it is embraced in the general subject and it is germane to the subject. 1. To prevent hodge podge legislation 2. To prevent surprise or fraud on legislature 3. Fairly appraise people thru publication. What is the process: 1st Reading: Only title sent to deliberations committee. 2nd Reading: debate and deliberations. 3rd Reading: title and no more amendments and voting. Riders: provisions that do not relate to a specific appropriation but a general provision of law. It is not for an appropriation bill but better left to be in a separate law. Requiring every bill passed to embrace only one subject which shall be expressed in the title thereof is aimed against the evils of the so- called omnibus bills and log-rolling legislation as well as surreptitious and/or unconsidered encroaches. Constitutional provisions relating to the subject matter and titles of statutes should not be so narrowly construed as to cripple or impede the power of legislation. The requirement that the subject of an act shall be expressed in its title is not a mere rule of legislative procedure, directory to Congress; it is mandatory. The title of the bill is not required to be an index to the body of the act, or to be comprehensive as to cover every single detail of the measure. %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

If the title fairly indicates the general subject, and reasonably covers all the provisions of the act, and is not calculated to mislead the legislature or the people, there is sufficient compliance with the constitutional requirement. Sec. 27: (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof, otherwise, it shall become a law as if he had signed it. (2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object. When do 1. 2. 3.

the yeas and nays have to be taken: Upon last and third readings of a bill. At the request of one-fifth of the Members present. In repassing of a bill over the veto of the President’s veto.

The effect of an invalid veto is as if there was no veto at all – considered inaction on the President’s part and so it becomes a law. An item veto does not refer to an entire section imposing a particular kind of tax but rather to the subject of the tax and the tax rate. An item is “an indivisible some of money dedicated to a stated purpose and not some general provision of law which happens to be put into an appropriation bill. It Doctrine of inappropriate provision: 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 (refers to riders). Generally an item veto is only for appropriation, revenue and tariff bills. If you veto a provision in an ordinary bill – considered as if you vetoed the whole thing. A condition in an appropriation bill may not be vetoed without vetoing the items to which it is attached. Executive Impoundment: Impoundment simply means refusal of the President to spend funds already allocated by Congress for a specific purpose. Sec. 28: (1) The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. (2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government.

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(3) Charitable institutions, churches and personages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation.

Lung Center v. QC: 60% of its beds are used exclusively for charitable purposes. Only such portion will be exempt from tax, those leased out to private entities however are not exempt from real property tax.

(4) No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress.

Sec. 29: (1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. (2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.

The general limitation on the power to tax is that it should be exercised only for a public purpose. Since it affects property rights it is also subject to due process and equal protection clauses of the Constitution. When is a tax Uniform? A tax is uniform when it operates with the same force and effect in every place where the subject of it is found. Uniformity means that all property belonging to the same class shall be taxed alike. (CIR v. Lingayen Gulf) When is a system of taxation Progressive? It is progress when the rate increases as the tax base increases (for equitable distribution of wealth). Does Sec. 28 prohibit regressive or indirect taxes? No. Although the Constitution requires Congress to “evolve a progressive system of taxation,” this is only a directive, just like the directive to give priority to the enactment of laws for the enhancement of human dignity and the reduction of social, economic and political inequalities. These provisions are put in the Constitution as moral incentives to legislation, not as judicially enforceable rights. (Tolentino v. Secretary of Finance) Can Congress delegate the power to tax? No. But it can delegate the power to determine when the required conditions for the tax to take effect arise. See contingent legislation. CIR v. Santos: The court cannot subscribe to the theory that the tax rates of other countries should be used as a yardstick in determining what may be the proper subjects of taxation in our own country. The State is free to select the subjects of taxation, and it has been repeatedly held that “inequalities which result from singling out of one particular class for taxation, or exemption infringe no constitutional limitation. Abra v. Hernando and Roman Catholic Bishop: For the exemption of lands, buildings and improvements, they should not be exclusively but also actually and directly used for religious charitable or educational purposes. There must therefore be proof of the actual and direct use of the lands, buildings and improvements for religious or charitable (or educational) purposes to be exempt from taxation.

(3) All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government. Is a law providing automatic debt service appropriation valid even if the actual/exact amounts are not stated in the law? Yes. The legislative intention [of such a law] is that the amount needed should be automatically set aside in order to enable the State to pay the principal, interest, taxes and other normal banking charges on the loans, credits or indebtedness incurred as guaranteed by it when they shall become due without the need to enact a separate law appropriating funds therefor as the need arises. Although the subject presidential decrees do not state specific amounts to be paid, necessitated by the very nature of the problem being addressed, the amounts nevertheless are made certain by the legislative parameters provided in the decrees. The executive is not of unlimited discretion as to the amounts to be disbursed for debt servicing. The mandate is to pay only the principal, interest, taxes and other normal banking charges on the loans, credits or indebtedness, or on the bonds, debentures or security or other evidences of indebtedness sold in international markets incurred by virtue of the law, as and when they shall become due. No uncertainty arises in executive implementation as the limit will be the exact amounts as shown by the books of the Treasury. Sec. 30: No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence. Congress can increase the SC’s appellate jurisdiction if the SC agrees to it. Sec. 31: No Law granting a title of royalty or nobility shall be enacted.

Cir v. CA: The YMCA is not an educational institution within purview of constitution for it to be granted the exemption. Furthermore, the claim for exemption from income tax has no basis because the Constitutional exemption applies only to property taxes.

Sec. 32: The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, of which very legislative district must be represented by at least three per centum of the registered voters.

John Hay v. Lim: Under RA 7227 only the Subic SEZ is exempt from taxes, the extension of the same by the President to the John Hay SEZ finds no support therein.

Defensor-Santiago v. Comelec The right of the people to directly propose amendments to the Constitution through the system of initiative requires an implementing law from Congress

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The system of initiative on the Constitution under Section 2 of Article XVII of the Constitution is not self-executory. Under Section 2 of R.A. No. 6735, the people are not accorded the power to “directly propose, enact, approve or reject, in whole or in part, the Constitution” through the system of initiative—they can only do so with respect to “laws, ordinances, or resolutions.”

so enumerated.” It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to be executive. In other words, as applied to the present issue, even if the right to impose restrictions for entrance into one’s country is not expressly granted under Article 7 of the Constitution, it is a residual power of the President by virtue of Art.7 Sec.1. Moreover, the President has the obligation under the Constitution to protect the people, promote their welfare and advance the national interest.

Lambino v. Comelec The essence of amendments “directly proposed by the people through initiative upon a petition” is that the entire proposal on its face is a petition by the people o First, the people must author and thus sign the entire proposal; o second, as an initiative upon a petition, the proposal must be embodied in a petition The full text of the proposed amendments may be either written on the face of the petition, or attached to it, and if so attached, the petition must state the fact of such attachment A signature requirement would be meaningless if the person supplying the signature has not first seen what it is that he or she is signing. An initiative that gathers signatures from the people without first showing to the people the full text of the proposed amendments is most likely a deception

Pontejos vs. Ombudsman [power to grant immunity to state witnesses]: Acting on a complaint against the HLURB, the OMB found probable cause on the complaint against Pontejos and Atos, but they also ruled that Atos should be extended immunity from criminal prosecution and discharged as state witness. Atos was merely a subordinate who could have acted only upon the prodding of Pontejos. Also, her testimony was necessary to build a case against Pontejos. The decision on whether to prosecute and whom to indict is executive in character. Essentially, it is not a judicial prerogative.The fact that an individual had not been previously charged or included in an information does not prevent the prosecution from utilizing said person as a witness.

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, and there is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. Amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved; Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended.

ART.VII. EXECUTIVE DEPARTMENT

II. Executive Privilege

Section 1. The executive power shall be vested in the President of the Philippines. I. -

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Executive Power Ceremonial functions: the President remains and will always be the ceremonial head of the gov’t and must take part with real or apparent enthusiasm in a range of activities The Cabinet: an institution that is extra-constitutionally created, consisting of the heads of departments who through usage have formed a body of presidential advisers who meet regularly with the President. They possess no authority over the president and serve at his pleasure and behest.

Marcos vs. Manglapus [residual power]: Marcos, in his deathbed, signified his wish to return to the Philippines to die. But then President Aquino, considering the dire consequences to the nation of his return at a time when the stability of government is threatened by Marcos supporters and communist movements, and when the economy is just beginning to rise and move forward, has stood firmly on the decision to bar the return of Marcos and his family. Does the President have the power to do so? YES. The Supreme Court held that the enumerations found under Art. 7 are not exclusive. “Executive power is more than the sum of specific powers %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

Biraogo vs. Truth Commission: Pres. Noynoy signed EO No.1 establishing the Phil. Truth Commission, who is tasked to investigate reports of graft and corruption committed by the previous administration and would have the powers of an investigative body. [Truth Commission was declared as unconstitutional for not being able to pass the equal protection test.] "Executive power" is not only the power to enforce the laws. The President has powers inherent in such position unless the Constitution withholds it. The Constitution provides that the execution of the laws is only one of the powers of the President. It also grants the President other powers that do not involve the execution of any provision of law, e.g., his power over the country's foreign relations. Powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. Executive power is more than the sum of specific powers so enumerated. One of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been faithfully executed. The President has the obligation to ensure that all executive officials and employees faithfully comply with the law.

US VS. Nixon: The issue in this case is whether President Nixon can claim absolute privilege in order to quash a subpoena duces tecum issued against him by the district court in a criminal proceeding. The court held that neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated.

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When the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. Senate vs. Ermita: Invitations were sent to various officials regarding the North Rail Project by the Senate Blue Ribbon Committee. A day before said officials could appear before Senate, the President issued EO 464 which in effect prohibited said officials from appearing before Congress without the consent of the President. Said EO is being assailed as unconstitutional for being violative of the public’s right to information and the Senate’s power of inquiry. E.O. 464: Sec. 1: All heads of Executive departments shall secure the consent of the President prior to appearing before Congress. When the security of the State or public interest requires and the President so states in writing, the appearance shall only be conducted in executive session. Sec. 2(a): Executive privilege covers all confidential or classified information between the President and the public officers covered by this EO, including: conversations and correspondence between the President and public officers covered by this EO; Military, diplomatic and other national security matters; Information between inter-government agencies prior to the conclusion of treaties and executive agreements; Discussions in close-door cabinet meetings; and other matters affecting national security and public order. Sec. 2(b): The following officers are covered by the executive privilege: Senior officials of executive departments who in the judge of the department heads are covered by the executive privilege; Generals and flag officers of the AFP and such other officers who in the judgment of the Chief of Staff are covered by the privilege; PNP officers with rank of superintendent or higher and such other officers who in the judgment of the PNP Chief are covered by the privilege; Senior national security officials who in the judgment of the National Security Adviser are covered by the privilege; and such other officers as may be determined by the President. Sec. 3: All public officials enumerated under 2(b) shall secure consent of the President prior to appearing before Congress. Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions fall under the rubric of “executive privilege.” Since the term figures prominently in the challenged order, it being mentioned in its provisions, its preambular clauses, and in its very title, a discussion of executive privilege is crucial for determining the constitutionality of EO 464. Sec.1 is similar to Sec.3 in that both require the officials covered by them to secure the consent of the President prior to appearing before Congress. However, Sec.1 specifically applies to department heads. It does not, unlike Sec.3, require a prior determination by any official whether they are covered by EO464. The President herself has, through the challenged order, made the determination that they are. Further, likewise unlike Sec.3, the coverage of department heads under Sec.1 is not made to depend on the department heads’ possession of any information which might be covered by executive privilege. In fact, in marked contrast to Sec.3 vis-à-vis Sec.2, there is no reference to executive privilege at all. The claim of privilege under Sec. 3 in relation to Sec.2(b) is invalid. The said provision allows the executive branch to evade congressional requests for information without need of clearly asserting a right to do so and/or proffering its reasons therefor. under said sections, instead of providing precise and certain reasons for the %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

claim of privilege, a person may merely invoke that he is among the officials enumerated under EO 464, coupled with an announcement that the President has not given her consent to be excused from appearing before Congress. Moreover, the Court notes that Sec.2(b) virtually states that executive privilege actually covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed above, is properly invoked in relation to specific categories of information and not to categories of persons. Said section is further invalidated by the fact that by mere silence of the President, an executive officer may invoke the privilege.

Neri vs. Senate: Neri appeared before respondent and testified for about 11 hours on matters concerning the the "NBN Project, a project awarded by the DOTC to ZTE. Petitioner disclosed that then COMELEC Chairman Abalos offered him P200Mn in exchange for his approval of the NBN Project. He further narrated that he informed Pres. Arroyo of the bribery attempt and that she instructed him not to accept the bribe. However, when probed further on President Arroyo and petitioner’s discussions relating to the NBN Project, petitioner refused to answer, invoking "executive privilege." Citing the case of US vs. Nixon, the Court laid out the 3 elements needed to be complied with in order for the claim to executive privilege to be valid. These are: 1.) The protected communication must relate to a quintessential and non-delegable presidential power; 2.) It must be authored, solicited, and received by a close advisor of the President or the President himself. (The judicial test is that an advisor must be in “operational proximity” with the President); and 3.) It 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 investigating authority. In this case: 1) Executive Secretary Ermita claimed executive privilege on the argument that the communications elicited by the 3 questions “fall under conversation and correspondence between the President and public officials” necessary in “her executive and policy decision-making process,” and that “the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China.” It is clear then that the basis of the claim is a matter related to the quintessential and nondelegable presidential power of diplomacy or foreign relation. 2) The communications were received by a close advisor of the President. Under the “operational proximity” test, petitioner Neri can be considered a close advisor, being a member of the President's Cabinet. 3) There is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority. Akbayan vs. Aquino [JPEPA]: Petitioners seek to obtain from respondents the full text of the JPEPA including the Philippine and Japanese offers submitted during the negotiation process and all pertinent attachments and annexes thereto. At this time, negotiations for JPEPA had still not been concluded. From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese offers submitted during the negotiations towards its execution are matters of public concern. This, respondents do not dispute. They only claim that diplomatic negotiations are covered by the doctrine of executive privilege, thus constituting an exception to the right to information and the policy of full public

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disclosure. The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need. This need determination is to be made flexibly on a caseby-case, ad hoc basis. III. Immunity from Suit < No provision in the Consti, but according to Fr. Bernas, it was already understood from jurisprudence that the President may not be sued during his tenure a. The President, during his tenure of office or actual incumbency, may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. (David vs. Arroyo) b. Ratio for the grant is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that the Chief Exec is a job that, aside from requiring all of the office-holder’s time, also demands undivided attention. But this privilege may only be invoked by the holder of the office; not by any other person in the President’s behalf. (Soliven vs. Judge Makasiar) c. As a non-sitting President, he cannot enjoy immunity from suit. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. Unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any trespasser. (Estrada vs. Desierto)

Unless otherwise provided by law, the regular election for President and Vice-President shall be held on the second Monday of May. The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes. The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately. The Congress shall promulgate its rules for the canvassing of the certificates. The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose. < <

Election of the President and VP: elected by direct vote by the people Term of the President and the VP o President- fixed term of 6 years to begin at noon on June 30th following the year of the election and to end at noon also on June 30th, 6 years after o The fixing of the exact date and time excludes the right to “hold-over” o The President is not eligible for any re-election for that office, either immediately after his term or even after an interval of 1 or more terms o VP- may not serve for more than 2 successive terms  Voluntary renunciation for any length of time shall not be considered as an interruption in his service  If the VP succeeds to the Presidency, if he serves for less than 4 years, he may run for election as President (not a case of re-election)

I. <

Congress as National Board of Canvassers Congress is given the authority to make a determination of the authenticity and due execution of the returns coming from the provincial and city board of canvassers in accordance with the manner provided for by law.

Section 2. No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election. Section 3. There shall be a Vice-President who shall have the same qualifications and term of office and be elected with, and in the same manner, as the President. He may be removed from office in the same manner as the President. The Vice-President may be appointed as a Member of the Cabinet. Such appointment requires no confirmation. < The VP is essentially a President on reserve < In deference to his office, an appointment as department head extended to him does not need the consent of the COA o But the President is not obliged to give the VP a Cabinet position Section 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date, six years thereafter. The President shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time. No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected.

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Pimentel vs. Joint Committee [non-leg]: Petitioner seeks to have the joint committee’s continued existence be declared null and void to determine the authenticity of the due execution of the certificates of canvass and preliminary canvass of the votes cast for the positions of President and Vice President during the May 2004 Elections following the adjournment of Congress sine die on June 11, 2004. Petitioner goes on by saying that the all pending matters and proceedings termination upon the expiration of Congress. As further proof, he relied on the legislative procedure, precedent or practice as borne out by the rules of both Houses of Congress. The legislative functions of the 12th Congress may have come to a close upon the final adjournment of its regular sessions on June 11, 2004, but this does not affect its nonlegislative functions, such as that of being the National Board of Canvassers. In fact, the joint public session of both Houses of Congress convened by express directive of Sec.4, Art.VII to canvass the votes for and to proclaim the newly elected President and Vice-

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President has not, and cannot, adjourn sine die until it has accomplished its constitutionally mandated tasks. For only when a board of canvassers has completed its functions is it rendered functus officio.

President or the Vice-President shall have been elected and qualified, and be subject to the same restrictions of powers and disqualifications as the Acting President. Start of Term as of Noon June 30 (Sec. 7):

II. Breaking a presidential or vice-presidential tie < Congress has authority to break a tie < Sec.4 (5) provides the method for breaking the tie in case 2 or more shall have an equal and highest number of votes. It is broken by vote of a majority of the all the Members of both Houses of the Congress, voting separately III. Presidential or Vice-Presidential Controversies Tecson vs. Lim [need for post election issue]: The issue of citizenship of FPJ is brought up to challenge his qualifications as a presidential candidate. It is alleged that he is not a natural born Filipino citizen. The rules categorically speak of the jurisdiction of the tribunal over contests relating to the election, returns and qualifications of the President or Vice-President and not of "candidates" for President or Vice-President. The election contest can only contemplate a post-election scenario. It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7, of the 1987 Constitution, would not include cases directly brought before it, questioning the qualifications of a candidate for the presidency or vicepresidency before the elections are held. Section 5. Oath of Office

Fails to Qualify Pres. VP VP N/A acts as P.

If a President shall not have been chosen, the Vice President-elect shall act as President until a President shall have been chosen and qualified. If at the beginning of the term of the President, the President-elect shall have died or shall have become permanently disabled, the Vice President-elect shall become President. Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall act as President until a President or a Vice-President shall have been chosen and qualified. The Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified, in case of death, permanent disability, or inability of the officials mentioned in the next preceding paragraph. Section 8. In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice-President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified. The Congress shall, by law, provide who shall serve as President in case of death, permanent disability, or resignation of the Acting President. He shall serve until the %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

Not Chosen Pres. VP VP N/A acts as P.

Both Senate P. or Speaker acts as P.

Death; P. Disability Pres VP Both VP IS After Senate P. June P. or 30, §9 Speaker can acts as apply. P.

During or Mid- Term (Sec. 8): Death; P. Disabled; Removal; Resignation Pres. VP IS P.

Vice Pres. Pres. Will nominate VP from Congress (§9)

Section 6. Official Residence Section 7. The President-elect and the Vice President-elect shall assume office at the beginning of their terms. If the President-elect fails to qualify, the Vice President-elect shall act as President until the President-elect shall have qualified.

Both Senate P. or Speaker acts as P.

I.

Both Senate P. or Speaker acts as P.

Death; P. Disabled; Resignation Acting Pres. (SP/SH) By Law Q: So should §10 apply?

Filing a Vacancy in the Presidency

Estrada vs. Desierto (succession): The case is about Erap’s resignation as President. Petitioner is alleging that he is the lawful and incumbent President, temporarily unable to discharge the duties of his office and that GMA is only President in an Actin capacity. Under the totality test, Erap has resigned. There must be an intent to resign and the intent must be coupled by acts of relinquishment. Whether or not petitioner resigned has to be determined from his act and omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue. Totality Test: 1. Intent to resign 2. Acts of relinquishment. Section 9. Whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected, the President shall nominate a Vice-President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately. Section 10. The Congress shall, at ten o'clock in the morning of the third day after the vacancy in the offices of the President and Vice-President occurs, convene in accordance with its rules without need of a call and within seven days, enact a law calling for a special election to elect a President and a Vice-President to be held not earlier than fortyfive days nor later than sixty days from the time of such call. The bill calling such special election shall be deemed certified under paragraph 2, Section 26, Article V1 of this Constitution and shall become law upon its approval on third reading by the Congress. Appropriations for the special election shall be charged against any

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current appropriations and shall be exempt from the requirements of paragraph 4, Section 25, Article V1 of this Constitution. The convening of the Congress cannot be suspended nor the special election postponed. No special election shall be called if the vacancy occurs within eighteen months before the date of the next presidential election. Section 11. Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the VicePresident as Acting President. Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate and to the Speaker of the House of Representatives, their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within fortyeight hours, in accordance with its rules and without need of call. If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office. I. <

Incapacity of the President Deals with the thorny issue of whether the President is still able to perform his functions or not. If the President is able to make the decision and is willing to declare himself disabled, he certainly has the power to declare so.

Section 12. In case of serious illness of the President, the public shall be informed of the state of his health. The members of the Cabinet in charge of national security and foreign relations and the Chief of Staff of the Armed Forces of the Philippines, shall not be denied access to the President during such illness. I. <

Serious illness of the President Sec. 11 deals with illness which results in incapacity, while Sec.12 presumably deals with serious illness that is not incapacitating because access to him is kept open for Cabinet members in charge of national security and foreign relations o To allow the President to make the important decisions in those areas of gov’t, which suggests a situation where the President is still able

Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure, be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries. I. < < <

Prohibition against holding another office or employment Prohibits the President, VP, members of the Cabinet, and their deputies and assistants from holding any office or employment during their tenure Except for the VP who may be appointed to the cabinet, and the Secretary of Justice who is made ex-officio member of the Judicial and Bar Council, the officials enumerated under Sec.13 may not hold another office. The stricter prohibition is imposed on members of the Cabinet. It therefore applies not just to department secretaries, but to any one who is a member.

Rafael vs. Embroidery and Apparel Control Board [designation and ex-officio capacity]: Petitioner was contesting the membership of the Embroidery and Apparel Control and Inspection Board by RA3137 which consists of a rep from BOC to act as Chairman, a rep from Central Bank , a rep from the Dept of Commerce and Industry, a rep from the Nat’l Economic Council and a rep from the private sector from the AEAEP. An examination of the questioned statute reveals that for the chairman and members of the Board to qualify they need only be designated by the respective department heads. With the exception of the representative from the private sector, they sit ex-officio. In order to be designated they must already be holding positions in the offices mentioned in the law. No new appointments are necessary. This is as it should be, because the representatives so designated merely perform duties in the Board in addition to those they already perform under their original appointments. CLU vs. Executive Secretary [stricter prohibition on president’s official family against multiple offices]: Petitioner challenged EO284, issued by then Pres. Cory which in effect allowed Cabinet members, their undersecretaries and asst. secretaries and other appointive officials of the Executive Department to hold in addition to his primary position, not more than 2 positions in the govt and govt corporations. The EO further stated that the limitation would not apply to ad-hoc bodies, or to boards, councils or boards of which the President is chairman. EO was declared as unconstitutional. Although Sec.7, Art.IX-B contains a blanket prohibition against the holding of multiple offices or employment in the government for both elective and appointive public officials, the Constitutional Commission saw it fit to formulate another provision, Sec. 13, Art.VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself. The intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other offices or employment in the government or elsewhere is concerned II. Other Prohibitions < Prohibited participation in a contract with the gov’t can include being a member of a family corporation which has dealings with the gov’t < If 4th degree relatives are already in office when a President assumes office, the relatives are not thereby ousted from their positions o What is prohibited is appointment or reappointment and not uninterrupted continuance in office

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Section 14. Appointments extended by an Acting President shall remain effective, unless revoked by the elected President, within ninety days from his assumption or reassumption of office. Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. I. <

Midnight appointments This provision is a limitation on the President’s power of appointment. There is no similar limitation on the power of appointment of local executives.

De Castro vs. JBC: This is a consolidation of 7 petitions regarding the legality of Pres. GMA’s appointment of the successor of Chief Justice Puno upon his compulsory retirement by May 17, 2010, only 7 days after the coming presidential elections on May 10, 2010. Under Sec.4(1), in relation to Sec.9, Art.VIII, that “vacancy shall be filled within 90 days from the occurrence thereof” from a “list of at least three nominees prepared by the JBC for every vacancy.” But, under Art.VII, Sec.14, “Appointments extended by an Acting President shall remain effective, unless revoked by the elected President, within ninety days from his assumption or reassumption of office. Also, under Sec.15, “Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.” The prohibition under Sec.15, Arti.VII does NOT apply to appointments to fill a vacancy in the Supreme Court or to other appointments to the Judiciary. As can be seen, Art.VII is devoted to the Executive Department, and, among others, it lists the powers vested by the Constitution in the President. The presidential power of appointment is dealt with in Sections 14, 15 and 16 of the Article. Art.VIII is dedicated to the Judicial Department. In particular, Section 9 states that the appointment of Supreme Court Justices can only be made by the President upon the submission of a list of at least three nominees by the JBC; Section 4(1) of the Article mandates the President to fill the vacancy within 90 days from the occurrence of the vacancy. Section 15, Article VII does not apply as well to all other appointments in the Judiciary. Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproved by the Commission on Appointments or until the next adjournment of the Congress. I. <

Nature of the appointing power Since the power to appoint is neither legislative nor judicial, it must be executive. o The legislature may not usurp such function

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It may only create an office and prescribe the qualifications of the person who may hold the office, but it may neither specify the person who shall be appointed to such office nor actually appoint him The appointing power is the exclusive prerogative of the President, upon which no limitations may be imposed by Congress except those resulting in the need of securing the concurrence of the Commission on Appointments The appointing authority, however, should not be confused with the authority of the legislature to impose additional duties on existing offices. 

< <

Government vs. Springer [power to appoint as executive]: The NCC was created by Act2705 which purports to vest the voting power of the gov’t owned stock in the Senate President and the Speaker of the HR. The Gov-General asserted the sole power to vote the stock of the gov’t. The power of appointment is in the executive department and the membership in the voting committee in question is an office or executive function. The NCC is an instrumentality of gov’t, and that the duty to look after gov’t agencies and property belongs to the executive. Datu Abas Kida vs. Senate Assailing the court decision upholding the synchronization of the ARMM election to 2013, petitioner herein question the said decision, among some is the power given to the president to appoint OICs during the interim period. The power given to the president to appoint OIC during the interim period is necessitated by the Constitutional mandates of 1) synchronization of national elections and 2) unconstitutionality of shortening or lengthening the periods of elected officials. The Congress may not extend the terms of local officials. The second group of officials the President can appoint are “all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint.” This acts as the “catch-all provision” for the President’s appointment power, in recognition of the fact that the power to appoint is essentially executive in nature. The wide latitude given to the President to appoint is further demonstrated by the recognition of the President’s power to appoint officials whose appointments are not even provided for by law. Given that the President derives his power to appoint OICs in the ARMM regional government from law, it falls under the classification of presidential appointments covered by the second sentence of Section 16, Article VII of the Constitution; the President’s appointment power thus rests on clear constitutional basis. With this, it was just necessary for the president to appoint OICS, so that there wouldn’t be disruption of government during the interim period in the ARMM. This is not to be confused with the power to CONTROL, because it is still a SUPERVISORY power because as mentioned, after the appointment of the OICS, the president no longer has the power to recall such appointments. II. Kinds of presidential appointments Sec.14 - Acting President

Sec. 15 Midnight appointments

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When the elected President assumes or reassumes office, he is given 90 days within which to revoke appointments made by the Acting President. If he does not revoke them, they remain as if made by the elected President. Made by a President within 2 months before the next presidential elections and up to the end of his term. In order not to tie the hands of the incoming President through midnight appointments, appointments made during that period can only be temporary and therefore revocable by the next President.

Page%29%of%69% % Sec. 16 Regular Presidential appointments

With or w/o confirmation by Commission on Appointments, and with ad-interim appointments

Pimentel vs. Ermita [acting Secretaries] Congress commenced their regular session on July 26, 2004. On Aug. 25, the Commission on Appointments was constituted. Meanwhile, PGMA issued appointments to the respondents as acting secretaries of their respective departments. The date of appointment was Aug. 15 and Aug. 23 (while Congress was in session) The respondents likewise took their oath of office and assumed their duties as acting secretaries. Congress adjourned on Sept. 22. The next day, PGMA issued ad interim appointments to respondents as secretaries of the departments to which they were previously appointed in an acting capacity. The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap measure intended to fill an office for a limited time until the appointment of a permanent occupant to the office. In case of vacancy in an office occupied by an alter ego of the President, such as the office of a department secretary, the President must necessarily appoint an alter ego of her choice as acting secretary before the permanent appointee of her choice could assume office. Congress, through a law, cannot impose on the President the obligation to appoint automatically the undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds a position of great trust and confidence. Congress, in the guise of prescribing qualifications to an office, cannot impose on the President who her alter ego should be. Ad Interim v. Appointments in an Acting Capacity Ad Interim Effective upon acceptance Extended only during a recess of Congress Submitted to the Commission of Appointments for confirmation/rejection

Acting Capacity Extended anytime there is a vacancy NOT submitted to the Commission on Appointments Way of temporarily filling important offices but, if abused, they can also be a way of circumventing the need for confirmation by the Commission on Appointments.

III. Scope of the power of the Commission on Appointments < 1st sentence: a 3-step process, namely nomination, consent and appointment o Those that need consent of Commission on Appointments:  Heads of the executive departments  Ambassadors, and 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 • Chairmen and commissioners of the CSC, Comelec and COA • Regular members of the JBC < 2nd sentence: only of appointment Sarmiento vs. Mison [1st sentence- enumeration is limited; 3rd sentence- use of the word “alone” as mere lapsus; head of bureau; no CA confirmation]: Petitioners seek to enjoin Mison from performing the functions of the Office of Commissioner of the BOC on the ground that Mison’s appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of its not having been confirmed by %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

the Commission on Appointments (COA). The 1st sentence enumeration is limited, as the 4 groups are appointed with the consent of the CA. In the 1987 Constitution, the clear and expressed intent of its framers was to exclude presidential appointments from confirmation by the CA, except appointments to offices expressly mentioned in the first sentence of Sec. 16. The use of the word “alone” was a mere lapse. The position of Commissioner of the BOC (a bureau head) is not one of those within the first group of appointments where the consent of the Commission on Appointments is required. Bautista vs. Salonga [1st sentence- “other officers” whose appointments are vested in the President; CHR Chair, CA confirmation]: Under EO163 creating the CHR, Pres. Aquino appointed the petitioner as Acting Chairman. Petitioner took her oath and discharged the functions and duties of the Office of the Chairman. She received a letter from the CA who disapproved her “ad interim appointment”. Since the appointment of the Chairman and Members of the CHR is not specifically provided for in the Constitution itself, unlike the Chairmen and Members of the CSC, the Comelec and the COA, whose appointments are expressly vested by the Constitution in the President with the consent of the CA. The President appoints the Chairman and Members of the CHR pursuant to the 2nd sentence in Sec.16, Art. VII, that is, without the confirmation of the Commission on Appointments because they are among the officers of government "whom he (the President) may be authorized by law to appoint." Rufino vs. Endriga [2nd sentence- “whose appointments are not otherwise provided for by law”]: Pres. Marcos issued EO 30 creating the CCP as a trust governed by a BOT of 7 members. PD 15 (CCP Charter) increased the members of the BOT from 7 to 9 members. Then EO 1058 increased it to 11 trustees. During the term of Ramos, the CCP Board included Endriga, Lagdameo, Sison, Potenciano, Fernandez, Cabili and Manosa (Endriga Group). Subsequently, Pres. Estrada appointed 7 new trustees (Rufino Group) for a term of 4 years to replace Endriga Group. Endriga Group files a petition for quo warranto questioning the appointment of the Rufino Group. Allegations were: 1) that under Section 6(b) of PD 15, it is only when the CCP Board is entirely vacant may the President fill such vacancies; 2) that when Estrada appointed the Rufino Group, only one seat was vacant. Sec 6(b) and (c) are inconsistent with the Constitution. These provisions empower the remaining trustees of the CCP Board to fill vacancies in the Board, allowing them to elect their fellow trustees. On the other hand, Sec 16 (Art VII) allows the heads of departments, agencies, commissions, or boards to appoint only “officers lower in rank” than such “heads of departments, agencies, commissions, or boards.” This excludes a situation where the appointing officer appoints an officer equal in rank as him. Sec6 (b) and (c) makes CCP trustees the independent appointing power of their fellow trustees. The creation of an independent appointing power inherently conflicts with the President’s power to appoint. Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. I. <

< <

Power of control The President is given control of “all the executive departments, bureaus and offices.” o Control is not just over the department head but also over all subordinate officers of the department Control: power of an officer to alter or modify or nullify or set aside what a subordinate officer has done in the performance of his duties and to substitute the judgment of the former for that of the latter Doctrine of qualified political agency: all executive and administrative organizations are adjuncts of the Executive department, the heads of

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the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or in the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries, 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.

Ang-Angco vs. Castillo [distinguish President’s power over “acts” and “person” of appointee in classified service]: Petitioner, a Collector of Customs, on the belief that Pepsi had complied with the requirements of withdrawing some commodities from the customs house, allowed its release. When the Commissioner learned this, he filed an admin charge against petitioner for grave neglect of duty. The Exec Secretary, by authority of the President, declared that his conduct was prejudicial to the best interest of the service and considered him to be resigned. Petitioner appealed, on the ground that he was deprived of the right to have his case appealed to the Civil Service Board of Appeals. The President does not have blanket authority to remove any officer or employee of the government but his power must still be subject to the law that passed by the legislative body particularly with regard the procedure, cause and finality of the removal of persons who may be the subject of disciplinary action. This power of control couched in general terms for it does not set in specific manner its extent and scope. The power merely applies to the exercise of control over the acts of the subordinate and not over the actor or agent himself of the act. It only means that the President may set aside the judgment or action taken by a subordinate in the performance of his duties. Joson vs. Torres [power to discipline local officials]: Petitioner, a governor, was placed under preventive suspension by the Exec Secretary bec of a charge of grave misconduct and abuse of authority under the recommendation of the Sec of DILG. He is now questioning such preventive suspension. The power to discipline evidently includes the power to investigate. As the President has the power to investigate complaints against local government officials, AO 23 nevertheless delegates the power to investigate to the DILG or a Special Investigating Committee. This is not undue delegation, contrary to Joson’s claim. What is delegated it the power to investigate, not the power to discipline. Furthermore, the power of the DILG to investigate administrative complaints is based on the alter-ego principle or the doctrine of qualified political agency, which is based on the control power of the President. Control is said to be the very heart of the power of the presidency. As head of the Executive, the President may delegate some of his powers to the Cabinet members except when he is required by the Constitution to act in person or the exigencies of the situation demand that he acts personally. Each head of the department is and must be the President’s alter ego in the matters of that department where the President is required by law to exercise authority. KMU vs. Dir.-Gen. of NEDA: Pres.GMA issued EO420 requiring all government agencies and government-owned corporations to streamline and harmonize their Identification Systems in order to reduce costs, achieve efficiency and reliability and ensure compatibility and provide convenience to the people. Under the power of control, the President may by executive or administrative order direct the gov’t entities under the executive department to adopt a uniform ID data collection and format. The President’s constitutional power of control is self-executing and does not need any implementing legislation. The Constitution also mandates the President to ensure that the laws are faithfully executed. There are several laws mandating government entities to reduce costs, increase efficiency, and in general, improve public services. The adoption of a uniform ID data collection and format under %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

EO 420 is designed to reduce costs, increase efficiency, and in general, improve public services. Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus. The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion. During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. I. <

< < <

Commander-in-chiefship The President is not a member of the armed forces but remains a civilian o Elected as the highest civilian officer – a civilian president holds supreme military authority and is the ceremonial, legal and administrative head of the armed forces Does not require the President to possess military training and talents, but as commander-in-chief he has the power to direct military operations and to determine military strategy President has control and direction of the conduct of war, whether the war be declared or undeclared 3 powers: 1) Calling out power 2) Power to suspend the privilege of the writ of habeas corpus 3) Power to impose martial law

Lansang vs. Garcia [habeas corpus reviewable by SC]: Due to the throwing of 2 hand grenades in a Liberal Party caucus in 1971 causing the death of 8 people, Marcos issued PP 889 which suspended the privilege of the writ of habeas corpus. Marcos urged that there is a need to curtail the growth of Maoist/communist groups. Subsequently, Lansang et al. were invited by the

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Philippine Constabulary headed by Garcia for interrogation and investigation. Lansang et al. questioned the validity of the suspension of the writ averring that the suspension does not meet the constitutional requisites. 2 conditions must concur for the valid exercise of the authority to suspend the privilege of 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. As commander-in-chief, the President has 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, but this proved inadequate. Of the two other alternatives, the suspension of the privilege is the least harsh. The court finds that the PP889 is valid because the requisites for the suspension of writ of habeas corpus are present. Such presidential determination of the existence of the conditions required by the Constitution to justify a suspension of the privilege of the writ is no longer conclusive on the other branches. This Court may legitimately inquire into its validity. Sanlakas vs. Executive Secretary During the Oakwood mutiny where members of the Armed Forces of the Philippine occupied the Oakwood apartments in Makati, the President GMA issued Proclamation No. 427 and General Order No. 4, both declaring "a state of rebellion" and calling out the Armed Forces to suppress the rebellion. The petitioners claim that the declaration of state of rebellion is an exercise of emergency powers, which amounts to a usurpation of the power of Congress. The SC ruled that the President has the power to declare state of rebellion in the exercise of her Commander-in-Chief powers. However, in calling out the armed forces, a declaration of a state of rebellion is an utter superfluity. As to the issue of exercising emergency powers without the grant of such power by the Congress, the SC ruled that there is no proof that the President exercised powers beyond her powers as the Chief Executive or Commander-in-Chief. The President, in declaring a state of rebellion and in calling out the armed forces, was merely exercising a wedding of her Chief Executive and Commander-in-Chief powers. David vs. Arroyo [PP1017] These petitions question the validity of PP 1017 (declaring a state of national emergency) and General Order No. 5 issued by President GMA. While the cases are pending, President Arroyo issued PP 1021, declaring that the state of national emergency has ceased to exist, thereby, in effect, lifting PP 1017. The specific portion of PP 1017 questioned is the enabling clause: “to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction.” Does this give the President the power to enact laws and decrees? This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President GMA the authority to promulgate “decrees.” Legislative power is peculiarly within the province of the Legislature. To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyo’s exercise of legislative power by issuing decrees. It follows that these decrees are void and, therefore, cannot be enforced. With respect to “laws,” she cannot call the military to enforce or implement certain laws, such as customs laws, laws governing family and property relations, laws on obligations and contracts and the like. She can only order the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence. Ampatuan vs. Puno After the massacre in Maguindanao, President Arroyo issued Proc 1946 placing the provinces of Maguindanao, Sultan Kudarat and Cotabato under a state of emergency. She further issued AOs 273 and 273-A delegating the supervision from OP to DILG. Petitioners %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

assail the said Proc and AOs for being unconstitutional and that the President does not have a basis for calling out those powers. The Court ruled that it is not unconstitutional. II. 3 Types of “Martial Law” < 3 kinds of military jurisdiction (in American jurisprudence): 1) Jurisdiction under military law- exercised both in peace and war; 2) Military government- exercised in the time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within the states or districts occupied by rebels treated as belligerents; and 3) Martial law proper- exercised in times of invasion or insurrection within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the National Gov’t, when the public danger requires its exercise. o Martial law in the Philippines is the 3rd one III. Martial law proper is essentially police power < Public safety is the concern of police power, which is also the object of the exercise of martial law < The exercise of the power which resides in the executive branch to preserve order and insure public safety in times of emergency, when other branches of government are unable to function, or their functioning would itself threaten public safety <

Martial law depends on 2 factual bases: 1) Existence of invasion or rebellion, and 2) Requirements of public safety o Necessity creates the conditions for martial law and at the same time limits the scope. Therefore the degree and kind of vigorous executive action needed to meet the varying kinds and degrees of emergency could not be identical under all conditions, they can only be analogous.  COMMON DENOMINATOR IN THE EXERCISE OF MARTIAL LAW POWER: the exercise by an executive officer of the discretion and judgment normally exercised by a legislative or judicial body

Grounds: 1. Prevent/Suppress lawless violence 2. Invasion 3. Rebellion Period: 1. Prevent/Suppress lawless violence 2. Invasion 3. Rebellion Notice Judicial Review Period Who can question? Courts and Legislative

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Call in AFP

Suspend Privilege of the Writ of HC

Declare Law

Yes

??

??

Yes Yes

Yes Yes

Yes Yes

Martial

?? GR: 60 Days ?? ?? ??

?? Open

Except: if extended or revoked

Congress within 48 hours Congress Yes. The test is whether the President did NOT act arbitrarily, and the sufficiency of the factual basis. - Decide in 30 days. Any citizen. Open Open

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??

offenseonly w/ comelec reco.

File in court within 3 days from arrest for the offense of rebellion related to invasion. Cases

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. I. <

<

Purpose of executive clemency Tacit admission that human institutions are imperfect and that there are infirmities in the administration of justice o Instrument for correcting these infirmities and for mitigating whatever harshness might be generated by a too strict application of the law Non-delegable power and must be exercised by the President personally

II. Constitutional limits on executive clemency < Sec.19 sets down 3 limitations on the power of executive clemency: 1) It cannot be exercised over cases of impeachment; 2) Reprieves, commutations, and pardons, and remission of fines and forfeitures can be given only after final conviction by final judgment; 3) Grant of amnesty must be with the concurrence of a majority of all the Members of Congress o Art. IX, C, Sec.5 also says that no pardon, amnesty, parole or suspension of sentence for violation of election laws, rules and regulations shall be granted without the favorable recommendation of the COMELEC.

Who exercises Effect

Reprieve Pres.

Commutation Pres.

Pardon Pres.

Fines Pres.

Postpones exec. to a day certain

Remission part punishment

??

Requisites

Final J.

Final J.

- exempt fr. punishment (looks forward) relieved fr. Consequenc e civ. liability Final J.

Beneficiary

individual

individual

individual

individual

Limitations

impeachment Election

Same Same

Same Same

Same ??

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of of

Final J.

Amnesty Pres. Plus majority of all Cong. abolish offense (looks backward)

before conviction treason/politi cal offense/ law of nations. Class of political offenders ?? Same

Tax Amnesty - need leg. concurrence Cristobal Monsanto Torres

Drilon Llamas Garcia

Salle Bacang Casido

Llamas vs. Orbos [clemency on administrative penalties]: Respondent governor was found guilty under the Anti-Graft and Corrupt Practices Act and was suspended. He filed an MR and pending such, the Executive Secretary issued a Resolution granting him executive clemency. Petitioner is assailing the constitutionality of such act, stating that executive clemency may only grant it in criminal cases. The Constitution does not distinguish between which cases executive clemency may be exercised by the President, with the sole exclusion of impeachment cases. There is no valid and convincing reason why the President cannot grant executive clemency in administrative casesIf the President can grant reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with much more reason can she grant executive clemency in administrative cases, which are clearly less serious than criminal offenses. Torres vs. Gonzales [violation of conditional pardon]: Petitioner was convicted of estafa in the CFI and affirmed by the CA. A conditional pardon was granted by the President on the condition that petitioner would not again violate any of the penal laws of the Philippines. Petitioner accepted. On the basis of several criminal charges, the Minister of Justice recommended the cancellation of the conditional pardon. The conditional pardon was cancelled and petitioner was arrested. The grant of pardon and the determination of the terms and conditions of a conditional pardon are purely executive acts which are not subject to judicial scrutiny. The acceptance of the conditions of the pardon imports the acceptance of the condition that the President will also determine whether the condition has been violated. III. Pardon: nature and legal effects < An act of grace, proceeding from the power entrusted with the execution of laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed < No legal power can compel the executive to give it < A conditional pardon has no force until accepted by the condemned because it may be less acceptable to him than the original punishment and may in fact be more onerous Monsanto vs. Factoran [reinstatement to former rights]: Monsanto, an assistant treasurer, was convicted by the Sandiganbayan of estafa through falsification of public documents. While her MR was pending, Pres. Marcos extended to her absolute pardon which she accepted. She asked to be reinstated to her former position which the Office of the President denied, stating that she cannot be reinstated as acquittal can only produce such, and not absolute pardon. She was also required to indemnify the amount she owed to the gov’t. Petitioner may apply for reappointment to the office which was forfeited, but the facts constituting her offense must be and should be evaluated and taken into account to determine ultimately whether she can once again be entrusted with public funds. The pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that. To regain her former post as assistant city treasurer, she must re-apply and undergo the usual procedure required for a new appointment. Finally, she still has to pay. Civil liability subsists, notwithstanding an absolute pardon. IV. Amnesty

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May be only given with the concurrence of the majority of all the members of Congress The grant of a general pardon to a class of political offenders either after conviction or even before the charges are filed To avail of amnesty, it is not necessary for the accused to admit his responsibility for the commission of the criminal act PARDON A private act granted by the Chief Executive which must be pleaded and proved by the person pardoned because the courts do not take notice thereof Granted to one after conviction

Looks forward and relieves the offender from the consequences of an offense of which he has been convicted – abolishes or forgives the punishment and does not work the restoration of the rights to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon, and no ways exempts the culprit from the payment of civil indemnity V. < < <

AMNESTY A public act by proclamation of the Chief executive with the concurrence of Congress of which the courts should take judicial notice Granted to a class of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction Looks backward and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the offense with which he is charged that the person released by amnesty stands before the law as though he committed no offense

Other forms of executive clemency Reprieve: postpones the execution of an offense to a day certain Commutation: remission of a part of the punishment, a substitution of a less penalty for the one originally imposed Remission of fines and forfeitures: merely prevents the collection of fines or the confiscation of property, it cannot have the effect of returning property which has been vested in third parties or money already in the public treasury

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Power to contract or guarantee foreign loans Having learned from the Marcos regime which enslaved the foreign banks, this provision created a more effective way of President o The President can no longer contract or guarantee without the concurrence of the Monetary Board These rules are applicable to foreign laws, but legislation can applicable to domestic loans

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Requirements

Philippines to checking the foreign loans also make it

Section 20 Loans of the State Requires the PRIOR concurrence of the Monetary Board.

Section 21 -International Agreements -Treaties Requires SUBSEQUENT ratification of 2/3 of the Senate.

Legal Characteristic under IL

State can borrow from: a) In’t Org. (i.e. IMF) b) Other States - Like an Int’l Agreeement. c) International Banking Inst. - Like a contract. C’s remedy: seek relief in native state (i.e. US) who will in turn sue on behalf of the bank. Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. I. < <

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Section 20. The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decision on applications for loans to be contracted or guaranteed by the Government or government-owned and controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law. I. <

Instrument

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Senate concurrence in international agreements Treaties of any kind, whether bilateral or multilateral, require Senate concurrence Treaties are not the only forms of international agreements the President can enter into o The authority to enter into executive agreements without concurrence of the legislature has traditionally been recognized in Philippine jurisprudence. Treaty-making involves 2 phases: negotiation and the actual making of the treaty, in the negotiation phase, the President excludes the legislature. However, the fruit of the executive’s negotiation cannot bind as law unless it has the concurrence of Senate Ratification is given by at least 2/3 of all the members of Senate

TREATIES International agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character

EXECUTIVE AGREEMENTS International agreements embodying adjustments of detail carrying out wellestablished national policies and traditions and those involving arrangements of a more or less temporary nature

Gonzales vs. Hechanova [nature of executive agreements]: The Executive Secretary authorized the importation of foreign rice to be purchased from private sources, and created a rice procurement committee composed of the other respondents for the implementation of said proposed importation. The Government executed contracts with the governments of other countries for the importation of rice. Petitioner, as a rice planter and president of the Iloilo Palay and Corn Planters Association, filed the instant petition, alleging that the importation violates RA3452, which explicitly prohibits the importation of rice and corn "the Rice and Corn Administration or any other government agency.” It was not sufficiently established by the respondents that the contracts were executive agreements. (In fact, they even insisted that they were contracts.) Even assuming that they were executive agreements, the same were unlawful. Under the Constitution, the President has the power to enter into executive agreements without previous legislative authority. However, he may not enter into transactions through executive agreements if such transactions are prohibited by statutes enacted prior thereto.

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Page%34%of%69% % II. Termination of Treaty < May be arrived at by formal agreement of the parties or the treaty itself may contain the manner of terminating its life o International law recognizes the right of 1 party to terminate a treaty for breach by the other party or when the fundamental circumstances for which the treaty was entered into have changed (rebus sic stantibus) < Since Congress has legislative power and since statutes and treaties are of the same rank, Congress can pass a law negating the terms of a treaty o Will only affect the domestic force of the treaty under the theory of dualism III. Other Foreign Affairs Power Foreign relations powers of the President: 1) Power to make treaties (Art. VII, Sec. 21) 2) Power to appoint ambassadors (Art. VII, Sec. 16) 3) Power to receive ambassadors and other public ministers (part of statutory law) 4) Power to deport (under the Administrative Code) < The President is the “sole organ” of the state for foreign relations Vinuya vs. Romulo: Petitioners were all members of a comfort women group, who approached the Executive Dept assistance in filing a claim against the Japanese officials and military officers. The Exec Dept declined, and took the position that the individual claims for compensation had already been satisfied by Japan’s compliance with the Peace Treaty executed between both countries. The court ruled that there was no GAD by the Exec Dept’s refusal to assist the petitioners. From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to determine whether to espouse petitioners’ claims against Japan. In this case, the Executive Department has already decided that it is to the best interest of the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question. Section 22. The President shall submit to the 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. I. < < <

The Budget The budget, which becomes the basis of the general appropriation bill, is prepared by the President and submitted to Congress within 30 days from the opening of every regular session Congress may not increase the appropriation recommended by the President for the operation of the Gov’t as specified in the budget The term “sources of financing” has reference to other sources other than taxation foreign aid

Section 23. The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time.

ARTICLE VIII: THE JUDICIAL DEPARTMENT

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Section 1: The Judicial power shall be vested in one Supreme Court and in such Lower Courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights, which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. Grave abuse of discretion amounting to lack or excess of jurisdiction: such capricious and whimsical exercise of judgment that is equivalent to lack of jurisdiction. It must be patent and gross as to amount to an evasion of a positive duty or virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. Judicial Power has not done away with the political question doctrine.

Infotech Technology v. Comelec: Comelec awarded the contract for automation of counting and canvassing of the ballots to Mega Pacific an entity that didn’t even participate in the bidding. In this case there was GAD. There is GAD when an act is done contrary to the constitution, law or jurisprudence. Also when an act is executed whimsically, capriciously, or arbitrarily out of malice, ill will or personal basis. The power given to courts is Judicial Power nothing more thus it cannot: 1. Attempt or assume nor be compelled to perform non-judicial functions. 2. Nor may it be charged with administrative functions except when reasonably incidental to the fulfillment of judicial duties. 3. Neither is it its function to give advisory opinions. a. Declaratory judgment is one with real parties and conflicting legal interests, the judgment being bidning on the parties. While an advisory opinion only a legal issue is posed in the abstract in advance of an actual case. Judicial Power: Santiago v. Bautista: Before a tribunal, board or officer may exercise judicial or quasi-judicial acts, it is necessary that: 1. there be a law that gives rise to some specific rights of persons or property under which adverse claims to such rights are made; and 2. the controversy ensuing therefrom is brought before the tribunal, board or officer clothed with power and authority to determine what that law is and thereupon adjudicate the respective rights of the contending parties. In re Laureta: • When the Court holds persons in contempt, there is no vindictive reprisal involved. The Court's authority and duty under the premises is unmistakable. It must act to preserve its honor and dignity from the scurrilous attacks of an irate lawyer, mouthed by his client, and to safeguard the morals and ethics of the legal profession. • The Supreme Court is Supreme and no other agency of the Government, including the Tanodbayan, may declare its decisions unjust Noblejas v. Teehanke:

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SC has no power to discipline officers in other branches with equivalent rank of judges • Granting executive officers the right to be investigated only by the Supreme Court and to be suspended or removed upon its recommendation would be unconstitutional. It would violate the fundamental doctrine of separation of powers, by charging the SC with the administrative function of supervisory control over executive officials, and simultaneously reducing pro tanto the control of the Chief Executive over such officials. • The Supreme Court of the Philippines and its members should not and cannot be required to exercise any power or to perform trust or to assume any duty not pertaining to or connected with the administration of judicial function. Director of Prisons v. Ang Cho Kio: The Courts have no power to suggest to the President or to express an opinion that would reflect on the wisdom or propriety of the action of the Chief Executive on matters purely political in nature. It would be to violate the principle of separation of powers for the judiciary to interfere or attempt to influence the exercise by the Chief Executive of the political powers of his office. Justiciable Controversy: SBMA v. COMELEC: Courts may decide only actual controversies not hypothetical questions When a municipal resolution is still in the proposal stage, it is not yet an approved law. Should the people reject it, then there would be nothing to contest and to adjudicate. It is only when the people have voted for it and it has become an approved ordinance or resolution that rights and obligations can be enforced or implemented thereunder. At this point, it is merely a proposal and the writ of prohibition cannot issue upon a mere conjecture or possibility. Constitutionally speaking, courts may decide only actual controversies, not hypothetical questions or cases. Distinguished from declaratory relief: Tano v. Socrates: Disregard of the hierarchy of courts must be put to a halt, not only because of the imposition upon the precious time of this Court, but also because of the inevitable and resultant delay in the adjudication of the case which often has to be remanded to the lower court, Lower courts are often better equipped to resolve factual issues since this Court is not a trier of facts. The judicial policy that the Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of a primary jurisdiction Supreme Court is not possessed of original jurisdiction over petitions for declaratory relief even if only questions of law are involved. Section 2: 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. Malaga v. Penachos: A law is passed prohibiting courts from issuing injunctions in cases involving infrastructure projects of the government. The SC said such prohibition can only refer to administrative acts in controversies involving facts or the exercise of discretion in %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

technical cases. Outside of this, the courts cannot be prevented from exercising their power. P.D. 1818 was not intended to shield from judicial scrutiny irregularities committed by administrative agencies Sec. 3: The judiciary shall enjoy fiscal autonomy. Appropriations for the judiciary may not be reduced by the legislature below the amount appropriated for the previous year and after approval, shall be automatically and regularly released. Sec. 4: (1) The Supreme Court shall be composed of a Chief Justice and Fourteen Associate Justices. It may sit en banc or in its discretion, in divisions of three, five or seven members. Any vacancy shall be filled within ninety days form the occurrence thereof. (2) All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court, en banc, and all other cases which under the Rules of Court are Required to be heard en banc including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances and other regulations shall be decided with the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon. (3) Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such members. When the required number is not obtained or principle, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc. People v. Dy: The divisions of the Supreme Court are not distinct courts. The actions of the divisions and decisions rendered therein are in effect by the same tribunal. Decisions or resolutions of a division of the court are not inferior to an en banc decision. Cases which must be hear en banc: 1. Cases involving the constitutionality of a treaty. 2. All cases which the Rules of Court require to be heard en banc. 3. All cases involving the constitutionality, application or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations; 4. Cases heard by a division when the required majority in the division is not obtained; 5. Cases where the Supreme Court modifies or reverses a doctrine or principle of law previously laid down either en banc of in division; 6. Administrative cases involving the discipline or dismissal of judges of lower courts 7. Election contests for president or vice president. -

When the SC sits en banc you need a quorum (which is 8) and you would need a majority of the members who took part of the deliberations so you would need at least 5 votes to decide a case en banc.

Firestone Ceramics v. CA: Decisions of a division are not appealable to the SC en banc, because such decisions are already a decision of the SC itself. En Banc is not an appellate court. Each division is not considered an inferior body to the Court en banc. De Castro v. JBC (2010)

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The prohibition against presidential appointments under Section 15, Article VII does not extend to appointments in the Judiciary. Section 4(1) imposes on the President the imperative duty to make an appointment of a Member of the Supreme Court within 90 days from the occurrence of the vacancy—the failure by the President to do so will be a clear disobedience to the Constitution. The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the Supreme Court was undoubtedly a special provision to establish a definite mandate for the President as the appointing power. JBC has no discretion to submit the list of nominees to fill a vacancy in the SC to the President after the vacancy occurs, because that shortens the 90-day period to make the appointment. The duty of the JBC to submit a list of nominees before the start of the President’s mandatory 90-day period to appoint is ministerial, but its selection of the candidates whose names will be in the list to be submitted to the President lies within the discretion of the JBC. Fortich v. Corona: In this case they claimed that the motion for reconsideration that received a 7-7 vote should not have in effect affirmed the prior decision because under the constitution if the concurrence of the majority is not achieved then it should be referred en banc. The SC however differentiated between original cases and matters and in this case the MR being a matter need not be referred to en banc. Cases v. Matters: A Case is a controversy brought before the Court for the first time. Where the required number of votes is not obtained, there is no decision. If it is case and the number of votes required (majority of those who deliberated) are not obtained then you can go to the court en banc. Matters are those which include motions, which are resolved already, a motion for reconsideration is a matter. If it is a matter and the majority vote is not obtained then the prior decisions is affirmed. Sec. 5 The Supreme Court shall have the following powers: (1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) All cases in which the 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 court is in issue. (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. (e) All cases in which only an error or question of law is involved. (3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned. (4) Order a change of venue or place of trial to avoid a miscarriage of justice. (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. Congress may diminish only statutory powers or jurisdiction of the SC but it cant diminish the jurisdiction granted by the Constitution itself. Judicial Review: Power of the SC to declare a law, treaty, international or executive agreement, presidential decree, proclamation, order, instruction, ordinance or regulation unconstitutional. Essential Requisites: 1. There must be an ACTUAL CASE OR CONTROVERSY calling for the exercise of judicial power. a. Mariano v. COMELEC: The validity of the creation of the City of Makati being challenged on the ground that it will allow the Mayor to extend his term is premature because the elections wont be until after three years. 2. The question before it must be RIPE for adjudication (the governmental being challenged must have had an adverse effect on the person challenging it). 3. The person challenging the act must have STANDING to challenge, that is he must have a personal and substantial interest in the case such that he has sustained or will sustain, direct injury as a result of its enforcement. a. People v. Vera: One only has standing if he has a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. b. Telecommunications v. COMELEC: i. He has personally suffered some actual or threatened injury. ii. Injury is fairly traceable to the challenged action iii. The injury is likely to be redressed by a favorable action. c. The rule however is flexible and allows a liberal approach when the subject is of transcendental interest, due to the over breadth doctrine, when it’s a taxpayer’s suit, third party standing. i. For the third party standing three important criterion must be met: the litigant must have suffered an injury-in-fact giving him a sufficient concrete interest in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party’s ability to protect his or her own interest. d. Taxpayer’s Suit: i. He has sufficient interest in preventing illegal expenditure of money raised by taxation ii. That he will sustain a direct injury as a result of the enforcement of the questioned statute. iii. Gonzalez v. Narvasa: President appropriated 3m for operational expenses of PCCR sourced from funds of the president’s office. A taxpayer does not have standing since what is in exercise her is not an act of congress in its taxing or spending power. What was involved was President’s power to apportion Auxiliary Rules: 1. The question of constitutionality must be raised at the earliest opportunity (exception however is when the court in the exercise of sound discretion). Operative Fact: The declaration of the unconstitutionality of a statute doesn’t mean that there are no rights, duties or protection afforded. Before an act is declared unconstitutional it is an operative fact, which can be the source of rights and duties.

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Agbayani v. PNB: The period before a moratorium law was declared unconstitutional was not allowed to toll the prescriptive period of the right to foreclose a mortgage.

Judicial Review flows from judicial power and so inferior courts have power to exercise judicial review. Political Questions: Courts have no power to pass upon political questions. Baker v. Carr Guidelines 1. There is found a textually demonstrable constitutional commitment of the issue to a political department or; 2. Lack of judicially discoverable and manageable standards for resolving it or; 3. The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government or; 4. An unusual need for unquestioning adherence to a political decision already made or; 5. The potentiality of embarrassment from multifarious pronouncements by various departments on one question. Not everything from Baker is applicable to the Philippine setting because of the Court’s existence of grave abuse of discretion and thus the fact that there is an “unusual need for unquestioning adherence to a political decision already made or the potentiality of embarrassment” wont bar the SC. o It is political when the question goes into the wisdom of the decision or act, when it goes into the legality of the act then it is justiciable. Court Review of Capital Sentences: automatic review is now with the CA for death penalty then to the SC for final disposition of the case. Garcia v. People: only in cases where the penalty imposed is death is there automatic review. When it is RP the petitioner must appeal. Torrecampo v. Metropolitan The determination of where, as between two possible routes, to construct a road extension is obviously not within the province of this Court. It is a political question. Such determination belongs to the Executive branch. Rule Making: Writ of Amparo: 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 (covers extralegal killings, enforced disappearances or threatens thereof). Writ of Habeas Data: Remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee or of 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. Writ of Kalikasan: remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with a government agency, on behalf of person whose constitutional right to a balanced and healthful ecology is violated or threatened 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. %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

Republic v. Gingoyon: Expropriation cases involve both a procedural and substantive aspect. The Congress can always change or amened the substantive aspect through legislation, the procedural matters are to be left to the SC as part of their rule making power. The rule making power includes the power to suspend its own rules in particular cases in order to do justice. Limitations to rule making: 1. Should be simplified and inexpensive procedure for the speedy disposition of cases. 2. Should be uniform for all courts of the same grade. 3. Should not diminish, increase or modify substantive rights. If the rule takes away a vested right such as the right of appeal etc, then it is not merely procedural. But if it operates only as a means of implementing an existing right then the rule deals merely with procedure.

1st Requisite: Ripe for Adjudication: PACU v. Secretary of Education: An act was approved that provides that a private school must first obtain a permit from the Secretary of Education before they can open to the public. This SC however found that all of the petitioners had permits and none of the permits were sought to be revoked. The power of the Courts to declare a law unconstitutional arises only when the interests of litigants require the use of judicial authority for their protection against actual interference. Thus a hypothetical threat being insufficient. Tan v. Macapagal: A resolution was being assailed saying that it was invalid because it in effect sought to revise the Constitution by adopting a new form of government. In this case, the proposed amendment was still unacted thus there is no need for interposition of judicial oversight unlike in previous cases where the court said that the matter was ripe for adjudication in this case it was not yet. 2nd Requisite: Standing: Concepcion v. COMELEC: Under Section 1, Rule 65, an aggrieved party is one who was a party to the original proceedings that gave rise to the original action for certiorari under Rule 65. The petition for certiorari under Rule 65 is not available to any person who feels injured by the decision of a tribunal, board or officer exercising judicial or quasi-judicial functions. He has no standing to file a petition for certiorari. Taxpayers: Pascual v. Sec. of Public Works The rule recognizing the right of taxpayers to assail the constitutionality of a legislation appropriating local or state public funds has greater application in the Philippines than that adopted with respect to acts of Congress of the United States appropriating federal funds. The validity of a statute may only be contested by one who will sustain a direct injury as a consequence of its enforcement. Taxpayers have sufficient interest in preventing the illegal expenditure of moneys raised by taxation and therefore may question the constitutionality of statutes requiring expenditure of public moneys.

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Page%38%of%69% % Contra: Gonzales v. Marcos (1975) "[T]he funds administered by the President of the Philippines came from donations [and] contributions [not] by taxation." Accordingly, there was that absence of the "requisite pecuniary or monetary interest." Citizens and associations: transcendental importance: Legaspi v. CSC: The fundamental right to information on matters of public concern can be invoked in a Mandamus proceeding When a Mandamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen. Joya v. PCGG: A writ of mandamus may be issued only when the public right to be enforced and the concomitant duty of the state are unequivocably set forth in the Constitution. Court has the discretion to take cognizance of a suit which does not satisfy the requirements of an actual case or legal standing when paramount public interest is involved. Not every action filed by a taxpayer can qualify to challenge the legality of official acts done by the government. Having failed to show that they are the legal owners of the artworks or that the valued pieces have become publicly owned, petitioners do not possess any clear legal right whatsoever to question their alleged unauthorized disposition. Board of Optometry v. Colet: Only natural and juridical persons or entities authorized by law may be action and every action must be prosecuted or defended in the name of interest. Facts showing the capacity of a party to sue or the legal existence association of persons that is made a party must be averred Unregistered organizations have no standing to sue Individuals who are not registered optometrists cannot sue to prohibit the practice of optometry for having no standing

parties in a civil the real party in of an organized

Other Rules “Raise at earliest opportunity & constitutionality is the very lis mota of the case”: People v. Vera: If Act No. 4221 really violates the Constitution, the People of the Philippines, in whose name the present action is brought, has a substantial interest in having it set aside. Of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. As a general rule, the question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may be raised at the trial, and if not raised in the trial court, it will not be considered on appeal. Exception: Courts, in the exercise of sound discretion, may determine the time when a question affecting the constitutionality of a statute should be presented. Criminal cases: although there is a very sharp conflict of authorities, it is said that the question may be raised for the first time at any stage of the proceedings, either in the trial court or on appeal. Civil cases: it is the duty of a court to pass on the constitutional question, though raised for the first time on appeal, if it appears that a determination of the question is necessary to a decision of the case. A constitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of the court below. Prov. of North Cotabato: For a party to have locus standi, one must allege “such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court largely depends for illumination of difficult constitutional question. 1. 2.

a law regulating 3.

Tondo Medical v. CA: Present substantial interest, which will enable a party to question the validity of the law, requires that a party sustained or will sustain direct injury as a result of its enforcement – it is distinguished from a mere expectancy or future, contingent, subordinate, or inconsequential interest The rule on constitutional questions of transcendental importance cannot be invoked where a party’s substantive claim is without merit -- a party’s standing is determined by the substantive merit of his case or a preliminary estimate thereof. Anak Mindanao v. Exec. Secretary: For a concerned party to be allowed to raise a constitutional question, it must show that: a. it has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, b. the injury is fairly traceable to the challenged action, and c. the injury is likely to be redressed by a favorable action. The transcendental importance of the issues raised must relate to the merits of the petition Abstract claims and Vague propositions that the implementation of the assailed orders will work injustice and violate the rights of its members cannot clothe MDOI with the requisite standing. %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

4.

5.

When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws. For a taxpayer there should be an assertion that public funds are illegally disbursed or deflected to an illegal purpose.or there is a wastage of public funds through the enforcement of an invalid or unconstitutional law. For a legislator or member of congress an act of the executive that injures the institution of congress causes derivative but nonetheless substantial injury that can be questioned by legislators. An Organization may be granted standing to assert the irghts of its member (but the mere invocation of the IBP or any lawyer that they are pursuing it due to their duty to preserve the rule of law does not suffice to clothe it with standing). LGU can seek relief in order to protect or vindicate an interest of its own and of the other LGUs.

The Court however has discretion to relax this requirement when the constitutional question being raised is of paramount public interest or of transcendental importance. In this case the SC said the following have locus standing: 1. The different provinces (North Cotabato, Zamboanga, Sultan Kudarat, etc.) because of the direct and substantial injury that they as LGUs would suffer since their territories would be included in the domain of BJE. 2. Former Senator Pimientel, incumbent Mayor of Makati and Resident of Cagayan don’t have standing for failure to specify some right or privilege or that there is a wastage of public funds, but due to the transcendental issues they were given standing.

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3.

4. 5.

Drilon and Tamano have standing as taxpayers because they asserted that government funds would be expended for the conduct of an illegal and unconstitutional plebiscite to delineate the BJE territory plus they invoked transcendental importance. Senator Roxas as member of the Senate and citizen on the constitutional right to be informed in the matter in litigation has legal standing. Various Muslim Organizations have legal standing since they have legal interest and stand to be benefited or prejudiced as the case may be.

Effect of unconstitutionality: De Agbayani v. PNB: Prior to the declaration of nullity such challenged legislative or executive act must have been in force and had to be complied with. Until the judiciary declares its invalidity, it is entitled to obedience and respect. Prior to its being nullified, its existence as a fact must be reckoned with. The actual existence of a statute, prior to such a determination (of unconstitutionality), is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. Automatic Review: People v. Mateo: While the Fundamental Law requires a mandatory review by the Supreme Court of cases where the penalty imposed is reclusion perpetua, life imprisonment, or death, nowhere, however, has it proscribed an intermediate review. Allowing an intermediate review by the Court of Appeals before the case is elevated to the Supreme Court on automatic review is a procedural matter within the rule-making prerogative of the Supreme Court than the law-making power of Congress. Change of Venue: People v. Gutierrez: The courts "can by appropriate means do all things necessary to preserve and maintain every quality needful to make the judiciary an effective institution of government One of these incidental and inherent powers of courts is that of transferring the trial of cases from one court to another of equal rank in a neighboring site, whenever the imperative of securing a fair and impartial trial, or of preventing a miscarriage of justice, so demands. The Supreme Court possesses inherent power and jurisdiction to decree that the trial and disposition of a case pending in a CFI be transferred to another whenever: the interest of justice and truth so demand serious and weighty reasons to believe that a trial by the court that originally had jurisdiction over the case would not result in a fair and impartial trial lead to a miscarriage of justice. Power to Promulgate Rules: Santero v. CFI-Cavite: Petitioners claim that the respondents should not be granted allowance for support because they are already of age and are gainfully employed as provided in the Rules of Court, which provides support is only for incapacitated children and spouse. The SC said that such is a procedural rule which cannot prevail over the Civil Code which is a substantive law (the CC says that children should be supported without distinction as to whether employer or of age or not). Damasco v. Laqui (1988)

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Francisco v. CA: where an accused has been found to have committed a lesser offense includible within the graver offense charged, he cannot be convicted of the lesser offense if it has already prescribed. While the Supreme Court has the power to promulgate rules concerning the protection and enforcement of constitutional rights, pleadings, practice and procedure in all courts, the admission to the practice of law, the integrated bar, and the legal assistance to the underprivileged, such rules shall not however diminish, increase or modify substantive rights Baguio Market Vendors v. Cortes (2010) Our two previous constitutions textualized a power sharing scheme between the legislature and this Court in the enactment of judicial rules, but the 1987 Constitution textually altered the power-sharing scheme under the previous charters by deleting Congress’ subsidiary and corrective power. The payment of legal fees is a vital component of the rules promulgated by this Court concerning pleading, practice and procedure, it cannot be validly annulled, changed or modified by Congress as one of the safeguards of the Supreme Court’s institutional independence The power to promulgate rules of pleading, practice and procedure is now the Court’s exclusive domain In re Cunanan: Suspension, disbarment and reinstatement of attorneys-at- law in the practice of the profession and their supervision have been indisputably a judicial function and responsibility. Congress can make a law for qualifications but such can only be a minimum and it is up to the SC in the end to fix it. By trying to retroactively change the passing rate, Congress is in fact trying to modify the past decision of the SC as to who the latter has chosen to admit into the practice of law. It is an encroachment on the prerogative of the judiciary. In Re: Letter of UP Law Faculty That freedom of expression is not a defense in administrative cases against lawyers for using intemperate speech in open court or in court submissions can similarly be invocation of academic freedom. The right to criticize the courts and judicial officers must be balanced against the equally primordial concern that the independence of the Judiciary be protected from due influence or interference No matter how firm a lawyer’s conviction in the righteousness of his cause there is simply no excuse for denigrating the courts and engaging in public behavior that tends to put the courts and the legal profession into disrepute. PNB v. Asuncion: • A substantive law cannot be amended by a procedural law. • Section 6, Rule 86 of the Revised Rules of Court cannot be made to prevail over Article 1216 of the New Civil Code, the former being merely procedural, while the latter, substantive. Substantive law = defines rights and obligations Procedural law = defines the manner of enforcing substantive rights and obligations People v. Lacson: Lacson was charged with multiple murder. He sought the dismissal of the entire case on the ground that under CrimPro there is a 2 year time bar rule when a case is provisionally dismissed to determine probable cause and the case is not acted on again within 2 years. The SC however said that the 2 year time bar rule doesn’t apply

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when the requisites are not met. In this case the provisional dismissal was done WITHOUT his consent (his consent should be obtained for the rule to apply) nor was there any notice given to the heirs that the case was to be provisionally dismissed. Furthermore the rule being sought application did not come into affect until after this case had already been filed and thus cannot be made to apply retroactively. Because if it were to be applied retroactively it would be against the state and contrary to the intent of the framers as it would give the state a shorter period of time (only 1 year and 3 months instead of the 2 years) within which to open the case again. Supervision over the judiciary: Ampong v. CSC: • Exclusive authority to discipline employees of the judiciary lies with the Supreme Court • The Constitution provides that the Supreme Court is given exclusive administrative supervision over all courts and judicial personnel. • Administrative jurisdiction over petitioner belongs to the Supreme Court, the action having been instituted by the CSC at the time when petitioner was already a judicial employee. • the standard procedure is for the CSC to bring its complaint against petitioner, a judicial employee, before the OCA. • However, we are constrained to uphold the ruling of the CSC based on the principle of estoppel. Sec. 6: The Supreme Court shall have administrative supervision over all courts and the personnel thereof. Administrative supervision of lower inferior courts: Maceda v. Vasquez: It is only the Supreme Court that can oversee the judges’ and court personnel’s compliance with all laws, and take the proper administrative action against them if they commit any violation thereof ✘ No other branch of government may intrude into this power, without running afoul by the doctrine of separation of powers. ✘ The Ombudsman cannot justify its investigation of petitioner on the powers granted to it by the Constitution,3 for such a justification not only runs counter to the specific mandate of the Constitution granting supervisory powers to the Supreme Court over all courts and their personnel, but likewise undermines the independence of the judiciary. Ombudsman should first refer the matter of the Court for determination of whether said certificates reflected the true status of his pending case load, as the Court has the necessary records to make such a determination. ✘ The Ombudsman cannot compel this Court, as one of the three branches of government, to submit its records, or to allow its personnel to testify on this matter Sec. 7 (1) No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines. A Member of the Supreme Court must be at least forty years of age, and must have been for fifteen years or more, a judge of a lower court or engaged in the practice of law in the Philippines. (2) The Congress shall prescribe the qualifications of judges of lower courts, but no person may be appointed judge thereof unless he is a citizen of the Philippines and a member of the Philippine Bar. (3) A Member of the Judiciary must be a person of proven competence, integrity, probity, and independence. Sec. 8: %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

(1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the: a. Chief Justice as ex-officio Chairman, b. the Secretary of Justice c. and a representative of Congress as ex-officio members, (can be from the senate or HR). d. a representative of the Integrated Bar, e. a processor of law, f. a retired member of the Supreme Court g. and a representative of the Private Sector. (2) The regular members of the Council shall be appointed by the President for a term of four years with the consent of the Commission on Appointments. Of the members first appointed, the representative of the integrated bar shall serve for four years, the professor of law for three years, the retired justice for two years, and the representative of the private sector for one year. (3) The Clerk of the Supreme Court shall be the Secretary ex-officio of the council and shall keep a record of its proceedings. (4) The regular members of the council shall receive such emoluments as may be determined by the Supreme Court. The Supreme Court shall provide in its annual budget the appropriations for the Council. (5) The Council shall have the principal function of recommending appointees to the judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it. Sec. 9: The Members of the Supreme Court and judges of lower court shall be appointed by the President from a list of at least three nominees prepared by the Judicial Bar Council for every vacancy. Such appointments need no confirmation. The lower courts, the President shall issue the appointments within ninety days from the submission of the list. Sec. 10: The Salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts shall be fixed by law. During their continuance in office, their salary shall not be decreased. The salary of justices and judges are subject to income tax. Diminution of Salary: Nitafan v. CIR: Judges sought to prohibit the CIR from taxing their salaries claiming it amounted to a dimunition of their salary. The SC held that it was taxable (the ruling in Perfecto v. Meer that granted the exemption is discarded). The intent of the famers of the new constitution was to make the SC share in the expenses of government otherwise it would violate the uniformity of taxes and the EPC since other branches of government are taxed on the income they earn. Sec. 11: The members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon. Security of Tenure:

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Vargas v. Rilloraza: The jurisdiction of the Supreme Court may only be exercised by the Chief Justice and Associate Justices If, according to section 4 of said Article VIII, "the Supreme Court shall be composed" of the Chief Justice and Associate Justices therein referred to, its jurisdiction can only be exercised by it as thus composed. To disqualify any of these constitutional component members of the Court is nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the fundamental law. Disqualification of a judge is a deprivation of his judicial power No temporary composition of the Supreme Court is authorized by the Constitution. It is one of the permanent institutions of the government. The clause "unless otherwise provided by law" found in section 4 of Article VIII can not be construed to authorize any legislation which would alter the composition of the Supreme Court, as determined by the constitution, for however brief a time as may be imagined. In principle, what really matters is not the length or shortness of the alteration of the constitutional composition of the Court, but the very permanence and unalterability of that composition so long as the constitution which ordains it remains permanent and unaltered. People v. Gacott: The Court en banc has power to discipline because of the grant of power to determine the procedure. It was not intended in Section 11, Article VIII of the Constitution that all administrative proceedings should be heard and decided by the whole Court. In instances involving dismissal of judges, the administrative cases must be deliberated upon and decided by the full Court itself. It is only when the penalty imposed does not exceed suspension of more than one year or a fine of P10,000, or both, that the administrative matter may be decided in division  ✘ •

Abolition of a judicial office is valid when done in good faith and not for political or personal reasons. A judge still sitting in the bench cannot present himself as a congressional candidate since it amounts to misconduct. The compulsory retirement age in the judiciary is seventy years.

Sec. 12: The members of the Supreme Court and of other courts established by law shall not be designed to any agency performing quasi-judicial or administrative functions. Sec. 13: The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the Court. A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties. Any Members who took no part, or dissented, or abstained from a decision or resolution, must state the reason therefor. The same requirements shall be observed by all lower collegiate courts. Absence of the certification would not mean the case submitted for decision had not been reached in consultation before being assigned to a member for the writing of the opinion of the court since the regular performance of duty is presumed (may just be the basis for holding the official responsible), it wont make the decision invalid. Sec. 14: No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and law on which it is based. No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor. %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

Macario Tayamura v. IAC: A decision must express clearly and distinctly the facts and law on which it is based refers only to decisions. Resolutions disposing of petitions fall under the provision that “No petition for review shall be refused due course without stating the legal basis therefore.” A court after deliberating on a petition and subsequent pleadings, manifestations, comments, or motions decides to deny due course to the petition and states that the questions raised are factual or no reversible error, there is sufficient compliance with the constitutional requirement. Minute Resolutions need not be signed by the members of the Court who took part in the deliberations of a case nor do they require the certification of the Chief Justice. Air France v. Carroscoso: The law solely insists that a decision state the "essential ultimate facts" upon which the court's conclusion is drawn A decision is not to be so clogged with details such that prolixity, if not confusion, may result. So long as the decision contains the necessary facts to warrant its conclusions, it is no error for a court to withhold therefrom "any specific - finding of facts with respect to the evidence for the defense." As this Court well observed, "There is no law that so requires". The mere failure to specify (in the decision) the contentions of the appellant and the reasons for refusing to believe them is not sufficient to hold the same contrary to the requirements of the provisions of law and the Constitution. Francisco v. Permskul: Allowing memorandum decisions is not unconstitutional The memorandum decision should actually embody the findings of fact and conclusions of law of the lower court in an annex attached to and made an indispensable part of the decision. For the incorporation by reference to be allowed, it must provide for direct access to the facts and the law being adopted, which must be contained in a statement attached to the said decision. Memorandum decision should be sparingly used lest it become an addictive excuse for judicial sloth Salazar v. Margomen: The case had to do with a charge against J. Margomen for bias and impartiality in an election case. The SC said that the judge did show bias and impartiality and that he failed to state in his decision why he had invalidated 90 ballots in favor of the protestant and to specify the ballots being set aside and thus violated the constitutional mandate to state clearly the law and facts on which the decision is based. Sec. 15 (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts. (2) A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the Rules of Court or by the court itself. (3) Upon the expiration of the corresponding period, a certification to this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon the parties. The certification shall state why a decision or resolution has not been rendered or issued within said period.

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(4) Despite the expiration of the applicable mandatory period, the court, without prejudice to such responsibility as may have been incurred in consequence thereof, shall decide or resolve the case or matter submitted thereto for determination, without further delay.

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Sec.2: imposes a list of prohibitions engaging in activities which can distract them from their responsibilities or subject them to pressures and temptations o The clause which says that a Commissioner shall not “engage in the practice of any profession or in the active management or control of any business which in any way may be affected by the functions of his office  A lawyer who teaches law does not violate the prohibition of practice of a profession  “Active management” of a business does not prohibit a Commissioner from owning a business but it prohibits him from being a managing officer or a member of the governing board of a business “which in any way may be affected by the functions of his office,” a qualifying phrase which does not apply to the prohibition of practice of a profession o Prohibition of financial interest in government contracts or franchises applies also to contracts with “subsidiaries” of gov’t corporations

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Sec.3: protects their salary from diminution during their continuance in office Sec.4: gives them independent powers of appointment but in accordance with law Sec.5: gives them fiscal autonomy, their approved annual appropriations shall be automatically and regularly released and shall not be subject to pre-audit Sec.6 : gives them authority, sitting en banc, to promulgate rules of procedure o In case of conflict between a rule of procedure promulgated by a Commission or a Rule of Court, the rule of the former should prevail if the proceeding is before a Commission, but if it is before a court, the Rules of Court prevail o The SC has no power to disapprove Commission rules except through the exercise of judicial review when such rules violate the Constitution  These rules should not diminish, increase, or modify substantive rights  If the rules of a Commission are inconsistent with a statute, the statute prevails Commissioners are given a fixed term and are removable only by impeachment

For Sandiganbayan the rule is a period of 3 months. After the lapse of the reglamentary period, nothing happens to the case it remains undecided, but the court is enjoined to decide the case or question without further delay. it can be a ground for impeachment or other disciplinary action. Even when there is delay and no decision or resolution is made within the prescribed period, there is NO automatic affirmance of the appealed decision. Sec. 16: The Supreme Court shall, within thirty days from the opening of each regular session of the congress, submit to the president and the Congress an annual report on the operations and activities of the Judiciary.

ART. IX. CONSTITUTIONAL COMMISSIONS A.

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Common Provisions

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Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit. I. < < < <

Constitutional Commissions All perform key functions in the government; in order to protect their integrity, they have been independent constitutional bodies CSC: personnel office COA: auditing office COMELEC: administration of the electoral process

Section 2. No member of a Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which, in any way, may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries. Section. 3. The salary of the Chairman and the Commissioners shall be fixed by law and shall not be decreased during their tenure. Section 4. The Constitutional Commissions shall appoint their officials and employees in accordance with law. Section 5. The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly released. Section 6. Each Commission en banc may promulgate its own rules concerning pleadings and practice before it or before any of its offices. Such rules, however, shall not diminish, increase, or modify substantive rights. I.

Independence of the Commissions

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Section 7. Each Commission shall decide by a majority vote of all its Members, any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. I. < < <

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Decisions of the Commissions As collegial bodies, the decisions are made by the body and not by individual members No individual member may make a decision for the Commission Decisions are reached by majority vote, which suffices to establish a decision of a Commission o The Commissions may not promulgate a rule which requires unanimity – applies whether the Commission is sitting en banc or in division Sets down a mandatory period within which decisions of the Commissions must be reached o If a decision is not reached within the reglamentary period, such failure does not affect the merits of the case

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Fil. Engr. & Machine Shop vs. Ferrer [final orders reviewable by SC]: For the 1998 national elections, COMELEC issued an Invitation to Bid calling for the submission of sealed proposals for the manufacture and delivery of voting booths. Petitioner and Acme were among the bidders. Comelec issued a resolution awarding the bid to Acme subject to some conditions, which they accepted. The SC has exclusive jurisdiction to review on certiorari final decisions of the COMELEC relative to the conduct of elections and enforcement of election laws. However, an order of the COMELEC awarding a contract to a private party, as a result of its choice among various proposals submitted in response of its invitation to bid does NOT come within the purview of a “final order” which is exclusively and directly appealable to the SC on certiorari. What is contemplated by the term "final orders, rulings and decisions" of the COMELEC reviewable by certiorari by the Supreme Court as provided by law are those rendered in actions or proceedings before the COMELEC and taken cognizance of by the said body in the exercise of its adjudicatory or quasi-judicial powers. Section 8. Each Commission shall perform such other functions as may be provided by law. B.

Civil Service Commission

Section 1. (1) The civil service shall be administered by the Civil Service Commission composed of a Chairman and two Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, with proven capacity for public administration, and must not have been candidates for any elective position in the elections immediately preceding their appointment. (2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. I. < <

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Gaminde vs. COA: The President appointed petitioner, ad interim, as CSC Commissioner. She assumed office on June 22, 1993 after taking an oath of office. The Commission on Appointments confirmed it and her appointment paper stated that her term will expire on Feb. 2, 1999. The Office of the President opined that her term of office would instead end on Feb.2, 2000. She relied on said opinion and stayed in office even after 1999. The issue is whether petitioner’s term of office ends on 1999 or 2000. The SC ruled that it ended on Feb.2,1999. Her successor’s term must be deemed to start on Feb.2,1999-Feb.2,2006. The terms of the first Chairmen and Commissioners of the Constitutional Commissions under the 1987 Constitution must start on a common date, irrespective of the variations in the dates of appointments and qualifications of the appointees, in order that the expiration of the first terms of 7, 5 and 3 years should lead to the regular recurrence of the 2-year interval between the expiration of the terms. Applying the foregoing conditions to the case at bar, the appropriate starting point of the terms of office of the first appointees to the Constitutional Commissions under the 1987 Constitution must be on Feb.02, 1987, the date of the adoption of the 1987 Constitution. In case of a belated appointment or qualification, the interval between the start of the term and the actual qualification of the appointee must be counted against the latter.

Organization of the Commission; Term The Civil Service system is administered by a Civil Service Commission composed a Chairman and 2 Commissioners appointed by the President with the consent of the Commission on Appointments Chairman and Commissioners must be: o Natural-born citizens o At least 35 years of age at the time of their appointment o Proven capacity for public administration o Must not have been candidates for any elective position in the elections immediately preceding their appointment The term of Commissioners is set at 7 years and may not be reappointed o Prohibition of reappointment applies even if the Commissioner has served for les than 7 years o Of the 1st Commissioners appointed, the Chairman serves for 7 years, another for 5, and the third for 3  The intent in staggering the terms of the first appointees is to achieve continuity by not allowing the term of all Commissioners to expire all at one time  Every 2 years, the term of 1 Commissioner expires leaving always 2 veteran Commissioners behind

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Section 2. (1) The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. (2) Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and, except to positions which are policydetermining, primarily confidential, or highly technical, by competitive examination. (3) No officer or employee of the civil service shall be removed or suspended except for cause provided by law. (4) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign. (5) The right to self-organization shall not be denied to government employees. (6) Temporary employees of the Government shall be given such protection as may be provided by law. <

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I. Scope of the system “all branches subdivisions, instrumentalities and agencies of the Gov’t” o Covers not all GOCCs, but only those with original charters, that is those corporations that have been created by special law and not through the general corporation law  Test for determining whether officers and employees of a GOCC comes under the CSC system is the manner of creation of the corporation to which they belong In terms of personnel, the system includes both “officers and employees” o Employee- includes any person in the service of the gov’t or any branch thereof of whatever grade or class o Officer- officials whose duties, not being of a clerical or manual nature, may be considered to involve the exercise of discretion in the performance of the functions of government, whether such duties are precisely defined by law or not II. Under Civil Service Law

MWSS vs. Hernandez [GOCCs with charter and created by special law]:

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A complaint was filed with the NLRC against petitioner for failure to pay wage differentials, etc. MWSS contends that it was a GOCC hence the NLRC has no jurisdiction. The court ruled that MWSS employees are covered by the Civil Service Laws as MWSS was created by RA6234 as a GOCC. III. GOCCs under Corporation Code BLISS vs. Callejo [GOCCs without charter and created under Corporation Code]: Petitioner union filed a petition for certification election with DOLE which dismissed it stating that majority of BLISS is owned by the Human Settlement Dev’t Corp, a whollyowned gov’t corporation. The court ruled that BLISS is a GOCC created under the Corporation law. It is without a charter, and therefore governed by the Labor Code. The 1987 Constitution provides that the civil service embraces all branches, subdivisions and instrumentalities and agencies of the gov’t, including GOCCs with original charter.

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IV. Classifications and Appointments Sec.2 is the basis for classifying positions in the civil service into competitive and non-competitive positions o Non-competitive: those which by their nature are policy-determining, primarily confidential or highly technical o The principal significance of the classification is in relation to the appointing process  Non-competitive positions exempts them from competitive examination as a means for determining merit and fitness  Appointment to a competitive position must be made according to merit and fitness as determined, as far as practicable, by competitive exams It is the nature and not just the label of the position which makes it noncompetitive o Primarily confidential- not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings or betrayals of personal trust on confidential matters of state o Policy-determining- charged with the duty to formulate a method of action for gov’t or any of its subdivisions o Highly technical- required to possess a technical skill or training in the supreme or superior degree The competitive and non-competitive positions roughly correspond in classification into CAREER and NON-CAREER service o Career service shall be characterized by:  Entrance based on merit and fitness to be determined as far as practicable by competitive exams  Opportunity for advancement to higher career positions; and  Security of tenure o Non-career service shall be characterized by:  Entrance on bases other than those of the usual tests of merit and fitness utilized for the career service  Tenure which is limited to a period specified by law, or which is coterminous 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

Samson vs. CA [positions in competitive service]: %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

Talens, a civil service eligible, was appointed by the mayor as ASST. secretary to the mayor. A new mayor succeeded where he summarily terminated Talens on the ground of loss of confidence. Under RA2260, the position of secretaries to city mayors is noncompetitive. The court ruled that asst. secretaries are not deemed to be non-competitive employees. Only secretaries are considered to be non-compettive. As a general rule, position in all branches, subdivisions and instrumentalities of the gov’t, including those in GOCCs belong to the competitive service except those that are expressly declared by law to be non-competitive. Griño vs. CSC [test of confidentiality of positions]: When petitioner assumed office as the newly elected governor of Iloilo, he informed respondents who occupied the positions of Provincial Attorney, Senior Legal Officer and Legal Officer II that he was terminating their services based on loss of trust and confidence. Respondents appealed such termination to the CSC who ruled that such was illegal. The court ruled that only the position of Provincial Attorney is one of trust, therefore his removal is valid. But those of Senior Legal Officer and Legal Officer II are not confidential. CSC vs. Salas [nature of duties determinative of the confidentiality of position]: Salas was appointed by the PAGCOR Chairman as Internal Security Staff member and assigned to a casino. His employment was terminated by the PAGCOR Board of Directors for loss of confidence. He appealed such termination, alleging that he is not a confidential employee which the CSC denied stating that he was, based on PD1869 which provides that employees of casinos and related services are classified as confidential appointees. The court ruled that the status of being a confidential employee depends upon the nature of the functions of the employee and not upon the designation given by law. Whether a position is policy-determining, primarily confidential or highly technical is determined not by the title but by the nature of the task that is entrusted to it.

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V. Removal for Cause / Security of Tenure Basic in a healthy civil service system is a guarantee of security of tenure, a guarantee against arbitrary impairment, whether total or partial, of the right to continue in the position held

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Sec.2(3) guarantees that suspension or dismissal can be made only “for cause provided by law” o Dismissal includes demotion or transfer which involves reduction of pray or rank

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PD807, The Civil Service Code details both the substantive grounds and the procedure for disciplinary action

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It is incorrect to say that officers or employees occupying policy-making or highly technical positions or primarily confidential positions do not enjoy security of tenure o Only removable as provided by law o Primarily confidential is an exception because their term is deemed to be coterminous with the confidence.

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Security of tenure cannot be circumvented by resort to abolition of office o Only when the abolition is done in good faith and not merely as a cover for removal will it be allowed. Thus to escape the taint of unconstitutionality, it must be made: 1) In good faith 2) Not for personal or political reasons 3) Not in violation of the law

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Security of tenure also covers transfers o Transfer of a permanent employee to another permanent position without his consent violates security of tenure o Violates security of tenure if the transfer is done as a preliminary step for his removal, or is a scheme to lure him away from the permanent position, or designed to indirectly terminate his service or force his resignation

capacity. The Court held that the position of department secretaries is not embraced and included within the terms officers and employees of the Civil Service. When Santos, a member of the Nacionalista Party, campaigned for Gov. Martin, a candidate of the Nacionalista Party, he was acting as a member of the Cabinet in discussing the issues before the electorate and defending the actuations of the Administration to which he belongs <

Hernandez vs. Villegas [loss of confidence as ground for termination – expiration of term not removal from office]: Villegas was appointed Director of Security of the Bureau of Customs. He went to the US to study and when he returned, he was temporarily detailed to the Arrastre Service. Another person became Acting Director of Security. Villegas was then permanently appointed as Arrastre Superintendent. His appointment involved a change of designation and status from Director of Security which is confidential to Arrastre Superintendent, a classified position. The court ruled that such transfer was illegal. A person occupying a primarily confidential position can only be removed for cause as provided by law. The termination of their official relation can be justified on the ground of loss of confidence because in that case their cessation from office involves no removal but merely the expiration of the term of office. As long as confidence in them endures, the incumbent is entitled to continue in office. Briones vs. Osmeña [abolition in good faith]: Petitioner Briones is a 1st grade civil service eligible and he was appointed as ClerkStenographer in the Office of the City Treasurer and then transferred to the Office of the Mayor. Petitioner Rosagaran is a 2nd grade civil service eligible and was employed in the Office of the Mayor and promoted to Administrative Officer, and was publicly declared to be a “Model Employee”. A resolution by the Municipal Board was passed abolishing positions in the Mayor’s office among them of the petitioners’. The court ruled that the abolition of the position (reason alleged to be economy and efficiency) was a mere subterfuge for the removal without cause. For being a member of the Civil Service, his tenure of office is protected by the Constitution. While abolition of the office does not imply removal of the incumbent, the rule is true only where the abolition is made in good faith; that the right to abolish cannot be used to discharge employees in violation of the civil service law nor can it be exercised for personal or political reasons. That ruling is conclusive on the case now before us. < < <

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VI. Electioneering or Partisan Political Activity Sec.2(4) is intended to keep the Civil Service free of the deleterious effects of political partisanship Partisan political activity includes every form of “solicitation of the elector’s of the elector’s vote in favor of a specific candidate, and includes contribution of money for election purposes and distribution of handbills Does not prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of candidates for public office whom he supports, nor does it prohibit a person from voting or from joining civic organizations that are non-partisan in character The rule does not apply to members of the Cabinet since their positions are essentially political and they may engage in partisan political activity

Santos vs. Yatco Santos, Secretary of National Defense, conducted a house-to-house campaign for Governor Marti. Yatco prohibited Santos from campaigning personally or in his official %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

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VII. Right to Self-Organization and Right to Strike Although the right to form organizations is guaranteed in other provisions of the Constitution, it was thought nonetheless that this central right should also be specifically placed in the Article which deals with government officers and employees Only talks about organizing, uniting as a union

GSIS vs. Kapisanan [no strike]: A 4-day concerted demonstration, rallies and mass walkout was in front of the GSIS main office by GSIS personnel members of the union Kapisanan ng Mga Manggagawa sa GSIS. It was directed against the General Manager and his management style. They were issued a rally permit by the mayor but without prior approved leave. The court ruled that the constitutional guarantee of the right to strike is qualified with the provision “in accordance with law”. This is a clear manifestation that the state may, by law, regulate this right, or even deny certain sectors such right. Employees in the public service may not engage in strikes or in concerted and unauthorized stoppage of work; that the right of government employees to organize is limited to the formation of unions or associations, without including the right to strike.” VIII.

Temporary Employees

Gloria vs. CA: Dr. Icasiano was appointed Schools Divisions Superintendent by President Aquino. He was then recommended by DECS Secretary to be Superintendent of Marikina Institute of Science and Technology (MIST) in acting capacity. It was approved. The issue was whether such reassignment is a violation of Icasiano’s security of tenure. The court ruled that the reassignment appears to be indefinite as the appointment was made because it “best fits his qualifications and experience being an expert in vocation and technical education.” While a temporary transfer of personnel is permissible even without the employee’s prior consent, it cannot be done when the transfer is a preliminary step toward his removal, or is a scheme to lure him away from his permanent position or designed to indirectly terminate his service, or force his resignation, such transfer would in effect circumvent the provision which safeguards the tenure of office of those who are in the Civil Service. Section 3. The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. It shall submit to the President and the Congress an annual report on its personnel programs. I. < <

Powers of the Commission As an administrative agency, it can only perform executive powers, quasijudicial powers and quasi-legislative or rule-making powers Enumerates the key functions of the Commissions o Promulgate and enforce policies on personnel actions o Classify positions

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Prescribe conditions of employment except as to compensation and other monetary benefits which shall be provided by law

Section 4. All public officers and employees shall take an oath or affirmation to uphold and defend this Constitution. I. <

Oath to Defend the Constitution The provision is meant to cover all civilian public officers, whether elective or appointive

Section 5. The Congress shall provide for the standardization of compensation of government officials and employees, including those in government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for, their positions. Section 6. No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government or any Government-owned or controlled corporations or in any of their subsidiaries. I. < <

Political lame ducks Prohibits the appointment of defeated candidates within 1 year following their defeat to any office in the gov’t or in any GOCCs or in any of their subsidiaries This, together with Sec.7, is intended to help eradicate the “spoils system”

against the concentration of several public positions in 1 person, so that a public officer or employee may serve full-time with dedication and thus be efficient in the delivery of public services. The position is not merely ex officio to the position of mayor of Olongapo City, hence it is not an exception to the general rule. As he is an incumbent, an elective official remains ineligible for appointment to another public office. He does not automatically forfeit his elective office nor remove his ineligibility imposed by the Constitution, hence the appointment is necessarily null and void. Section 8. No elective or appointive public officer or employee shall 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. Pensions or gratuities shall not be considered as additional, double, or indirect compensation. I. < < <

Section 7. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including Government-owned or controlled corporations or their subsidiaries. I. <

Political opportunism and spoils 1st paragraph governs elective officials: prohibits elective officials other than members of Congress from accepting appointment during their tenure o If the elective official accepts an appointment without first resigning his elective position, the appointment is invalid o Unlike appointive officers in the next paragraph, Congress may not create an exception to this rule

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2nd paragraph deals with appointive officers: may not hold any other office or employment in the gov’t or any subdivision, agency or instrumentality thereof, including GOCCs or their subsidiaries o The prohibition is not absolute as they may hold another office if allowed by law or by the primary functions of their position o Primary functions of an office does not necessarily mean appointment to a different office, it could simply mean that new functions have been added to 1 office

Flores vs. Drilon [prohibition against designation of elective officer during tenure]: Under the Bases Conversion and Dev’t Act, Mayor Gordon of Olongapo City was appointed Chairman and Chief Executive Officer of the SBMA. Because a mayor is an elective position, such appointment is beign challenged for its constitutionality. The court ruled that such provision violates the constitutional proscription against appointment or designation of elective officials to other gov’t posts. ArtIX-B Sec.7 expresses the policy %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

Additional or double compensation The prohibition against additional or double compensation except when specifically authorized by law is another constitutional curb on the spending power of the gov’t This is to manifest a commitment to the fundamental principle that a public office is a public trust. It is expected of a gov’t official or employee that he keeps uppermost in mind the demands of public welfare. Difference b/w additional and double compensation: o Additional compensation: when for one and the same office for which a compensation has been fixed there is added an extra reward in the form, for instance, for a bonus o Double compensation: refers to 2 sets of compensations for 2 different offices held concurrently by 1 officer. There is no general prohibition against the holding 2 offices which are not incompatible; but when an officer accepts a 2nd office, he can draw the salary to such 2nd office only when he is specifically authorized by law to receive double compensation

Saduesta vs. Municipality of Surigao [specific authority from law to receive additional compensation]: Petitioner was the district engineer for the Province of Surigao. Pursuant to the Revised Administrative Code, he was designated as sanitary and waterworks engineer for the same province. Additional compensation was provided for. The municipality failed to give him his salary. He filed an action to institute its recovery but the complaint was dismissed because the law which authorized such additional compensation has been repealed. The court held that since there is no law which the appellant is authorized to receive additional compensation for his services, his claim must fail. of the Revised Administrative Code is a general authority given to all district engineers. The authority required by the Constitution to receive double or additional compensation is a specific authority given to a particular employee or officer of the Government because of peculiar or exceptional reasons warranting the payment of extra or additional compensation. The purpose of the Constitution is to prohibit generally payment of additional or double compensation except in individual instances where the payment of such additional compensation appears to be not only just but necessary. C.

The Commission on Elections

Section 1. (1) There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the

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Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective positions in the immediately preceding elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. I. <

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Composition, qualifications, appointment, term Chairman and the Commissioners must be: o Natural born citizens o At least 35 years of age at the time of their appointment o Holders of a college degree but a majority which includes the Chairman should be members of the Philippine Bar for at least 10 years o Must not have been candidates for any elective position in the immediately preceding elections Appointed by the President with the consent of the Commission on Appointments for a term of 7 years without reappointment o Those of the first appointed, 3 shall hold office for 7 years, 3 for 5 years, and the last three for 3 years o The result is that any one time only 3 Commissioners retire together o Since appointment to any vacancy is only for the unexpired portion of the term of the predecessor, the regularity of the staggered rotational system remains undisturbed even by vacancies occurring in mid-term

Cayetano vs. Monsod [meaning of practice of law]: Respondent was nominated by President Aquino to the position of Comelec Chairman. Petitioner opposed the nomination on the ground that respondent did not possess the required qualification of having been engaged in the practice of law for at least 10 years. The court ruled that respondent possessed the required qualification, as the practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. The contention that Atty. Monsod does not possess the required qualification of having engaged in the practice of law for at least 10 years is incorrect since his past work experience as a lawyer-economist, a lawyermanager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both rich and the poor –more than satisfy the constitutional requirement for the position of COMELEC chairman. Sec. 2. The Commission on Elections shall exercise the following powers and functions: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. (3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. (4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections. (5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their platform or program of government; and accredit citizens' arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused registration. Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections, constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law. (6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. (7) Recommend to the 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 candidacies. (8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to, its directive, order, or decision. (9) Submit to the President and the Congress, a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall.

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I. Powers and Functions of the COMELEC Possessed with executive, quasi-judicial and quasi-legislative powers but by exception, it has been given judicial power as “sole judge of all contests relating to the elections, returns, and qualifications of all elective local officials o This judicial power is given in a limited way  COMELEC cannot claim inherent powers of courts  Has limited powers to issue writs of certiorari, prohibition and mandamus granted by BP697,Sec.50 but only in connection with its appellate jurisdiction under Art.IX, Sec.2(2).

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< Atienza vs. COMELEC: Drilon as President of the Liberal Party announced his party’s withdrawal of support for the administration of GMA. But petitioner who was LP Chairman denounced this move. He then declared all position in LP vacant and elected new officers. Drilon filed a petition with COMELEC to nullify the elections which was granted. SC ruled that COMELEC had jurisdiction over the intra-party leadership dispute. The LP had another election before Drilon’s term expired. Mar Roxas was elected as new LP President. Atienza was expelled from the party. COMELEC ruled that such election was valid. Petitioners are now assailing that COMELEC committed GAD when it ruled on the election issue instead of ruling first on Atienza’s expulsion. The SC ruled that the validity of Roxas’ election as LP President is a leadership issue that COMELEC had to settle. The LP President certifies the official standard bearer of the party. Atienza’s expulsion does not affect the leadership of the party because its validity is purely membership issue that had to be settled by the party as an internal party matter over which the COMELEC has no jurisdiction. The COMELEC’s jurisdiction over intra-party leadership disputes has already been settled by the Court. The Court ruled that the 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.” The COMELEC’s jurisdiction over intraparty disputes is limited. It does not have blanket authority to resolve any and all controversies involving political parties. Political parties are generally free to conduct their activities without interference from the state. The COMELEC may intervene in disputes internal to a party only when necessary to the discharge of its constitutional functions.

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II. Sec. (2): Election contests Among the more important powers is the power to be judge of election contests Jurisdiction: o Exclusive original jurisdiction: all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials o Appellate jurisdiction: all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction o Excludes jurisdiction over elections for Sangguniang Kabataan  given to DILG Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executor and not appealable o Non-appealable character refers only to questions of fact and not of law o Remain subject to the SC’s jurisdiction through Rule 65 Before proclamation, any problem should be resolved in a “pre-proclamation” proceeding by the COMELEC because of its powers under Secs2(1) and (3).

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Only questions that may not be touched are those “involving the right to vote” o However COMELEC has authority to decide whether a person has constitutional qualifications needed to be voted for even on the national level o COMELEC’s jurisdiction is administrative or quasi-judicial and is governed by less stringent requirements of administrative due process After proclamation, when the controversy should already be a “contest” (a defeated candidate seeks to oust the proclaimed winner and claims the seat)  the tribunals and courts should have jurisdiction o COMELEC’s jurisdiction is judicial and should be governed by the requirements of judicial due process o

Among its quasi-legislative powers is the power to issue rules and regulations to implement election laws  deemed implicit in the power to implement regulations o Should there be conflict between a rule of procedure promulgated by the COMELEC and a provision of the Rules of Court, if the proceeding is before the COMELEC, the former shall prevail; but if the proceeding is in court, the Rules of Court prevail.

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III. Sec. 2(3): Powers not given Not empowered to decide questions “involving the right to vote” o This is a judicial question and the power to resolve has been excluded from the Commission’s powers  under the jurisdiction of the courts Not empowered to transfer municipalities from 1 congressional district to another for the purpose of preserving proportionality IV. Deputizing law enforcement agencies Can only be exercised with the concurrence of the President o Officers who can be deputized are under the jurisdiction of the President as Commander-in-Chief Has no disciplinary powers over the officers it may deputize, all they can do is recommend disciplinary action to the President V. Sec.2(5) Registration of parties and organizations A political party or organization acquires juridical personality by registration o In order to participate in the party-list system, it must be registered o Informs the people of the party’s or organization’s existence and of its ideals and identifies the parties and its officers for purposes of regulation by the COMELEC Exceptions to registration: 1) Religious denominations and sects 2) Those which seek to achieve their goals through violence or unlawful means 3) Those which refuse to uphold and adhere to this Constitution 4) Those which are supported by any foreign gov’t VI. Sec.2(6) Prosecution of election offenses The power to investigate and prosecute violations of election laws by the COMELEC is exclusive  intended to enable the COMELEC to insure free, orderly and honest elections o Fiscals or prosecutors can only file an information charging an election offense when they have been deputized by the COMELEC The task of the COMELEC as investigator and prosecutor, acting upon any election offense complaint, is not physical searching and gathering of proof in

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support of a complaint for an alleged commission of an election offense Covers not only criminal cases but also administrative cases

Section 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre- proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. I. <

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Commission Decisions Whether COMELEC sits en back or in division, decisions on any case or matter are reached by majority vote o Rules may not require unanimity Omnibus Election Code, Sec.257 requires that the COMELEC decide all election cases brought before it within 90 days from the date of submission  but this rule may be relaxed 2 impt rules: 1) Motions for reconsideration are decided en banc; but a decision en banc is required only when the subject for reconsideration is a “decision”, that is, a resolution of substantive issues 2) Election cases are decided in division

Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, and equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. I. <

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Regulation of public utilities, media, franchises Transportation and other public utilities as well as mass media play a very important role in elections and can be used to disrupt free, orderly and honest elections o During election periods they may be supervised or regulated by the COMELEC Power subsists not just during the period of voting for public officers but also during referenda and plebiscites especially if constitutional amendments are at issue Print media may not be compelled to allocate free space to the COMELEC  would amount to a prohibited taking of property without just compensation

Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission. Section 6. A free and open party system shall be allowed to evolve according to the free choice of the people, subject to the provisions of this Article.

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Section 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list system as provided in this Constitution. Section 8. Political parties, or organizations or coalitions registered under the party-list system, shall not be represented in the voters' registration boards, boards of election inspectors, boards of canvassers, or other similar bodies. However, they shall be entitled to appoint poll watchers in accordance with law. I. <

Political rights Promotes a multi-party or open party system o Free and open party system refers to a disengagement from the sterile 2-party system of the past and the multi-party system will be allowed to develop

Section 9. Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety days before the day of election and shall end thirty days thereafter. I. <

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“Election period” Election period is the period of time needed for administering an election and can go beyond the date for the casting of ballots o 90 days before the day of the election to 30 days thereafter  In special cases, the COMELEC is authorized to fix a different period Campaign period refers to the period of active solicitation of votes o May be set by the legislature for a period less than the election period

Section 10. Bona fide candidates for any public office shall be free from any form of harassment and discrimination. I. < <

Equal protection of candidates Nothing more than a specification of the equal protection clause of the Bill of Rights This provision is to be understood as having special reference to unaffiliated or partyless bona fide candidate

Section 11. Funds certified by the Commission as necessary to defray the expenses for holding regular and special elections, plebiscites, initiatives, referenda, and recalls, shall be provided in the regular or special appropriations and, once approved, shall be released automatically upon certification by the Chairman of the Commission. I. <

Fiscal autonomy This provision, together with the exemption of the COMELEC from pre-audit, should help towards strengthening the independence of the Commission

D.

The Commission on Audit

Section 1. (1) There shall be a Commission on Audit composed of a Chairman and two Commissioners, who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, Certified Public Accountants with not less than ten years of auditing experience, or members of the

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Philippine Bar who have been engaged in the practice of law for at least ten years, and must not have been candidates for any elective position in the elections immediately preceding their appointment. At no time shall all Members of the Commission belong to the same profession. (1) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, one Commissioner for five years, and the other Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. I. <

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Purpose, organization, composition, appointment Congress, through its power to tax, raises public funds and, through its power to appropriate, authorizes the expenditure of public funds for specific purposes. Various administrative officials collect, keep and expend these public funds and are required to keep accurate financial records. o It is the function of COA to examine the accuracy of the records kept and to determine whether expenditures have been made in conformity with law and take corrective action when necessary o It is through COA that people can verify whether their money has been properly spent Composed of a Chairman and 2 Commissioners who must be: o Natural born citizens o At least 35 years old at time of appointment o Certified public accountants with a minimum of 10 years of auditing experience, or members of the Bar with a minimum exposure of 10 years in the practice of law  but at NO TIME shall all of them belong to the same profession o Must not have been candidates for any elective position in the elections immediately preceding their appointment Appointed by the President with the consent of the Commission on Appointments Terms of 7 years each, like those of the members of the COMELEC are staggered Reappointment and temporary appointment or designation are absolutely prohibited

Mison vs. COA [COA as collegial body]: The Commissioner of Customs declared that the Philippine Navy’s seizure of M/V Hyojin Maru is illegal and ordered its release together with its cargo. The cargo was returned but the vessel sank while in the custody of the Bureau of Customs. Claimants then filed a claim with COA for the payment of the value of the vessel. The Manager of the Technical Service Office of COA denied the claim. They filed an MR, but the Acting COA Chairman also denied the motion as the said decision had already become final and executory. But in a 4th Indorsement addressed to the Auditor of the Bureau of Customs, the Commission reconsidered the claim and granted it. The court ruled that the 4th Indorsement was the binding decision. The decision rendered by the Manager of the Technical Service was void ab initio as he had no power at all to render or promulgate a decision for the Commission. Even the Chairman, alone, does not have that power. As clearly set out in the Constitution then in force, the power was lodged in the Commission on Audit, "composed of a Chairman and two Commissioners." 20 It was the Commission, as a collegial body, which then as now, had the jurisdiction to "(d)ecide any case brought before it within sixty days from the date of its submission for resolution," subject to review by the Supreme Court on certiorari. %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

Section 2. (1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters, and on a post- audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d) such 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 to such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep the general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto. (2) The Commission shall have exclusive authority, subject to the limitations in Article, to define the scope of its audit and examination, establish techniques and methods required therefor, and promulgate accounting auditing rules and regulations, including those for the prevention disallowance of irregular, unnecessary, excessive, extravagant, unconscionable expenditures or uses of government funds and properties.

this the and and or

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Powers and functions Gives a broad outline of the powers and functions of COA: 1) To examine and audit all forms of gov’t revenues 2) To examine and audit all forms of gov’t expenditures 3) To settle gov’t accounts 4) To define the scope and techniques for its own auditing procedures 5) To promulgate accounting and auditing rules including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant or unconscionable expenditures 6) To decide administrative cases involving expenditure of public funds

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The power of COA to define the scope of its audit and examination and to establish the techniques it will follow is exclusive Auditing authority of the COA over GOCCs extends only to those with original charter Has authority not just over accountable officers but also over other officers who perform functions related to accounting such as verification of evaluations and computation of fees collectible, and the adoption of internal rules of control Only has post-audit authority over: o Constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution o Autonomous colleges and universities o Other GOCCs and their subsidiaries o Such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the gov’t, which are required by law or by the granting institution to submit to such audit as a condition of subsidy or equity

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BUT: where the internal control system of the audited agencies is inadequate, COA may adopt such measures, including temporary or special pre-audit as are necessary and appropriate to correct the deficiencies The power of COA to settle gov’t accounts has reference only to liquidated claims and not to unliquidated claims COA’s auditing power is non-exclusive: therefore gov’t institutions with private investments in them require the presence of private auditing firms, not exclusively, but concurrently o BUT the COA’s findings and conclusions necessarily prevail over those of private auditors, at least insofar as gov’t agencies and officials are concerned 

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POI vs. Auditor General [power to settle accounts]: POI entered into a barter agreement with the Bureau of Prisons where they agreed on a delivery of sawed lumber. The barter agreement did not state the value. They failed to fulfill their obligations and so POI filed a claim with the Auditor General. The court ruled that the Auditor General did not have jurisdiction over POI’s claim because such claim was unliquidated. The power of the treasury over the settlement of accounts has always been distinguished from their power over claims. It has been generally held that an account is something which may be adjusted and liquidated by an arithmetical computation and that claims for unliquidated damages cannot be considered as accounts and are not committed by law to their control and decision. ICNA vs. Republic [power to act on specific debt claim]: Plaintiff insurance company filed a claim in the CFI an action for recovery for the insured value of a shipment of 82 cartons of goods that was lost in the custody of the Bureau of Customs, an agency of the Republic. The court ruled that the claim should have been filed with the Auditor General. In the present case, the amount of the claim is already fixed and is readily determinable from the bills of lading and other shipping papers. Accordingly, such claim should be addressed to the Auditor General. Blue Bar Coconut Phil vs. Tantuico [post-audit authority]: Under PD232, the Philippine Coconut Authority was created. Subsequently, a coconut stabilization fund was created where end-users would remit the collection of levy in every first sale of copra to the fund. COA then initiated a special audit of coconut end-user companies, which included petitioners with respect to their fund levy collections and the subsidies they had received. As a result of the initial findings, an order was given by COA to collect the short levies and overpaid subsidies and to apply subsidy claims to the settlement of short levies in case the petitioners failed to remit them. Petitioners allege that COA has no jurisdiction to audit them as they are private corporations. The court ruled that the Constitution states that private entities who handle government funds or subsidies in trust may be examined or audited in their handling of said funds by gov’t auditors. Section 3. No law shall be passed exempting any entity of the Government or its subsidiaries in any guise whatever, or any investment of public funds, from the jurisdiction of the Commission on Audit. Section 4. The Commission shall submit to the President and the Congress, within the time fixed by law, an annual report covering the financial condition and operation of the Government, its subdivisions, agencies, and instrumentalities, including governmentowned or controlled corporations, and non-governmental entities subject to its audit, and recommend measures necessary to improve their effectiveness and efficiency. It shall submit such other reports as may be required by law. %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

ARTICLE X: LOCAL GOVERNMENT: Sec. 1: The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided. There are only two autonomous regions allowed by the constitution, should a third one be desired a constitutional amendment will be required. Sec. 2: The territorial and political subdivisions shall enjoy local autonomy. Autonomy is either decentralization of administration or decentralization of power: There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments ‘more responsive and accountable,’ and ‘ensure their fullest development as selfreliant communities and make them more effective partners in the pursuit of national development and social progress.’ Decentralization of power involves an abdication of political power in favor of LGU declared to be autonomous. The autonomous government becomes accountable not to the central authorities but to its constituency. Magtajas v. Pryce: LGUs have certain powers given by the Constitution which may not be curtailed by the national government, but that outside of these, local governments may not pass ordinances contrary to statute. Laguna Lake Devt Authority v. CA: The SC denied the municipalities around Laguna Lake the power to authorize the construction or dismantling of fish pens etc, the municipalities were claiming authority on their general powers granted under the Local Govt. Code. LLDA claimed power based on law. The SC ruled the specific powers of LLDA prevail over the general power of local governments. Batangas v. CA: LGUs don’t have the power to grant franchises to operate a CATV system. San Juan v. Civil Service Comm: The law provides that the budget officer will be appointed by the Department head upon recommendation of the head of the local government. None however of those recommended by the local government head meets the requirements of law. The department head cant just choose any other person, he must return the recommendations and ask for new ones. Leynes v. COA: COA may not reduce the allowance given to judges by local governments. The Local Government Code allows LGUs to give allowance to judges and decide how much to give. Reducing what has been decided by the local government interferes with their local autonomy and thus is prohibited. Drilon v. Lim: Under the LGC the Secretary of Justice is granted power to act on cases involving the approval of local tax ordinances and revenue measures. Pursuant

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thereto, the Secretary of Justice declared ordinance 7794 as void for failure to follow the procedure under the law (no notice of public hearing which is required, and it was not translated to Filipino). City of manila filed a petition saying the law is unconstitutional because it gives the SOJ power of control, which is lodged by the constitution to the president alone and violates the local autonomy of manila. The SC said that the SOJ in setting aside the law did not make a new one or replace the judgment of those who made law, it is only supervisory power granted to the SOJ to make sure that laws are followed. Sec. 3: The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanism of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities and resources and 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. Garcia v. COMELEC: The 1991 LGC now provides for “initiative and referendum” on the local level which it defines as the “legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance.” As worded the law authorizes initiative and referendum not just on ordinances but also on resolutions. Recall was also tested in this case and the SC said that the Constitution did not provide for any mode, let alone a single mode, of initiating recall elections. Neither did it prohibit the adoption of multiple modes of initiating recall elections. The Constitution provides that Congress was given the power to choose the effective mechanisms of recall as its discernment dictates. Sec. 4: The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are with the scope of their prescribed powers and functions. President --- supervision over LG Provinces --- supervision over component cities and municipalities Cities and municipalities –- supervision over component barangays General supervision: The power of a superior officer to see to it that lower officers perform their functions in accordance with law. It does NOT include the power to substitute one’s judgment for that of a lower officer in matters where a lower officer has various legal alternatives to choose from. Ganzon v. CA: Does the President through the DILG or Congress by law have the right to suspend someone despite local autonomy? Yes. The power of general supervision of the President includes the power to investigate and remove. Also the Constitution (Sec. 3, Art. 10) provides that the LGC may provide fro removal showing that it can be subjected to law. Autonomy does not transform local governments into a kingdom unto themselves. The President has the power of general supervision over them (although not the power of control).

Province of Negros v. COA: COA committed GAD in disallowing the release of premiums paid fro the hospitalization and insurance benefits granted by the Province of Negros to its officials and employees since that is a form of control not granted to the President or executive officers. Sec. 5: Each Local Government Unit shall have the power to create its own sources of revenue 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. Basco v. PAGCOR: PAGCOR being exempt from taxation does not violate the right of LGUs to create its own source of revenue, since the power of the LG to impose taxes and fees is still subject to limitations which Congress may provide. Petron v. Mayor: The power of LG to tax is liberally interpreted in favor of the State. However for LG it is strictly construed against the LG and in favor of the taxpayer. Yamane v. BA Lepanto: An LG may not impose business taxes unless it is shown that the entity is engaged in business. In this case having a Condominium Corporation does not mean it engages in business seeing that it is made only for the benefit of the owners and assessments collected are only for expenses to be used for the common areas. Philippine Petroleum v. Mun. of Pililla: The power of LG to raise revenue cannot be limited by administrative order since it can only be limited by Congress. Batangas Power v. Batangas City: The LGC has widened the tax base of LGUs to include taxes which were prohibited under previous laws. Batangas Power cannot rely on the Basco case since it was decided prior to the LGC when there was still no law that granted LGUs the power to tax instrumentalities of the government. Manila Electric v. Province of Laguna: When there is neither a grant nor a prohibition by statute the taxing power of LGUs must be deemed to exist and they are granted general and broad tax powers subject to limitations given by Congress. This power however is unlimited and one must still ensure that: 1. The taxpayer will not be over-burdened or saddled with multiple and unreasonable impositions. 2. Each LGU will have its fair share of available resources. 3. The resources of the government will not be unduly disturbed 4. Local taxation will be fair, uniform and just. Petron v. Mayor: The power of LG to tax is liberally interpreted in its favor against the state BUT it is strictly construed against the LG and in favor of the taxpayer. Smart Comm. v. City of Davao: Aside from national franchise tax, the franchisee is still liable to pay the local franchise tax, unless it is expressly and unequivocally exempted from payment thereof under its legislative franchise. The “in lieu of all taxes” clause should state whether the exemption applies to both local and national taxes.

Taule v. Secretary Santos: The secretary of the DILG may not annul the election of officers of barangay officials as such would be tantamount to control. %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

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Sec. 6: Local Government Units shall have a Just Share, as determined by law, in the national taxes, which SHALL be AUTOMATICALLY RELEASED to them. Pimentel v. Aguirre: A provision in the law which provides that pending the assessment by the Development Budget Coordinating Committee of the emerging fiscal situation, 10% of the allotment of LGUs will be withheld is a violation of the Constitution. Batangas v. Executive Secretary: Congress may not impose conditions on the release of the share of LG. In this case the release of the funds of the LGUs without the Oversight Committee’s prior approval is constitutionally impermissible. The LGSEF is part of the IRA and therefore a part of the just share of the LGUs in just taxes. Alternative Center v. Zamora: In the GAA of 2000 10 billion of the IRA was set aside for “Unprogrammed Fund” that was to be released on the condition that the revenue collections would meet the revenue targets originally submitted by the president. THE SC ruled that such is violation of constitutional right of LGUs to fiscal autonomy because under the law it has to be released automatically to them without condition. The congress only has control over the “just share” or the amount that they will receive but not as to the manner of its release because it must be automatic. Sec. 7: Local Governments shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas, in the manner provided by law, including sharing the same with the inhabitants by way of direct benefits. Fund Sources of Local Governments: 1. Local taxes, fees, and charges 2. Its share in the national taxes 3. Share in the proceeds of the utilization of natural resources within their respective areas 4. Other sources of revenue which they may legitimately make use of either in their public of governmental capacity or private or proprietary capacity. Sec. 8: The term of office of elective officials, except barangay officials, which shall be determined by law, shall be three years, and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. An incumbent mayor dies and so the vice mayor succeeds by operation of law, is this considered part of the term in that office for purposes of the three-term limit? No. The term of limit of elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it isn’t enough that he served 3 consecutive terms in an elective local official, he should have also been elected to the same position for the same number of times before the disqualification can apply. Borja jr v. COMELEC: The three-term limit of local elective officials under the Constitution (except for barangay officials1) applies when:

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%But see Bolos vs. Comelec on §43(b) of the LGC.

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1. 2.

The local official concerned has been elected three consecutive times. He has fully served three consecutive terms.

Lonzanida v. COMELEC: L was serving his term but it was challenged and he had to abandon office. The SC held he could run for the next election because he did not serve three full terms. Adormeo v. COMELECO: T lost when he ran for a third term. On recall however it was found that he really won so he served the rest of the former winner’s term. HE can still run in the next election because he had not served three full terms. Socrates v. COMELEC: H served for three full terms. In the first year after the end of his third term, he ran in a recall election. He is still qualified to run for another term because due to the recall election there was an interruption thus breaking the successiveness. Latasa v. COMELEC: During the third term of the mayor of a municipality the municipality was converted to a city. Could he run as Mayor of the city in the next election? No since there has been no change in territory nor in constituency. Ong v. Alegre: After serving a full three-year term, A was declared to have been invalidly elected. The term should still be elected for purposes of the tree term limit, it is of no consequence that he was declared not elected since he already served. Alboin v. COMELEC: Preventive suspension of a local elective official does not interrupt his term for purposes of computing the three-term limit. Dizon v. COMELEC: Dizon sought cancellation of Morales’ 2007 Certificate of Candidacy on the ground that Morales was proclaimed as the municipal mayor of Mabalacat, Pampanga during the 1995, 1998, 2001 and 2004 elections and has fully served the same; so the 2007-2010 term is Morales’ fifth term in office. The COMELEC Second Division and En Banc ruled that the there was a gap in Morales’ term when he failed to qualify as a candidate for the 2004 elections when the SC ruled in another case that he violated the three term rule, thus allowing him to run in 2007. This was affirmed by the COMELEC En Banc saying that the three-term limit is not applicable because: 1) Morales was not the duly-elected mayor of Mabalacat for the July 1, 2004 to June 30, 2007 term because he was not even considered a candidate thereat; and 2) He has failed to serve the entire duration of the term of office because he has already relinquished the disputed office on May 16, 2007 more than a month prior to the end of his supposed term. The SC ruled that indeed there was a gap in Morales’ term because Morales cannot be deemed to have served the full term of 2004-2007 because he was ordered to vacate his post before the expiration of the term. Indeed, the period from 17 May 2007 to 30 June 2007 served as a gap for purposes of the three-term limit rule. Thus, the present 1 July 2007 to 30 June 2010 term is effectively Morales’ first term for purposes of the three-term limit rule. There should be a concurrence of two conditions for the application of the disqualification: (1) that the official concerned has been elected for three consecutive terms in the same local government post and (2) that he has fully served three consecutive terms. Bolos v. COMELEC: Petitioner was elected as Punong Barangay three times. During his third term, he ran for Municipal Councilor, won, and therefore left his post as Punong Barangay. He ran again as Punong Barangay in 2007 and won. Respondent filed a case to disqualify Petitioner for violation of the three-term limit rule. Comelec ruled that Petitioner violated the threeterm rule because his abandonment of post by running for another office is considered a voluntary renunciation of office, which does not interrupt the

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service. The SC agreed with the Comelec. When he ran for higher office he knew it would entail abandonment of his current office and therefore the renunciation of his position was voluntary. Thus there is no interruption. NOTE: LGC §43(b) provides that barangay officials are covered by the three-term limit, while §43(c) states that the term of office of barangay officials shall be 5 years. Aldovino v. Comelec: Asilo was elected councilor for three terms. During his third term the Sandiganbayan suspended him for 90d due to a criminal case but this was subsequently lifted and he resumed office after. He then filed again a certificate of candidacy. The SC ruled that the preventive suspension did not interrupt his term and therefore he reached the 3-term limit. The SC held that temporary inability or disqualification to exercise the functions of an elective post, even if involuntary, should not be considered an effective interruption of a term because it does not involve the loss of title to office or at least an effective break from holding office; the office holder, while retaining title, is simply barred from exercising the functions of his office for a reason provided by law. Notably in all cases of preventive suspension, the suspended official is barred from performing the functions of his office and does not receive salary in the meanwhile, but does not vacate and lose title to his office; loss of office is a consequence that only results upon an eventual finding of guilt or liability. Preventive suspension, by its nature, is a temporary incapacity to render service during an unbroken term; in the context of term limitation, interruption of service occurs after there has been a break in the term. The best indicator of the suspended official’s continuity in office is the absence of a permanent replacement and the lack of the authority to appoint one since no vacancy exists. Sec. 9: Legislative Bodies of Local Governments shall have sectoral representation as may be prescribed by law. Sec. 10: No Province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established by local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. Tan v. COMELEC: Being assailed was the constitutionality of BP 885 which created the province of Negros del Norte with 3 cities and 8 municipalities which would be separated from the province of Negros Occidental. A plebiscite was conducted for this purpose. The petitioners claim that excluding the other inhabitants and the other cities of Negros Occidental violated the Constitution. The SC held that two political units would be affected. The first would be the parent province of Negros Occidental because its boundaries would be substantially altered. The other affected entity would be composed of those in the area subtracted from the mother province to constitute the proposed province of Negros del Norte. We find no way to reconcile the holding of a plebiscite that should conform to said constitutional requirement but eliminates the participation of either of these two component political units [in this case the participation of the parent province was excluded]. The term “areas affected” include those that are left behind due to the fact that boundaries would be altered etc. To form the new province of Negros del Norte no less than three cities and eight municipalities will be subtracted from the parent province of Negros Occidental. This will result in the removal of approximately 2,768.4 square kilometers from the land area of an existing province whose boundaries will be consequently substantially altered. The fact that the plebiscite was already held doesn’t make it moot and academic since as long as the province has been created and is existing the constitutionality of its formation may be questioned. %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

League of Cities v. COMELEC (2011): Several municipalities sought to be converted into component cities, not all however were acted upon by Congress and thus there were pending bills left to the next Congress. While these bills were pending however, the Congress passed a new law which increased the income requirement solely from locally generated sources from 20m to 100m to be qualified to become a component city. The issue is the application of this law to the pending bills. The SC held that the LGUs were exempt from the coverage of the new income requirement. Congress during the time of the enactment of the law to increase income was aware of the pending bills and in the deliberations it was discussed that it would be unfair to allow the law to retroactively apply to the pending bills, the congress however did not put the language into the law since the deliberations and interpretation would form part of the bill and therefore their intent to exclude the pending bills was made manifest. Even if we are to disregard the deliberations the SC said that the municipalities had already proven themselves as viable and capable to become component cities of their respective provinces, they were centers of trade and commerce, points of convergence of transportation, rich havens of agricultural, mineral and other natural resources and flourishing tourism spots. The exemption clauses found in the individual Cityhood Laws are the express articulation of that intent to exempt respondent municipalities from the coverage of R.A. No. 9009. Undeniably, R.A. No. 9009 amended the LGC. But it is also true that, in effect, the Cityhood Laws amended R.A. No. 9009 through the exemption clauses found therein. Since the Cityhood Laws explicitly exempted the concerned municipalities from the amendatory R.A. No. 9009, such Cityhood Laws are, therefore, also amendments to the LGC itself. It was also claimed that the Cityhood Laws violated Article 10 with regard to the “just share” received by the petitioners since it would be decreased if the municipalities would be converted into cities. The SC held first that there was no violation of the EPC. In imposing the 100m annual income it was arbitrarily made, it was not supported by evidence or empirical data or inflation rates. It was made simply in order to make it difficult for municipalities to become component cities. Therefore it cannot be said that the amount must be strictly followed to determine if a municipality has sufficient acceptable standards to provide for all essential government facilities and services and special functions commensurate with the size of its population. The fact remains that even if these cities did not reach the 100m mark they are still viable and self-sustaining. Thus the substantial distinction between the pending bills is not merely the fact that they are pending as compared to other bills but lies in their capacity and viability to become component cities of their respective provinces. Petitioners in these cases complain about the purported reduction of their “just share” in the IRA. To be sure, petitioners are entitled to a “just share,” not a specific amount. But the feared reduction proved to be false when, after the implementation of the Cityhood Laws, their respective shares increased, not decreased. What these petitioner cities were stating as a reduction of their respective IRA shares was based on a computation of what they would receive if respondent municipalities were not to become component cities at all. April 2011: The share of local government units is a matter of percentage under Section 285 of the LGC, not a specific amount. Specifically, the share of the cities is 23%, determined on the basis of population (50%), land area (25%), and equal sharing (25%). This share is also dependent on the number of existing cities, such that when the number of cities increases, more will divide and share the allocation for cities. However, we have to

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note that the allocation by the National Government is not a constant, and can either increase or decrease. With every newly converted city becoming entitled to share the allocation for cities, the percentage of internal revenue allotment (IRA) entitlement of each city will decrease, although the actual amount received may be more than that received in the preceding year.

Navarro vs. Ermita The issue in this case is the constitutionality of the law creating the province of Dinagat Islands. It is claimed that the law is unconstitutional because Dinagat Islands does not have the requisite land area or population to be a province under the LGC (2,000 square kilometers, while Dinagat had a land area of 802.12 square kilometers only and a population of only 106,951). It was also pointed out that when the local government unit to be created consists of one (1) or more islands, it is exempt from the land area requirement as expressly provided in Section 442 and Section 450 of the LGC if the local government unit to be created is a municipality or a component city, respectively. This exemption is absent in the enumeration of the requisites for the creation of a province under Section 461 of the LGC, although it is expressly stated under Article 9(2) of the LGC-IRR. There appears neither rhyme nor reason why this exemption should apply to cities and municipalities, but not to provinces. In fact, considering the physical configuration of the Philippine archipelago, there is a greater likelihood that islands or group of islands would form part of the land area of a newly created province than in most cities or municipalities. The Supreme Court said that the Congress, recognizing the capacity and viability of Dinagat to become a full-fledged province, enacted R.A. No. 9355, following the exemption from the land area requirement. In effect, pursuant to its plenary legislative powers, Congress gave validity to that exemption in the LGC-IRR and transformed it into law when it enacted R.A. No. 9355 creating the Island Province of Dinagat. Therefore, the creation of Dinagat Province is valid. Sec. 11: The Congress may, by law, create special metropolitan political subdivisions subject to a plebiscite as set forth in section 10 hereof. The Component Cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services requiring coordination. The Metropolitan Manila Development Authority (MMDA) is a body composed of several government units: 1. Twelve cities: Caloocan, Manila, Mandaluyong, Makati, Pasay, Pasig, Quezon, Muntinlupa, Las Piñas, Marikina, Parañaque and Valenzuela. 2. Five municipalities: Malabon, Navotas, Pateros, San Juan and Taguig. MMDA: RA 7924: Metropolitan Manila was declared as a special development and administrative region and the administration of metro-wide basic services affecting the region placed under a development authority. Metro-Wide Services: services which have a metro-wide impact and transcend local political boundaries or entail huge expenditures such that it would not be viable for said services to be provided by the individual local government units comprising Metro Manila. 7 BASIC 1. 2. 3. 4.

METRO-WIDE SERVICES: Development planning Transport and traffic management Sold waste disposal and management Flood control and sewerage management

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5. 6. 7.

Urban renewal, zoning and land use planning, and shelter services Health and sanitation, urban protection and pollution control Public Safety.

The powers of the MMDA are limited to: 1. Formulation 2. Coordination 3. Regulation 4. Implementation 5. Preparation 6. Management 7. Monitoring 8. Setting of policies 9. Installation of a system and administration. • There is no grant of police power nor legislative power. It is not an LGU and thus has no power to enact ordinances, approve resolutions and appropriate funds for the general welfare of the people of Metro Manila. MMDA v. Bel-Air: MMDA cannot order Bel Air Village to open Jupiter Street to the public because it is not an LGU with police power. MMDA v. Garin: MMDA may confiscate and suspend or revoke a driver’s license when a traffic law or regulation has been violated as part of its mandate to manage transportation and traffic as well as the administration and implementation of all traffic enforcement operations, traffic engineering services and traffic education programs. Sec. 12: Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province whose charters contain no such prohibition shall not be deprived of their right to vote for elective provincial officials. Kinds of cities: 1. Highly urbanized cities as determined by law a. Don’t vote in provincial elections (they are independent from the province) 2. Cities not raised to the highly urbanized category but whose existing charters prohibit their voters from voting in provincial elections a. Don’t vote in provincial elections (they are independent from the province) b. Envisioned as an ad-hoc category to take care of existing charters but they can become either highly urbanized or become a component cities qualified to vote. 3. Component cities a. Cannot be denied the right to vote b. Can rise to level of a highly urbanized city. Abella v. COMELEC: A resident of a component city whose charters prohibit voting in a provincial elective official may not run for a provincial elective office. Sec. 13: Local Government Units may group themselves, consolidate or coordinate their efforts, services and resources for purposes commonly beneficial to them in accordance with law. This doesn’t create a new juridical entity. LGUs may create grouping even prior to an enabling law.

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Page%56%of%69% % Sec. 14: The president shall provide for regional development councils or even similar bodies composed of Local Government Officials, Regional heads of Departments and other Government offices, and representatives from Non-Governmental organizations within the regions for purposes of administrative decentralization not strengthen the autonomy of the units therein and to accelerate the economic and social growth and development of the units in the region. AUTONOMOUS REGIONS: Sec. 15: There shall be created Autonomous Regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities and geographic areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the National sovereignty as well as territorial integrity of the Republic of the Philippines. An autonomous region is not an independent nation it is organized within the framework of the Constitution and the national sovereignty. Sec. 16: The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. Sec. 17: All powers, functions and responsibilities not granted by this Constitution or by law to the Autonomous Regions shall be vested in the National Government. Powers not given to autonomous regions: 1. National defense and security 2. Foreign relations and trade 3. Customs and tariff 4. Quarantine 5. Currency 6. Monetary affairs 7. Foreign exchange 8. Banking and quasi-banking 9. External borrowing 10. Posts and communications 11. Air and sea transport 12. Immigration and deportation 13. Citizenship and naturalization 14. General auditing.

Pandi v. CA: An ordinary statute cannot amend the organic act that provides for an autonomous region, which under the Constitution can only be created and changed through a plebiscite called for the purpose. Sema v. COMELEC: The ARMM Regional Assembly enacted MMA Act 201 creating the Province of Shariff Kabunsuan composed of 11 municipalities, 8 of which are from the first district of Maguindanao. COMELEC passed a resolution renaming the legislative district to the Province of Shariff Kabunsuan with Cotabato City. Sema, a candidate during the 2007 elections, prayed for the exclusion of votes cast in Cotabato City, contending that Shariff Kabunsuan is entitled to one representative under Section 5, Article VI of the Constitution. The issue is the constitutionality of Section 19, Article VI of RA 9054 delegating to the ARMM Regional Assembly the power to create provinces, cities, municipalities, and barangays. The Court held that a province cannot be created without a legislative district because it will violate Section 5 (3), Article VI of the Constitution as well as Section 3 of the Ordinance appended to the Constitution. To create any of the four LGUs (Province, city, barangay, and municipality) the requisites are: 1. Must follow the criteria fixed in the LGC 2. Creation must not conflict with the Constitution 3. There must be a plebiscite in the political units affected. Under the Constitution, a province cannot be created without a legislative district. Thus, the power to create a province, or a city with a population of 250,000 or more, requires also the power to create a legislative district. Even the creation of a city with a population of less than 250,000 involves the power to create a legislative district because once the city’s population reaches 250,000, the city automatically becomes entitled to one representative under Section 5 (3), Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution.

Sec. 18: The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from mulit-sectoral bodies. The Organic Act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, Both of which shall be elective and representative of the constituent political units. The Organic Acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of the Constitution and National law. The Creation of the Autonomous region shall be effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.

The power to create a province or city inherently involves the power to create a legislative district. The allowable membership of the House of Representatives can be increased, and new legislative districts of Congress, only through a national law passed by Congress can be created, only through a national law passed by Congress. Since the ARMM Regional Assembly has no legislative power to enact laws relating to national elections, it cannot create a legislative district whose representative is elected in national elections. In relation to Article X of the Constitution, the creation of the ARMM, and the grant of legislative powers to its Regional Assembly under its organic act, did not divest Congress of its exclusive authority to create legislative districts. - Nothing in Art. 10, sec. 20 allows the creation or reapportionment of legislative district and under the ARMM Organic Act, the regional assembly may exercise legislative powers EXCEPT when it comes to national elections therefore it cannot create a legislative district whose representative would have to be elected in national elections. Province of North Cotabato v. GRP: The main body of the MOA_AD has four parts: 1. Concepts and principles: The Bangsamoro Juridical Entity (BJE) which has the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.

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a.

2. 3.

Bangsamoro people: natives or original inhabitants of Mindanao. And its adjacent islands including Palawan and Sulu archipelago and their descendants including their spouses. b. Bangsamoro people therefore not only includes Moros as traditionally understood but ALL INDIGENOUS PEOPLES OF MINDANAO AND ITS ADJACENT ISLANDS. Territory: The BJE is defined as the geographic area of ARMM and other provinces, cities, municipalities, and barangays (Brgys. In Zamboanga, Palawan, sulu, etc.) Resources: BJE is free to enter into economic cooperation and trade relations with foreign countries and shall have the option to establish trade mission in those countries. a. External defense is to remain with the national government. b. The national government is to take steps to ensure that the BJE is able to participate in international meetings and events like the ASEAN and the UN. c. Governance: The relationship between the RP government and BJE is associative. It provides that “provisions requiring amendments to the existing legal framework shall take effect upon signing of the comprehensive compact and upon effecting the aforesaid amendment.”

Substantive Issues: 1. The MOA-AD is inconsistent with the Constitution and laws as presently worded. a. International Law Concept of Association: when two states of unequal power voluntarily establish durable lings. One state the associate, delegates certain responsibilities to the other – the principal—while maintaining its international status as a state (middle ground between integration and independence). It is usually used as a transitional device of former colonies on their way to full independence. b. The Associative concept in the MOA-AD has many provisions, which are consistent with this international concept of association. i. Capacity to enter trade relations with foreign countries ii. Participation in meetings and events of ASEAN and UN. c. The concept of association is NOT recognized under our Constitution. i. The concept implies powers that go beyond anything granted by the Constitution to any local or regional government. Implies the recognition of the associated entity as a state. The Constitution however does not contemplate any state in this jurisdiction other than the Philippine State. 2.

3.

The BJE is a far more powerful entity than the autonomous region recognized in the Constitution. a. BJE is a state in all but name as it meets the criteria laid down in the Montevideo Convention (permanent population, defined territory, government, capacity toe enter into relations with other states) – thus contrary to the Constitution. b. Furthermore, the fact that the components of the ARMM already had a plebiscite for the ARMM doesn’t render having another plebiscite unnecessary because BJE is a completely different entity that would require another plebiscite. The MOA-AD would not comply with Article 10, Section 20 of the Constitution: a. To accept the BJE and MOA-AD would require an amendment to this Article to expand the list in the provision. b. Under sub-paragraph 9 of Section 20 of Article 10 allows increasing the powers of the region by passage of law. However the mere

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c.

passage of law pursuant to this would not suffice since any law that might vest in the BJE powers found in the MO-AD should also comply with other provisions of the Constitution. Thus, if a law would be passed for instance to give treaty-making power to the BJEC it would go against the our Constitutional system that provides that the President is the sole organ and authority for external relations. Not only is it inconsistent with the Constitution but also statutory law such as the Organic Act of ARMM and the IPRA. i. Under the organic act the term Bangsamoro contrasts with the definition therein where under the act a distinction between Bangsamoro people and tribes people is made while in the MOA-AD they are lumped together. ii. IPRA lays down prevailing procedure of delineating and recognizing ancestral domain, the MOA-AD’s manner is a clear departure from that procedure. (In IPRA it is more detailed procedure, in MOA-AD it just states that the land mass, maritime, terrestrial, fluvial, etc embracing the mindano-sulu-palawan geographic region).

Ordillo v. COMELEC: The province of Ifugao which was the only province which voted for a Cordillera Autonomous Region cannot constitute an autonomous region since the Constitution provides that it should be made of provinces not just one province. Spouses Badua v. Cordillera Bodong Administration: Since the CAR was rejected by all provinces except IFUGAO the Cordillera Bodong Administration as well as the special courts created do not exist and neither do these courts posses juridical power and therefore cannot render any valid executor decision. Abbas v. COMELEC: Even if the Organic Act of Mindanao is violative of the Tripoli Agreement it is still valid since international agreements and statutes are on the same level and which ever is later supersedes the earlier one. The approval of an organic act doesn’t automatically create the autonomous region. It is still subject to ratification in a plebiscite. It is enough for the creation of the autonomous region that some provinces, cities and geographic areas vote favorable and need not be a majority vote of all those units. Sec. 19: The first congress elected under this constitution shall, within eighteen months from the time of organization of both houses, pass the organic acts for the autonomous regions in Muslim Mindanao and Cordilleras. Sec. 20: Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: 1. Administrative organization 2. Creation of sources of revenues 3. Ancestral domain and natural resources 4. Personal, family and property relations 5. Economic, social and tourism development 6. Educational policies 7. Preservation and development of the cultural heritage and 8. Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region

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The enumeration is not exhaustive as to what the Organic Act may give to the autonomous regions.

5)

Sec. 21: The preservation of peace and order within the regions shall be the responsibility of the local police agencies, which shall be organized, maintained, supervised and utilized in accordance with applicable laws. The defense and security of the regions shall be the responsibility of the national government.

6)

Other high crimes: offenses, which, like treason and bribery, are indictable offenses and are of such enormous gravity that they strike at the very life or orderly working of the government Betrayal of public trust: intended to be a catch-all phrase to cover any violation of the oath of office; refers to all acts, even if not punishable by statute as penal offenses, which would render the officer unfit to continue in office

Section 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. ART. XI. ACCOUNTABILITY OF PUBLIC OFFICERS Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives. II. Public office is a public trust < Sums up the high sense of idealism that is expected of every officer of the government < The basic idea of gov’t in the Philippines is that of a representative gov’t, the officers being mere agents and not rulers of the people < Provisions are designed to exact accountability from public officers < “lead modest lives”: means to live within one’s means, and if one’s means are generous, not to flaunt them in conspicuous display Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. I.

Impeachment: Who can be impeached/grounds for impeachment

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Sec.2 enumerates the officers who are removable only by impeachment: 1) President 2) VP 3) Members of the SC 4) Chairmen and members of the CSC, COMELEC and COA 5) Ombudsman

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In prohibiting the legislature from increasing the number of impeachable officers, the intention was to prevent the creation of a special class of statutorily protected officials. The right to be removed only by impeachment is the Constitution’s strongest guarantee of security of tenure Grounds for impeachment: 1) Culpable violation of the Constitution: willful and intentional violation and not those committed unintentionally or involuntarily or in good faith or through honest mistake or judgment 2) Treason 3) Bribery 4) Graft and corruption

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(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution or endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least onethird of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. (7) 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. (8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. I.

Procedure and Penalty

In re: Gonzales [disbarment against an impeachable public officer]: The issue here is whether Justice Fernan, a member of the Supreme Court, can be subject of disbarment proceedings. Members of the SC, must, under Art.8(7)(1) of Constitution, be members of the Philippine Bar and may be removed only impeachment. To grant a complaint for disbarment of an SC member during incumbency would in effect circumvent and hence to run afoul of the constitutional mandate.

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the the by his

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Estrada vs. Desierto [judgment in impeachment]: After Erap ‘”resigned”, several cases previously filed before the Ombudsman were set in motion. Erap was saying that these cases should be prohibited because he had not been convicted in the impeachment proceedings against him. The SC rejected this argument, as his impeachment proceedings were deemed functus officio by the Senate. Such plea by Erap, if granted, would be a perpetual bar against his prosecution. Francisco vs. HR [initiation]: The 1st impeachment complaint filed against Davide was made on June 2, 2003. The House Committee on Justice dismissed it for being insufficient in substance. 4 months after, a 2nd impeachment complaint was filed still against Davide, accompanied by a resolution of endorsement signed by at least 1/3 of all the members of the House of Representatives. The issue is whether the filing of the 2nd impeachment complaint comes within the 1-year bar provided in the Consti; the resolution of this issue hinges on the interpretation of the term "initiate." It clear that the framers intended "initiation" to start with the filing of the complaint. In his amicus curiae brief, Commissioner Maambong explained that "the obvious reason in deleting the phrase "to initiate impeachment proceedings" as contained in the text of the provision of Section 3 (3) was to settle and make it understood once and for all that the initiation of impeachment proceedings starts with the filing of the complaint, and the vote of one-third of the House in a resolution of impeachment does not initiate the impeachment proceedings which was already initiated by the filing of a verified complaint under Section 3, paragraph (2), Article XI of the Constitution." According to Fr. Bernas, the term "cases" must be distinguished from the term "proceedings." An impeachment case is the legal controversy that must be decided by the Senate. Only the House, by a vote of one-third of all its members, can bring a case to the Senate. However, before a decision is made to initiate a case in the Senate, a "proceeding" must be followed to arrive at a conclusion. It takes place not in the Senate but in the House and consists of several steps: (1) there is the filing of a verified complaint either by a Member of the House or a private citizen endorsed by a Member of the House; (2) the processing by the proper Committee which may either reject the complaint or uphold it; (3) whether the Committee rejects or upholds the complaint, the resolution must be forwarded to the House; and (4) there is the processing of the House of Representatives which either affirms the resolution of the Committee or overrides a contrary resolution by a vote of one-third of all the members. If at least one third of all the Members upholds the complaint, Articles of Impeachment are prepared and transmitted to the Senate. It is at this point that the House "initiates an impeachment case." Therefore, initiation takes place by: (1) the act of filing the impeachment/verified complaint; AND (2) Congress' taking initial action of said complaint by its referral to the house committee of justice. Once an impeachment complaint has been initiated in the foregoing manner, another may not be filed with the same official w/in 1 year. Gutierrez vs. HR: Before the 15th Congress opened, the Baraquel group filed an impeachment complaint against OMB Gutierrez. Barely a week after the opening, the Reyes group also filed an impeachment complaint. On the same day the 2nd complaint was filed, the HR provisionally adopted the Rules of Procedure on Impeachment Proceedings. HR then simultaneously referred the complaints to the Comm on Justice. It was found to be sufficient in form. The rules were then published. Petitioner is alleging that the 2 impeachment complaints go against the 1-year bar and that the rules were published a %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

day after ruling the sufficiency of the complaints. SC ruled that the Consti did not prescribe a specific method of promulgation; hence it was up to Congress to determine how to promulgate its Impeachment Rules. For the 1-year bar to apply, initiation starts with the filing of the complaint which must accompanied with an action to set the complaint moving. It refers to the filing + Congress’ taking initial action of said complaint. Such initial action is referral to the Comm on Justice. There mere filing of a complaint is not the “initiation” contemplated by the Consti. Referring the complaint to the proper committee ignites the impeachment proceeding. Only 1 impeachment PROCEEDING should be filed against the impeachable officer per year, not COMPLAINTS. Hence multiple complaints are allowed as long as they are consolidated. People of the Philippines v. Renato C. Corona (Verdict) WHEREFORE, in accordance with Article XI, Section 3 (7) of the Constitution, the penalty of removal from office and disqualification to hold any office under the Republic of the Philippines is hereby imposed upon respondent Chief Justice Renato C. Corona. Penalty: Removal or censure? Oddly enough, the Senate Rules on Impeachment do not provide for a penalty upon conviction. The 1987 Constitution provides that the penalty in an impeachment case is removal from office and perpetual disqualification from holding any public office. But in previous impeachment cases in the United States of America–where the Philippine system of impeachment is based–the alternative penalty of censure has been imposed which allows the impeached official to stay in office. Section 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. I. < < <

The Sandiganbayan Sec. 4 reaffirms the continuing existence of the Sandiganbayan which has jurisdiction over criminal and civil cases involving graft and corrupt practices Congress has the authority to fix its jurisdiction Generally, the jurisdiction of the SB is over public officers, but in case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, they shall be tried jointly

Lecaros vs. Sandiganbayan [crimes in relation to public office]: Petitioner was a mayor and charged before the SB for grave coercion wherein he took over the operation and control of a gas station owned by Par. He opposed, alleging that the SB had no jurisdiction over the case because the offense does not relate to his duties as a mayor. The SC dismissed it, ruling that it is clear from the Consti that SB has jurisdictional competence not only over criminal and civil cases involving graft and corrupt practices committed by public officers and employees but also over other crimes committed by them in relation to their office. The information clearly alleged that he took advantage of his position as mayor when he intimidated the gas station’s owner and took over its operations. Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed. Section 6. The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the Ombudsman, according to the Civil Service Law.

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Page%60%of%69% % Section 7. The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution. I.

Tanodbayan now the Special Prosecutor

Zaldivar vs. Sandiganbayan: Petitioner as a governor, sought to restrain the SB and the Tanodbayan from proceeding with the prosecution of his case on the ground that the cases were filed by the latter without legal and constitutional authority. He argues that under the 1987 Consti, it is only the Ombudsman who has the authority to file cases with the SB. Since the power to investigate has been given Sec.13(1) to the Ombudsman,, the Special Prosecutor could neither investigate nor prosecute unless authorized by the Ombudsman. Section 8. The Ombudsman and his Deputies shall be natural-born citizens of the Philippines, and at the time of their appointment, at least forty years old, of recognized probity and independence, and members of the Philippine Bar, and must not have been candidates for any elective office in the immediately preceding election. The Ombudsman must have, for ten years or more, been a judge or engaged in the practice of law in the Philippines. During their tenure, they shall be subject to the same disqualifications and prohibitions as provided for in Section 2 of Article 1X-A of this Constitution. Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be filled within three months after they occur. Section 10. The Ombudsman and his Deputies shall have the rank of Chairman and Members, respectively, of the Constitutional Commissions, and they shall receive the same salary which shall not be decreased during their term of office. Section 11. The Ombudsman and his Deputies shall serve for a term of seven years without reappointment. They shall not be qualified to run for any office in the election immediately succeeding their cessation from office. I. Qualifications, appointment and term of the Ombudsman < Appointed by the President from a list of nominees presented by the JBC < Have the rank of Chairman and Members of the Constitutional Commissions < Serve for a term of 7 years < Qualifications are set down in Sec.8 Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. I. <

Duty to act on complaints vs. gov’t officials The present Ombudsman, as protector of the people, is mandated to act promptly on complaints filed in any form or manner

Almonte vs. Vasquez [form and manner of complaint – unsigned letter]: %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

The Ombudsman issued a subpoena duces tecum due to an anonymous letter purported to be from an EIIB employee alleging some corrupt practices being made in the said office. Petitioners are contesting on the ground that an unsigned and unverified letter complaint is not an appropriate case within the concept of the Consti where the Ombudsman can oblige petitioners to produce the documents for the investigation. The SC ruled that “in an appropriate case” means any case concerning official acts or omissions which is alleged to be illegal, unjust, improper or inefficient. The Consti expressly enjoins the Ombudsman to act on any complaint filed “in any form or manner”. Cabalit vs. COA – Region VII The Office of the Ombudsman in Visayas found three officers of the Land Transportation Office in Bohol were liable for dishonesty for tampering with the official receipts to make it appear that they collected lesser amounts than what was actually collected. The penalties of dismissal from service, cancellation of civil service eligibility, forfeiture of retirement benefits and disqualification from re-employment in the government service were imposed on them. Petitioner Cabalit argues that the Ombudsman does not have the power to impose penalties, but only the power to recommend the imposition of the same. The SC ruled that the power of the Ombudsman to determine and impose administrative liability is not merely recommendatory but actually mandatory. The implementation of the order imposing the penalty is, however, to be coursed through the proper officer. Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties: (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. (2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and 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, and 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. (6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence. (7) 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. (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.

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Page%61%of%69% % I. < <

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Powers and responsibilities of the Ombudsman; deputies. In General. Functions essentially as a complaints and action bureau One of the principal functions of the officer contemplated in this section is the capability to attend and act immediately on complaints not leading to prosecution but to correction or implementation of the request, either phoned in, or simply made orally or even in writing Given fiscal autonomy by sec.14 Congress enacted the Ombudsman Act of 1989, which among others, authorized the Ombudsman to conduct preliminary investigations and to prosecute. Where the Ombudsman has the power to investigate a complaint, he also has the authority to dismiss a complaint o If he finds that it is insufficient in form or substance, or otherwise no ground to continue with the inquiry, he may dismiss it Has no authority to substitute his judgment for the discretion of an agency which has the expertise on a subject matter While the power to investigate is primary, it is not exclusive and under the Ombudsman Act of 1989, he may delegate it to others who have the power to investigate and take it back anytime he wants to

Cruz vs. Sandiganbayan [concurrent jurisdiction with the PCGG]: An info was filed by the PCGG Chairman with the Sandiganbayan charging petitioner of doing acts to the damage and prejudice of the gov’t. When petitioner filed a motion to quash, PCGG to amended the info, saying that the petitioner was a subordinate or crony/associate of Marcos who used undue advantage of his public office by using his relationship with Marcos. Petitioners allege that due to the 1987 Consti, PCGG no longer had any authority to prosecute cases, as such is solely within the Ombudsman’s powers. The SC ruled that even if the Ombudsman has the primary jurisdiction under the Ombudsman’s Act over the cases cognizable by the Sandiganbayan, this authority is not exclusive but is concurrent with other similarly authorized agencies of the gov’t. Thus the authority of the PCGG to conduct preliminary investigation of ill-gotten wealth and/or unexplained wealth is maintained. (but in this case it was a case not under the Marcos cronies so the authority of the PCGG to investigate this case had to be assigned by the President) NOTE: the difference between the Truth Commission and the PCGG was that the latter was made under the legislative power of Cory Aquino before the enactment of the 1987 Consti. But remember that held that the President had the power to create the Truth Commission, it just didn’t pass the equal protection test. Salvador vs. Mapa [no power to decide constitutional questions]: The Presidential Ad Hoc-Finding Committee on Behest Loans filed a sworn complaint with the Ombudsman against respondents which the Ombudsman dismissed. The Ombudsman ruled that prescription had already set in and that the AO and MO creating the committee were ex-post facto laws and thus unconstitutional. The court ruled that the crime had not yet prescribed as the prescriptive period for the offenses should be computed from the discovery of the commission and not from such commission. The Ombudsman also has no jurisdiction to entertain questions on the constitutionality of a law, therefore acting in GAD. II. Preventive Suspension and Imposition of Penalties Buenaseda vs. Flaiver [when to suspend]: The Ombudsman directed the preventive suspension of petitioners who were all officers of the Nat’l Center for Mental Health in connection to a complaint filed against them for %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

violation of the Anti-Graft and Corrupt Practices Act. The court ruled that such action was proper. In order to conduct an investigation in an expeditious and efficient manner, the Ombudsman may need to suspend the respondent. The suspension given was merely preventive and there is nothing improper with such act. The power of the Ombudsman to “recommend the suspension” refers to suspension as a punitive measure. III. Jurisdiction over Criminal Cases Lastimosa vs. Vasquez [prosecutor’s assistance]: The 1st Asst. Provincial Prosecutor and the provincial prosecutor refused or failed to file a criminal charge as ordered by the Ombudsman. Because of this, an administrative complaint was filed against them. The court ruled that the Office of the Ombudsman has the power to call on the Provincial Prosecutor to assist it in the prosecution of the case. The case was a rape case against a mayor. The Ombudsman has the power to investigate and prosecute of any crime committed by a public official regardless of whether they are related to or connected with or arise from the performance of his official duty. It’s enough that it was committed by a public official. He is authorized to call on prosecutors for assistance under the Ombudsman Act. Even if the preliminary investigation had been given over to the Provincial Prosecutor to conduct, his determination of the nature of the offense to be charged would still be subject to the approval of the Office of the Ombudsman. PCGG vs. Desierto: Based on a sworn statement of a PCGG consultant, the petitioner filed a criminal complaint with the Ombudsman against the respondent whom is alleged to have violated RA3019. Respondent ombudsman dismissed it, ruling that the offense has prescribed. The SC ruled that the ombudsman committed GAD in dismissing the complaint. Records show that the act complained of was discovered in 1992 while complaint was filed 3 years after. Thus the filing of the complaint was well within the prescriptive period of 15 years. Section 14. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly released. Section 15. 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. I. <

Exemption of gov’t from prescription, laches, estoppels Imprescriptibility only applies to civil actions for recovery of ill-gotten wealth and not criminal cases

Section 16. No loan, guaranty, or other form of financial accommodation for any business purpose may be granted, directly or indirectly, by any government-owned or controlled bank or financial institution to the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, and the Constitutional Commissions, the Ombudsman, or to any firm or entity in which they have controlling interest, during their tenure. I. <

Financial accommodation The list of gov’t officials in Sec.16 includes those of high rank. o Intention is to prevent such officials from making use of their positions for purposes of obtaining financial accommodations from gov’t institutions and from firms wherein they have a controlling interest o By limiting the list to high ranking officials, avenues for financial relief are not denied to officials of lower rank

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Section 17. A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law. I. <

Disclosure of assets 2 commands of Sec.17: 1) Filing of a declaration of assets and liabilities o Applicable to all public officers and employees regardless of rank 2) Public disclosure of assets and liabilities in the manner prescribed by law o Applicable only to:  President  VP  Members of cabinet  Congress  SC  Constitutional Commissions  Other Constitutional offices o Legislature may also require public disclosure of the assets and liabilities of other officials

Section 18. Public officers and employees owe the State and this Constitution allegiance at all times and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law. I. <

Allegiance of Public Officers Public officers are expected to set the example or standard of single-minded allegiance to the nation and to the public interest

Caasi vs. CA [foreign citizen] *not assigned but mentioned in class Petitions seeking the disqualification of the municipal mayor on the ground that he is a green card holder, hence he is a permanent resident of the US and not of Bolinao, Pangasinan. Mayor admits that he does hold a green card but he denies that is a permanent resident. The SC ruled that his application for immigrant status and permanent residence in the US and the possession of a green card attesting to such status are conclusive proof that he is a permanent citizen of the US. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that there is an irrevocable waiver before he ran for mayor, the conclusion is he is disqualified to run for said public office. The assumption is that those who are resident aliens of a foreign country are incapable of such entire devotion to the interest and welfare of their homeland for with 1 eye on their public duties here, they must keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their status as permanent residents thereof.

ARTICLE XII: NATIONAL ECONOMY AND PATRIMONY: Sec. 1: The goals of the national economy are a more equitable distribution of opportunities, income, and wealth’ a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all especially the underprivileged. %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

The State shall promote industrialization and Full employment Based on sound agricultural development and agrarian reform, through industries that make full and deficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises, against unfair foreign competition and trade practices. In the pursuit of these goals, all sectors of the economy and all religions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership. Goals of 1. 2. 3.

the national economy: More equitable distribution of wealth Increase of wealth for the benefit of the people Increased productivity.

*Sec. 2: All lands of the Public domain, waters, minerals coals, 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. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development and utilization of natural resources shall be under the full control utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty five years and udner such terms and conditions as MAY BE PROVIDED BY LAW. The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino Citizens. The Congress may by law allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming with priority to subsistence fishermen and fishworkers in river, lakes, bays and lagoons. The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals petroleum and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the state shall promote the development, and use local scientific and technical resources. Regalian Doctrine: All lands were held from the crown, ownership is vested in the State (not the head of the State). Any person claiming ownership from the state according to any of the recognized modes of acquisition of title. Oh Cho v. Dir. Of Lands: Land or public domain may becomeprivate land when it is

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purchased from the government or given by grant. An exception would be those possessed since time immemorial, for such possession would justify the presumption that the land had never been part of the public domain. San Miguel v. CA: Alienable land of the public domain may be transformed into private land when occupied open, exclusive and undisputed for the prescribed period of time. (The thirty year period for possession will only begin from when the time is converted into alienable prior to that it will not be counted).

1.

The SC ruled that since the FTAA is now to be implemented by a Filipino Corporation the court can no longer declare it unconstitutional since the case pending is a dispute between two Filipino companies (Sagitarius and Lepanto).

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The petitioners claim that a Fil. Corp is not allowed to enter into an FTAA with the government. An analysis of the Consti however does not show this. a. Under the constitution the mining activities (exploration, development and utilization) may be undertaken with Filipino except when it is small scale utilization – Filipinos can undertake them alone by law and when the State through agreements with foreign corps involving either technical or financial assistance. b. “involving agreements for financial or technical assistance” does not exclude other modes of assistance. The use of the word “involving” would show the possibility of the inclusion of other forms of assistance or activities thus activities with foreign corps should not be limited only to such. c. Furthermore if it were only financial or technical assistance that would be allowed, then there would be no need to limit them to large-scale mining operations as there would be a far greater need for them in the smaller-scale mining activities. d. The framers knew that at that time there were several service contracts between Filipino companies and foreign companies and if they meant to ban service contracts altogether they would have so provided for the termination of the contracts. e. Technical or financial assistance agreements are still service contracts however with safeguards.—foreign is contractor while Phil. Govt. is the principal or owner of the works. The Foreign contractors provide capital, technology and know-how and managerial expertise in creating large-scale enterprises and the Govt. through agencies acitive exercises control and supervision over the project.

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Did RA 7942 and the IRR give the govt sufficient control in order to direct affairs of enterprises. It was claimed that the FTAA in effect gives full control and management of mining enterprises over to fully owned foreign-owned corporations with the State. The SC said the state does not merely become a passive regulator. The agencies are empowered to approve or disapprove (influence, direct and change) various work programs and expenditure commitments for each of the exploration, development and utilization phases of the mining enterprise. RA 7942 and the IRR have sufficient degree of control and supervision. a. A provision under the RA allows foreign contractors to apply for and hold an exploration permit – is this unconstitutional? The SC said no, the Constitution mandates full control and supervision over exploitation of mineral resources but nowhere does it require the government to hold all exploration permits. These permits serve a practical purpose since during the time of the contract they would spend time on exploration works even if not earning revenues.

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Section 7.9 however is invalid because it gives away the State’s share of net mining revenues without anything in return. Unjust enrichment on the stockholders of WMCP.

Limitations: 1. Only agricultural lands of the public domain may be alienated. 2. The exploration, development, and utilization of all natural resources shall be under the full control and supervision of the State either by directly undertaking such exploration, development and utilization or through co-production, joint venture or production-sharing agreements with qualified persons or corporations. 3. All agreements with qualified private sector may be for only a period not exceeding twenty-five years, renewable for another twenty-five years. (25y limit is not applicable to rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power) 4. The use and enjoyment of the marine wealth of the archipelagic waters, territorial sea, and exclusive economic zone shall be reserved for Filipino citizens. 5. Utilization of natural resources in rivers, lakes, bays, and lagoons may be allowed on a “small scale” to Filipino citizens or cooperatives. Reclaimed land to be registered as private property must be classified first to alienable and second must show proof of acquiring the property. Chavez v. PEA: In order for PEA to sell its reclaimed foreshore and submerged alienable lands of the public domain, there must be legislative authority empowering PEA to sell these lands. Laurel v. Garcia: Roponggi Property in Japan is property of public dominion and therefore outside the commerce of man and cannot be alienated. Aliens cannot lease lands of the public domain because that would involve enjoyment of the natural resources of the public domain. JG Summit v. CA: A foreign corporation may buy shares in excess of 40% in a corporation. The only consequence would be to lose its capacity to hold land (the restriction of an alien to hold property is only restricted to land he may own other forms of immovable). Krivenko v. Register of Deeds: A lease to an alien for a reasonable period is valid. So is an option giving an alien the right to buy real property on the condition that he is granted Philippine citizenship. La Bugal-B’lann Tribal Association v. Ramos: The case involves the constitutionality of RA 7942 the Philippine Mining Act, its RR and the FTAA executed between the govt and Western Mining Corporation which is a subsidiary of an Australian Company. The Court en Banc decided that the FTAA (financial and technical assistance agreement) executed between the two were service contracts prohibited by the 1987 constitution. During the pendency of the case however, WMC shares were sold to Sagittarius which is 60% owned by Filipinos and/Fil owned corps and the FTAA was subsequently transferred and registered in the name of Sagittarius from WMCP. %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

Section 7.82 also invalid because it provides that the money that the government paid for building roads etc. to lead to the mine site will also be deductible form the State’s share in net mining – unjust enrichment.

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Sec. 3: 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 by law according to the uses to which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area.

Cruz v. Sec. of DENR: Assailed is the constitutionality of the IPRA because it amounts to unlawful deprivation of the State’s ownership over the lands of the public domain as well as minerals and other natural resources in violation of the Regalian Doctrine. Also providing an allencompassing definition of “ancestral domains” or “ancestral lands” violates the rights of private landowners. The SC said it was constitutional (because voting was 7-7). !

Citizens of the Philippines may lease not more than five hundred hectares or acquire not more than twelve hectares thereof by purchase, homestead, or grant. Taking into account the requirements of conservation, ecology and development and subject to the requirements of agrarian reform, the congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held or leased and the conditions therefor. Dir. Of Lands v. IAC: The director of lands questioned the judgment of IAC that ordered the registration of 5 parcels of land to CME CO., which it bought from the Infiels who were part of the cultural minority. They claimed that the land is public domain and therefore cannot be granted to private corporations. The Meralco case which said that a certificate of title is issued to a Filipino is necessary in order for public land to be considered private is wrong. Torrens title only used to confirm but not vest title. Nothing in the Constitution, which would prohibit corporations from acquiring interests in lands, which were acquired by a person through acquisitive prescription. Dir. Of lands v. CA: The classification of public land is an exclusive prerogative of the executive department and not the courts. In the absence of such classification the land remains unclassified (the change of classification does not happen automatically when the nature of the land changes, a positive act by the executive is still required). Republic v. CA: Owner of agricultural land where minerals are discovered does not own such, the State may stop the use of the person of such land in order to extract the minerals (the owner is entitled to appropriate compensation for the loss of the use of the land). Sec. 4: Congress shall, as soon as possible, determine by law the specific limits of forest lands and national parks, marking clearly their boundaries on the ground. Thereafter, such forest lands and national parks shall be conserved and may not be increased or diminished, except by law. The Congress shall provide, for such periods as it may determine, measures to prohibit logging in endangered forests and in watershed areas. Sec. 5: The State, subject to the provisions of this Constitution and national development policies and programs shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social and cultural well-being.

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Ancestral domains: all areas belonging to ICC/IPP under a claim of ownership since time immemorial or as a consequence of government projects or other voluntary dealings with the government. Ancestral lands are held by ICC/IP under the same conditions as ancestral domains but are limited to those not merely occupied and possessed but utilized under a claim of individual or traditional group ownership. Native title in Carnio case that says that native title is private land and was never public thus never belonged to the state. All lands that were not acquired by government belongs to the public domain has an exception – any land that should have been in the possession of an occupant and of his predecessors-in interest since time immemorial. The Certificate of Ancestral Title (CADT) is only a formality as ownership is recognized under customary law and can co-exist with the civil law concept. The natural resources are still owned by the state and not included in the enumeration in IPRA. It merely grants management over them to the ICC/IP.

Sec. 7: 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. 8: Notwithstanding the provisions of Section 7 of this article, a natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands subject to limitations provided by law. Who can 1. 2. 3. 4.

own private lands: Filipino citizens Filipino corporations and associations as defined in Section 2 Aliens in case of hereditary succession Natural-born citizen of the Philippines who has lost Philippine citizenship.

Filipino citizens can both acquire or hold lands of the public domain but they can hold such lands by modes other than acquisition, such as lease. Property sold to a foreigner can be recovered by the Filipino vendor if the original parties to the violation had already died and been succeeded by administrators whom it would be unjust to impute the pari delicto doctrine. Second it can be recovered when it would enhance the declared public policy of preserving lands for Filipinos. Republic v. IAC: An alien may acquire property when at the time of the acquisition of the property there was no prohibition yet. Second if the alien acquired Filipino citizenship later on.

The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain.

Matthews v. Taylor: An alien ahs no right to challenge the validity of the lease of a piece of land which his wife had acquired since he has no right to acquire private property.

Ancestral Domain: All embracing concept, which refers to lands, inland waters, coastal areas, and natural resources therein and includes ancestral lands, forests, pasture, residential, agricultural and other lands individually owned whether alienable or not.

Ramirez v. Vda. De Ramirez: Partition of the estate of Ramirez among his widow, grandnephews and his companion Wanda. Under his will he granted usufruct of real property to Wanda

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who is an alien. Usufruct over land is not contrary to the constitution as it does not vest ownership onto a person. Also in this case testamentary succession is included in the prohibition. Halili v. CA: De Guzman, an American citizen, died and his forced heirs were his wife Helen and his son David who were both American. Helen made a deed of quitclaim assigning all properties to David. David then sold one of the properties to Cataniag. Petitioners now question the transfer to David of the properties of Helen. The SC ruled that although under the Constitution, you cannot transfer properties to aliens except in case of hereditary succession such was deemed cured when David transferred it to Cataniag since the purpose of leaving the properties with Filipinos is preserved. Osmena v. Osmena: Case between the petitioner who is the daughter of Osmena and Sy and the respondent is the grandchildren. Sy executed a will with the ancestral house but the lot was not included and was in the name of respondent’s father so the respondents transferred to their name after his death. Petitioner claims that she also owns the land from her mother (Sy) and it was only placed on the name of their brother because mother was a Chinese national and could not acquire land. Court wont allow the contravention of the constitution (must come to the court with clean hands). Exemption for former Filipino Citizens Republic v. CA: Spouses bought land when they were natural-born citizens. When they applied for its registration however they were naturalized Canadian citizens already. The SC said that they can still register it even if they were no longer Filipino citizens at that time. Under Art. 12 a natural born citizen who lost his citizenship may be a transferee of private land. As former Filipino citizens they can have the land registered. Sec. 9: The Congress may establish an independent economic and planning agency headed by the President, which shall, after consultations with the appropriate public agencies, various private sectors, and local government units, recommend to Congress, and implement continuing integrated and coordinated programs and policies for national development. Until the Congress provides otherwise, the National Economic and Development Authority shall function as the independent planning agency of the government. 1. Economic and planning agency ! The creation of such agency is optional since formal economic planning is not an indispensible part of managing the national economy ! Until Congress provides otherwise, the present NEDA will continue as the central planning agency which is recommendatory to Congress ! While it is independent of Congress, it is under the President and dependent on the President who chairs the body Sec. 10: The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities. I. ! !

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Filipinization Particular areas of business may be Filipinized without doing violence to the equal protection clause 2nd paragraph commands the state to give preference to qualified Filipinos in the grant of rights and privileges – and this, provided that the Filipino is “qualified” even if a foreigner is “more qualified” Provision is mandatory and enforceable only in regard to the grant of rights, privileges and concessions covering national economy and patrimony and not to every aspect of trade and commerce 3rd paragraph has reference to both the regulation of the entry of foreign investments and to regulation of foreign investments already I place

Manila Prince Hotel v. GSIS: Pursuant to a privatization program, GSIS wanted to sell Manila Hotel Corp. There were two bidders Manila Prince and Renong Berhard an Indonesian company. Renong won the bidding. The SC ruled that the sale of the Manila Hotel to Renong is violative of the constitution. Although the first paragrpah of Article 12 section 10 is non-self executing as it needs legislation, the second part is a mandate that rights, privileges and concessions covering national economy and patrimony of the state shall be given preference to qualified Filipinos. Estoppel wont work here when it violates the constitution. Manila hotel is part of Filipino culture and the Filipino first policy does not only cover natural resources but culture as well thus the sale to Renong is void. Army and Navy Club v. CA: Petitioner entered into a lease contract with the respondent and under it they are to pay 250k rent with increase, pay the taxes and construct a hotel within 5y. Petitioner failed. Petitioner then invokes that the Army and Navy Club was declared a national historical landmark by the National Historical Commission thus its existence cannot in any way be undermined by the simple ejectment suit. The SC said however that there is no showing that it became a national landmark since the signatories thereto of the certification are members of the club so it was self-serving. Such certification is not valid because it did not even follow the procedure provided by law: !

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The director of the national museum will convene panels of experts (natural sciences, history, fine arts, etc) who carefully study and deliberate which among the cultural properties will be considered “National Cultural Treasures.” It will then be marked, described , photograph by the national museum etc.

Also even if the certification was valid it would not prevent the suit because being declared a national treasure doesn’t give any kind of possessory right or claim of ownership over it. Nowhere in the law does it provide that such recognition grants possessory right. Also the case is only an ejectment case so the national treasure, if it were, is still preserved. Sec. 11: No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by such citizens; nor shall such franchise,

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certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines. I. !

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Public Utilities Public utility: a utility corporation which renders service to the general public for compensation o Essential feature is that its service is not confined to privileged individuals but is open to an indefinite public o 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 o It is a business or service engaged in regularly supplying the public with some commodity or service of public consequence such as electricity, gas, water, transportation, telephone or telegraph services This provision does not determine WHO may grant public utility franchises but only about the capacity to acquire a public utility franchise o Congress has the authority to grant franchises but may delegate it to gov’t agencies Filipinization of public utilities: requiring that any form of authorization for its operation should be granted only to Philippine citizens or corporations or associations organized under the laws of the Philippines at least 60% of the capital is owned by Filipinos. o Note that the mere formation of a public utility corporation without the required Filipino capital is not forbidden, but the granting of a franchise or other form or authorization is Franchises granted by the gov’t cannot be exclusive in character nor can a franchise be granted except that it must be subject to amendment, alteration or even repeal by the legislature when the common good so requires The first part of the last sentence which authorizes foreign investors to participate in the governing body of public utilities to the extent of their proportionate share in the capital, is a reversal of the Filipinization trend o But all executive and managing officers of such corporation/association must be Filipino citizens

Francisco v. TRB: Marcos authorized the establishment of toll facilities for the use of public improvements. Later a franchise was granted to Philippine National Construction Corporation for 30 years to operate toll facilities in NLEX, SLEX, Skyway. The Toll Regulatory Board was also created on the same day to enter into contracts for the construction and maintenance of the tollways, grant permits to operate toll facilities, and fix toll rates after due notice and hearing (on behalf of the government). Cory then became president and the 1987 constitution had the franchise provision which made the PNCC seek the opinion of the Government Corporate Counsel. It was held that PNCC may enter into a JVA with private entities without public bidding subject to certain requirements. %Sandy%Crab%and%The%Plagiarist% Plagiarized*from*Santos/Sobrepena%

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After a JVA is concluded, a new JV company formed to undertake a specific toll project. The Republic through the TRB (grantor), PNCC (operator) and new JV corporation (investor/concessionaire) will make a Supplemental Toll Operation Agreement (STOA) to implement the Toll Operation Agreement previously issued (TRB and PNCC signed a TOA on Nlex, Slex, with terms of toll operations). Once the project is completed the TRB fixed or approves the initial toll rate after which it prescribes periodic toll rate adjustment.

Claim: TRB does not have the power to grant administrative franchise for toll facilities because it is an exclusive power of Congress based on Art. 12, sec. 11. ! The SC held that such interpretation is wrong. A Franchise is a legislative grant of a special privilege to someone either from statue or can also be by an administrative agencies with delegated power to give franchise. Nothing in the Constitution indicates the necessity of a congressional franchise before a public utility may operate if the law delegates the authority to an administrative body to grant a franchise. (Needed to adapt to increase complexity of modern life). ! PNCC’s franchise granted by Marcos, expired in 2007 but even if it had already expired, the fact of expiration did not carry with it the cancellation of PNCC’s authority and that of its JV partners to construct, operate and maintain any part of NLEX, SLEX< MMEX. Claim: The rate fixing power and power to enter into contracts of the TRB is invalid. ! The SC held that there is difference between the initial fixing of toll rates and the periodic or subsequent toll rates. The requirement of notice in hearing for the approval of denial of petitions for toll rates only refers to adjustments or subsequent toll rates NOT initial toll rates. The TRB is authorized to approve initial toll rates without necessity of hearing. Only when there is a challenge on the toll rates that public hearings are required. In this case the initial toll rates came to pass without any hearing but there was no challenge on the validity of such. ! Furthermore, the use of a toll way/highway is a privilege with a cost and thus can’t necessarily say that exorbitant fees are being charged. There are alternative routes or roads that motorists may rely on if they are unwilling to pay the toll. Claim: The STOA entered into by TRB grants it authority to enter into contracts for the construction, operation and maintenance thereof. One of the STOAs (MNTC) granted to ADB and WB (The lenders of MNTC) unrestricted right to appoint a substitute entity to replace MNTC in case of an MNTC default before prepayment of the loans and an option to extend the franchise for another 50 years. ! The SC said that the power to determine WON to extend a concessionaire to operate a tollway is vested in the TRB and law and as such the lenders cannot unilaterally extend the concession period or impose and demand that TRB extend it. Furthermore, even if TRB is granted such power it cannot grant it for a period exceeding 50 years otherwise it would violate the constitution. In this case the original period was 30 years, and the clause that would allow extension if necessary to repay the loans to the lenders is a violation of the 50 year franchise threshold in the Constitution. Gamboa vs. Teves PTIC owns a substantial amount of shares in PLDT. The government wants to sell these shares to a HK-based corporation. Petitioner, a stockholder of PLDT, wants to nullify the sale of PTIC shares because if the sale would be permitted, the 60-40 requirement under the constitution would be violated. SC said that the

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definition of the term “capital” used in our constitution means the shares of stock which can vote, i.e. the common shares, not the outstanding capital stock. The Court in the case held that: “In construing the term “capital” in Section 11, Article XII of the Constitution to include both voting and non-voting shares will result in the abject surrender of our telecommunications industry to foreigners, amounting to a clear abdication of the State’s constitutional duty to limit control of public utilities to Filipino citizens. Such an interpretation certainly runs counter to the constitutional provision reserving certain areas of investment to Filipino citizens, such as the exploitation of natural resources as well as the ownership of land, educational institutions and advertising businesses. The Court should never open to foreign control what the Constitution has expressly reserved to Filipinos for that would be a betrayal of the Constitution and of the national interest. The Court must perform its solemn duty to defend and uphold the intent and letter of the Constitution to ensure, in the words of the Constitution, “a self-reliant and independent national economy effectively controlled by Filipinos.” Sec. 12: The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive. I. ! !

Filipino First Policy Gives native products and domestic entities preference in gov’t purchases The policy can extend beyond Filipino-first in gov’t transactions and into private transactions

Sec. 13: The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity. I. !

Economic exchange The forms and arrangements of economic exchange referred to can be any number of those which are in practice, e.g. counter-trade, common market arrangements, multi-country arrangements, etc. o The idea is not to tie down the country in any 1 form o Must serve the general welfare – which includes not just health, safety, security but also the idea of protection of local enterprises o Must be characterized not only by reciprocity but also by equality which imports mutual benefit

Sec. 14: The sustained development of a reservoir of national talents consisting of Filipino scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled workers and craftsmen in all fields shall be promoted by the State. The State shall encourage appropriate technology and regulate its transfer for the national benefit. The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law. I. ! ! !

Filipino professionals and skilled workers Reflects the desire not only to develop a ready reservoir of Filipino professionals, scientists and skilled workers but also to protect their welfare The limitation on the practice of professions, however, is subject to exceptions found in reciprocity laws Encourages technological independence and regulation of technology transfers for the wealth of the nation

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Sec. 15: The Congress shall create an agency to promote the viability and growth of cooperatives as instruments for social justice and economic development. Sec. 16: The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability. I. !

Private corporations Purpose is to insulate Congress against pressures from special interests o To permit the law making body by special law to provide for the organization or formation or regulation of private corporations, would in effect to offer to it the temptation in many cases to favor certain groups to the prejudice of other or to the prejudice of the interests of the country

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2nd sentence: includes the ideas that they must show capacity to function efficiently in business and that they should not go into activities which the private sector can do better o Economic viability is more than financial viability but also includes capability to make profit and generate benefits not quantifiable in financial terms

Sec. 17: In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest. I. ! !

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Temporary take-over Deals merely with the temporary state take-over of the operation of any privately owned public utility or business affected with public interest Justified in times of national emergency, when the public interest requires it o National emergency- encompassing threat from external aggression, calamities or natural disasters, but not strikes o Duration of the emergency is the measure of the duration of the takeover Business affected with public interest: business that has a lot of repercussion in public, whether it be public utility or other businesses which may partake of the characteristics of public utility but which is not yet considered public utility or any business which concerns a mass-based consumer group and especially among the low income groups

David v. Arroyo: PP 1017 does not authorize President Arroyo during the emergency to temporarily take over or direct the operation of any privately owned public or business affected with public interest without authority from Congress. Certain conditions must be met before the congress can grant emergency powers to the president: ! There must be a war or emergency ! Delegation is for a limited period ! Delegation must be subject to such restrictions as Congress may prescribe

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The emergency power must be exercised to carry out a national policy declared by Congress.

Constitution states that “the State may during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest,” means the Congress and not the president.

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There is a difference between the President’s authority to declare a state of national emergency and her authority to exercise emergency powers. ! State of national emergency (ART. 7, Sec. 18) is a power of the president to which no legitimate constitutional objection can be raised if she declares it. The exercise of emergency powers requires delegation from congress. Sec. 18: The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government. I. ! ! !

Nationalization Authority to impose total nationalization or as least near total The decision to nationalize may be made by the state through Congress, on the broad grounds of the interest of the national welfare or defense If it entails expropriation, it requires that the transfer of ownership can only be upon payment of just compensation

Republic v. PLDT: PLDT is a public service corporation with a legislative franchise to install, operate and maintain a telephone system throughout the Philippines. RCA is an American Corp that is authorized to transact business in the Philippines to operate domestic station for the reception and transmission of long distance messages to the US from PLDT and vice versa. BOTC in 1947 set up its own Government Tel. System and entered into a contract with PLDT to use their trunk lines. Part of the agreement said that such government system will not be used for commercial purposes or to call private parties. The Republic however entered into an agreement with RCA for joint overseas telephone services to and from local residents. PLDT then said BOTC was violating conditions since they were using the trunk lines not only for government offices but to service private persons or the general public and therefore in competition with PLDT. PLDT then severed the lines being used by BOTC and isolated the Philippines from the rest of the world. They failed to reach an agreement so RP commenced a suit against PLDT for the latter to execute a contract with BOTC for the use of PLDT’s telephone system facilities. The SC said should have made it like an eminent domain case and pay just compensation for the beneficial use of property. Also under the law PLDT’s franchise is not exclusive, and that PLDT is not even able to cope with the demand of telephone services. PLDT has right to just compensation for services rendered to the Government telephone system. Sec. 19: The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed. I. !

Monopolies and Combinations Provision is a statement of public policy on monopolies and on combinations in restraint of trade  espouses competition

Avon v. Luna: Luna worked for Avon, under their agreement there was a clause that they “can’t sell display or promote other products other than that sold by the Company.” Luna then sold products of Sandre (vitamins and supplements). The agreement was terminated on the ground of breach of the exclusivity clause. Luna claimed such was void for being restraint of trade. The SC held that an exclusivity clause is not necessarily void but depends on the circumstances. In this case, cant be said to be void because it doesn’t really prevent new entrants from entering the market etc., it is only meant for the protection of the investment of the company since they are engaged in direct selling. Sec. 20: The Congress shall establish an independent central monetary authority, the members of whose governing board must be natural-born Filipino citizens, of known probity, integrity, and patriotism, the majority of whom shall come from the private sector. They shall also be subject to such other qualifications and disabilities as may be prescribed by law. The authority shall provide policy direction in the areas of money, banking, and credit. It shall have supervision over the operations of banks and exercise such regulatory powers as may be provided by law over the operations of finance companies and other institutions performing similar functions. Until the Congress otherwise provides, the Central Bank of the Philippines operating under existing laws, shall function as the central monetary authority. I. !

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Central monetary authority The main concern in the formulation of this provision was to assure independence of the central monetary authority from all sectors, local or foreign, but especially from the executive department o Majority of the body would come from the private sector o Hence the qualifications set out Does not have the same status as Constitutional Commissions Under current law, the board of directors of the Bangko Sentral ng Pilipinas is the monetary board

Sec. 21: Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public. I. !

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Objective of anti-trust law is to assure a competitive economy based upon the belief that through competition producers will strive to satisfy consumer wants at the lowest price with the sacrifice of the fewest resources Competition among producers allows consumers to bid for goods and services and, thus matches their desires with society’s opportunity costs. Monopolies are not necessarily prohibited, but combinations in restraint of trade and unfair competition are prohibited o Monopoly- joint acquisition or maintenance by members of a conspiracy, formed for that purpose, of the power to control and dominate trade and commerce in a commodity to such an extent that they are able, as a group, to exclude actual or potential competitors from the field, accompanied with the intention and purpose to exercise such power

Foreign loans 2 things are covered:

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Foreign loans, whether public or private, can be obtained only in accordance with laws and regulations o Information on public foreign loans and gov’t guaranteed loans must be made public The President may incur or guarantee foreign loans only with the concurrence of the Monetary Board o

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Sec. 22: Acts which circumvent or negate any of the provisions of this Article shall be considered inimical to the national interest and subject to criminal and civil sanctions, as may be provided by law. I. !

Penal sanctions Congress should penalize acts which seek to circumvent the goals set down by the economic provisions of the Constitution.

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