UP Political Law Reviewer

LABOR LAW REVIEWER

POLITICAL LAW 2010

CONSTITUTIONAL LAW I CONSTITUTIONAL LAW II PUBLIC INTERNATIONAL LAW

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ADMINISTRATIVE LAW

ELECTION LAW LAW ON PUBLIC OFFICERS LOCAL GOVERNMENT LAW

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CONSTITUTIONAL LAW 1 Table of Contents Chapter I. The State .................................................3 I. Territory .......................................................3 A. 1987 Const., Art. I ...................................3 B. Treaty of Paris, Art. III .............................3 C. Archipelagic Doctrine ..............................4 II. People..........................................................4 A. Definition .................................................4 B. Citizenship ..............................................4 III. Sovereignty..................................................6 A. Kinds .......................................................6 B. Theory of Auto-Limitation ........................6 C. “Dominium” v “Imperium” ........................6 D. Jurisdiction ..............................................6 E. Suits Against the State and the Doctrine of Sovereign Immunity......................................7 IV. Government .................................................8 A. Definition .................................................8 B. Functions ................................................8 C. Doctrine of Parens Patriae ......................8 D. De Jure and De Facto Governments.......9 Chapter II. Structure and Powers of Government – Separation of Powers ............................................10 I. Legislative Department ..............................10 A. Nature and Classification of Legislative Power .............................................................10 B. Composition, Qualifications and Term of Office10 C. Election .................................................11 D. Salaries, Privileges and Disqualifications 12 E. Internal Government of Congress .........13 F. Electoral Tribunals ................................14 G. Commission on Appointments ..............15 H. Powers of Congress..............................16 II. Judiciary.....................................................21 A. In General .............................................21 B. Supreme Court......................................23 C. Judicial and Bar Council........................25 III. Executive ...................................................25 A. The President........................................25 B. Vice President.......................................41 IV. Constitutional Commissions.......................42 A. Common Provisions ..............................42 B. Civil Service Commission......................42 C. Commission on Elections......................43 D. Commission on Audit ............................44 V. Constitutionally-Mandated Bodies .............44 A. Sandiganbayan .....................................44 B. Ombudsman .........................................44 C. Commission on Human Rights..............45 Chapter III. National Economy and Patrimony.....46 I. General Principles .....................................46 A. Goals.....................................................46 B. Citizenship Requirements .....................46 C. Filipino First...........................................46 II. Natural Resources .....................................46 A. Regalian Doctrine [Jura Regalia] ..........46

B.

Exploration, Development, and Utilization 47 C. Stewardship Concept ............................48 III. Private Lands .............................................48 A. General Rule .........................................48 B. Exceptions.............................................48 IV. Monopolies.................................................48 V. Central Monetary Authority ........................48 Chapter IV. Current Events and Special Topics ..49 I. Party-List System.......................................49 II. Question Hour v. Inquiries In Aid of Legislation ...........................................................51 III. Executive Privilege................................51 IV. People’s Initiative .......................................52 V. Right of Reply ............................................53 VI. The (Erstwhile) Province of Shariff Kabunsuan ..........................................................53 VII. MOA on Ancestral Domain (MOA-AD) ..54

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CONSTITUTIONAL LAW II Table of Contents Chapter I. Bill of Rights .................................58 I. In General ...........................................58 II. Bases and Purpose.............................59 A. Bases: .............................................59 III. Accountability ......................................59 Chapter II. Fundamental Powers ..................60 of the State......................................................60 I. Police Power .......................................60 A. Definition .........................................60 II. Eminent Domain..................................63 A. Definition .........................................63 B. Who May Exercise..........................63 C. Requisites .......................................64 III. Taxation ..............................................65 A. Definition and Scope.......................65 B. Who May Exercise.........................65 C. Limitations.......................................65 D. Double Taxation..............................66 Chapter III. Due Process................................67 I. In General ...........................................67 II. Substantive Due Process....................67 A. Scope..............................................68 B. Requisites .......................................68 C. Doctrines.........................................68 III. Procedural Due Process .....................69 A. Scope..............................................69 B. Kinds ...............................................69 IV. Due Process As Limitation On Fundamental State Powers .........................70 A. Vis-à-vis Police Power ....................70 B. Vis-à-vis Eminent Domain ..............70 C. Vis-à-vis Power to Tax....................71 Chapter IV. Equal Protection of the Laws....72 I. Definition and Scope of Protection......72 II. Requisites of Valid Classification ........72 III. Examples of Valid Classification .........72 A. Aliens ..............................................72 B. Filipino Female Domestics Working Abroad .....................................................73 C. Land-based vs. Sea-based Filipino Overseas Workers...................................73 D. Qualification for Elective Office.......73 E. Office of the Ombudsman...............73 F. Print vs. Broadcast Media...............73 IV. Standards of Judicial Review..............73 A. “Rational Basis Test” ......................73 B. “Strict Scrutiny Test” .......................73 C. “Intensified Means Test” .................73 Chapter V. Requirements for Fair Procedure .........................................................................74

I. II.

Nature and Scope ............................... 74 ARREST.............................................. 74 A. Requisites for Issuance of a Valid Arrest Warrant ......................................... 74 B. Requisites of a Valid Warrantless Arrest (Rule 113, Sec. 5, Rules on Criminal Procedure)............................................... 75 III. SEARCH AND SEIZURE.................... 77 IV. Detention/Custodial Investigation ....... 80 A. Rights under Custodial Investigation 80 B. Tests of Waiver of Miranda Rights . 83 V. Protocol After Conduct Of Investigation 84 VI. Other Rights Guaranteed Under Art. III. Sec. 12......................................................... 84 VII. Exclusionary Rules ......................... 84 VIII. Right to Bail .................................... 86 Chapter VI. Rights of the Accused ............... 88 II. Rights Post Trial.................................. 91 Chapter VII. Writs ........................................... 94 I. HABEAS CORPUS ............................. 94 II. WRIT OF AMPARO ............................ 96 III. WRIT OF HABEAS DATA................... 96 Chapter VIII. Privacy of Communication and Correspondence ............................................ 99 I. Intrusion, When Allowed ..................... 99 II. Forms of Correspondence Covered ... 99 III. ENABLING LAW ................................. 99 Chapter IX. Freedom of Expression ........... 101 I. Basis, Components, Scope and Limitations.................................................. 101 II. CONTENT-BASED RESTRICTIONS103 IV. CONTENT-NEUTRAL RESTRICTIONS 106 Chapter X. Freedom of Religion ................. 109 I. Non-establishment Clause................ 109 II. Free Exercise Clause........................ 110 III. Tests ................................................. 111 Chapter XI. Liberty of Abode and Travel ... 112 I. Liberty of Abode................................ 112 II. Right to Travel................................... 112 III. Right to Return to One’s Country...... 112 Chapter XII. RA 9372: Human Security Act* ....................................................................... 113 Chapter XIII. Latest Cases........................... 119

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PUBLIC INTERNATIONAL LAW Table of Contents Chapter I. Preliminaries ...............................124 I. Public International Law (PIL) ...........124 II. Contra-Distinctions............................124 III. Relationship between PIL and Municipal Law 125 A. Monist View...................................125 B. Dualist View ..................................125 C. Monist-Naturalist View ..................125 D. Coordinationist View .....................125 IV. The Philippine Doctrine .....................125 A. Doctrine of Incorporation ..............125 B. Doctrine of Transformation ...........125 Chapter II. Actors of International Law ......126 I. Subjects and Objects of International Law 126 A. States............................................126 B. Individuals .....................................128 C. International Organizations (IO)....128 Chapter III. The Norms of International Law .......................................................................129 I. Concepts ...........................................129 II. Sources of International Law ............129 A. Treaty as Source of Law...............129 B. Customary International Law ........129 C. General Principle of Law...............131 D. Subsidiary Source: Judicial Decisions 132 E. Subsidiary Source: Publicists .......132 F. Other Sources...............................132 III. Status of Norms ................................132 A. Jus Cogens or Peremptory Norms132 B. Erga Omnes Norms ......................132 Chapter IV. The Law of Treaties .................133 I. Definition ...........................................133 II. Requisites for Validity........................133 A. Treaty Making Capacity ................133 B. Competence of the Representative/Organ Making the Treaty 133 C. Parties Must Freely Give Consent 133 D. Object and Subject Matter Must be Lawful ....................................................133 E. Ratification in Accordance with the Constitutional Process of the Parties Concerned .............................................133 III. The Treaty-Making Process ..............133 A. Negotiation....................................133 B. Adoption (Article 9, VCLOT) .........133 C. Authentication of the Text (Article 10, VCLOT) .................................................134

D. Expression of Consent to be bound by the Treaty (Article 11, VCLOT)......... 134 E. Registration with the UN............... 135 IV. Philippine Law................................... 135 V. Amendment or Modification of Treaty 135 VI. Reservations ..................................... 135 VII. Invalid Treaties ............................. 135 VIII. Grounds for Termination............... 135 Chapter V. International Responsibility..... 137 I. Breach............................................... 137 A. Is Fault or Malice Necessary? ...... 137 B. The Standard of Diligence ............ 137 II. Attribution .......................................... 137 A. Direct and Indirect Attribution ....... 138 B. Conduct Attributable to the State . 138 III. Consequences of State Responsibility 138 A. Duty to Make Reparation.............. 138 B. Forms of Reparation..................... 138 IV. Circumstances Precluding Wrongfulness 139 V. Diplomatic Protection (“Espousal of Claim”) ....................................................... 139 A. Material Dates............................... 140 B. Exhaustion of Local Remedies ..... 140 Chapter VI. Sovereignty and Jurisdiction . 141 I. Sovereignty ....................................... 141 A. Characteristics .............................. 141 B. Sovereign Equality of States ........ 141 C. Corollaries..................................... 141 II. Jurisdiction ........................................ 141 A. Criminal Jurisdiction ..................... 141 B. Reserved Domain of Domestic Jurisdiction ............................................ 141 C. Doctrine of State Immunity ........... 141 Chapter VII. The Law of the Sea ................. 143 I. Concepts ........................................... 143 A. Distinguished from Maritime or Admiralty Law........................................ 143 B. Baseline ........................................ 143 II. Waters............................................... 143 A. Internal Waters ............................. 144 B. Territorial Waters .......................... 144 C. Contiguous Zone .......................... 144 D. Exclusive Economic Zone ............ 144 E. High Seas ..................................... 145 III. Archipelagic State ............................. 146 IV. Continental Shelf............................... 146 A. Limits of the Continental Shelf...... 148

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B. Rights of the Coastal State over the Continental Shelf ...................................148 C. Rights with Respect to Continental Shelf vs. EEZ.........................................148 V. Settlement of Disputes ......................149 A. Peaceful Settlement of Disputes ..149 B. Compulsory Settlement of Disputes 149 C. Jurisdiction of Court or Tribunal....149 D. Composition of the International Tribunal for the Law of the Sea (ITLOS)149 E. Jurisdiction of ITLOS ....................149 F. Applicable Laws in Settlement of Disputes by the ITLOS ..........................149 Chapter VIII. The Use of Force in International Law..........................................150 I. Jus Ad Bellum v Jus in Bello .............150 II. Rules on the Use of Force ................150 A. General Rule.................................150 B. Exceptions ....................................150 Chapter IX. International Human Rights Law .......................................................................152 I. Definition of Human Rights ...............152 II. Classification of Human Rights .........152 III. “Internationalization” of Human Rights 152 IV. Sources of Human Rights .................152 A. Convention....................................152 B. Custom..........................................152 V. International Bill of Human Rights.....153 A. Universal Declaration of Human Rights (UDHR).......................................153 B. International Covenant on Civil and Political Rights (ICCPR) ........................153 C. International Covenant on Economic, Social and Cultural Rights (ICESCR) ....154 D. Common Provisions in the ICCPR and the ICESCR and differences ..........154 VI. Specific Norms in Human Rights ......154 A. Genocide.......................................154 B. Torture ..........................................155 C. Rights of the Child ........................155 D. Law against Discrimination ...........155 E. Refugee Law.................................156 Chapter X. International Humanitarian Law .......................................................................157 I. Definition of “Armed Conflict” ............157 II. Fundamental Principles of IHL..........157 III. Application of IHL ..............................158 IV. The Four Geneva Conventions and the Two Additional Protocols ...........................158 V. Application of the Four Geneva Conventions and the Two Additional Protocols ....................................................158 VI. Definition of Concepts and Phrases..159 A. Combatants...................................159

B. Hors de combat ............................ 159 C. Protected Persons ........................ 159 D. Martens clause ............................. 159 E. Military Objective .......................... 159 F. Belligerency Status ....................... 159 VII. IHL and Weapons of Mass Destruction................................................. 160 VIII. IHL and Non-International Armed Conflict 160 A. Common Article 3 and Protocol II. 160 B. Control-of-Territory ....................... 161 C. War of National Liberation ............ 161 IX. Neutrality ........................................... 161 X. Protective Emblems .......................... 161 A. Who May Use ............................... 162 B. Misuse of the Emblem .................. 162 C. Punishment................................... 162 XI. The International Criminal Court ....... 162 A. Crimes within the Court’s Jurisdiction 162 B. Modes of Incurring Criminal Liability 163 C. Sources of Law ............................. 163 D. Other Key Concepts ..................... 163 E. Landmark Cases .......................... 163 Chapter XI. Diplomatic Intercourse ............ 165 I. Agents of Diplomatic Intercourse...... 165 A. Head of State................................ 165 B. The Foreign Office........................ 165 C. The Diplomatic Corps ................... 165 II. Functions and Duties ........................ 165 III. Diplomatic Immunities and Privileges165 A. Personal Inviolability..................... 165 B. Inviolability of Premises and Archives 166 C. Right of Official Communication ... 166 D. Immunity from Local Jurisdiction .. 166 E. Exemption from Taxes and Customs Duties .................................................... 166 IV. Consular Relations............................ 167 A. Ranks............................................ 167 B. Necessary Documents ................. 167 C. Immunities and Privileges............. 167 Chapter XII. Recent International Law Issues in Philippine Law.......................................... 168 I. Daniel Smith and the Visiting Forces Agreement ................................................. 168 II. The Constitutionality of the Baselines Law 169 III. VIOLENCE AGAINST WOMEN (VAW) AS A FORM OF TORTURE ...................... 169 Appendix 1 - Straight and Normal Baselines ....................................................................... 171 Appendix 2 - Continental Shelf and the Maritime Zones............................................. 171

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ADMINISTRATIVE LAW Table of Contents Chapter I. Preliminary Considerations.......174 A. Definitions .........................................174 B. Historical Considerations ..................174 C. Modes of Creation of Administrative Agencies ....................................................174 D. When is an agency administrative? ..174 E. Types of Administrative Agencies .....174 Chapter II. Powers of Administrative Agencies .......................................................174 A. Quasi-Legislative (Rule-making) Powers 174 1. Definition .......................................174 2. Non-delegation doctrine................174 3. Legislative Delegation...................174 B. Quasi-Judicial (Adjudicatory) Powers174 C. Determinative Powers .......................174 Chapter III. Judicial Review and Enforcement of Agency Action..........................................174 A. Considerations ..................................174 1. Basis .............................................174 2. Factors to Consider in Judicial Review: ..................................................174 3. The doctrines of forum shopping, litis pendentia and res judicata also apply to administrative agencies. ........................174 4. General Rule.................................174 5. Exceptions ....................................174 6. When judicial review is valid despite finality of administrative decisions: ........174 7. Availability of Judicial Review depends on:...........................................174 B. Four Important Doctrines in Judicial Review .......................................................174 1. Doctrine of Primary Jurisdiction or Preliminary Resort .................................174 2. Doctrine of Exhaustion of Administrative Remedies.......................174 3. Doctrine of Qualified Political Agency 174 4. Ripeness .......................................174 C. Extent of Judicial Review ..................174 1. General Rule.................................174 2. General Principles ........................174 3. Law-fact Distinction.......................174 4. Question of Law............................174 5. Question of Fact ...........................174 6. Question of Discretion ..................174 D. Modes of Judicial Review..................174 1. Certiorari .......................................174 2. Prohibition .....................................174 3. Mandamus ....................................174 4. Declaratory Relief .........................174

5. 6. 7. 8.

Habeas Corpus............................. 174 Writ of Amparo.............................. 174 Habeas Data................................. 174 Injunction as Provisional Remedy 174 E. Enforcement of Agency Action ......... 174 1. Res Judicata; Finality of Judgment 174 2. Writ of Execution; Mandamus....... 174

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ELECTION LAW Table of Contents Chapter I. General Principles ......................198 A. Definitions .........................................198 1. Suffrage ........................................198 2. Scope............................................198 B. Constitutional Mandate on Congress 199 C. Election Period ..................................199 Chapter II. COMELEC...................................200 A. Composition ......................................200 B. Qualifications.....................................200 C. Powers and Functions.......................200 1. Constitutional powers and functions [Art. IX-C, Sec. 2]...................................200 2. Statutory powers ...........................201 D. Rendition of Decision ........................201 1. Composition ..................................201 2. Time Period and Votes Required .202 3. COMELEC decisions reviewable by the Supreme Court ................................202 E. Measures Designed for COMELEC’s Independence ............................................202 Chapter III. Voters: Qualification and Registration ..................................................203 A. Qualifications.....................................203 B. Registration of Voters........................203 1. Definition .......................................203 2. System of Continuing Registration of Voters ....................................................204 3. Illiterate or disabled voters............204 4. Election Registration Board ..........204 5. Change of residence or address ..204 6. Challenges to right to register.......204 7. Deactivation of Registration..........205 8. Reactivation of Registration..........205 9. Certified List of Voters ..................205 C. Inclusion and Exclusion Proceedings205 D. Annulment of Book of Voters ............205 E. Overseas Absentee Voter .................206 1. Definitions .....................................206 2. Coverage ......................................206 3. Qualifications ................................206 4. Disqualifications ............................206 5. Personal Overseas Absentee Registration ...........................................206 6. Inclusion and Exclusion Proceedings 206 7. National Registry of Overseas Absentee Voters ....................................206 Chapter IV. Pre-Election Requirements .....207 A. Certificates of Candidacy ..................207 1. Candidate, Definition ....................207 2. Qualifications .....................................207

3. Disqualifications............................ 207 4. Filing and withdrawal of certificate of candidacy .............................................. 208 5. Effect of filing certificate of candidacy 209 6. Substitution of Candidates............ 209 7. Duty of COMELEC ....................... 209 8. Petition to declare a duly registered candidate as a nuisance candidate....... 209 9. Petition to Deny Due Course or to Cancel Certificate .................................. 210 10. Effect of disqualification case... 210 B. Registration of Political Parties ......... 210 1. Party System ................................ 210 2. Definitions ..................................... 210 3. Purpose ........................................ 211 4. Procedure for Registration............ 211 5. Who May Not be Registered ........ 211 6. Grounds for refusal and/or cancellation of registration .................... 211 7. Parameters in Allocation of Seats for Party-List Representatives .................... 212 8. Effect of Change of Affiliation... 212 9. Nomination of Party-List Representative ...................................... 212 C. Party-list and District Representatives Distinguished ............................................. 213 Chapter V. Election Campaign and Expenditures ................................................ 214 A. Election Campaign............................ 214 1. Election Campaign or Partisan Political Activity...................................... 214 2. Campaign Period .......................... 214 3. Lawful Election Propaganda......... 215 4. Prohibited Acts ............................. 215 5. Equal Access to Media Time and Space .................................................... 215 7. Election Surveys ........................... 216 8. Application for Rallies, Meetings and Other Political Activity............................ 216 B. Election Contributions and Expenditures 216 1. Definitions ..................................... 216 2. Prohibited Contributions ............... 217 3. Prohibited Fund-raising Activities . 217 4. Limitations on Expenses............... 217 5. Statement of Contributions and Expenses............................................... 217 6. Requisites of a Prohibited Donation 218 Chapter VI. Election Proper ........................ 219 A. In General ......................................... 219

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1. 2. 3. 4.

What Constitutes an Election........219 Failure of Elections .......................219 Postponement of Elections ...........219 Special Elections ..........................220 B. Board of Election Inspectors .............220 C. Casting of Votes................................220 1. Voting Hours .................................220 2. Voting............................................220 3. Challenge of Illegal Voters............220 4. Challenge based on certain illegal acts 220 D. Counting of Votes..............................220 1. Counting Proper............................220 2. Election Returns ...........................220 E. Canvassing of Votes .........................220 1. Definitions .....................................220 2. Composition of Board of Canvassers 220 3. Prohibitions on BOC .....................220 4. Canvass by the BOC ....................220 5. Certificate of Canvass and Statement of Votes .................................................220 6. Proclamation .................................220 Chapter VII. Modes of Challenging Candidacy and Election Results....................................220 A. Cancellation of Certificate of Candidacy 220 1. Grounds ........................................220 2. Nature of Proceedings.......................220 3. Procedure .....................................220 B. Pre-Proclamation Controversies .......220 1. Jurisdiction ....................................220 2. When Not Allowed ........................220 3. Nature of Proceedings ..................220 4. Issues That May Be Raised..........220 5. Issues That Cannot Be Raised .....220 6. Procedure .....................................220 7. Effect of Filing of Pre-Proclamation Controversy ...........................................220 8. Effect of Proclamation of Winning Candidate ..............................................220 9. Petition to Annul or Suspend Proclamation..........................................220 10. Declaration of Failure of Election 220 C. Disqualification Cases.......................220 1. Procedure .....................................220 2. Effect .................................................220 Chapter VIII. Election Offenses...................220 A. Jurisdiction over Election Offenses...220 B. Prosecution of Election Offenses......220 C. Preferential Disposition of Election Offenses.....................................................220 D. Election Offenses ..............................220 1. Registration...................................220 2. Certificate of Candidacy................220 3. Election Campaign........................220

4. 5. 6. 7.

Voting............................................ 220 Counting of Votes ......................... 220 Canvassing ................................... 220 Acts of Government or Public Officers 220 8. Coercion, Intimidation, Violence ... 220 9. Other Prohibitions ......................... 220 10. Penalties................................... 220 E. Arrests in Connection with Election Campaign .................................................. 220 F. Prescription ....................................... 220 G. Prohibited Acts Under R.A. 9369 ...... 220

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LAW ON PUBLIC OFFICERS Table of Contents Chapter I. Public Office and Officers .........234 A. Public Office ......................................234 1. Definition .......................................234 2. Purpose.........................................234 3. Nature ...........................................234 4. Elements .......................................234 5. Public Office v. Public Employment 234 6. Public Office v. Public Contract ....234 7. No vested right to public office. ....234 8. Public Office is not Property. ........234 9. Creation of Public Office ...............234 10. Methods of Organizing Public Offices 234 11. Modification and Abolition of Public Office 234 12. Estoppel in Denying Existence of Office 234 B. Public Officer.....................................234 1. Definition .......................................234 2. A Person Cannot be Compelled to Accept a Public Office. ..........................234 3. Public Officer’s Power is Delegated (not Presumed)......................................234 C. Classification of Public Offices and Public Officers............................................234 D. De Facto Officers ..............................234 1. De Facto Doctrine.........................234 2. De Facto Officer Defined ..............234 3. Elements of a De Facto Officership 234 4. Office created under an unconstitutional statute..........................234 5. Legal Effect of Acts of De Facto Officers ..................................................234 6. Liabilities of De Facto Officers ......234 7. Right to Compensation of De Facto Officer ....................................................234 Chapter II. Eligibility and Qualifications ....234 A. Definition ...........................................234 B. Power to Prescribe Qualifications .....234 C. Time of Possession of Qualifications 234 D. Eligibility is Presumed .......................234 E. Qualifications Prescribed By Constitution ................................................234 F. Religious Test or Qualification is not Required ....................................................234 G. Disqualifications to Hold Public Office 234 Chapter III. Formation of Official Relation .234 A. Modes of Commencing Official Relation 234

B. C.

Election ............................................. 234 Appointment...................................... 234 1. Definition....................................... 234 2. Nature of Power to Appoint .......... 234 3. Classification of Appointments ..... 234 4. Steps in Appointing Process......... 234 5. Presidential Appointees................ 234 D. Qualification Standards and Requirements under the Civil Service Law234 1. Qualification Standards ................ 234 2. Political Qualifications for an Office 234 3. No Property Qualifications............ 234 4. Citizenship .................................... 234 5. Effect of Removal of Qualifications During the Term .................................... 234 6. Effect of Pardon upon the Disqualification to Hold Public Office .... 234 E. Discretion of Appointing Official ........ 234 F. Effectivity of Appointment ................. 234 G. Effects of a Complete, Final and Irrevocable Appointment............................ 234 H. Civil Service Commission’s (CSC’s) Jurisdiction................................................. 234 I. Appointments to the Civil Service ..... 234

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LOCAL GOVERNMENT LAW Table of Contents Chapter I. Basic Principles..........................258 I. Nature and Status .............................258 A. Definition .......................................258 B. Dual Nature...................................258 II. Principles of Local Government Law 259 A. State Policy, Principles of Decentralization.....................................259 B. Local Autonomy ............................259 C. Decentralization ............................259 C. Devolution .....................................260 III. The Local Government Code ............260 A. Effectivity.......................................260 B. Scope............................................260 C. Rules of Interpretation ..................260 Chapter II. Creation and Dissolution of LGUs .......................................................................261 I. Creation.............................................261 A. General Provisions .......................261 B. Specific Requirements..................261 C. Authority to Create Local Government Units 262 D. Creation and Conversion of LGUs 263 E. Plebiscite.......................................264 F. Beginning of Corporate Existence 264 II. Division and Merger; Abolition ..........266 A. Division and Merger ......................266 B. Abolition ........................................266 III. Settlement of Boundary Disputes .267 A. Jurisdictional Responsibility for Settlement of Boundary Dispute............267 B. Appeal...........................................267 C. Maintenance of the Status Quo ....267 Chapter III. General Powers and Attributes of LGUs .......................................268 I. Powers in General ...............................268 A. Sources of Powers of LGUs..............268 B. Classification of Powers of LGUs......268 C. Execution of Powers .........................268 II. Political and Corporate Nature of LGUs 268 III. Governmental Powers ....................269 A. General Welfare ................................269 1. Police Power .................................269 2. Limitations.....................................270 3. Abatement of Nuisance ................271 4. Closure of Roads ..........................271 B. Power to Generate Revenue ............272 C. Eminent Domain................................273 D. Basic Services and Facilities ............275 E. Reclassification of Lands ..................276 F. Corporate Powers .............................277 G. Local Legislative Power ....................278

Chapter IV. Local Initiative and Referendum ....................................................................... 283 A. Definition ........................................... 283 B. Requirements.................................... 283 C. Procedure ......................................... 283 D. Effectivity of Local Propositions ........ 283 E. Limitations on Initiatives.................... 283 F. Limitations Upon Local Legislative Bodies ........................................................ 284 Chapter V. Municipal Liability..................... 285 A. Specific Provisions making LGUs Liable 285 B. Liability for Torts, Violation of the Law and Contracts ............................................ 285 C. Personal Liability of Public Official.... 286 Chapter VI. Intergovernmental Relations – National Government and LGUs................. 287 I. Executive Supervision....................... 287 A. 1987 Constitution, Art. X, Sec. 2 and 4 287 B. Administrative Code of 1987, Title XII Chapter I................................................ 287 II. Consultations .................................... 288 LGC Sec. 2(c), 26, 27 ........................... 288 A. Declaration of Policy..................... 288 B. Maintenance of Ecological Balance 288 C. Prior Consultation ......................... 288 III. Relations with Philippine National Police 289 LGC, Sec. 28 ........................................ 289 IV. Other Relations............................. 290 A. Inter-local Relations ...................... 290 B. Relations with Non-Governmental organizations ......................................... 290 Chapter VII. Local Officials ......................... 291 I. Elective Local Officials ....................... 291 A. Qualifications .................................... 291 B. Disqualifications ...............................292` C. Manner of Election ............................ 294 D. Term of Office ................................... 294 E. Rules on Succession ........................ 296 F. Recall ................................................ 299 G. Discipline........................................... 300 1. Administrative Action .................... 300 2. Penalties ....................................... 302 3. Power of Tribunals........................ 303 II. Appointive Officials............................. 304 A. Appointments .................................... 304 B. Discipline........................................... 306 C. Removal ............................................ 306

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D. Officials Common to All Municipalities, Cities and Provinces ..................................306 III. Provisions Applicable to Elective and Appointive Officials .....................................307 A. Prohibited Interests ...........................307 LGC Sec. 89 ..............................................307 B. Practice of Profession .......................307 C. Prohibition against Appointment .......307 IV. Local Boards and Councils ................307 A. Local School Board ...........................307 B. Local Health Board............................307 C. Local Development Council ..............307 D. Local Peace and Order Council ........307 Chapter VIII. Local Government Units .......307 A. The Barangay....................................307 1. Katarungang Pambarangay..........307 2. Sangguniang Kabataan ................307 B. The Municipality ................................307 C. The City .............................................307 D. The Province .....................................307 Chapter IX. Miscellaneous and Final Provisions .....................................................307 A. Posting and Publication of Ordinances with Penal Sanctions .................................307 B. Penalties for Violation of Tax Ordinances.................................................307 C. Provisions for Implementation...........307 Chapter X. Application of LGC to Autonomous Regions and Other Entities..307 I. The Autonomous Region in Muslim Mindanao ...................................................307 II. Cordillera Administrative Region.......307 III. The Metropolitan Manila Development Authority.....................................................307

TABLE of CONTENTS

CONSTITUTIONAL LAW 1 Table of Contents Chapter I. The State .................................................3 I. Territory .......................................................3 A. 1987 Const., Art. I ...................................3 B. Treaty of Paris, Art. III .............................3 C. Archipelagic Doctrine ..............................4 II. People..........................................................4 A. Definition .................................................4 B. Citizenship ..............................................4 III. Sovereignty..................................................6 A. Kinds .......................................................6 B. Theory of Auto-Limitation ........................6 C. “Dominium” v “Imperium” ........................6 D. Jurisdiction ..............................................6 E. Suits Against the State and the Doctrine of Sovereign Immunity......................................7 IV. Government .................................................8 A. Definition .................................................8 B. Functions ................................................8 C. Doctrine of Parens Patriae ......................8 D. De Jure and De Facto Governments.......9 Chapter II. Structure and Powers of Government – Separation of Powers ............................................10 I. Legislative Department ..............................10 A. Nature and Classification of Legislative Power .............................................................10 B. Composition, Qualifications and Term of Office10 C. Election .................................................11 D. Salaries, Privileges and Disqualifications 12 E. Internal Government of Congress .........13 F. Electoral Tribunals ................................14 G. Commission on Appointments ..............15 H. Powers of Congress..............................16 II. Judiciary.....................................................21 A. In General .............................................21 B. Supreme Court......................................23 C. Judicial and Bar Council........................25 III. Executive ...................................................25 A. The President........................................25 B. Vice President.......................................41 IV. Constitutional Commissions.......................42 A. Common Provisions ..............................42 B. Civil Service Commission......................42 C. Commission on Elections......................43 D. Commission on Audit ............................44 V. Constitutionally-Mandated Bodies .............44 A. Sandiganbayan .....................................44 B. Ombudsman .........................................44 C. Commission on Human Rights..............45 Chapter III. National Economy and Patrimony.....46 I. General Principles .....................................46 A. Goals.....................................................46 B. Citizenship Requirements .....................46 C. Filipino First...........................................46 II. Natural Resources .....................................46 A. Regalian Doctrine [Jura Regalia] ..........46

B.

Exploration, Development, and Utilization 47 C. Stewardship Concept ............................48 III. Private Lands .............................................48 A. General Rule .........................................48 B. Exceptions.............................................48 IV. Monopolies.................................................48 V. Central Monetary Authority ........................48 Chapter IV. Current Events and Special Topics ..49 I. Party-List System.......................................49 II. Question Hour v. Inquiries In Aid of Legislation ...........................................................51 III. Executive Privilege................................51 IV. People’s Initiative .......................................52 V. Right of Reply ............................................53 VI. The (Erstwhile) Province of Shariff Kabunsuan ..........................................................53 VII. MOA on Ancestral Domain (MOA-AD) ..54

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Dean Marvic MVF Leonen Faculty Editor

Earla Langit Lead Writer Abigail Alameda Maricor Estrella Kate Lomoljo Writers

POLITICAL LAW Jennifer Go Subject Editor

ACADEMICS COMMITTEE Kristine Bongcaron Michelle Dy Patrich Leccio Editors-in-Chief

PRINTING & DISTRIBUTION Kae Guerrero

DESIGN & LAYOUT Pat Hernandez Viktor Fontanilla Romualdo Menzon Jr. Rania Joya

LECTURES COMMITTEE Michelle Arias Camille Maranan Angela Sandalo Heads Katz Manzano Mary Rose Beley Sam Nuñez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers

MOCK BAR COMMITTEE Lilibeth Perez

BAR CANDIDATES WELFARE Dahlia Salamat

LOGISTICS Charisse Mendoza

SECRETARIAT COMMITTEE Jill Hernandez Head

Chapter I. The State I.

II.

III.

IV.

I.

TERRITORY A. 1987 CONSTITUTION, ART. RT. I B. TREATY OF PARIS C. ARCHIPELAGIC DOCTRINE DOCTRIN PEOPLE A. DEFINITIONS B. CITIZENSHIP SOVEREIGNTY A. KINDS B. THEORY OF AUTO-LIMITATION LIMITATION C. DOMINIUM V. IMPERIUM D. JURISDICTION E. SUITS AGAINST THE STATE ST AND THE DOCTRINE OF SOVEREIGN SOVEREIG IMMUNITY GOVERNMENT A. DEFINITION B. FUNCTIONS C. DOCTRINE OF PARENS PATRIAE D. DE JURE AND DE FACTO GOVERNMENTS

Territory (Asked 7 times in the Bar)

A. 1987 Const., Art. I SCOPE OF THE NATIONAL TERRITORY AS DEFINED IN THE CONSTITUTION 1) Philippine archipelago 2) All other territories over which the Philippines has sovereignty or jurisdiction 3) Territorial sea, Seabed, Subsoil, Insular shelves, and other submarine areas corresponding to (1) and (2) 4) (1) and (2) also consist of terrestrial, fluvial, and aerial domains

B. Treaty of Paris, Art. III “Spain cedes to the United States the archipelago known as the Philippines Islands, and comprehending the islands lying within the following line” xxx

Loraine Mendoza Faye Celso Mary Mendoza Joie Bajo Members

*Image taken from: http://media.photobucket.com/image/philippine%20map%20image%2 0international%20law/jibrael_2007/Jibrael%202008/map1_rpterritory.j pg

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Chapter I. THE STATE

CONSTITUTIONAL LAW I

POLITICAL LAW REVIEWER

C. Archipelagic Doctrine Elements: 1. Internal waters – “waters around, between and connecting the islands of the archipelago” 2. Straight baseline method – consists of drawing straight lines connecting appropriate points on the coast without departing to any appreciable extent from the general direction of the coast, in order to delineate the internal waters from the territorial waters of an archipelago  Refer to PIL, Chap. 12, II for further discussion on Baselines

Chapter I. THE STATE “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.” (Sec 7, Art III) As an element of a state, “people” means a community of persons adequate in number for selfsufficiency and defense, and also capable of maintaining the continued existence of the community and held together by a common bond of law. (BERNAS)

II. People B. Citizenship

A. Definition The term assumes three different meanings, depending on the context in which it is used: (NACHURA) 1.

(Asked 25 times in the Bar) 1.

Inhabitants, as used in: i. “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable x x x” (Sec 2, Art III) 

ii.

The right of an individual to be secure in his person is guaranteed by the Constitution. The same is declared a popular right of the people and indisputably applies to both citizens and foreigners in this country. [Qua Chee Gan vs Deportation Board (1963)]

ARTICLE IV, Section 1 (3), 1987 Constitution is also applicable to those who are born to Filipino mothers and elected Philippine citizenship before February 2, 1987. This is to correct the anomalous situation where one born of a Filipino father and an alien mother was automatically granted the status of a natural-born citizen, while one born of a Filipino mother and an alien father would still have to elect Philippine citizenship. [Co v. Electoral Tribunal of the House of Representatives (1991)]

“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. (Sec 3, Art II)

2.

Electors, as used in: i. “The President and the Vice-President shall be elected by direct vote of the people” (Sec 4, Art VII)

3.

Citizens, as used in: i. “We, the sovereign Filipino people …” (Preamble) ii. “The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.” (Sec 1, Art II) iii. “The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military, or civil service.” (Sec 4, Art II)

Who are citizens? i. Citizens of the Philippines at the time of the adoption of this Constitution; ii. Those whose fathers or mothers are citizens of the Philippines; iii. Those who elected to be citizens. This is available only to: those born before January 17, 1973, to Filipino mothers, and elect Philippine citizenship upon reaching the age of majority iv. Those naturalized in accordance with law.

2.

Natural-born i. citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship; and ii. those who elect Philippine citizenship in accordance with ARTICLE IV, Section 1 (3) 

The term "natural-born citizens," is defined to include "those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship." [Tecson vs COMELEC (2004)]

Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a "natural-born" citizen of the Philippines. Jus soli, per Roa vs. Collector of Customs (1912), did not last long. With the adoption of the 1935 Constitution and the

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reversal of Roa in Tan Chong vs. Secretary of Labor (1947), jus sanguinis or blood relationship would now become the primary basis of citizenship by birth. 3.

4.

Chapter I. THE STATE 5.

Who must be Natural-Born? i. President (Sec. 2, Art VII) ii. Vice-President (Sec. 3, Art VII) iii. Members of Congress (Secs. 3 and 6, Art VI) iv. Justices of SC and lower collegiate courts (Sec. 7 (1), Art VIII) v. Ombudsman and his deputies (Sec. 8, Art XI) vi. Members of Constitutional Commissions vii. CSC (Sec. 1 (1), Art IX B) viii. COMELEC (Sec. 1 (1) Art IX C) ix. COA (Sec. 1 (1), Art IX D) x. Members of the Central Monetary Authority (Sec. 20, Art XII) xi. Members of the Commission on Human Rights (Sec. 17 (2), Art XIII)

ii.

Grounds for Loss of Citizenship i. Naturalization in a foreign country [Sec.1 (1), CA 63]; ii. Express renunciation or expatriation [Sec.1 (2), CA 63]; iii. Taking an oath of allegiance to another country upon reaching the age of majority; iv. Accepting a commission and serving in the armed forces of another country, unless there is an offensive/ defensive pact with the country, or it maintains armed forces in RP with RP’s consent; v. Denaturalization; vi. Being found by final judgment to be a deserter of the AFP; vii. Marriage by a Filipino woman to an alien, if by the laws of her husband’s country, she becomes a citizen thereof. 

Expatriation is a constitutional right. No one can be compelled to remain a Filipino if he does not want to. [Go Gullian vs Government]

EXCEPTION: A Filipino may not divest himself of Philippine citizenship in any manner while the Republic of the Philippines is at war with any country. (Sec. 1 (3), Com. Act No. 63)  Aznar v COMELEC, (1995) Loss of Philippine citizenship cannot be presumed. Considering the fact that admittedly, Osmeña was both a Filipino and an American, the mere fact that he has a certificate stating that he is an American does not mean that he is not still a Filipino, since there has been NO EXPRESS renunciation of his Philippine citizenship. [Aznar vs COMELEC (1995)]

How may citizenship be reacquired? i. Naturalization (CA No. 63 and CA No. 473)  now an abbreviated process, no need to wait for 3 years (1 year for declaration of intent, and 2 years for the judgment to become executory)  requirements: a.) be 21 years of age b.) be a resident for 6 months c.) have good moral character d.) have no disqualification  Naturalization is never final and may be revoked if one commits acts of moral turpitude. [Republic vs Guy (1982)] Repatriation  Repatriation results in the recovery of the original nationality. Therefore, if he is a natural-born citizen before he lost his citizenship, he will be restored to his former status as a natural-born Filipino. [Bengson III vs. HRET (2001)] 

Mere filing of certificate of candidacy is not a sufficient act of repatriation. Repatriation requires an express and equivocal act. [Frivaldo vs COMELEC (1989)]



In the absence of any official action or approval by proper authorities, a mere application for repatriation does not, and cannot, amount to an automatic reacquisition of the applicant’s Philippine citizenship. [Labo vs COMELEC (1989)]

iii. Legislative Act 

6.

both a mode of reacquiring citizenship

acquiring

and

Dual Allegiance i. aliens who are naturalized as Filipinos but remain loyal to their country of origin (cite source) ii. public officers who, while serving the government, seek citizenship in another country (cite source) 

disqualified from running for any elective local position. (Sec 40d, Local Government Code)



Once a candidate files his candidacy, he is deemed to have renounced his foreign citizenship. [Mercado vs Manzano (1999)]



Clearly, in including §5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase “dual

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Chapter I. THE STATE

citizenship” in R.A. No. 7160, §40(d) and in R.A. No. 7854, §20 must be understood as referring to “dual allegiance.” 

Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states.

Cf: RA 9225 (Citizenship Retention and Re-acquisition Act of 2003) Sec. 3. Retention of Philippine Citizenship. — Any provision of law to the contrary notwithstanding, natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic: xxx Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath. Sec. 4. Derivative Citizenship. — The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of the Philippines. Sec. 5. Civil and Political Rights and Liabilities. — Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (1) Those intending to exercise their right of suffrage must meet the requirements under Sec. 1, Art. V of the Constitution, RA 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws; (2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath; (3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: provided, that they renounce their oath of allegiance to the country where they took that oath; (4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and (5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: (a) are candidates for or are occupying any public office in the country of which they are naturalized

(b)

citizens; and/or are in active service as commissioned or noncommissioned officers in the armed forces of the country which they are naturalized citizens.

III. Sovereignty (Asked 4 times in the Bar) 

Supreme and uncontrollable power inherent in a State by which the State is governed.

A. Kinds 1. 2.

3. 4.

Legal sovereignty - power to issue final commands. Political sovereignty - power behind the legal sovereign, or the sum total of the influences that operate upon it. Internal sovereignty - power to control domestic affairs. External sovereignty (also known as independence) - power to direct relations with other states.

B. Theory of Auto-Limitation 

It is the property of the State-force due to which a State has exclusive legal competence of selflimitation and self-restriction.



Sovereignty is subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations. [Tañada vs Angara (1997)]

C. “Dominium” v “Imperium” [Lee Hong Hok v. David, (1972)] 

“Dominium” –  capacity of the State to own property.  covers such rights as title to land, exploitation and use of it, and disposition or sale of the same.  Regalian doctrine  all lands of the public domain belong to the State, and anyone claiming title has the burden to show ownership, comes within this concept. In this capacity, the State descends to the status of ordinary persons and thus becomes liable as such. [Cruz v. Sec of DENR, (2000)]



“Imperium”  State’s authority to govern.  covers such activities as passing laws governing a territory, maintaining peace and order over it, and defending it against foreign invasion.  When the State acts in this capacity, it generally enjoys sovereign immunity.

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Chapter I. THE STATE is clear that the respondent is a public officer sued in a private capacity; iii. when the action is not in personam with the government as the named defendant, but an action in rem that does not name the government in particular.

D. Jurisdiction 

Jurisdiction is the manifestation of sovereignty. The jurisdiction of the state is understood as both its authority and the sphere of the exercise of that authority. (SINCO)

1.

KINDS: i. Territorial jurisdiction  authority of the State to have all persons and things within its territorial limits to be completely subject to its control and protection.

ii.

Personal jurisdiction  authority of the State over its nationals, their persons, property, and acts, whether within or outside its territory. (Art 15, CC: Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.)

iii. Extraterritorial jurisdiction 

authority of the State over persons, things, or acts, outside its territorial limits by reason of their effects to its territory

E. Suits Against the State and the Doctrine of Sovereign Immunity (Asked two times in the Bar) 

The State may not be sued without its consent. (Sec 3, Art XVI)



There can be no legal right as against the authority that makes the laws on which the right depends.  also called the doctrine of Royal Prerogative of Dishonesty. [Kawananakoa v. Polyblank (1907)]



If the State is amenable to suits, all its time would be spent defending itself from suits and this would prevent it from performing it other functions. [Republic vs. Villasor (1973)]

1.

A suit is against the State regardless of who is named the defendant if: i. it produces adverse consequences to the public treasury in terms of disbursement of public funds and loss of government property. ii. cannot prosper unless the State has given its consent.

2.

In the following instances, it was held that the suit is not against the State: i. when the purpose of the suit is to compel an officer charged with the duty of making payments pursuant to an appropriation made by law in favor of the plaintiff to make such payment, since the suit is intended to compel performance of a ministerial duty. [Begoso v. PVA (1970)] ii. when from the allegations in the complaint, it

3.

How the State’s consent to be sued is given: i. Express consent a. It is effected only by the will of the legislature through the medium of a duly enacted statute. b. may be embodied either in a: General Law  authorizes any person who meets the conditions stated in the law to sue the government in accordance with the procedure in the law Special Law  may come in the form of a private bill authorizing a named individual to bring suit on a special claim  Art 2189, CC: Provinces, cities and municipalities shall be liable for damages for the death or injuries suffered by any person by reason of the defective conditions of roads, streets, public buildings and other public works under their control and supervision.

ii.

Implied consent  when the State enters into a business contract or itself commences litigation.  State may only be liable for proprietary acts (jure gestionis) and not for sovereign acts (jure imperii)  When state files complaint, suability will result only where the government is claiming affirmative relief from the defendant. [US v. Guinto, (1990)]  When it would be inequitable for the State to invoke its immunity.  In instances when the State takes private property for public use or purpose.

iii. When does Liability Attach? a.

The Government is only liable for the acts of its agents, officers and employees, when they act as special agents within the meaning of Art. 2180 (6) CC.

Special Agent  one who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special official. [Merritt v. Govt of the Philippine Islands, (1916)]  This concept does not apply to any executive agent who is an employee of the active administration and who on his own responsibility performs the functions

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



b.

c.

Unauthorized acts of government officials or officers are not acts of the State, and an action against the officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit against the State. The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen, for acts without authority or in excess of the powers vested in him. [Lansang vs CA (2000)]

When the Government creates a corporation, it invariably provides this corporation a separate entity and with the capacity to sue and be sued.  Consent to be sued includes actions based on quasi-delict even though committed by regular, and not special, agents.  Rule: a government entity can be sued for tort, but if it is, it can invoke the defense that it acted through its regular employee, and not through a special agent. The principle of State immunity from suit does not apply when the relief demanded requires no affirmative official action on the part of the State or the affirmative discharge of any obligation which belongs to the State in its political capacity, even though the officers or agents who are made defendants claim to hold or act only by virtue of a title of the State and as its agents and servants. [Republic v Sandoval, (1993)]

IV. Government (Asked two times in the Bar)

A. Definition Sec. 2(1) Administrative Code. “Government of the Republic of the Philippines” is defined as: the corporate governmental entity through which the functions of government are exercised throughout the Philippines, including  the various arms through which political authority is made effective in the Philippines, whether pertaining to: 1. the autonomous regions, 2. the provincial, city, municipal, or barangay subdivisions, or 3. other forms of local government.



“Government” is that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them.[US vs Dorr (1903)]

B. Functions 1.

Constituent functions - constitute the very bonds of society; compulsory. i. keeping of order and providing protection ii. fixing of legal relations between man and wife, and children iii. regulation of the holding, transmission and interchange of property iv. define crime and punishment v. regulates and determines contract between individuals vi. dealings of state with foreign powers

2.

Ministrant functions - undertaken to advance the general interests of society; optional. i. public works ii. public education iii. public charity iv. health and safety regulations v. trade and industry



The distinction between constituent and ministrant functions is not relevant in our jurisdiction. [ACCFA v. Federation of Labor Unions, (1969)]

C. Doctrine of Parens Patriae  



Parens patriae is the task of the government to act as guardian of the rights of the people. This prerogative of parens patriae is inherent in the supreme power of every state, whether that power is lodged in a royal person or in the legislature The Monte de Piedad y Caja de Ahorros de Manila is an institution organized in accordance with the canon law, having been created by the royal order of the King of Spain of July 8, 1880, made under the royal patronate powers then

8 CONSTITUTIONAL LAW I

which are inherent in and naturally pertain to his office and which are regulated by law and the regulations.

Chapter I. THE STATE

existing in the Crown of Spain. The royal order referred to created, according to the purpose expressed therein, an institution for the safe investment of the savings of the poor classes and to assist the needy in time of need by loaning such savings to them at a low rate of interest. [Government of the Philippine Islands v. Monte de Piedad, (1916)]

D. De Jure and De Facto Governments 1.

De jure government i. has rightful title ii. no power or control, either because this has been withdrawn from it, or because it has not yet actually entered into the exercise thereof. [In re Letter of Associate Justice Puno, (1992)]

2.

De facto government i. government of fact, that is, it actually exercises power or control without legal title. [Co Kim Cham v. Valdes, (1945)] 

The legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the people of the Philippines are the judge. And the people have made the judgment; they have accepted the government of President Corazon C. Aquino which is in effective control of the entire country so that it is not merely a de facto government but in fact and law a de jure government. Moreover, the community of nations has recognized the legitimacy of the present government. All the eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the Republic under her government. [In re Bermudez, (1986) citing Lawyers League for a Better Philippines v. Aquino, (1986)]



In the cited cases [Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino, et al], we held that the government of former President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful one. No less than the Freedom Constitution declared that the Aquino government was installed through a direct exercise of the power of the Filipino people "in defiance of the provisions of the 1973 Constitution, as amended."

It is familiar learning that the legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution. In her oath, she categorically swore to preserve and defend

Chapter I. THE STATE the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution. In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President. EDSA I is extra-constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intraconstitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented a political question; EDSA II involves legal questions. xxx Even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure, president made by a co-equal branch of government cannot be reviewed by this Court. [Estrada v Desierto/ Estrada v GMA, (2001)]

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Chapter II. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers

Chapter II. Structure and Powers Government – Separation of Powers I.

II.

III.

IV.

V.

of

LEGISLATIVE DEPARTMENT A. NATURE AND CLASSIFICATION OF LEGISLATIVE POWER B. COMPOSITION, QUALIFICATIONS AND TERM OF OFFICE C. ELECTION D. SALARIES, PRIVILEGES AND DISQUALIFICATIONS E. INTERNAL GOVERNMENT OF CONGRESS F. ELECTORAL TRIBUNALS G. COMMISSION ON APPOINTMENTS H. POWERS OF CONGRESS JUDICIAL DEPARTMENT A. IN GENERAL B. SUPREME COURT C. JUDICIAL AND BAR COUNCIL EXECUTIVE DEPARTMENT A. PRESIDENT B. VICE-PRESIDENT CONSTITUTIONAL COMMISSIONS A. COMMON PROVISIONS B. CIVIL SERVICE COMMISSION C. COMMISSION ON ELECTIONS D. COMMISSION ON AUDIT CONSTITUTIONALLY-MANDATED BODIES A. SANDIGANBAYAN B. OMBUDSMAN C. COMMISSION ON HUMAN RIGHTS

I.

Legislative Department (Asked 23 times in the Bar)

A. Nature and Classification of Legislative Power 1.

Nature:  The authority to make laws and to alter or repeal them.  Vested in Congress, except to the extent reserved to the people by provision on initiative and referendum  Plenary (Congress may legislate on any subject matter provided that the limitations are observed.)

2.

Classification of Legislative Power:  Original - possessed by the sovereign people  Derivative - delegated by the sovereign people to legislative bodies and is subordinate to the original power of the people  Constituent - power to amend and revise the Constitution  Ordinary - power to pass ordinary laws

B. Composition, Qualifications and Term of Office

Composition

Qualifications

Term of Office Term Limits

1.

Senate (Art. VI secs. 2-4) 24 senators elected at large

 

Natural-born citizen At least 35 years old on the day of the election  Able to read and write  A registered voter  Resident of the Philippines for at least 2 years immediately preceding the day of the election 6 years 2 consecutive terms.

on the 30 election

(Art. VI Secs. 2-4) Composition: 24 senators elected at large



Qualifications: 1. Natural-born citizen 2. At least 35 years old on the day of the election 3. Able to read and write 4. A registered voter 5. Resident of the Philippines for at least 2 years immediately preceding the day of the election



Term of Office: 6 years, commencing at noon

3 years 3 consecutive terms.

Senate



House of Representatives (Art. VI secs. 5-8)  Not more than 250 members, unless otherwise provided by law, consisting of: 1. District Representatives 2. Party-List Representatives 3. Sectoral Representatives  Natural-born citizens  At least 25 years old on the day of the election  Able to read and write  Registered voter in the district he seeks to represent  A resident of the said district for at least 1 year immediately preceding the day of the election

th

day of June next following their



Term Limits: only up to 2 consecutive terms. However, they may serve for more than 2 terms provided that the terms are not consecutive.

2.

House of Representatives (Art. VI Secs. 5-8)



Composition: Not more than 250 members, unless otherwise provided by law, consisting of:

i.

District Representatives  elected from legislative districts apportioned among the provinces, cities,

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Chapter II. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers

and the Metro Manila area. Rules on Apportionment of Legislative Districts: 1. Proportional representation based on number of inhabitants a. Each city with a population of at least 250,000, or each province, shall have at least 1 representative. Each province, irrespective of the number of inhabitants, shall have at least 1 representative. b. Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. 2. Re-apportionment by Congress within 3 years after the return of each census

Party-List Representatives  20% of the total number of representatives  chosen indirectly through a party selected by voters  RA 7941 (An Act Providing For The Election Of Party-List Representatives Through The Party-List System, And Appropriating Funds Therefor) o Parties, organizations, and coalitions must obtain at least 2% of all votes cast to obtain a party-list seat o Those garnering more than 2% are entitled to additional seats in proportion to their total number of votes, but may not have more than 3 seats o Disqualified: 1. Religious Sects 2. Foreign Organizations 3. Those Advocating Violence or Unlawful Means o Qualified Sectors: 1. Labor 2. Peasant 3. Fisherfolk 4. Urban Poor 5. Indigenous Cultural Communities 6. Elderly 7. Handicapped 8. Women 9. Youth 10. Veterans 11. Overseas Workers 12. Professionals

of nominees by the respective sectors. (Art. XVIII, sec. 7) Sec. 41, RA 7160 (An Act Providing for a Local Government Code of 1991): Manner of Election. (c) In addition thereto, there shall be one (1) sectoral representative from the women, one (1) from the workers, and one (1) from any of the following sectors: the urban poor, indigenous cultural communities, disabled persons, or any other sector as may be determined by the sanggunian concerned within ninety (90) days prior to the holding of the next local elections, as may be provided for by law. The Comelec shall promulgate the rules and regulations to effectively provide for the election of such sectoral representatives.



 Term of Office: 3 years, commencing th at noon on the 30 day of June next following their election. 

 

For 3 consecutive terms from 2 February 1987, 25 seats shall be allotted to sectoral representatives. to be chosen by appointment or election, as may be provided by law Until a law is passed, they are appointed by the President from a list

In B.P. Blg. 881 members of the legislature included in the enumeration of elective public officials are to be considered resigned from office from the moment of the filing of their certificates of candidacy for another office, except for President and Vice-President. The term of office prescribed by the Constitution may not be extended or shortened by the legislature, but the period during which an officer actually holds the office (tenure) may be affected by circumstances within or beyond the power of said officer. Tenure may be shorter than the term or it may not exist at all. These situations will not change the duration of the term of office. [Dimaporo vs Mitra (1991)]  Term Limits: No member of the House of Representatives shall serve for more than 3 consecutive terms.

3.

Synchronized Terms of Office (Secs 1-2, Art XVIII)

C. Election 1.

Regular Elections  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. (Sec 8, Art VI)

2.

Special Election  In case of vacancy in the Senate or in the House of Representatives, a special election

iii. Sectoral Representatives 

Qualifications of Representatives: 1. Natural-born citizens 2. At least 25 years old on the day of the election 3. Able to read and write 4. Registered voter in the district he seeks to represent 5. A resident of the said district for at least 1 year immediately preceding the day of the election.

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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. (Sec 9, Art VI)



The Constitution mandates that there should always be adequate representation for every province or legislative district. If a vacancy occurs in a manner contemplated in the Constitution, then Congress has the authority if not the duty to call for special elections. [Lozada v. COMELEC, (1983)] 4.

Disqualifications  May not hold any other office or employment in the government during his term without forfeiting his seat. (Art VI Sec 13)  May not be appointed to any office created or the emoluments thereof were increased during the term for which he was elected. (Art VI Sec 13)  Cannot personally appear as counsel before any court, electoral tribunal, quasi-judicial and administrative bodies during his term of office. (Art VI Sec 14)  Shall not be financially interested, directly or indirectly, in any contract with, or franchise or special privilege granted by the government during his term of office. (Art VI Sec 14)  Shall not intervene in any matter before any office of the government when it is for his pecuniary benefit or where he may be called upon to act on account of his office. (Art VI Sec 14)



Certain salient circumstances militate against the intervention of Assemblyman Fernandez in the SEC Case. He had acquired a mere P200.00 worth of stock in IPI, representing ten shares out of 262,843 outstanding shares. He acquired them after the contested election of Directors, after the quo warranto suit had been filed before SEC, and one day before the scheduled hearing of the case before the SEC. Before he moved to intervene, he had signified his intention to appear as counsel for respondent, but which was objected to by petitioners. Realizing, perhaps, the validity of the objection, he decided, instead, to "intervene" on the ground of legal interest in the matter under litigation. Under those facts and circumstances that there has been an indirect "appearance as counsel before ... an administrative body" and that is a circumvention of the Constitutional prohibition. The "intervention" was an afterthought to enable him to appear actively in the proceedings in some other capacity. [Puyat v De Guzman, (1982)]

D. Salaries, Privileges and Disqualifications 1.

Salaries  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. [Ligot v. Mathay, (1974)]

Official President Vice-President, President of the Senate, Speaker of the House of Representatives, and Chief Justice of the Supreme Court Senators, Members of the House of Representatives, Associate Justices of the Supreme Court, and Chairmen of the Constitutional Commissions Members of the Constitutional Commissions

2.

3.

Annual Salary Php 300,000 Php 240,000

Php 204,000

Php 180,000

Freedom from arrest (Art VI Sec 11, 1987 Constitution)  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. Speech and Debate Clause  In this case, a clarification of the scope and limitation of the parliamentary immunity was made. There was reiteration that, First, Congressional immunity is a guarantee of immunity from answerability before an outside forum but not from answerability to the disciplinary authority of congress itself; Second, to come under the guarantee the speech or debate" must be one made "in Congress or in any committee thereof." [Jimenez v. Cabangbang, (1966)]

Each House of the Congress can discipline its members for disorderly conduct or behavior. What constitutes disorderly behavior is entirely up to Congress to define. Although a member of Congress shall not be held liable in any other place for any speech or debate in the Congress or in any committee thereof, such immunity, although absolute in its protection of the member of Congress against suits for libel, does not shield the member against the disciplinary authority of the Congress. [Osmena v. Pendatun, (1960)]

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Duty to Disclose  A public officer or employee shall, upon assumption of office and as often as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth.  Cases wherein declaration shall be disclosed to the public in the manner provided by law: o President o Vice-President o the Members of the Cabinet o the Congress o the Supreme Court o the Constitutional Commissions and other constitutional offices o officers of the armed forces with general or flag rank (Art XI Sec 17)  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. o 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. (Art VI Sec 12)  The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, o 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. (Art VI Sec 20)

members of the House" and a majority of "the House", the latter requiring less number than the first. Therefore, an absolute majority (12) of all members of the Senate less one (23) constitutes constitutional majority of the Senate for the purpose of the quorum. [Avelino v. Cuenco, (1949)]

3. Rules of Proceedings  

4. Discipline of Members 





E. Internal Government of Congress

1. Election of officers Officers: 1. Senate President 2. Speaker of the House 3. Such officers as deemed by each house to be necessary Election of Officers: respective members

Each House shall determine its own procedural rules. Issues may either be: o Political- On matters affecting only internal operation of the legislature, the legislature’s formulation and implementation of its rules. o Justiciable - when the legislative rule affects private rights.

By a majority vote of all

Each house may punish its members for disorderly behavior, and with the concurrence of 2/3 of ALL its members: 1. Suspension (shall not exceed 60 days) 2. Expulsion Other disciplinary measures: 1. deletion of unparliamentary remarks from the record 2. fine 3. imprisonment 4. censure Senate expelled Senator Alejandrino for disorderly conduct for assaulting Senator de Vera during one of their debates in session. Senate adopted a resolution depriving Senator Alejandrino of all the prerogatives, privileges and emoluments of his office for the period of one year. The Court held that the resolution was illegal since it amounted to expulsion and it would deprive the electoral district of representation without any means to fill the vacancy. The Senate had no authority to suspend an appointed Senator like Senator Alejandrino. [Alejandrino v. Quezon, (1924)]

2. Quorum

5. Journal and Congressional Records



a.

 

Majority of each House shall constitute a quorum. A smaller number may adjourn from day to day and may compel the attendance of absent members. In computing a quorum, members who are outside the country, thus outside of each House’s coercive jurisdiction, are not included. “Majority” refers to the number of members within the “jurisdiction” of the Congress (those it can order arrested for the purpose of questioning). In this case, one Senator was out of the Philippines which is not within the “jurisdiction” of the Senate, so that the working majority was 23 Senators. There is a difference between a majority of "all

The Enrolled Bill Theory  An enrolled bill is the official copy of approved legislation and bears the certifications of the presiding officers of each House.  where the certifications are valid and are not withdrawn, the contents of the enrolled bill are conclusive upon the courts. 

RATIONALE OF ENROLLED BILL THEORY- An enrolled Act in the custody of the Secretary of State, and having the official attestations of the Speaker of the House of Representatives, of the President of the Senate, and of the President of the United States, carries, on its face, a solemn assurance by the legislative and executive

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departments of the government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by Congress. The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed Congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the Act, so authenticated, is in conformity with the Constitution [Astorga vs Villegas, (1974) citing Field vs. Clark].

b.

d.

e.

Congressional Record

6. Sessions a.

Regular Sessions th  Convenes once every year on the 4 Monday of July.  Continues to be in session until 30 days before the start of its next regular session, exclusive of Saturdays, Sundays, and legal holidays.

b.

Special Sessions  Called by the President at any time when Congress is not in session

c.

Adjournments  Neither House can adjourn for more than 3 days during the time Congress is in session without the consent of the other House.  Neither can they adjourn to any other place than that where the two houses are sitting, without the consent of the other.

d.

Joint Sessions  Voting separately  Choosing the President (Sec. 4, Art VII)  Determining the President’s temporary disability (Id., Sec. 11, Par 4)  Confirming the nomination of a VicePresident (Id., Sec. 9)  Declaring a state of war (Sec. 23(1), Art VI)  Amending the Constitution (Sec. 1(1), Art XVII)  Voting Jointly  To revoke or extend martial law or suspension of privilege of habeas corpus (Sec. 18 Art VII)

F.

Electoral Tribunals

Matters required to be entered in the Journal  Yeas and Nays on third and final reading of a bill  Veto message of the President  Yeas and Nays on the repassing of a bill vetoed by the President  Yeas and Nays on any question at the request of 1/5 of members present.

1.

Composition



Journal Entry Rule v. Enrolled Bill Theory



3 Supreme Court Justices to be designated by the Chief Justice (The senior Justice in the Electoral Tribunal shall be its Chairman). 6 Members of the Senate or House, as the case may be, chosen on the basis of proportional representation from the political parties and party-list organizations. The ET shall be constituted within 30 days after the Senate and the House shall have been organized with the election of the President and the Speaker. Members chosen enjoy security of tenure and cannot be removed by mere change of party affiliation.



Respect due to a co-equal department requires the courts to accept the certification of the presiding officer of the legislative body. [Casco vs Gimenez (1963)]



A duly authenticated bill or resolution imports absolute verity and is binding on the courts.[Mabanag v. Lopez Vito, (1947)]

Probative value of the Journal  The Journal is conclusive upon the courts.  But when the contents of the journal conflicts with that of an enrolled bill, the enrolled bill prevails over the contents of the journal. 

c.

records of Congress for proof of its due enactment. [Astorga v. Villegas, (1974)]



Congress may validly continue enacting bills even beyond the reglementary period of adjournment. When the journal shows that Congress conducted a sine die session where the hands of the clock are stayed in order to afford Congress the opportunity to continue its session. All bills enacted during the sine die session are valid and conclusive upon the Courts. The Journals are conclusive evidence of the contents thereof and Courts are bound to take judicial notice of them. [US vs Pons (1916)]

It may be noted that the enrolled bill theory is based mainly on "the respect due to coequal and independent departments," which requires the judicial department "to accept, as having passed Congress, all bills authenticated in the manner stated." Thus it has also been stated in other cases that if the attestation is absent and the same is not required for the validity of a statute, the courts may resort to the journals and other







The five LDP members who are also members of the Senate Electoral Tribunal may not inhibit themselves since it is clear that the Constitution intended legislative and judiciary membership to the tribunal. As a matter of fact, the 2:1 ratio of

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legislative to judiciary indicates that legislative membership cannot be ignored. To exclude themselves is to abandon a duty that no other court can perform. [Abbas vs SET (1988)]

2.

o

4.

Powers



Lazatin v. HRET, (1988) The HRET will only gain jurisdiction upon proclamation of the candidate. Until such proclamation, he is not yet a member of the House; hence, the HRET will not have jurisdiction over him. Jurisdiction over such remains with the COMELEC.



As constitutional creations invested with necessary power, the Electoral Tribunals are, in the exercise of their functions independent organs — independent of Congress and the Supreme Court. The power granted to HRET by the Constitution is intended to be as complete and unimpaired as if it had remained originally in the legislature [ Co vs HRET (1991) citing Angara vs. Electoral Commission [1936]).

5.

Judicial Review of Decisions of Electoral Tribunals



With the SC only insofar as the decision or resolution was rendered o without or in excess of jurisdiction, or o with grave abuse of discretion tantamount to denial of due process.



To question the jurisdiction of the lower court or the agency exercising judicial or quasi-judicial functions, the remedy is a special civil action for certiorari under Rule 65 of the Rules of Court. The petitioner in such cases must clearly show that the public respondent acted without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion defies exact definition, but generally refers to "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a 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 and hostility. [Garcia vs HRET (1999)]

Nature of Function

Jurisdiction: be the sole judge of all CONTESTS relating to the election, returns, and qualifications of their respective members. ET has jurisdiction only when there is an election contest. 

Election Contest - one where a defeated candidate challenges the qualification and claims for himself the seat of a proclaimed winner.



The Electoral Tribunal of each House is the SOLE judge of all contests relating to the election, returns, and qualifications of the members of Congress. In the absence of election contest, the Electoral Tribunal has no jurisdiction. The Electoral Tribunals are independent constitutional bodies and cannot be regulated by Congress. Supreme Court has jurisdiction over the Electoral Commission and the subject matter of the present controversy for the purpose of determining the character, scope and extent of the constitutional grant to the Electoral Commission as "the sole judge of all contests relating to the election, returns and qualifications of the members of the National Assembly." [Angara vs Electoral Commission (1936)]

3.

Independence of the Electoral Tribunals



Since the ET’s are independent constitutional bodies, independent even of the respective House, neither Congress nor the Courts may interfere with procedural matters relating to the functions of the ET’s. [Co vs HRET, (1991)]



The HRET was created to function as a nonpartisan court although two-thirds of its members are politicians. It is a non-political body in a sea of politicians. To be able to exercise exclusive jurisdiction, the House Electoral Tribunal must be independent. Its jurisdiction to hear and decide congressional election contests is not to be shared by it with the Legislature nor with the Courts. "The Electoral Commission is a body separate from and independent of the legislature and though not a power in the tripartite scheme of government, it is to all intents and purposes, when acting within the limits of its authority, an independent organ; while composed of a majority of members of the legislature it is a body separate from and independent of the legislature. [Bondoc v. Pineda, (1991)]



Valid grounds / Just cause for termination of membership to the tribunal. o Expiration of Congressional term of office; o Death or permanent disability; o Resignation form political party which one

represents in the tribunal; Removal from office for other valid reasons.

G. Commission on Appointments (Sec, Art VII)

1.

Composition:

a.

Senate President as ex-officio chairman (shall not vote except in case of a tie.) 12 Senators 12 Members of the House

b. c.

The 12 Senators and 12 Representatives are elected on the basis of proportional representation from the political parties and party-list organizations.

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Chapter II. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers

The authority of the House of Representatives to 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 in membership 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. [Daza vs SIngson (1989) The provision of Section 18 on proportional representation is mandatory in character and does not leave any discretion to the majority party in the Senate to disobey or disregard the rule on proportional representation RATIONALE: The party with a majority representation in the Senate or the house of Representatives can by sheer force of numbers impose its will on the hapless minority. By requiring a proportional representation in the Commission on Appointments, Section 18 in effect works as a check on the majority party in the Senate and helps to maintain the balance of power. No party can claim more than what it is entitled to under such rule. [Guingona, Jr. vs Gonzales, (1993)]

Meetings



Commission on Appointments shall meet only while Congress is in session. Meetings are held either at the call of the Chairman or by a majority of all its members. Since the Commission on Appointments is also an independent constitutional body, its rules of procedure are also outside the scope of congressional powers as well as that of the judiciary.



b.

Congress cannot by law require that the appointment of a person to an office created by such law shall be subject to confirmation by the Commission on Appointments.

c.

Appointments extended by the President to the above-mentioned positions while Congress is not in session shall only be effective until disapproval by the Commission on Appointments or until the next adjournment of Congress.

H. Powers of Congress 1.

General (Sec Art VI) a.

Legislative Powers: (Scope: vested in Congress by the Constitution except to the extent reserved to the people by the provision on initiative and referendum).  powers of appropriation, taxation and expropriation  authority to make, frame and enact laws

b.

Non-legislative Powers (Scope)  power to canvass the presidential elections;  declare the existence of war;  give concurrence to treaties and amnesties;  propose constitutional amendments;  impeach;  derivative and delegated power;  implied powers such as the power to punish contempt in legislative investigations.

The Commission on Appointments shall be constituted within 30 days after the Senate and the House of Representative shall have been organized with the election of the President and the Speaker. The Commission on Appointments shall act on all appointments within 30 session days from their submission to Congress. The Commission on Appointments shall rule by a majority vote of all its members.

2.



COMELEC members);

3.

Jurisdiction

a.

Commission on Appointments shall confirm the appointments by the President with respect to the following positions:  Heads of the Executive Departments (except if it is the Vice-President who is appointed to the post);  Ambassadors, other public ministers or consuls;  Officers of the AFP from the rank of Colonel or Naval Captain;  Other officers whose appointments are vested in him by the Constitution (e.g.

2.

Specific Powers a. b. c. d. e. f.

3.

Inherent Powers a.

b. c. d.

4.

Constituent power Legislative Inquiries Appropriation Taxation Concurrence in treaties and international agreements War powers and delegations powers

Police Power  Make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances as they shall judge for the good and welfare of the constituents.  Includes maintenance of peace and order, protection of life, liberty and property and the promotion of general welfare Power of Taxation Power of Eminent Domain Contempt power

Limitations:

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a.

b.

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Formal or Procedural Limitations  Prescribes the manner of passing bills in the form they should take  Limitations provided by Sec 26, Art VI o Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title o No bill passed by either house shall become law unless it has passed 3 readings on separate days o Printed copies in its final form have been distributed to its members 3 days before the passage of the bill  Exception: president certifies to the necessity of its immediate enactment to meet a public calamity or emergency Substantive Limitations  Circumscribe both the exercise of the power itself and the allowable subject of legislation  Express limitations: o Sec 24-26, 28-30, Art VI  Express limitations on general powers o Bill of rights  Implied Limitations o No power to pass irrepealable law o Non-encroachment on powers of other departments o Non-delegability of powers

Discussion of Specific Powers a. 

Constituent Powers Power to propose amendments to the Constitution

b. 

Legislative Inquiries (Sec 21, Art VI) Requisites: o Must be in aid of legislation o In accordance with duly published rules of procedure o Right of persons appearing in or affected by such inquiries shall be respected Additional limitation: Executive Privilege (Refer to Chap 4, III)

 c. 

Appropriation General Limitations: o Appropriations must be for a PUBLIC PURPOSE. o Cannot appropriate public funds or property, directly or indirectly, in favor of 1. Any sect, church, denomination, or sectarian institution or system of religion or 2. Any priest, preacher, minister, or other religious teacher or dignitary as such. EXCEPT if the priest, etc is assigned to: 1. the Armed Forces; 2. any penal institution; 3. government orphanage; 4. leprosarium o Government is not prohibited from

o



appropriating money for a valid secular purpose, even if it incidentally benefits a religion, e.g. appropriations for a national police force is valid even if the police also protects the safety of clergymen. Also, the temporary use of public property for religious purposes is valid, as long as the property is available for all religions.

Specific Limitations o For General Appropriations Bills 1. Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. 2. Form, content and manner of preparation of the budget shall be prescribed by law. 3. No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. 4. Procedure in approving appropriations FOR THE CONGRESS shall strictly follow the procedure for approving appropriations for other departments and agencies. 5. No law shall be passed authorizing any transfer of appropriations. However, the following 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: i. President ii. Senate President iii. Speaker of the House iv. Chief Justice of the Supreme Court v. Heads of the Constitutional Commissions Guidelines for disbursement of DISCRETIONARY FUNDS appropriated FOR PARTICULAR OFFICIALS: i. For public purposes ii. To be supported by appropriate vouchers iii. Subject to such guidelines as may be prescribed by law If Congress fails to pass the general appropriations bill by the end of any fiscal year: i. The general appropriations bill for the previous year is deemed reenacted ii. It shall remain in force and effect until the general appropriations bill is passed by Congress.

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o

o

o

d. 



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For Special Appropriations Bill 1. Shall specify the purpose for which it is intended 2. Shall be supported by funds actually available as certified by the National Treasurer or to be raised by corresponding revenue proposal therein Limitation on Use of Public Funds (Sec 29, Art VI): 1. No money shall be paid out of the National Treasury EXCEPT in pursuance of an appropriation made by law. 2. However, this rule does not prohibit continuing appropriations, e.g. for debt servicing, for the reason that this rule does not require yearly or annual appropriation.

o

Four phases of Government’s budgeting process: 1. Budget preparation 2. Legislative authorization 3. Budget execution 4. Budget accountability

Taxation (Sec 28, Art VI) Nature o Sec 28 is an enumeration of the limits on the inherent and otherwise unlimited power Purposes o Pay debts and provide for the common defense and general warfare; o Raise revenue; o Instrument of national and social policy; o Instrument for extermination of undesirable acts and enterprises; o Tool for regulation; o Imposition of tariffs designed to encourage and protect locally produced goods against competition for imports. Limitations o Public. Power to tax should be exercised only for a public purpose. o Uniform and Equitable. 1. Operates with the same force and effect in every place where the subject of it is found 2. Does not prohibit classification for the purpose of taxation 3. Requirements for valid classification: i. Based on substantial distinctions which make real differences ii. Germane to the purpose of law iii. Applies to present and future conditions substantially identical to those of the present iv. Applies equally to those who belong to the same class

o

e. 



f.   

Progressivity. 1. The rate increases as the tax base increases 2. Tax burden is based on the taxpayers’ capacity to pay 3. Suited to the social conditions of the people 4. Reflects aim of the Convention that legislature following social justice command should use taxation as an instrument for more equitable distribution of wealth Constitutional Tax Exemptions: 1. Religious, charitable, educational institutions and their properties 2. All revenues and assets of NONSTOCK NON-PROFIT EDUCATIONAL institutions are exempt from taxes and duties PROVIDED that such revenues and assets are actually, directly and exclusively used for educational purposes (sec. 4 (3) Art XIV). 3. Grants, endowments, donations or contributions used actually, directly and exclusively for educational purposes shall be exempt from tax, subject to conditions prescribed by law (sec. 4 (4) Art XIV). Special Funds 1. Money collected on a tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. 2. Once the special purpose is fulfilled or abandoned, any balance shall be transferred to the general funds of the Government

Concurrence in Treaties and international agreements (Sec 21, Art VII) Treaties and other international agreements which are in the nature of original agreements of a permanent nature or which establish national policy, or involve political issues or changes in national policies need the concurrence of 2/3 of the members of the Senate. Executive agreements which are merely implementation of treaties or statutes or of well-established policies or are of transitory effectivity do not require Senate concurrence. War Powers (Sec 23 (1), Art VI) Congress in joint session assembled and voting separately shall have the sole power to declare the existence of war Philippines renounces war as an instrument of national policy Even though the legislature can declare existence of war and enact measures to support it, the actual power to make war is lodged nonetheless in the executive

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Chapter II. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers

Delegation of Powers a.

b.

General rule: Congress cannot delegate its legislative power (Potestas delegate non potest delegare) Exceptions 1. Delegation of tariff powers to the President (Art VI sec. 28(2)). 2. Delegation of emergency powers to the President (Art VI sec. 23(2)). o Preconditions: i. Limited time period CA 671 – passed delegative emergency powers to the president in times of war and other national emergencies. Since said grant was given to meet the emergencies incidental to the war, such powers ceased at the time the war stopped ii. Power may be withdrawn by resolution, not necessary that it be done through statute iii. Subject to restrictions as the congress may provide 3. Delegation to the people at large. 4. Delegation to local governments. 5. Delegation to administrative bodies (rule-making power).



RA 7716 (EVAT Law) did not violate Sec. 24, Art. VI (Origination Clause). It is important to emphasize that it is the law, and not the bill, which is required to originate exclusively from the HoR, because the bill may undergo such extensive changes in the Senate that the result may be the rewriting of the whole. To insist that a revenue statute, and not just the bill, must be substantially 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 violate the co-equality of legislative power of the Senate. [Tolentino vs. Secretary of Finance (1994)] B.

Procedure for the Passage of Bills

i.

Procedure for Enactment: Introduction: must be by any member of the House of Representatives or Senate except for some measures that must originate only from the former chamber First reading: The reading of the title and the number; the bill is passed by the Senate President or Speaker to the proper committee Second reading: Entire text is read and debates are held, and amendments introduced. The bill as approved in the second reading is printed in its final form and copies are distributed three days before the third reading

Tests for a Valid Delegation 1. The Completeness Test The law must be complete in all its terms and conditions when it leaves the legislature so that there will be nothing left for the delegate to do when it reaches him except enforce it.

Third reading: Only the title is read, no amendments are allowed. Vote shall be taken immediately thereafter and the yeas and nays entered in the journal. Sent to the other chamber: once the bill passes the third reading, it is sent to the other chamber where it will also go under three readings

2. The Sufficient Standard Test The law must fix a standard, the limits of which are sufficiently determinate or determinable, to which the delegate must conform in the performance of his functions. [Pelaez vs. Auditor General, (1965)]

7.

Legislative Process

A.

Bills that Must Originate EXCLUSIVELY from the House of Representatives (Sec. 24, Art VI):

i.

Appropriation bills (A bill appropriating a sum of money from the public treasury.) A bill creating a new office, and appropriating funds therefor is NOT an appropriation bill. Revenue bills (A bill specifically designed to raise money or revenue through imposition or levy.) A law regulating an industry, though incidentally imposing a tax, does not make the law a revenue bill. Tariff bills Bills authorizing the increase of public debt Bills of local application Private bills

ii. iii. iv. v. vi. vii.

Enrolled Bill: The bill is printed as finally approved by the Congress, authenticated with the signatures of the Senate President or the Speaker and the Secretary and approved by the President

ii.

Submission to the President; President’s Veto power (Sec 27, Art VI)  Every bill, in order to become a law, must be presented to and signed by the President.  If the President does not approve of the bill, he shall veto the same and return it with his objections to the House from which it originated. The House shall enter the objections in the journal and proceed to reconsider it.  The President must communicate his decision to veto within 30 days from the date of receipt thereof. If he fails to do so, the bill shall become a law as if he signed it.  To override the veto, at least 2/3 of ALL the members of each House must agree to pass the bill. In such case, the veto is overridden and becomes a law without need of presidential approval.

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Item veto o The President may veto particular items in an appropriation, revenue or tariff bill. o This veto will not affect items to which he does not object. Veto of a Rider o A rider is a provision which does not relate to a particular appropriation stated in the bill. o Since it is an invalid provision under Section 25(2), the President may veto it as an item. 

The executive's veto power does not carry with it the power to strike out conditions or restrictions. If the veto is unconstitutional, it follows that the same produced no effect whatsoever, and the restriction imposed by the appropriation bill, therefore, remains. [Bolinao Electronics Corp vs Valencia, (1964)]



DOCTRINE OF INAPPROPRIATE PROVISIONS- 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. [Gonzales vs Macaraig, (1990)]



The Constitution provides that only a particular item or items may be vetoed. The power to disapprove any item or items in an appropriate bill does not grant the authority to veto a part of an item and to approve the remaining portion of the same item. [Bengzon vs. Drilon, (1992)]

“The terms item and provision in budgetary legislations and practice are concededly different. An item in a bill refers to the particulars, the details, the distinct and severable parts . . . of the bill. It is an indivisible sum of money dedicated to a stated purpose. An 'item' of an appropriation bill means an item which in itself is a specific appropriation of money, not some general provision of law, which happens to be put into an appropriation bill.'" The president cannot veto unavoidable obligations such as the payment of pensions which has already been vested by the law. The veto is invalid since it is violated the separation of property and the judiciary’s fiscal autonomy. C.

Effectivity of Laws

Article 2 (CC) Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. This code shall take effect one year after such publication.





unless otherwise provided – this phrase refers to the date of effectivity, and not to the very act of publication. Complete publication is indispensable. Executive Order No. 200 (June 18, 1987): Amended Art II of CC to include any newspaper of general circulation as a means of publication other than the Official Gazette

8.

Initiative and Referendum (Sec 32, Art VI)

a. b.

c.



Limited only to the proposal of amendments Requirements for people’s initiative:  12 % of the total number of registered voters  at least 3% of all registered voters in every district should be represented No amendments shall be authorized within 5 years following the ratification of the new Constitution. The right of the people to directly propose amendments to the Constitution through the system of initiative would remain entombed in the cold niche of the Constitution until Congress provides for its implementation. Stated otherwise, while the Constitution has recognized or granted that right, the people cannot exercise it if Congress, for whatever reason, does not provide for its implementation.

Held: RA 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. The court cited the following reasons: 1. Sec 2 of the Act does not suggest an initiative on amendments to the Constitution. The inclusion of the word "Constitution" therein was a delayed afterthought. That word is neither germane nor relevant to said section. 2. Unlike in the case of the other systems of initiative, the Act does not provide for the contents of a petition for initiative on the Constitution. While the Act provides subtitles for National Initiative and Referendum and for Local Initiative and Referendum, no subtitle is provided for initiative on the Constitution. Also, while RA 6735 exerted utmost diligence and care in providing for the details in the implementation of initiative and referendum on national and local legislation, it failed, rather intentionally, to do so on the system of initiative on amendments to the Constitution. [Santiago vs Comelec, (1997)] 

The court cited the following reasons for holding that there was failure to comply with §2, Art.XVII of the Constitution: (a) the initiative petition did not present the full text of the proposed amendments; and (b) the proposed changes constituted revision not amendment. 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. This means two essential elements must be present. First, the people must author and thus sign the entire proposal. No agent or representative can sign on their behalf. Second, as an initiative upon a petition, the proposal must be embodied in a petition. Further, a people’s initiative could only propose amendments not revisions. Only Congress or a constitutional convention can propose both amendments and revisions to the Constitution. A change in the form of government

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– from presidential and bicameral Congress to parliamentary and unicameral legislature— constitutes revision and not merely amendment. [Lambino v Comelec, (2006)]

Essential Requisites for Judicial Review a.

Actual case or controversy  This means that there must be a genuine conflict of legal rights and interests which can be resolved through judicial determination. [John Hay vs. Lim, (2003)]

II. Judiciary This precludes the courts from entertaining the following: i. Request for an advisory opinion [Guingona vs. CA, (1998)] ii. Cases that are or have become moot and academic, unless -- capable of repetition yet evading review [Alunan III v. Mirasol, (1997); Sanlakas v. Executive Secretary, (2004)]; or  when the court feels called upon to exercise its symbolic function and provide future guidance [Salonga v. Paño, (1985)]

(Asked 28 times in the Bar)

A. In General

1. Judicial Power v. Judicial Review (Asked 6 times in the Bar) Where vested Definition

JUDICIAL POWER Supreme Court Lower courts Duty to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government [Art. VIII, Sec. 1, Par. 2] Jurisdiction – power to decide and hear a case and execute a decision thereof

JUDICIAL REVIEW Supreme Court Lower courts Power of the courts to test the validity of executive and legislative acts in light of their conformity with the Constitution [Angara v. Electoral Commission (1936)]

b.

Standing: NOT the same as “real party in interest” A proper party is one who has sustained or is in imminent danger of sustaining a direct injury as a result of the act complained of [NACHURA, citing IBP v. Zamora (2000)]. The alleged injury must also be capable of being redressed by a favorable judgment [Tolentino v. Comelec, (2004)]. i. requires partial consideration of the merits of the case in view of its constitutional and public policy underpinnings [Kilosbayan vs Morato, (1995)] ii. may be brushed aside by the court as a mere procedural technicality in view of transcendental importance of the issues involved [Kilosbayan vs Guingona, (1994); Tatad vs DOE, (1995)] iii. Who are proper parties?  taxpayers, when public funds are involved [Tolentino vs Comelec, (2004)]  Government of the Philippines, when questioning the validity of its own laws [People vs Vera, (1937)]  legislators, when the powers of Congress are being impaired [Philconsa vs Enriquez, (1994)]  citizens, when the enforcement of a public right is involved [Tañada vs Tuvera, (1985)]

c.

Constitutional question must be raised at the earliest possible opportunity, except: i. in criminal cases, at the discretion of the court ii. in civil cases, if necessary for the determination of the case itself iii. when the jurisdiction of the court is involved [NACHURA]

Functions of Judicial Review

d.

a. b. c.

Decision on the constitutional question must be determinative of the case itself.



The reason for this is the doctrine of separation of powers which requires that due respect be

Requisites for exercise



1. Appropriate case: actual case or controversy 2. Standing: personal and substantial interest 3. Question raised at the earliest opportunity 4. Lis mota of the case

When the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. [Angara v. Electoral Commission, (1936)]

Checking Legitimating Symbolic [NACHURA]

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given to the co-equal branches, and because of the grave consequences of a declaration of unconstitutionality. [De la Llana v. Alba, (1982)]

Political Question Doctrine 

The term “political question” refers to: (1) matters to be exercised by the people in their primary political capacity; or (2) those specifically delegated to some other department or particular office of the government, with discretionary power to act. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. [Tañada v. Cuenco, (1957)]

In recent years, the Court has set aside this doctrine and assumed jurisdiction whenever it found constitutionally-imposed limits on the exercise of powers conferred upon the Legislative and Executive branches [BERNAS]. POLITICAL QUESTION Alejandrino v. Quezon, (1924): The legislature’s exercise of disciplinary power over its member is not to be interfered with by the Court. Vera v. Avelino, (1946): inherent right of the legislature to determine who shall be admitted to its membership Mabanag v. Lopez-Vito, (1947): Proposal to amend the Constitution is a highly political function performed by Congress in its sovereign capacity. Osmeña v. Pendatun, (1960): disciplinary power of the legislature

Severino v. GovernorGeneral, (1910): Mandamus and injunction could not lie to enforce or restrain a duty which is discretionary (calling a special local election). Montenegro v. Castañeda, (1952): Authority to decide whether the exigency has arisen requiring the suspension of the privilege of the writ of habeas corpus belongs to the President. Manalang v. Quitoriano, (1954): President’s appointing power is not to be interfered with by the Court. Javellana v. Executive Secretary, (1973): The people may be deemed to have cast their favorable votes in the belief that in doing so they did the part required of them by Article

JUSTICIABLE CONTROVERSY Avelino v. Cuenco, (1949): election of Senate President was done without the required quorum

POLITICAL QUESTION

Effect of a Declaration of Unconstitutionality a.

b.

Orthodox view An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is inoperative, as if it had not been passed at all. Modern view  Pelaez v. Auditor General, (1965) Certain legal effects of the statute prior to its declaration of unconstitutionality may be recognized. [NACHURA]

2. Appointment and Qualifications SC and CA JUSTICE

Age

Experience

Tenure

Characteristics Javellana v. Executive Secretary, (1973): WON the 1973 Constitution had been ratified in accordance with the 1935 Constitution is justiciable.

22

XV, hence, it may be said that in its political aspect, which is what counts most, after all, said Article has been substantially complied with, and, in effect, the 1973 Constitution has been constitutionally ratified.

Citizenship Tañada v. Cuenco, (1957): The selection of the members of the Senate Electoral Tribunal is subject to constitutional limitations. Cunanan v. Tan, Jr., (1962): The Commission on Appointments is a constitutional creation and does not derive its power from Congress. Gonzales v. Comelec, (1967); Tolentino v. Comelec, (1971): abandoned Mabanag v. Lopez-Vito Lansang v. Garcia, (1971): Suspension of the privilege of the writ of habeas corpus is not a political question.

JUSTICIABLE CONTROVERSY



Naturalborn Filipino At least 40 years old

RTC JUDGE

MTC/ MCTC JUDGE

Filipino At least At least 35 years 30 years old old Has been engaged for at least 5 years in the practice of law* in the Philippines or has held public office in the Philippines requiring admission to the practice of law as an indispensable requisite

15 years or more as a judge or a lower court or has been engaged in the practice of law in the Phils. for the same period Hold office during good behavior until they reach the age of 70 or become incapacitated to discharge their duties Person of proven competence, integrity, probity and independence

“Practice of law” is not confined to litigation. It means any activity in and out of court, which requires the application of law, legal procedure, knowledge, training and experience. [Cayetano v. Monsod, (1991)]

3. Disqualification from Other Positions or Offices Art. VIII, Sec. 12. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.

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

Chapter II. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers

The issue concerns the legal right of the members of the SC, sitting as a board of arbitrators, the decision of a majority of whom shall be final, to act in that capacity. It was held that the SC and its members should not and cannot be required to exercise any power or to perform any trust or to assume any duty not pertaining to or connected w/ the administering of judicial functions. [Meralco vs Pasay Transportation Co., (1932)] A judge in the CFI shall not be detailed with the Department of Justice to perform administrative functions as this contravenes the doctrine of separation of powers. [Garcia vs Macaraig, (1972)]

4. Grounds

Removal from Office Impeachment of Members of the SC

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.

iii. Congressional power vis-à-vis SC Art. VIII, Sec. 2. The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts [subject to the following conditions/limitations:

on

a. b.

(Art. XI, Sec. 2)

i. ii. iii. iv. v. vi.

Culpable violation of the Constitution Treason Bribery Graft and corruption Other high crimes Betrayal of public trust



B. Supreme Court 1.

Composition

i. ii.

Chief Justice and 14 Associate Justices May sit en banc or in divisions of three, five, or seven Members iii. Vacancy shall be filled within 90 days from the occurrence thereof

2.

Powers: Jurisdiction

i.

Original a. Cases affecting ambassadors, other public ministers and consuls [Art. VIII, Sec. 5(1)]; b. Petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus [Art. VIII, Sec. 5(1)]; c. 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 [Art. VII, Sec. 4, par. 7]; d. 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 [Art. VII, Sec. 18, par. 3].

ii.

Appellate Art. VIII, Sec. 5. The Supreme Court shall have the following powers: xxx (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

It may not increase or decrease the appellate jurisdiction of SC It may not pass a law reorganizing the Judiciary when it undermines the security of tenure of the Members of the latter Section 27 of Republic Act No. 6770 (Ombudsman Act of 1989), together with Section 7, Rule III of Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman), and any other provision of law or issuance implementing the aforesaid Act and insofar as they provide for appeals in administrative disciplinary cases from the Office of the Ombudsman to the Supreme Court, are declared INVALID for increasing the Court’s appellate jurisdiction. However, it cannot be said that transfer of appellate jurisdiction to the CA is an act of creating a new right of appeal because such power of the SC to transfer appeals to subordinate appellate courts is purely a procedural and not a substantive power. [Fabian vs Desierto, (1998)]

3.

Other Powers

i.

Rule-making Art. VIII, Sec. 5. The Supreme Court shall have the following powers: xxx (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.



The 1987 Constitution took away the power of Congress to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer shared by this Court with Congress, more so with the Executive. [Echegaray vs Secretary of Justice, (1999)]

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Limitations: a. Shall provide a simplified and inexpensive procedure for speedy disposition of cases b. Uniform for all courts in the same grade c. Shall not diminish, increase or modify substantive rights

ii.

 

ii.

Administrative a. Assign temporarily judges of lower courts to other stations as public interest may require;  shall not exceed 6 months without the consent of the judge concerned b. Order a change of venue or place of trial to avoid a miscarriage of justice; c. Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law; d. Supervision over all courts and the personnel thereof; e. 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 [en banc].

4.

Manner of Sitting and Required Votes

i.

En banc a. decided with the concurrence of a majority of the Members who actually took part in the deliberations and voted. b. Instances when the SC sits en banc: (C-DDMM-PO)  Those involving the constitutionality, application, or operation of: (TOILPIPOO)  Treaty  Orders  International or executive agreement  Law  Presidential decrees  Instructions  Proclamations  Ordinances  Other regulations  Exercise of the power to discipline judges of lower courts, or order their dismissal [Art. VIII, Sec. 11]  Cases or matters heard by a division where the required number of votes to decide or resolve (the majority of those who took part in the deliberations on the issues in the case and voted thereon and in no case less than 3 members) is not met [Art. VIII, Sec. 4(3)]  Modifying or reversing a doctrine or principle of law laid down by the court in a decision rendered en banc or in division [Art. VIII, Sec. 4(3)]  Actions instituted by citizen to test the validity of a proclamation of martial law or suspension of the privilege of the writ [Art. VII, Sec. 18]

When sitting as Presidential Electoral Tribunal [Art. VII, Sec. 4, par. 7] All other cases which under the Rules of Court are required to be heard by the SC en banc. [Id., Sec. 4(2)]

In divisions  Requirement and Procedures:  With the concurrence of a majority of the Members who actually took part in the deliberations and voted  In no case without the concurrence of at least three of such Members  When required number is not obtained, 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 

The Supreme Court sitting en banc is not an appellate court vis-à-vis its Divisions. The only constraint is that any doctrine or principle of law laid down by the Court, either rendered en banc or in division, may be overturned or reversed only by the Court sitting en banc.[ Firestone Ceramics v. CA, (2000)]

iii. Provisions of the Rules of Court Rule 56, Sec. 7. Procedure if opinion is equally divided. Where the court en banc is equally divided or the necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation no decision is reached, the original action commenced in the court shall be dismissed; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall de denied.

Rule 125, Sec. 3. Decision if opinion is equally divided. – When the Supreme Court en banc is equally divided or the necessary majority cannot be had on whether to acquit the appellant, the case shall again be deliberated upon and if no decision is reached after re-deliberation, the judgment of conviction of the lower court shall be reversed and the accused acquitted.

5.

Requirements as to Decisions (applicable also to lower collegiate courts)

i.

ii.

iii.

iv.

Conclusions shall be reached in consultation before the case is assigned to a Member for the writing of the opinion; 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 Member who took no part, or dissented, or abstained from a decision or resolution must state the reason; Decision shall clearly and distinctly express the facts and the law on which it is based

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No petition for review or MR of a decision shall be refused due course or denied without stating the legal basis The Court reminds all lower courts, lawyers, and litigants that it disposes of the bulk of its cases by minute resolutions and decrees them as final and executory, as where a case is patently without merit, where the issues raised are factual in nature, where the decision appealed from is supported by substantial evidence and is in accord with the facts of the case and the applicable laws, where it is clear from the records that the petition is filed merely to forestall the early execution of judgment and for noncompliance with the rules. The resolution denying due course or dismissing the petition always gives the legal basis. As emphasized in In Re: Wenceslao Laureta (1987), “The Court is not ‘duty bound’ to render signed Decisions all the time. It has ample discretion to formulate Decisions and/or Minute Resolutions, provided a legal basis is given, depending on its evaluation of a case”. This is the only way whereby it can act on all cases filed before it and, accordingly discharge its constitutional functions. [Borromeo vs. Court of Appeals, (1990)]



iii.

2.

Function i. ii.

3.

Representative of the Integrated Bar (4 years)  Professor of Law (3 years)  Retired Member of the SC (2 years)  Representative of the private sector (1 year) Clerk of SC as Secretary ex officio Recommending appointees to the Judiciary; Such other functions and duties as the SC may assign.

Procedure i.

Members of the SC and Judges of lower courts  appointed by the Pres. from a list of at least 3 nominees prepared by the JBC for every vacancy  no confirmation needed ii. Lower courts  President shall issue the appointments within 90 days from the submission of the list

III. Executive (Asked 34 times in the Bar)

A. The President 6.

Mandatory Period for Deciding Cases

SUPREME COURT 24 months from date of submission

LOWER COLLEGIATE COURTS 12 months, unless reduced by SC

LOWER COURTS

1.

Qualifications, Election, Term and Oath

i.

Qualifications (Sec. 2, Art VII)  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  a resident of the Philippines for at least ten years immediately preceding such election. o residency and domicile mean the same thing under election law o The ff must be taken into consideration: 1. bodily presence 2. animus manendi 3. animus revertendi  The candidate must be qualified on the day of the elections.

ii.

Term and Election (Sec. 4, Art VII)  Elected by direct vote of the people  Unless otherwise provided by law, the regular election for President and VicePresident shall be held on the second Monday of May.  Canvassing of votes: o Congress shall promulgate rules for canvassing of the certificates. o Board of canvassers duly certifies returns of every election for President and VP and transmits them to Congress, directed to the Senate President.

3 months, unless reduced by SC

Art. VIII, Sec. 15(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 therefor 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. Art. VIII, Sec. 15(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.

C. Judicial and Bar Council 1.

Composition i.

Ex Officio Members  Chief Justice as ex officio Chairman  Secretary of Justice  Representative of the Congress ii. Regular Members  appointed by the President for a term of 4 years with the consent of the Commission on Appointments but the term of those initially appointed shall be staggered as to create continuity

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o

o

o

Chapter II. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers 

Senate President shall, not later than 30 days after the day of election (2nd Tuesday of June), open all certificates in the presence of the members of Congress in a joint public session. The Congress, upon determination of the authenticity and due execution of the certificates, shall canvass the votes. The persons having the highest number of votes shall be proclaimed elected. In case of a tie, one of the candidates shall be chosen by the vote of a majority of all the members of Congress, voting separately. The Supreme Court en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President, or VP, and may promulgate its rules for the purpose.

B.

Regular Election and Term o The President and Vice-President (who shall be elected with and in the same manner as the President) shall be elected by direct vote of the people for a term of 6 years o Term shall begin on the noon of June 30 next following the day of election. *The regular election for President and Vicend President shall be held on the 2 Monday of May. (Art. VII, Sec. 4 pars. 1 & 3). Special Election and Term o A special election to elect the President and Vice-President shall be called by Congress, pursuant to Art VII, Section 10, if 1. a vacancy occurs in the offices of President and Vice- President 2. more than 18 months 3. before the date of the next regular presidential election. o The failure of the SC to issue an injunction on time is a decision in itself in favor of the validity of the law calling for Snap Elections despite the absence of vacancy. [Philippine Bar Association, Inc. v COMELEC, (1985)] o The Constitution is silent as to whether the persons elected in the special election shall serve only for the unexpired portion of the term. Whether the new President can run for reelection if he has not served more than 4 years (Art VII, Section 4, par. 1) depends on the construction of the phrase "has succeeded as the President.”

Re-election A.

President o Not eligible for any re-election. o No person who has "succeeded" as President and has served as such for more than 4 years, shall be qualified for any election to the same office (the Presidency) at any time. (par. 1 Sec. 4, Art VII)

The person who succeeds as President and not just in an acting capacity, could either be (i) the Vice-President, or (ii) one who was elected President in a special election. Vice President o shall not serve for more than 2 successive terms. o a voluntary renunciation of office for any length of time, shall not be considered an interruption in the continuity of the service for the full terms for which he was elected. (par 2, Sec. 4, Art VII).  applicable beginning 1992, because of the Transitory Provisions. This prohibition is similar to that applicable to Senators.

Canvassing of Election Returns o

Congress acts as Board of Canvassers of every election for President and VicePresident.

Electoral Tribunal for the Election of the President and Vice- President o

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 that purpose. (par 7, Sec. 4, Art VII.)  while election controversies in the Congress are under the exclusive jurisdiction of their respective Electoral Tribunals, those in the Executive are under the Supreme Court itself.

iii. Oath of Office (Sec 5, Art VII) 

Before they enter into office, the President, the Vice-President or the Acting President shall take the following oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President (or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate to myself to the service of the Nation. So help me God." (In case of affirmation, last sentence will be omitted.)

2.

Privilege and Salary

o o

The President shall have an official residence. The salaries of the President and Vice-President shall be determined by law and shall not be decreased during their tenure.  No increase in said compensation shall take effect until after the expiration of the term of the incumbent during which such increase was approved.  Unless the Congress provides otherwise, the President shall receive an annual salary of P

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300,000 (Sec 17, Art XVIII) They shall not receive during their tenure any other emolument from the Government or any other source.

3.

Prohibitions (Sec 13, Art VII)

o

Prohibited acts: i. Hold any other office or employment during their tenure, unless otherwise provided in the Constitution ii. Directly or indirectly practice any other profession iii. Directly or indirectly participate in any business iv. 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 GOCCs or their subsidiaries. v. Appoint President’s spouse and relatives by consanguinity or affinity within the 4th civil degree as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including GOCCs and their subsidiaries.

o

Who are prohibited? 1. President 2. Vice-President, 3. the Members of the Cabinet, and their deputies or assistants

The stricter prohibition applied to the Pres. and his official family under Sec. 13, Art. VII as compared to the prohibition applicable to appointive officials in general under Art. IX, B, Sec. 7, par. 2 are proof of the intent of the 1987 Constitution to treat them as a class by itself and to impose upon said class stricter prohibitions. However, the prohibition against holding dual or multiple offices or employment under Art. VII, Sec. 13 must not be construed as applying to posts occupied by the Executive officials specified therein w/o additional compensation in an exofficio capacity as provided by law and as required by the primary functions of said official's office. The reason is that these posts do not comprise "any other office" w/in the contemplation of the constitutional prohibition but are properly an imposition of additional duties and function on said officials. [Civil Liberties Union v Executive Secretary, (1991)] o Prohibitions against other officials (1.) Sec. 13, Art VI No Senator or Member of the House of Representatives, during his term, may: o hold any other office or employment in the Government, or any of its subdivisions, agencies, or instrumentalities including GOCCs or their subsidiaries o be appointed to any office which may have been created or the emoluments thereof

increased during the term for which he was elected (2.) Sec. 2, Art IX-A No member of the Constitutional Commission during his term, shall: o hold any other office or employment. o 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 o 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 governmentowned or controlled corporations or their subsidiaries. (3.) Sec. 7. Art IX B No elective official during his tenure shall: o be eligible for appointment or designation in any capacity to any public office or position. No appointive official shall: o hold any other office or employment in the Government or any of its subdivisions, agencies or instrumentalities, including GOCCs or their subsidiaries. (4.) Sec. 12, Art VIII The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. o

Exceptions to rule prohibiting executive officials from holding additional positions: a.

President (1) The President can assume a Cabinet post, (because the departments are mere extensions of his personality, according to the Doctrine of Qualified Political Agency, so no objection can be validly raised based on Sec. 13, Art VII (2) The President is the Chairman of NEDA. (Sec. 9, Art XII)

b.

Vice-President xxx The Vice-President may be appointed as member of the Cabinet. Such appointment requires no confirmation (Sec 3, Art VII)

c.

Cabinet (1) The Secretary of Justice shall be an exofficio member of the Judicial and Bar Council. ( Sec. 8[1], Art VIII) (2) Unless otherwise allowed by law or by the primary functions of his position, appointive officials shall not hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government- owned or controlled

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corporations or their subsidiaries. (Art. IX, B, 7, par. 2) Art. VII, Sec. 13 talks of "unless otherwise provided by the Constitution." In the case of Cabinet members, this refers to Art. IX, B, 7, par. 2. Thus, the Constitution allows a Cabinet member to hold another office provided either (1) such is necessitated by the primary functions of his position a. Secretary of Trade and Industry as Chairman of NDC b. Secretary of Agrarian Reform as Chairman of the Land Bank (2) such is allowed by law.

4. Succession Vacancy in the Presidency Two sets of rules in succession: 1. vacancy took place before the beginning of the term on June 30 2. vacancy during the pendency of the terms that commences on June 30 i.

Effect VP shall act as President until the President-elect shall have qualified, or shall have been "chosen” and qualified, as the case may be. (pars. 2 & 3, sec 7, Par VII).

VP elect shall become the President. (par. 4, Sec 7, Art VII) Senate President, or in case of his inability, the Speaker of the House, shall act as President until a President or a VP shall have been "chosen" and qualified. (par. 5) In case both Senate President and Speaker of the House are unable to act as President, Congress shall by law, provide for the "manner of selecting" the one who will act as President until a President or VP shall have been either "chosen" or "elected" pursuant to the special election referred to in Art VII, Sec 10, and qualified.

Permanent Vacancy in the Presidency during the term

Causes President's 1. death 2. permanent disability, 3. removal from office (impeached), or 4. resignation* Both the President's and VP's 1. death 2. permanent disability 3. removal from office (impeached) 4. resignation Acting President 1. dies 2. becomes permanently disabled 3. resigns

Effect VP shall become President for the unexpired portion of the term. (par. 1)

Senate President or, in case of his inability, the Speaker of the House, shall become Acting President until the President or VP shall have been "elected" (pursuant to Art. VII, Sec. 10) and qualified. (par. 1.) Congress shall by law, provide "who" shall be Acting President until the President or VP shall have been "elected" (pursuant to Art. VII, Sec. 10) and qualified. Acting President shall be subject to the same restrictions of powers and disqualifications.(par. 2)

*

The president’s resignation must be willful and intentional, and it must be strictly construed. When impeachment proceedings have become moot due to the resignation of the Pres, proper criminal and civil cases may already be filed against him. [Estrada v. Desierto (2001)]

*

The totality test was applied to determine whether or not the president has indeed resigned. Many things were considered including the Angara Diary. [Res’n on the Motion for Recon (2001]

Temporary or permanent vacancy in the Presidency before the term

Causes President has not yet qualified (e.g. he had an operation and so he could not take his oath of office on June 30) 2. President has not yet been "chosen" and qualified (e.g. there is a tie and Congress has not yet broken the tie) President-elect 1. dies, or 2. becomes permanently disabled Both President and VP 1. have not been "chosen" or 2. have not qualified, or 3. die, or 4. become permanently disabled 1.

ii.

Comparisons and distinctions between the two vacancies: a) b)

c)

d)

The incumbent President never holds-over the Presidency in any case. The vacancy must occur in the offices of both the President and Vice-President in order for the Senate President, or the Speaker, or, in their inability, the one provided to succeed according to the Law of Succession passed by the Congress, to succeed as Acting President until the qualification of the President. The Law on Succession must be passed by the Congress in both cases in the event that the President, Vice-President, Senate President and the Speaker are all unable to act as President. But in the case of a vacancy occurring before the term, the law provides only for the "manner of selecting" the Acting President, while in the case of a vacancy occurring during the term, it provides for "the person" who shall act as President. In both cases, the stint of the Acting President is temporary. When the vacancy comes before the term, the Constitution talks of the successor acting as President until a President has been "chosen" and "qualified"; when it comes during, it talks of "elected" and qualified. The reason is that before the term, the vacancy in the Presidency need not be filled up by election, since it may be filled up by a

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e)

f)

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vote of Congress in case of a tie (Art. VII, Sec. 4, par. 5); but during the term, the only way to fill up the vacancy is by special election. A special election in both cases is held, pursuant to Art. VII, Sec. 10, only when both offices of President and Vice-President are vacant. However, if the vacancy occurs before the term, the grounds are limited to 2 (death and permanent disability or both), while if the vacancy occurs during the term, the grounds are 4 (death, permanent disability, removal, and resignation). The vacancy that occurs before the term of office may be temporary or permanent; the vacancy that occurs during the term of office can only be a permanent one. Thus, a different set of rules applies, to be discussed next following, in case of the temporary inability of the President during the term of office.

b.



4. Special election in Sec. 10, Art VII. 1.

2.

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 Within seven days enact a law calling for a special election to elect a President and a VicePresident to be held not earlier than forty-five days nor later than sixty days from the time of such call.  The bill calling such special election: a.

Voluntary Declaration Inability President Contested Inability of President

is deemed certified under paragraph 2, Section 26, Article VI

of by

the

Appropriations for the special election a. b.

3.

(xxx the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency xxx) shall become law upon its approval on third reading by the Congress. charged against any current appropriations exempt from the requirements of paragraph 4, Section 25, Article VI of this Constitution. (“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”)

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.

iii. Temporary Vacancy in the Presidency During the term o

o

A vacancy in the Presidency arising from his disability can occur in any of the ff ways: 1. A written declaration by the President 2. Written declaration by the Cabinet 3. Finding by Congress by 2/3 vote that the President is disabled. In all these cases, the Vice-President temporarily acts as the President.

Actions Required

Effect

President transmits to Senate President and Speaker of the House his written declaration that he is unable to discharge the powers and duties of his office 1. Majority of all Cabinet members transmit to the Senate President and Speaker of the House their written declaration that the President is unable to discharge his office. 2. President contests by sending his own written declaration to the Senate President and Speaker that no inability exists. 3. Majority of the Cabinet insist on their original stand by transmitting a second written declaration of the President's inability within 5 days from resumption of office of the President.

VP to become Acting President until the President transmits to Senate President and Speaker of the House a written declaration that he is no longer unable to discharge his office. VP shall immediately assume the Presidency in an acting capacity

President shall automatically assume his office.

a. Congress shall convene, if it is not in session, within 48 hours, without need of call, in accordance with its rules, and decide before the 12th day after it is required to assemble. If it is already in session, it must meet immediately, and decide within 10 days after receipt of the second written declaration by the Cabinet b. If the President, by a 2/3 vote of both houses voting separately, is determined to be "unable" to discharge his office, then the VP shall act as President. If less than 2/3 find him unable, the President shall continue exercising the powers and duties of his office.

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Serious Illness of the President (Sec 12, Art VII) a. The public shall be informed of the state of his health. b. 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.

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. No person shall be convicted without the concurrence of twothirds of all the Members of the Senate. o When sitting for that purpose, the Senators shall be on oath or affirmation. o When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote.

7.

Judgment in cases of impeachment shall not extend further than: o removal from office and o 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.

5. Removal i.

Impeachment, Sec. 2, Art XI.

o

Who are Subject to Impeachment:  The President  the Vice-President  the Members of the Supreme Court  the Members of the Constitutional Commissions  Ombudsman Reasons for Impeachment  culpable violation of the Constitution  treason  bribery  graft and corruption  other high crimes  betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

o

o

The officer can still be tried for a criminal case aside from impeachment. (BERNAS) “Initiation” - governed by the rules of the House of Reps;

ii.

Impeachment Process Art. XI, Sec. 3.

“Trial”-governed by the rules of the Senate.

1.

Who may initiate The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

2.

Verified Complaint a. A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon resolution of endorsement by any Member thereof b. Verified Complaint shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. c. 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. d. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

The basic issue here was the constitutionality of the filing of the second impeachment complaint against then Chief Justice Davide. The following are the pertinent constitutional provisions:

3.

Number of votes necessary 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 one-third of all the Members of the House.

Art. XI, Section 3 (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. [Francisco v. House of Representatives, (2003)] xxx (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. The Court held that once an impeachment complaint has been initiated and subsequently dismissed, another impeachment complaint may no longer be filed until after the lapse of one year. In so ruling, the Court differentiated between the initiation of the impeachment case and the impeachment proceeding. The latter is initiated when a verified complaint is filed and referred to the House Committee on Justice for action, or by the filing of at least 1/3 of the Members of the House with the Secretary General of the House. In consequence therefore, once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a 1-year period. The House Impeachment Rules were thereby declared unconstitutional for giving the term “initiate” a different meaning, i.e., it pegged the initiation of the impeachment proceedings to, among others, the finding by the House

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Committee on Justice that the verified complaint and/or resolution is sufficient in substance.

6.

Powers and Functions of the President

o o o o o o

Executive power Control of executive departments General supervision of local governments Power of appointment Executive clemencies Commander in chief powers  Military powers  Suspension of the writ of habeas corpus  Martial law Emergency powers Contracting and guaranteeing foreign loans Powers over foreign affairs Power over legislation Immunity from suit

o o o o o

the Constitution or by the law to act in person or 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 depts., performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively acts of the Chief Executive.” [Free Telephone Workers Union vs. Minister of Labor and Employment (1981)]

(C) General Supervision of Local Governments and Autonomous Regions 

The President shall exercise general supervision over local governments. (Sec 4, Art X)



The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. (Sec 16, Art X)

(A) Executive Power o

o

It is the duty to implement the laws within the standards imposed by the legislature. *This power is exercised by the President. (Sec 1 Art VII) The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed (Sec 17). 

The Court held that as administrative head of the government, the President is vested with the power to execute, administer and carry out laws into practical operation. [National Electrification Commission vs. CA (1997)]

The powers of the President cannot be said to be limited only to the specific power enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated. The framers did not intend that by enumerating the powers of the Pres, he shall exercise those powers and no other. These unstated residual powers are implied from the grant of executive power and which are necessary for the Pres to comply with his duties under the Constitution. [Marcos vs Manglapus (1989)]

Supervision and Control Distinguished Supervision - Overseeing or the power or authority of the officer to see that subordinate officers perform their duties, and if the latter fail or neglect to fulfill them, then the former may take such action or steps as prescribed by law to make them perform these duties. - This does not include the power to overrule their acts, if these acts are within their discretion.

(D) Power of appointment o

Definition: the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office.

o

Appointment is distinguished from: 1. Designation – imposition of additional duties, usually by law, on a person already in the public service 2. Commission – written evidence of the appointment

o

Classification of Power of Appointment: 1.

(B) Control of Executive Departments (Sec 17, Art VII) 



Control is the power of an officer to alter or modify or nullify or to set aside what a subordinate has done in the performance of his duties and to substitute one's own judgment to that of a subordinate. Qualified political agency doctrine (also alter ego principle)- “all the different executive and administrative organizations are mere adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases wherein the Chief Executive is required by

Control - Power of an officer to alter, modify, nullify or set aside what a subordinate officer had done and to substitute the judgment of the former for that of the latter.

With the consent of the Commission on Appointments There are 4 groups of officers whom the Pres may appoint: 1.

2.

3.

Heads of the Executive Department, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain and other officers whose appointments are vested in him; All other officers of the government whose appointments are not otherwise provided by law; Those whom the President may be authorized to appoint;

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4.





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Officers lower in rank whose appointments Congress may by law vest in the President alone.

Heads of bureaus were deliberately removed from the provision of appointments requiring th confirmation and were included in the 4 group and hence, their appointments no longer need confirmation. [Sarmiento vs Mison, (1987)] The seats reserved for sectoral reps may be filled by appointment by the President under Art XVIII, Sec7. It is indubitable that sectoral representatives to the House are among the “other officers whose appointments are vested in the Pres in this Constitution”, st referred to in the 1 sentence of Art. VII, Sec. 16. These appointments require the confirmation of the Commission on Appointments. Notes: From the rulings in Sarmiento III v. Mison 1987, Bautista v. Salonga 1989, and Deles v. Constitutional Commission 1989, these doctrines are deducible: 1.

2.

Confirmation by the Commission on Appointments is required only for presidential appointees as mentioned in the first sentence of Sec. 16, Art. VII, including those officers whose appointments are expressly vested by the Constitution itself in the President: (a) Heads of the executive departments (b) Ambassadors, other public ministers and consuls (c) Officers of the Armed Forces of the Philippines with the rank of colonel or naval captain (because these are officers of a sizeable command enough to stage a coup) (d) Other officers whose appointments are vested in the President in the Constitution: (i) Chairman and Commissioners of the Constitutional Commissions (Sec 1 Art IX-B, Sec 1 (2) Art IX-B, Sec 1(2) Art Ix-D) (ii) Regular members of the Judicial and Bar Council (Sec 8 (2) Art VII) (iii) Sectoral representatives (Sec 7 Art XVIII, Sec 18 Art X) Confirmation is not required when the President appoints other government officers whose appointments are not otherwise provided for by law or those officers whom he may be authorized by law to appoint (like the Chairman and Members of the Commission on Human Rights). Also, as observed in Sarmiento v. Mison, when Congress: o creates inferior offices but omits to provide for appointment thereto, or

provides in an unconstitutional manner for such appointments the officers are considered as among those whose appointments are not otherwise provided for by law. o

2.

Upon Recommendation of the Judicial and Bar Council (a) Members of the Supreme Court and all other courts. (Sec 9, Art VIII) a. Appointments need no confirmation b. For lower courts, appointment shall be issued within 90 days from submission of the list (b) Ombudsman and his 5 deputies (for Luzon, Visayas, Mindanao, general and military) Sec 9 Art XI a. Such appointments shall require no confirmation. b. All vacancies shall be filled within three months after they occur.

3.

Appointment of Vice-President as Member of the Cabinet (Sec 3, Art.VII) o

4.

Appointment requires no confirmation

Appointments solely by the President (Sec. 16, Art VII) 1.

Those vested by the Constitution on the President alone (e.g. appointment of Vice-President to the Cabinet) [Art. VII, Sec. 3(2)]

2.

Those whose appointments are not otherwise provided by law.

3.

Those whom he may be authorized by law to appoint.

4.

Those other officers lower in rank whose appointment is vested by law in the President (alone).The phraseology is muddled:

 Sarmiento v Mison (1987): In arguing that even bureau chiefs needed confirmation even if they are of inferior rank, the basis was the phrase, "the Congress may, by law, vest in the appointment of other officers lower in rank in the President alone". This meant that until a law is passed giving such appointing power to the President alone, then such appointment has to be confirmed. The SC dismissed this view however, saying that the inclusion of the word "alone" was an oversight. Thus, the Constitution should read "The Congress may, by law, vest the appointment of other officers lower in rank in the President." o

Limitations on appointing power of the President a.

The spouse and relatives by consanguinity or affinity within the 4th civil degree of the President shall not, during his "tenure", be appointed as (sec 13, Art VII)

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(i) (ii) (iii) (iv) (v)

b.

c.

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members of the Constitutional Commissions, member of the Office of Ombudsman, Secretaries, Undersecretaries, Chairmen or heads of bureaus or offices, including governmentowned or controlled corporations and their subsidiaries.

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 disapproval by the Commission on Appointments or until the next adjournment of the Congress. (par 2, Sec 16, Art VII)



o

Interim or recess appointments 1)



Two months immediately before the next presidential elections (2nd Monday of March), and up to the end of his "term" (June 30), a President (or Acting President) shall not make appointments. (Sec 15, Art VII)

recess

(ad-interim)

Appointments requiring confirmation are of two kinds (i) regular, if the CA, that is, Congress, is in session (ii) during the recess of Congress (because the Commission shall meet only while Congress is in session [Art. VI, Sec. 19]).

Regular appointment - one made by the President while Congress is in session, takes effect only after confirmation by the Commission on Appointments, and once approved, continues until the end of the term of the appointee. Ad-interim appointment - one made by the President while Congress is not in session, takes effect immediately, but ceases to be valid if disapproved by the Commission on Appointments or upon the next adjournment of Congress. (Art. VII, Sec. 16, par. 2)

The SC ruled that while "midnight appointments" (note: made by outgoing President near the end of his term) are not illegal, they should be made in the capacity of a "caretaker" doubly careful and prudent in making the selection, so as not to defeat the policies of the incoming administration. The filling up of vacancies in important posts, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee’s qualifications, may be undoubtedly permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them a few hours before the inauguration of the new President may be regarded as abuse of presidential prerogatives. [Aytona vs Castillo (1962)] The SC emphasized that the Aytona ruling does not declare all midnight appointments as invalid, and that the ad interim appointment of the petitioner chief of police here, whose qualification and regularity were not disputed, except for the fact that it was made during the last few days of the old administration, is thus not invalid. [Quimsing vs Tajanglangit (1964)]

Regular and appointments 

Exception: Temporary appointments, to executive positions, when continued vacancies will (1) prejudice public service (e.g Postmaster); or (2) endanger public safety (e.g. Chief of Staff). 

The prohibition against midnight appointments applies only to the president and does not extend to local elective officials. Moreover, there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure. [De Rama v. CA (2001)]



2)

Ad interim appointment – a permanent appointment made by the Pres in the meantime that Congress is in recess. It is permanent as it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to the confirmation of the Commission on Appointments does not alter its permanent character. Hence, said appointment is effective until (1) disapproved by the CA or (2) the next adjournment of Congress [Matibag vs Benipayo (2002)]

Acting/Temporary appointment – can be withdrawn or revoked at the pleasure of the appointing power. The appointee does not enjoy security of tenure. This is the kind of appointment that the Constitution prohibits the Pres from making to the independent constitutional commissions. The mere filing of a motion for reconsideration of the confirmation of an appointment cannot have the effect of

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recalling or setting aside said appointment. The Consti is clear – there must either be a rejection by the Commission on Appointments or nonaction on its part for the confirmation to be recalled.



Also, the power to approve or disapprove appointments is conferred on the CA as a body and not on the individual members. [Pacete vs Secretary (1971)] 3)



Temporary Designations Admin Code of 1987, Book III Sec. 17 The President may designate an officer already in the govt. service or any other competent person to perform the functions of any office in the executive branch, appointment to which is vested in him by law, when: (a) The officer regularly appointed to the office is unable to perform his duties by reason of illness, absence or any other cause; or (b) There exists a vacancy; In no case shall a temporary designation exceed one (1) year.

o

Limitations on the appointing power of the Acting President 1.

2.

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. (Sec. 14 Art VII) A President or Acting President shall not make appointments two months immediately before the next presidential elections and up to the end of his term  except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. (Sec 15, Art VII)

7. Executive Clemencies o



The President may grant: a. Reprieves  a temporary relief from or postponement of execution of criminal penalty or sentence or a stay of execution. (BLACK)  It is the withholding of a sentence for an interval of time, a postponement of execution, a temporary suspension of execution. [People vs. Vera, supra] b.

Commutations  Reduction of sentence. (BLACK)  It is a remission of a part of the punishment; a substitution of a less penalty for the one originally imposed. [People vs. Vera, supra]

c.

Pardons, and  Permanent cancellation of sentence.

d.

(BLACK) It is an act of grace proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for the crime he has committed. It is a remission of guilt, a forgiveness of the offense. [People v Vera, supra] Plenary or partial o Plenary - extinguishes all the penalties imposed upon the offender, including accessory disabilities o Partial – does not extinguish all penalties imposed Absolute or conditional o Conditional - the offender has the right to reject the same since he may feel that the condition imposed is more onerous than the penalty sought to be remitted. o Absolute pardon - pardonee has no option at all and must accept it whether he likes it or not. In this sense, an absolute pardon is similar to commutation, w/c is also not subject to acceptance by the offender.

Remit fines and forfeitures, after conviction by final judgment

o

Except: (a) In cases of impeachment, and (b) As otherwise provided in this Constitution  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 by the Commission (on Elections.) (Sec 5, Art IX)

o

The President shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. (Sec 19, Art VII)  Amnesty - a sovereign act of oblivion for past acts, granted by government generally to a class of persons who have been guilty usually of political offenses and who are subject to trial but have not yet been convicted, and often conditioned upon their return to obedience and duty within a prescribed time. (BLACK; Brown v Walker, 161 US 602).  Probation - a disposition under which a defendant after conviction and sentence is released subject to conditions imposed by the court and to the supervision of a probation officer. [Sec. 3 (a), PD 968.]  Parole - suspension of the sentence of a convict granted by a Parole Board after serving the minimum term of the indeterminate sentence penalty, without granting a pardon, prescribing the terms upon which the sentence shall be suspended. [REYES]

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o

Chapter II. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers

Effects of Pardon (Case Law) 

o



There are 2 limitations upon the exercise of the constitutional prerogative of the Pres. to grant pardon: (1) that the power be exercised after conviction; (2) that such power does not extend to cases of impeachment. [Cristobal v Labrador (1940)]

Pardon implies guilt and does not erase the fact of the commission of the crime and the conviction thereof. It does not ipso facto restore a convicted felon to a public office necessarily relinquished or forfeited by reason of the conviction although such pardon undoubtedly restores his eligibility for appointment to that office. [Monsanto vs Factoran (1989)]

Application of Pardoning Administrative Cases 

o

Powers





Removal of Administrative Penalties Sec. 53, Chapter 7, Subtitle A, Title I, Book V, Administrative Code of 1987 Removal of Administrative Penalties or Disabilities.-- In meritorious cases and upon recommendation of the (Civil Service) Commission, the President may commute or

Amnesty Proclamation No. 76 applies even to Hukbalahaps already undergoing sentence upon the date of its promulgation. The majority of the Court believes that by its context and pervading spirit the proclamation extends to all members of the Hukbalahap. [Tolentino vs Catoy (1948)] The SC agreed with the Sandiganbayan that in fact the petitioners were expressly disqualified from amnesty. The acts for which they were convicted were ordinary crimes without any political complexion and consisting only of diversion of public funds to private profit. The amnesty proclamation covered only acts in the furtherance of resistance to duly constituted authorities of the Republic and applies only to members of the MNLF, or other antigovernment groups. [Macaga-an vs People (1987)]

8. Powers as Commander-in-Chief o

Powers as Commander-in-Chief: a. He may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. b. He may suspend the privilege of the writ of habeas corpus, or c. He may proclaim martial law over the entire Philippines or any part thereof.

o

Subject to judicial review to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction (par. 2, Sec 1, Art VIII)

a.

Call out the AFP to prevent lawless violence



This is merely a police measure meant to quell disorder. As such, the Constitution does not regulate its exercise radically



It is not disputed that the President has full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. While the Court may examine whether the power was exercised within constitutional limits or in a manner constituting grave abuse of discretion, none of the petitioners here have, by way of proof, supported their assertion that the President acted without factual basis. 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. These are purely executive powers, vested on the President by Sections 1 and 18, Article VII, as

to

If 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. However, the power of the President to grant executive clemency in administrative cases refers only to administrative cases in the Executive branch and not in the Judicial or Legislative branches of the govt. [Llamas v Executive Secretary (1991)]

Who may avail of amnesty? (Case Law) (Asked 5 times in the Bar) 

Absolute pardon has the effect of removing the disqualification from voting and being elected incident to criminal conviction under Sec 94(a) of the Election Code. The Chief Executive, after inquiry into the environmental facts, should be at liberty to atone the rigidity of the law to the extent of relieving completely the party or parties concerned from the accessory and resultant disabilities of criminal conviction. [Pelobello v. Palatino (1941)]

Notes: "Pardon granted after conviction frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. But unless expressly grounded on the person's innocence (w/c is rare), it cannot bring back lost reputation for honesty, integrity and fair dealing. This must be constantly kept in mind lest we lose track of the true character and purpose of the privilege. xxx" o

remove administrative penalties or disabilities imposed upon officers or employees in disciplinary cases, subject to such terms and conditions as he may impose in the interest of the service

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opposed to the delegated legislative powers contemplated by Section 23 (2), Article VI. [Sanlakas v Executive Secretary (2004)] 

 Assailed is PP1017 (Declaration of State of National Emergency). It is different from the law in Sanlakas as this proclamation was woven out of the “calling out” and “take care” powers of the President joined with the “temporary takeover” provision under Art. XII, section 17.



PP1017 purports to grant the President, without authority or delegation from Congress, to take over or direct the operation of any privatelyowned public utility or business affected with public interest.

The SC held that while the President could validly declare the existence of a state of national emergency even in the absence of a Congressional enactment, the exercise of the emergency powers, such as the taking over of privately-owned public utility or business affected with public interest, requires a delegation from Congress which is the repository of emergency powers. PP1017 did not authorize said temporary take over without authority from Congress. [David v. Arroyo (2006)] b.

Suspend the privilege of the writ of habeas corpus



A "writ of habeas corpus" is an order from the court commanding a detaining officer to inform the court (i) if he has the person in custody, and (ii) his basis in detaining that person.

o

Effects of the suspension of the privilege: 1) The suspension of the privilege of the writ applies only to persons "judicially charged" for rebellion or offenses inherent in or directly connected with invasion (Art. VII, Sec. 18, par. 5).  Such persons suspected of the above crimes can be arrested and detained without a warrant of arrest.  The suspension of the privilege does not make the arrest without warrant legal. But the military is, in effect, enabled to make the arrest, anyway since, with the suspension of the

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within 3 days, or otherwise he shall be released. (Art. VII, Sec. 18, par. 6).  The effect of the suspension of the privilege, therefore, is only to extend the periods during which he can be detained without a warrant. When the privilege is suspended, the period is extended to 72 hours.  What happens if he is not judicially charged nor released after 72 hours? The public officer becomes liable under Art. 125 for "delay in the delivery of detained persons."

3)

The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. (Art. III, Sec. 13)

Proclaim Martial Law

o

Requisites: 1) There must be an invasion or rebellion, and 2) Public safety requires the proclamation of martial law all over the Philippines or any part thereof.

o

Effects of the proclamation of martial law: The President can: 1) Legislate 2) Order the arrest of people who obstruct the war effort.

o Requisites: 1) There must be an invasion or rebellion, and 2) The public safety requires the suspension.

2)

c.

The "privilege of the writ" is that portion of the writ requiring the detaining officer to show cause why he should not be tested. Note that it is the privilege that is suspended, not the writ itself. o

privilege, there is no remedy available against such unlawful arrest (arbitrary detention). The arrest without warrant is justified by the emergency situation and the difficulty in applying for a warrant considering the time and the number of persons to be arrested. The crime for which he is arrested must be one related to rebellion or invasion. As to other crimes, the suspension of the privilege does not apply.

But the following cannot be done (Art. VII, Sec. 18, par. 4) a. Suspend the operation of the Constitution. b. Supplant the functioning of the civil courts and the legislative assemblies.  martial law is proclaimed only because the courts and other civil institutions like Congress have been shut down. It should not happen that martial law is declared in order to shut down the civil institutions. c. Confer jurisdiction upon military courts and agencies over civilians, where civil courts are able to function.  "open court" doctrine o holds that civilians cannot be tried by military courts if the civil courts are open and functioning. o if the civil courts are not functioning,

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then civilians can be tried by the military courts. o Martial law usually contemplates a case where the courts are already closed and the civil institutions have already crumbled, that is a "theater of war." If the courts are still open, the President can just suspend the privilege and achieve the same effect. d. Automatically suspend the privilege of the writ of habeas corpus.  The President must suspend the privilege expressly. The Role of Congress [Art. VII, Sec. 18, pars. 1-2] a.

Congress may revoke the proclamation of martial law or suspension of the privilege of the writ of habeas corpus before the lapse of 60 days from the date of suspension or proclamation

b.

Upon such proclamation or suspension, Congress shall convene at once. If it is not in session, it shall convene in accordance with its rules without need of a call within 24 hours following the proclamation or suspension.

c.

Within 48 hours from the proclamation or the suspension, the President shall submit a report, in person or in writing, to the Congress (meeting in joint session of the action he has taken).

d.

The Congress shall then vote jointly, by an absolute majority. It has two options: (i) To revoke such proclamation or suspension. 

The Role of the Supreme Court [Art. VII, Sec. 18, par. 3] o

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of: (a) the proclamation of martial law or the suspension of the privilege of the writ, or (b) the extension thereof. It must promulgate its decision thereon within 30 days from its filing. (Sec 18 (3), Art. VII)

o

The jurisdiction of the SC may be invoked in a proper case.

o

Petition for habeas corpus  When a person is arrested without a warrant for complicity in the rebellion or invasion, he or someone else in his behalf has the standing to question the validity of the proclamation or suspension.  Before the SC can decide on the legality of his detention, it must first pass upon the validity of the proclamation or suspension.

o

Test of Arbitrariness: [IBP v. Zamora, (2000)]  to be used by the Supreme Court in so reviewing the act of the President in proclaiming or suspending, or the act of Congress in extending  seeks to determine the sufficiency of the factual basis of the measure.  The question is not whether the President or Congress acted correctly, but whether he acted arbitrarily in that the action had no basis in fact.  amounts to a determination of whether or not there was grave abuse of discretion amounting to lack or excess of jurisdiction. (Sec 1(2) Art. VIII)

When it so revokes, the President cannot set aside (or veto) the revocation as he normally would do in the case of bills.

(ii) To extend it beyond the 60-day period of its validity.  Congress can only so extend the proclamation or suspension upon the initiative of the President.



The period need not be 60 days; it could be more, as Congress would determine, based on the persistence of the emergency. If Congress fails to act before the measure expires, it can no longer extend it until the President again redeclares the measure. o

Congress cannot "validate" the proclamation or suspension, because it is already valid.

o

If Congress extends the measure, but before the period of extension lapses the requirements for the proclamation or suspension no longer exist, Congress can lift the extension, since the power to confer implies the power to take back.

o

If Congress does not review or lift the order, this can be reviewed by the Supreme Court pursuant to the next section.

o

The issue there raised was whether in suspending the privilege of the writ in 1971, Marcos had a basis for doing so. The SC, in considering the fact that the President based his decision on (a) the Senate report on the condition in Central Luzon and (b) a closed door briefing by the military showing the extent of subversion, concluded that the President did not act arbitrarily. One may disagree with his appreciation of the facts, but one cannot say that it is without basis. [Lansang v Garcia (1971)]

2 conditions must concur for the valid exercise of authority to suspend the privilege: (a) there must be an actual invasion, insurrection, rebellion or imminent danger; and (b) public safety must require the suspension of the privilege. [This holding of the SC is now found in Art. VII, Sec. 18, par. 3.] The function of the court is to check and not supplant the executive or to ascertain merely whether he has gone beyond the constitutional limits of jurisdiction. The proper standard is not correctness but arbitrariness.

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

There are 4 ways, then, for the proclamation or suspension to be lifted: (P-C-S-O) 1) 2) 3) 4)



Chapter II. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers o

Lifting by the President himself Revocation by Congress Nullification by the Supreme Court Operation of law after 60 days

This power is: (1) for a limited period, and (2) subject to such restrictions as Congress may provide. The power ceases: (a) upon being withdrawn by resolution of the Congress, or, if Congress fails to adopt such resolution, (b) upon the next (voluntary) adjournment of Congress. For the fact that Congress is able to meet in session uninterruptedly and adjourn of its own will proves that the emergency no longer exists is to justify the delegation.

Military trial of civilians void even under Martial Law, if civil courts are open. (Sec 18(4) Art. VII,). Cf. RA 7055 (1991) "An Act Strengthening Civilian Supremacy over the Military by Returning to the Civil Courts the Jurisdiction over Certain Offenses involving Members of the Armed Forces of the Philippines, other Persons Subject to Military Law, and the Members of the Philippine National Police, Repealing for the Purpose Certain Presidential Decrees" 

This rule or the termination of the grant of emergency powers is based on decided cases, which in turn became Art. VII, Sec. 15 of the 1973 Constitution.

RA 7055 effectively placed upon the civil courts the jurisdiction over certain offenses involving members of the AFP and other members subject to military law.



RA 7055 provides that when these individuals commit crimes or offenses penalized under the RPC, other special penal laws, or local government ordinances, regardless of whether civilians are coaccused, victims, or offended parties which may be natural or juridical persons, they shall be tried by the proper civil court, except when the offense, as determined before arraignment by the civil court, is serviceconnected in which case it shall be tried by court-martial.



The assertion of military authority over civilians cannot rest on the President's power as Commander in Chief or on any theory of martial law. As long as civil courts remain open and are regularly functioning, military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them and which are properly cognizable by civil courts. To hold otherwise is a violation of the right to due process. [Olaguer vs Military Commission No. 34 (1987)]

9. Emergency powers (Sec 23, Art. VI). o

The Congress may by law authorize the President to exercise powers necessary and proper to carry out a declared national policy.

o

Different from the Commander-in-Chief clause:  When the President acts under the Commander-in-Chief clause, he acts under a constitutional grant of military power, which may include the law-making power.  When the President acts under the emergency power, he acts under a Congressional delegation of law-making power.

Meaning of “power necessary and proper”  Power to issue rules and regulations

o



The Congress granted the President certain emergency powers. (CA671) After the war, Congress held a special session. The SC held that the emergency power lasted only until Congress held its regular session. The fact that Congress could now meet meant that there was no emergency anymore that would justify the delegation. The assertion that new legislation is needed to repeal CA671 is not in harmony with the Constitution. If a new law were necessary to terminate it, then it would be unlimited and indefinite. This would create an anomaly since what was intended to meet a temporary emergency becomes a permanent law. [Araneta v Dinglasan (1949)]



The specific power to continue in force laws and appropriations which would lapse or otherwise become inoperative is a limitation on the general power to exercise such other powers as the executive may deem necessary to enable the government to fulfill its responsibilities and to maintain and enforce its authority. [Rodriguez v Gella (1953)]

Inconsistency between the Constitution and the cases: (BARLONGAY)  The Constitution [Art. VI, Sec. 23 (2)] states that the emergency powers shall cease upon the next adjournment of Congress unless sooner withdrawn by resolution of Congress  Cases tell us that the emergency powers shall cease upon resumption of session.  Reconciling the two: it would not be enough for Congress to just resume session in order that the emergency powers shall cease. It has to pass a resolution withdrawing such emergency powers, otherwise such powers shall cease upon the next adjournment of Congress.

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10. Contracting

and

Chapter II. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers

Guaranteeing

 The agreement is not a "treaty" as the term is used in the Constitution. The agreement was never submitted to the Senate for concurrence. It must be noted that a treaty is not the only form that an international agreement may assume. For the grant of treaty making power to the Executive and the Senate does not exhaust the power of the government over international relations.

Foreign

Loans o

o

o

Requisites for contracting and guaranteeing foreign loans: 1. With the concurrence of the monetary board (Sec 20, Art VII) 2. subject to limitations as may be provided by law (Sec 21, Art XII) 3. information on foreign loans obtained or guaranteed shall be made available to the public (sec 21, Art XII) Cf. Republic Act 4860  An Act Authorizing The President Of The Philippines To Obtain Such Foreign Loans And Credits, Or To Incur Such Foreign Indebtedness, As May Be Necessary To Finance Approved Economic Development Purposes Or Projects, And To Guarantee, In Behalf Of The Republic Of The Philippines, Foreign Loans Obtained Or Bonds Issued By Corporations Owned Or Controlled By The Government Of The Philippines For Economic Development Purposes Including Those Incurred For Purposes Of Re-Lending To The Private Sector, Appropriating The Necessary Funds Therefore, And For Other Purposes  Approved, September 8, 1966. Role of Congress: 1. The President does not need prior approval by the Congress a. Because the Constitution places the power to check the President’s power on the Monetary Board b. Congress may provide guidelines and have them enforced through the Monetary Board

Consequently, executive agreements may be entered into with other states and are effective even without the concurrence of the Senate. From the point of view of international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned as long as the negotiating functionaries have remained within their powers. The distinction between an executive agreement and a treaty is purely a constitutional one and has no international legal significance. [USAFFE Veterans Assn. vs Treasurer (1959)] o

Nature of Executive Agreements: There are 2 classes: (1) agreements made purely as executive acts affecting external relations and independent of or without legislative authorization, which may be termed as presidential agreements, and (2) agreements entered into in pursuance of acts of Congress, or CongressionalExecutive Agreements. 

Although the President may, under the American constitutional system enter into executive agreements without previous legislative authority, he may not, by executive agreement, enter into a transaction which is prohibited by statutes enacted prior thereto. Under the Constitution, the main function of the Executive is to enforce laws enacted by Congress. The former may not interfere in the performance of the legislative powers of the latter, except in the exercise of his veto power. He may not defeat legislative enactments that have acquired the status of law, by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws. [Gonzales v Hechanova (1963)]



The issue in this case is the constitutionality of the VFA. The SC held that once the Senate performs the power to concur with treaties or exercise its prerogative within the boundaries prescribed by the Constitution, the concurrence cannot be viewed as an abuse of power, much less a grave abuse of discretion. The President, in ratifying the VFA and submitting the same for concurrence of the Senate, acted within the confines and limits of the power vested in him by the Constitution. The President merely performed a constitutional task and

11. Powers over Foreign Affairs (a) Treaty-making power o

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. (Sec 21, Art VII)

o

Treaty distinguished from executive agreements: 1. 

Executive Agreements  entered into by the President  need no concurrence. International agreements involving political issues or changes in national policy and those involving international agreements of permanent character usually take the form of TREATIES. But the international agreements involving adjustments in detail carrying out well-established national policies and traditions and those involving a more or less temporary character usually take the form of EXECUTIVE AGREEMENTS. [ Commissioner of Customs vs. Eastern Sea Trading (1961)]

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exercised a prerogative that chiefly pertains to the functions of his office. [Bayan vs Executive Secretary (2000)] (b) Deportation of undesirable aliens 

[Qua Chee Gan vs Deportation Board (1963]

o

The President may deport only according to grounds enumerated by law since it would be unreasonable and undemocratic to hold that an alien be deported upon an unstated or undefined ground depending merely on the use of an unlimited discretion by the President.

o

2 ways of deporting an undesirable alien: (a) by order of the President after investigation (b) by the Commissioner of Immigration

due

o

The President can delegate the power of investigation but not the power to order the arrest of an alien.

o

The Deportation Board may not order the arrest of the alien in this case. If an implied grant of power, considering that no express authority was granted by law, would curtail the right of a person then a delegation of the implied power must be rejected as inimical to the liberties of the people.



[Go Tek vs Deportation Board (1977)]

o

The Deportation Board can entertain deportation based on grounds not specified in Sec 37 of the Immigration Law. The Board has jurisdiction to investigate Go Tek even if he had not been convicted yet.

o

The President’s power to deport aliens and to investigate them subject to deportation are provided in the Revised Administrative Code.

o

The State has inherent power to deport undesirable aliens. This power is exercised by the President.

o

There is no legal nor constitutional provision defining the power to deport aliens because the intention of the law is to grant the Chief Executive the full discretion to determine whether an alien’s residence in the country is so undesirable as to affect the security, welfare or interest of the state.

o

The Chief Executive is the sole and exclusive judge of the existence of facts which would warrant the deportation of aliens.

that Congress can take during the regular session. (b) Prepare and Submit the Budget The President shall submit to Congress within thirty days from the opening of every regular session, as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures. (Sec 22, Art VII) o The budget is the plan indicating: (a) expenditures of the government, (b) sources of financing, and (c) receipts from revenue-raising measures. This budget is the upper limit of the appropriations bill to be passed by Congress. Through the budget, therefore, the President reveals the priorities of the government. (c) Veto power o

As a general rule, all bills must be approved by the President before they become law, except when: (i) the veto of the President is overridden by 2/3 vote of all the Members of the House where it originated; and (ii) the bill passed is the special law to elect the President and Vice-President.

o

This gives the President an actual hand in legislation. However, his course of action is only to approve it or veto it as a whole. (See Legislative Power of Congress)



It is true that the Constitution provides a mechanism for overriding a veto (Art. VI, Sec. 27 [1]). Said remedy, however, is available only when the presidential veto is based on policy or political considerations but not when the veto is claimed to be ultra vires. In the latter case, it becomes the duty of the Court to draw the dividing line where the exercise of executive power ends and the bounds of legislative jurisdiction begin. [PHILCONSA v Enriquez (1994)]

(d) Emergency Power o

12. Power over Legislation (a) Message to Congress 

The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time. (Sec 23, Art VII)



Every 4th Monday of July, the President delivers the State of the Nation Address, which contains his proposals for legislation. Through this speech, he can influence the course of legislation

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. (Sec 23, Art VI see discussion above)

(e) Fixing of tariff rates (Sec 28, Art VI) o

The Congress may, by law, authorize the President to fix:  within specified limits, and  subject to such limitations and restrictions as

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it may impose,  tariff rates  import and export quotas  tonnage and wharfage dues  other duties or imposts within the framework of the national development program of the Government. o

Reason for delegation: highly technical nature of international commerce, and the need to constantly and with relative ease adapt the rates to prevailing commercial standards.

B. Vice President Article VII, 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.

1.

Qualifications, Election, Term and Oath

13. Immunity from Suit

a.



Qualifications * same as President (Sec. 3, Art VII)

b.

Term and Election * same as President (Sec. 4, Art VII)

c.

Oath * same as President (except for the statement of position)

2.

Privilege and Salary



The President as such cannot be sued, enjoying as he does immunity from suit, but the validity of his acts can be tested by an action against the other executive officials or such independent constitutional agencies as the Commission on Elections and the Commission on Audit. [Carillo vs. Marcos (1981)] The petition seeks clarification as to whom the Constitution refers to as the incumbent Pres and Vice Pres. The petition amounts in effect to a suit against the incumbent Pres. Aquino and it is equally elementary that incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure. [In Re Bermudez (1986)]

* same as President except: the Vice-President, xxx [shall receive annual salary of] P240,000 (Sec 17, Art XVIII)

3.

* same as President

4. 

The SC held that the privilege of immunity from suit pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an accused in a criminal case where the President is a complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against the accused. Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. The President may shed the protection afforded by the privilege and submit to the court's jurisdiction. [Soliven vs Makasiar (1988); Beltran vs Makasiar (1988)] The President’s immunity from suit extends beyond his term so long as the act in question was done during his term.



Petitioners theorize that the present petition for prohibition is improper because the same attacks an act of the President, in violation of the doctrine of presidential immunity from suit. Petitioners’ contention is untenable for the simple reason that the petition is directed against petitioners and not against the President. The questioned acts are those of petitioners and not of the President. Furthermore, presidential decisions may be questioned before the courts where there is grave abuse of discretion or that the President acted without or in excess of jurisdiction. [Gloria v CA (2000)]

Prohibitions

Succession

* same as President (Art. VII, Sec. 9)

5.

Removal

Impeachment Process * same as President (Art. XI, Sec. 3)

6.

Functions

a.

Right of succession

The Vice-President shall assume the functions of the president in case of: 1. death, permanent disability, removal from office, or resignation of the President (Sec 8, Art VII) 2. 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 (Sec 11, Art VII) 3. 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 b.

Membership in Cabinet

xxx The Vice-President may be appointed as member of the Cabinet. Such appointment requires no confirmation. (Sec 3, Art VII)

41 CONSTITUTIONAL LAW I

POLITICAL LAW REVIEWER

Chapter II. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers

IV. Constitutional Commissions A. Common Provisions (Asked 3 times in the Bar)

1.

Disqualifications; Inhibitions

o

No member of a Constitutional Commission shall, during his tenure: i. ii. iii.

iv.

2.

hold any other office or employment engage in the practice of any profession engage in the active management and control of any business which in any way may be affected by the functions of his office 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 GOCCs or their subsidiaries. (Art. IX, sec.2)

3.

Compensation



Fixed by law and shall not be decreased during their tenure. (sec. 3)

4.

Power to Appoint Personnel (sec. 4)

5.

Fiscal Autonomy (sec. 5)

6.

Rule-Making Power



shall not diminish, increase, or modify substantive rights (sec. 6)

7.

Procedure i.

ii.

Composition and Qualifications

CSC Chairman and Commissioners (Comm)

2

COMELEC Chairman and 6 Comm

Natural-born citizens At least 35 years of age Proven capacity for Holders of a public college administration, and degree, and must not have been must not have candidates for any been elective position in candidates for the lections any elective immediately position in the preceding their immediately appointment preceding elections Majority, including the Chairman, shall be Members of the Philippine Bar who have been engaged in the practice of law for at least 10 years

COA Chairman and 2 Comm

8.

At no time shall all Members of the Commission belong to the same profession.

Appointed by the President with the consent of the Commission on Appointments for a term of 7 years without reappointment Staggered term of Staggered term Staggered term those first appointed: of those first of those first a) Chairman 7 appointed: appointed: years a) 3 Members a) Chairman 7 b) 1 Comm  5 7 years years years b) 2 Members b) 1 Comm  5 c) Other Comm  3  5 years years years c) Last 2 c) Other Comm Members 3  3 years years 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.

Other functions provided by law (sec. 8)

 Certified public accountants with not less than 10 years auditing experience, or Members of the Philippine Bar who have been engaged in the practice of law for at least 10 years, and must not have been candidates for any elective position in the elections immediately preceding their appointment

Decision on any case or matter brought before it shall be decided by a majority vote of all its Members within 60 days of submission for decision or resolution SC has certiorari jurisdiction which a party aggrieved by any decision, order, or ruling of each Commission can invoke within 30 days from receipt of a copy. (sec.16)

At issue was the “no report, no release” policy of the DBM which the latter is invoking, in addition to the fact that there is an alleged shortage of funds, to justify the withholding of the balance of the CSC’s annual budget. It was held that such policy may not be validly enforced against offices vested with fiscal autonomy like the CSC and other Constitutional Commissions. Being “automatic” means that the budget releases cannot be made contingent on the performance of a particular act or the availability of funds, otherwise, the constitutional mandate of automatic and regular release would be significantly emasculated.[ CSC v. DBM, (2005)]

B. Civil Service Commission (Asked 4 times in the Bar)

1.

Scope of Civil Service

Art. IX-B, Sec. 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.

Terms and Conditions Employment

i. ii. iii. iv. v.

Merit-based system No holding of other positions Standardization of salary No partisan political activity Security of tenure  Temporary employees of the Government shall be given such protection as may be provided by law. Right to self-organization (v. Right to strike)

vi.

of

Government

Art. XIII, Sec. 3. [The State] shall guarantee the rights of all workers to self-organization,…peaceful concerted activities, including the right to strike in accordance with law.

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POLITICAL LAW REVIEWER

Chapter II. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers

Art. III, Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, association, or societies for purposes not contrary to law shall not be abridged.

5.

Salary

i.

Art. IX-B, Sec. 2(5). The right to self-organization shall not be denied to government employees.

ii.

Standardized compensation, taking into account the nature of the responsibilities pertaining to, and the qualifications required for their positions No additional, double, or indirect compensation unless specifically authorized by law No elective or appointive public officer or employee shall accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government

Sec. 38, Book V, Title I, Subtitle A, Chapter 6, Administrative Code of 1987. Who: All government employees, including those in GOCCs with original charters Exception: (1) members of the AFP, (2) police officers and policemen, (3) firemen, (4) jail guards. Scope of right: (1) form, join or assist employees' organizations of their own choosing for the furtherance and protection of their interests (2) form, in conjunction with appropriate government authorities, labor-management committees, work councils and other forms of workers' participation schemes to achieve the same objectives



Employees in the Civil Service may not resort to strikes, walkouts and other temporary work stoppages in order to alter the terms and conditions of their employment, which are generally governed and fixed by law. Government employees may, through their unions or associations, either (1) petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation, or (2) negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector LaborManagement Council for appropriate action. [SSS Employees’ Association v. CA, (1989)]

3.

Disqualifications

i.

Candidate who has lost in any election, within 1 year after such election, cannot be appointed to any office in the Civil Service; No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure; No appointive official shall hold any other office or employment in the Civil Service unless otherwise allowed by law or by the primary functions of his position.

ii.

iii.

4.

Powers and Functions

Art. IX-B, Sec. 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.

iii.

C. Commission on Elections (Asked 9 times in the Bar)

1.

Powers and Functions

i.

Enforce all laws relating to the conduct of election: o Recommend to the Congress effective measures to minimize election spending, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies o Submit to the President and the Congress, a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall ii. Decide administrative questions pertaining to election except the right to vote; iii. File petitions in court for inclusion or exclusion of voters; iv. Investigate and prosecute cases of violations of election laws; v. Recommend pardon, amnesty, parole or suspension of sentence of election law violators; vi. Deputize law enforcement agencies and instrumentalities of the Government for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections; vii. Recommend to the President the removal of any officer or employee it has deputized for violation or disregard of, or disobedience to its directive; viii. Registration of political parties, organizations and coalitions and accreditation of citizens’ arms; ix. Regulation of public utilities and media of information. 

The law limits the right of free speech and of access to mass media of the candidates themselves. The limitation however, bears a clear and reasonable connection with the objective set out in the Constitution. For it is precisely in the unlimited purchase of print space and radio and television time that the resources of the financially affluent candidates are likely to make a crucial difference. The purpose is to ensure "equal opportunity, time, and space, and the right to reply," as well as uniform and reasonable rates of charges for the use of such media facilities, in connection with "public information campaigns and forums among candidates." [National Press Club vs Comelec, (1992)]

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POLITICAL LAW REVIEWER

x.

Chapter II. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers

Decide election cases

Art. IX-C, Sec. 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.

2.

Jurisdiction

i.

Exclusive original: all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials Appellate: o elective municipal officials decided by trial courts of general jurisdiction o elective barangay officials decided by trial courts of limited jurisdiction

ii.





Once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the Comelec’s jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET’s own jurisdiction begins. [Aggabao vs Comelec, (2005)] Congress cannot make decisions of MTC or MCTC in a barangay election appealable to the trial court, because Comelec has exclusive appellate jurisdiction over all contests involving barangay elective officials decided by trial courts of limited jurisdiction. The jurisdiction of the Comelec, however, is over questions of fact; questions of law go to the SC. [Flores v. Comelec, (1990)]

V. Constitutionally-Mandated Bodies A. Sandiganbayan (Asked 1 time in the Bar) Art. XI, Sec. 4. The present anti-graft court known as the Sandigan-bayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law.



Under RA 8249 (AN ACT FURTHER DEFINING THE JURISDICTION OF THE SANDIGANBAYAN, AMENDING FOR THE PURPOSE PRESIDENTIAL DECREE NO. 1606, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES), to determine whether the Sandiganbayan has jurisdiction, one must look into two (2) criteria, namely: 1) The nature of the offense, and 2) The salary grade of the public official.



To further strengthen the functional and structural organization of the Sandiganbayan, several amendments have been introduced to the original law creating it, the latest of which are Republic Acts No. 7975 and No. 8249.



Under these new laws, the jurisdiction of the Sandiganbayan is now confined to cases involving public officials occupying positions classified as salary grade 27 and higher.



As restructured, the Sandiganbayan is presently composed of:  a Presiding Justice and  fourteen (14) Associate Justices  who sit in five (5) Divisions of  three Justices  each in the trial and determination of cases.

D. Commission on Audit (Asked 1 time in the Bar)

1.

Powers and Functions

i.

Examine, audit, and settle accounts pertaining to Government funds or property: its revenue, receipts, expenditures, and uses o Post-audit basis: Constitutional bodies, commissions and offices; Autonomous state colleges and universities; GOCCs with no original charters and their subsidiaries; Nongovernmental entities receiving subsidy or equity, directly or indirectly, from or through the Government, which are required by law or the granting institution to submit such audit as a condition of subsidy or equity

ii.

B. Ombudsman (Asked 5 times in the Bar) 1.

Qualification  Natural born citizen at time of appointment  At least 40 yrs old  With probity and independence  Member of the Bar  Not a candidate for elective office in immediately preceding election  At least 10 yrs had been a judge OR in practice of law

2.

Appointment  JBC to nominate at least 6 for original Ombudsman  JBC to nominate at least 3 for every vacancy thereafter  Vacancies to be filled within 3 months after occurrence  Appointed by the President  Appointment needs no confirmation

3.

Term  7 yrs without reappointment

Exclusive Authority o Define the scope of its audit and examination; o Establish techniques and methods required ; o Promulgate accounting and auditing rules and regulations.

Art. IX-D, Sec. 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.

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POLITICAL LAW REVIEWER

4.

Chapter II. STRUCTURE and POWERS of GOVERNMENT – Separation of Powers

Removal By impeachment for:  culpable violation of the constitution  treason  bribery  graft and corruption  other high crimes  betrayal of public trust

5.

Benefits  Ombudsman has rank of Chairman of a ConCom  Enjoys fiscal autonomy  Automatic and regular release of funds  Salary cannot be decreased during term

6.

Powers/Duties MAIN PURPOSE: protectors of the people  Shall act promptly on complaints against public officials/govt employees AND notify complainants of action taken and the result  Investigate on its own or any complaint when appears to be:  Illegal  Unjust  Improper  Inefficient  Direct, on its own or upon complaint, any public official/govt employee to:  perform and expedite an act/duty required  stop/prevent/correct any abuse or impropriety of duty  Direct the officer concerned to take appropriate action against the public official/govt employee  Recommend for their:  removal  suspension  demotion  fine  censure  prosecution  Ensure compliance of the recommendation  Subject to limitations of law, direct the officer concerned to furnish copies of related documents/contracts entered by his office involving use of public funds:  Further report any irregularity to the Commission on Audit  Request assistance and information from other govt agencies for the discharge of his duties  Publicize, with due prudence, matters covered by investigation, whenever warranted  Determine the causes of the ff and make recommendations for their eradication, and observance of high standards of ethics/efficiency:  Inefficiency  Red tape  Mismanagement  Fraud  Govt corruption

  

7.

Promulgate its rules of procedure Exercise other functions provided by law Declare his assets, liabilities, and net worth upon assumption of office and when required by law

Disqualification  Cannot hold any other office or employment during tenure  Cannot engage in any profession or active management/control of any business affecting their office  Cannot be financially interested, directly or indirectly, in any contract, franchise, or privilege granted by the Government or its agencies/corporations (Sec. 2, Art. IX-A)  Cannot run for any office in the election immediately succeeding their term of office  Cannot be granted any financial accommodation for business purposes, directly or indirectly, within tenure.

C. Commission on Human Rights (Asked 5 times in the Bar) 1.

Composition and Qualifications 

2.

Chairman and 4 Members o natural-born Filipinos o majority shall be members of the Bar o The term of office and other qualifications shall be provided by law.

Powers and Functions 

Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights



The Commission can only protect “civil and political rights,” which do not include the less traditional social and economic rights. [Simon v. CHR, (1994)]

o

Note, however, that the reason for these modest objectives of the Framers of the Constitution is the desire not to overburden the CHR during its initial years. The limitation does not exclude the possibility of expanding the Commission’s scope later --- as in fact Section 19 specifically allows (BERNAS).

IMPT: Section 25 of the Universal Declaration of Human Rights (UDHR) as well as the International Covenant on Economic, Social, and Cultural Rights (ICESCR) are deemed part of Philippine law pursuant to the Incorporation Clause of the Constitution.

Art. XIII, Sec. 19. The Congress may provide for other cases of violations of human rights that should fall within the authority of the Commission, taking into account its recommendations. 

The Commission was not meant by the fundamental law to be another court or quasijudicial agency in this country, or duplicate much less take over the functions of the latter. It is conceded, however, that the Commission may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. [Cariño v. CHR, (1991)]

45 CONSTITUTIONAL LAW I

POLITICAL LAW REVIEWER

Chapter III. NATIONAL ECONOMY and PATRIMONY

Chapter III. National Economy and Patrimony (Asked 13 times in the Bar) I.

III. IV. V.

GENERAL PRINCIPLES A. GOALS B. CITIZENSHIP REQUIREMENTS C. FILIPINO FIRST NATURAL RESOURCES A. REGALIAN DOCTRINE B. EXPLORATION, DEVELOPMENT, UTILIZATION C. STEWARDSHIP CONCEPT PRIVATE LANDS MONOPOLIES CENTRAL MONETARY AUTHORITY

I.

General Principles

II.

100% Filipino Small-scale utilization of natural resources (as may be provided by law) [Art. XII, Sec. 2, par. 3]



A. Goals 1. 2.

3.

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

100% Filipino Marine Wealth [Art. XII, Sec. 2, par. 2]

Agricultural lands [Art. XII, Sec. 3] o Lease: < 500 ha. o Purchase, homestead or grant: < 12 ha. o Private corpora-tions may lease not more than 1,000 ha. for 25 years, renewable for another 25 years. Practice of professions [Art. XII, Sec. 14]

60-40 Natural Resources [Art. XII, Sec. 2, par. 1] (Co-production, Joint venture, Production sharing agreemenents) Agreements shall not exceed a period of 25 years renewable for another 25 years. Educational Institutions [Art. XIV, Sec. 4(2)]

70-30

A public utility is a business or service engaged in regularly supplying the public with some commodity or service of public consequence. A joint venture falls within the purview of an “association” pursuant to Sec. 11, Art. XII; thus a joint venture which would engage in the business of operating a public utility must comply with the 60%-40% Filipino-foreign capitalization requirement. [JG Summit Holdings v. CA, (2000)]

C. Filipino First Art. XII, Sec. 10. 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. 

B. Citizenship Requirements

60-40 Operation of public utility [Art. XII, Sec. 11] o Cannot be for longer period than 50 years o Executive and managing officers must be Filipino

70-30 Advertising Industry [Art. XVI, Sec. 11]

The term “patrimony” pertains to heritage, and given the history of the Manila Hotel, it has become a part of our national economy and patrimony. Thus, the Filipino First policy provision of the Constitution is applicable. Such provision is per se enforceable, and requires no further guidelines or implementing rules or laws for its operation. [Manila Prince Hotel v. GSIS, (1997)]

Art. XII, 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.

II. Natural Resources A. Regalian Doctrine [Jura Regalia] 

The King had title to all the land in the Philippines except so far as it saw fit to permit private titles to be acquired.. [Cariño v. Insular Government, (1909)]



As in previous Constitutions, the 1987 Constitution adheres to this doctrine as illustrated by this section:

Art. XII, Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. Areas Investment Congress prescribe (percentage be higher) XII, Sec. 10]

of as may can [Art.



Under the Regalian Doctrine, all lands not otherwise clearly appearing to be privately owned are presumed to belong to the State. The classification of public lands is an exclusive prerogative of the Executive Department through the Office of the President. [Republic v. Register of Deeds of Quezon, (1994)]

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POLITICAL LAW REVIEWER

Chapter III. NATIONAL ECONOMY and PATRIMONY FTAA (1987 Const.)

B. Exploration, Development, and Utilization Art. XII, Sec. 2, par. 4. 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 of local scientific and technical resources.

The State, being the owner of the natural resources, is accorded the primary power and responsibility in the exploration, development and utilization thereof. As such it may undertake these activities through four modes: (1) The State may directly undertake such activities; (2) The State may enter into co-production, joint venture or production-sharing agreements with Filipino citizens or qualified corporations; (3) Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens; or (4) For the large-scale exploration, development and utilization of minerals, petroleum and other mineral oils, the President may enter into agreements with foreign-owned corporations involving technical or financial assistance. [[La Bugal-B’Laan Tribal Assn. v. Ramos, (Jan,2004)] FTAA (1987 Const.) Parties

Size Activities

of

Only the President (in behalf of the State), and only with corporations Only large-scale exploration, development and utilization

Natural Resources Covered

Minerals, petroleum and other mineral oils

Scope of the Agreements

Involving either financial or technical assistance

SERVICE CONTRACT (1973 Const.) A Filipino citizen, corporation or association with a “foreign person or entity” Contractor provides all necessary services and technology and the requisite financing, performs the exploration work obligations, and assumes all exploration risks Virtually the entire range of the country’s natural resources Contractor provides financial or technical resources, undertakes the exploitation or production of a given resource, or directly manages the productive enterprise, operations of the exploration and exploitation of the resources or the disposition of

SERVICE CONTRACT (1973 Const.) marketing resources

or

Following this framework, the SC declared the following provisions of the Philippine Mining Act of 1995 (RA 7942) unconstitutional for being contrary to Sec. 2, Art. XII of the 1987 Constitution: a. The proviso in Sec. 3(aq), which defines a “qualified person”, to wit: Provided, That a legally foreign-owned corporation shall be deemed a qualified person for purposes of granting an exploration permit, FTAA or mineral processing permit b. Sec. 23, which specifies the rights and obligations of an exploration permit grantee c. Sec. 33, which prescribes the eligibility of a contractor in an FTAA d. Sec. 35, which enumerates the terms and conditions for every FTAA e. Sec. 39, which allows the contractor to convert the FTAA into a mineral production-sharing agreement (MPSA) f. Sec. 56, which authorizes the issuance of a mineral processing permit to a contractor in an FTAA The following provisions of the same Act were likewise deemed void as they are dependent on the foregoing provisions and cannot stand on their own: a. Section 3 (g), which defines the term “contractor,” insofar as it applies to a financial or technical assistance agreement; b. Section 34, which prescribes the maximum contract area in a financial or technical assistance agreements; c. Section 36, which allows negotiations for financial or technical assistance agreements; d. Section 37, which prescribes the procedure for filing and evaluation of financial or technical assistance agreement proposals; e. Section 38, which limits the term of financial or technical assistance agreements; f. Section 40, which allows the assignment or transfer of financial or technical assistance agreements; g. Section 41, which allows the withdrawal of the contractor in an FTAA; h. The second and third paragraphs of Section 81, which provide for the Government’s share in a financial and technical assistance agreement; i. Section 90, which provides for incentives to contractors in FTAAs insofar as it applies to said contractors; The Court then struck down the Financial and Technical Assistance Agreement (FTAA) entered into between the Government and Western Mining Corporation (Phils.), Inc. (WMCP) for being similar to service contracts, previously allowed under the 1973 Constitution but which are now proscribed under the 1987 Constitution. 

On motion for reconsideration, the SC reversed its original decision and upheld the

47 CONSTITUTIONAL LAW I

POLITICAL LAW REVIEWER

POLITICAL LAW REVIEWER

The Constitution should be read in broad, life-giving strokes. It should not be used to strangulate economic growth or to serve narrow, parochial interests. Rather, it should be construed to grant the President and Congress sufficient discretion and reasonable leeway to enable them to attract foreign investments and expertise, as well as to secure for our people and our posterity the blessings of prosperity and peace. The Court fully sympathize with the plight of La Bugal B’laan and other tribal groups, and commend their efforts to uplift their communities. However, the Court cannot justify the invalidation of an otherwise constitutional statute along with its implementing rules, or the nullification of an otherwise legal and binding FTAA contract. The Court believes that it is not unconstitutional to allow a wide degree of discretion to the Chief Executive, given the nature and complexity of such agreements, the humongous amounts of capital and financing required for large-scale mining operations, the complicated technology needed, and the intricacies of international trade, coupled with the State’s need to maintain flexibility in its dealings, in order to preserve and enhance our country’s competitiveness in world markets. On the basis of this control standard, the Court upholds the constitutionality of the Philippine Mining Law, its Implementing Rules and Regulations -- insofar as they relate to financial and technical agreements -- as well as the subject Financial and Technical Assistance Agreement (FTAA). [La Bugal-B’laan Tribal Assn. v. Ramos, (Dec. 2004)]

B. Exceptions i. ii.

Hereditary succession (Art. XII, sec. 7) 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. (Art. XII, sec. 8)

IV. Monopolies Art. XIII, 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.



Although the Constitution enshrines free enterprise as a policy, it nevertheless reserves to the Government the power to intervene whenever necessary for the promotion of the general welfare. [Philippine Coconut Dessicators v. PCA, (1998)]



Monopolies are not per se prohibited by the Constitution but may be permitted to exist to aid the government in carrying on an enterprise or to aid in the performance of various services and functions in the interest of the public. Nonetheless, a determination must first be made as to whether public interest requires a monopoly. As monopolies are subject to abuses that can inflict severe prejudice to the public, they are subject to a higher level of State regulation than an ordinary business undertaking. [Agan, Jr. v. PIATCO, (2003)]

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

III. Private Lands A. General Rule No private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain. (Art. XII, sec. 7)

V. Central Monetary Authority [Art. XII, Sec. 20] Functions: 1.

Provide policy directions in the areas of money, banking, and credit;

2.

Supervise the operations of banks;

3.

Exercise such regulatory powers as may be provided by law over the operations of finance companies and other institutions performing similar functions Qualifications of the Governors: 1. 2. 3.

Natural-born Filipino; Known probity, integrity and patriotism; Majority shall come from the private sector



Subject to such other qualifications disabilities as may be provided by law

and

Until the Congress otherwise provides, the Central Bank of the Philippines operating under existing laws, shall function as the central monetary authority.

48 CONSTITUTIONAL LAW I

constitutionality of the subject FTAA, the Mining Law, and its Implementing Rules.

Chapter III. NATIONAL ECONOMY and PATRIMONY

Chapter IV. Current Events and Special Topics I. II.

PARTY-LIST SYSTEM QUESTION HOUR V. INQUIRIES IN AID OF LEGISLATION III. EXECUTIVE PRIVILEGE IV. PEOPLE’S INITIATIVE V. RIGHT OF REPLY BILL VI. THE (ERSTWHILE) PROVINCE OF SHARIFF KABUNSUAN VII. MOA ON ANCESTRAL DOMAIN (MOA-AD)

I.

Party-List System



The SC laid down the following guidelines for screening party-list participants ---

1)

The parties must represent the marginalized and underrepresented. Major political parties must comply with this statutory policy Religious sects are prohibited by the Constitution The party must not be disqualified under RA 7941 The part must not be an adjunct of an entity or project funded by the government The party and its nominees must comply with the requirements of the law The members must come from the marginalized and underrepresented sectors The nominee must be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation Their nominees must come from the same party. [Ang Bagong Bayani v. Comelec, (2001)]

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

9)

The Legal and Logical Formula for the Philippines Step One. The initial step is to rank all the participating parties, organizations and coalitions from the highest to the lowest based on the number of votes they each received. Then the ratio for each party is computed by dividing its votes by the total votes cast for all the parties participating in the system. All parties with at least two percent of the total votes are guaranteed one seat each. Only these parties shall be considered in the computation of additional seats. The party receiving the highest number of votes shall thenceforth be referred to as the “first” party. Step Two. The next step is to determine the number of seats the first party is entitled to, in order to be able to compute that for the other parties. Since the distribution is based on proportional representation, the number of seats to be allotted to the other parties cannot possibly exceed that to which the first party is entitled by virtue of its obtaining the most number of votes. For example, the first party received 1,000,000 votes and is determined to be entitled to two additional seats. Another qualified party which received 500,000 votes cannot be entitled to the same number of seats, since it garnered only fifty percent of the votes won by the first party. Depending on the proportion of its votes relative to that of the first party whose number

Chapter IV. CURRENT EVENTS and SPECIAL TOPICS of seats has already been predetermined, the second party should be given less than that to which the first one is entitled. The other qualified parties will always be allotted less additional seats than the first party for two reasons: (1) the ratio between said parties and the first party will always be less than 1:1, and (2) the formula does not admit of mathematical rounding off, because there is no such thing as a fraction of a seat. Verily, an arbitrary rounding off could result in a violation of the twenty percent allocation. An academic mathematical demonstration of such incipient violation is not necessary because the present set of facts, given the number of qualified parties and the voting percentages obtained, will definitely not end up in such constitutional contravention. The Court has previously ruled in Guingona Jr. v. Gonzales that a fractional membership cannot be converted into a whole membership of one when it would, in effect, deprive another party's fractional membership. It would be a violation of the constitutional mandate of proportional representation. We said further that "no party can claim more than what it is entitled to x x x.” [Veterans Federation Party v. Comelec, (2000)] Formula for Determining Additional Seats for the First Party The formula for computing the number of seats to which the first party is entitled is as follows: Number of votes of first party -----------------Total votes for party-list system

=

Proportion of votes relative to total votes for party list

If the proportion of votes received by the first party without rounding it off is equal to at least six percent of the total valid votes cast for all the party list groups, then the first party shall be entitled to two additional seats or a total of three seats overall. If the proportion of votes without a rounding off is equal to or greater than four percent, but less than six percent, then the first party shall have one additional or a total of two seats. And if the proportion is less than four percent, then the first party shall not be entitled to any additional seat. Note that the above formula will be applicable only in determining the number of additional seats the first party is entitled to. It cannot be used to determine the number of additional seats of the other qualified parties. As explained earlier, the use of the same formula for all would contravene the proportional representation parameter.

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Formula for Additional Seats of Other Qualified Parties Step Three. The next step is to solve for the number of additional seats that the other qualified parties are entitled to, based on proportional representation. The formula is encompassed by the following complex fraction: Additional seats for concerned party

=

No. of votes of concerned party --------------No. of votes of the first party

x

No. of additional seats allocated to first party

Incidentally, if the first party is not entitled to any additional seat, then the ratio of the number of votes for the other party to that for the first one is multiplied by zero. The end result would be zero additional seats for each of the other qualified parties as well. The above formula does not give an exact mathematical representation of the number of additional seats to be awarded since, in order to be entitled to one additional seat, an exact whole number is necessary. In fact, most of the actual mathematical proportions are not whole numbers and are not rounded off for the reasons explained earlier. To repeat, rounding off may result in the awarding of a number of seats in excess of that provided by the law. Furthermore, obtaining absolute proportional representation is restricted by the three-seat-per-party limit to a maximum of two additional slots. An increase in the maximum number of additional representatives a party may be entitled to would result in a more accurate proportional representation. But the law itself has set the limit: only two additional seats. Hence, we need to work within such extant parameter. [Veterans Federation Party v. Comelec, (2000)] SC declared the 2%-threshhold used for computing the allocation of additional seats under the Veterans Formula, pursuant to Sec. 11, RA 7941, unconstitutional, because it renders the attainment of the maximum number of available party seats mathematically impossible once the available party list seats exceeds 50, as in the present state of the law, where 55 seats are available to party-list representatives. 

1.

2.

3.

In determining the allocation of seats for party-list representatives under Section 11 of R.A. No. 7941, the following procedure shall be observed: The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one guaranteed seat each. Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be entitled to additional seats in proportion to their

4.

total number of votes until all the additional seats are allocated. Each party, organization, or coalition shall be entitled to not more than three (3) seats.

In computing the additional seats, the guaranteed seats shall no longer be included because they have already been allocated, at one seat each, to every two-percenter. Thus, the remaining available seats for allocation as “additional seats” are the maximum seats reserved under the Party List System less the guaranteed seats. Fractional seats are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of fractional seats. The three-seat cap, as a limitation to the number of seats that a qualified party-list organization may occupy, remains a valid statutory device that prevents any party from dominating the party-list elections. 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. [Barangay Association for National Advancement and Transparency (BANAT) v. Comelec, (2009)] Puno, C.J., Concurring and Dissenting Opinion: Limiting the party-list system to the marginalized and excluding the major political parties from participating in the election of their representatives is aligned with the constitutional mandate to “reduce social, economic, and political inequalities, and remove cultural inequalities by equitably diffusing wealth and political power for the common good”. The evils that faced our marginalized and underrepresented people at the time of the framing of the 1987 Constitution still haunt them today. It is through the party-list system that the Constitution sought to address this systemic dilemma. In ratifying the Constitution, our people recognized how the interests of our poor and powerless sectoral groups can be frustrated by the traditional political parties who have the machinery and chicanery to dominate our political institutions. If we allow major political parties to participate in the party-list system electoral process, we will surely suffocate the voice of the marginalized, frustrate their sovereignty and betray the democratic spirit of the Constitution. Nachura, J., Separate Opinion: The inflexible 2% threshold vote required for entitlement by a party-list group to a seat in the House of Representatives in Republic Act (R.A.) No. 7941 is unconstitutional. This minimum vote requirement ─ fixed at 2% of the total number of votes cast for the party list system ─ presents an unwarranted obstacle to the full implementation of Section 5 (2), Article VI, of the Philippine Constitution. As such, it effectively defeats the declared constitutional policy, as well as the legislative

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objective expressed in the enabling law, to allow the people’s broadest representation in Congress, the raison d’etre for the adoption of the party-list system.

o

A legal provision that poses an insurmountable barrier to the full implementation and realization of the constitutional provision on the party-list system should be declared void. I submit that, until Congress shall have effected an acceptable amendment to the minimum vote requirement in R.A. 7941, we abide by the sensible standard of “proportional representation” and adopt a gradually regressive threshold vote requirement, inversely proportional to the increase in the number of party-list seats. Thus, at present, considering that there are 55 seats allocated for party-list groups, the formula should be: 100% (Total # of votes cast for party-list) 55 party-list seats

=

1.818%

Under the 1973 Constitution, a similar provision expressly referred to this appearance as the “question hour”. In contrast to such provision, however, the tenor of its counterpart in the present Constitution is merely permissive. Hence, the President may or may not consent to the appearance of the heads of departments; and even if he does, he may require that the appearance be in executive session. Reciprocally, Congress may refuse the initiative taken by a department secretary.

5.

Likewise, Congress exercises legislative scrutiny thru its power of confirmation.

B.

Congressional Investigation

Art. VI, Sec. 21. The Senate or the House of Representatives or any of its respective committee 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.

The minimum vote requirement will gradually lessen as the number of party-list seats increases. Accordingly, if the scenario we presented above should ever come to pass, and there are 100 seats allocated for party-list groups, then the threshold vote should be 1%, based on the following computation:

o

Limitations i. Must be in aid of legislative functions ii. Must be conducted in accordance with duly published rules of procedure iii. Persons appearing therein are afforded their constitutional rights

100% (Total # of votes cast for party-list) 100 party-list seats



Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function as to be implied. In other words, 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 legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information — which is not frequently true — recourse must be had to others who do possess it. [Arnault v. Nazareno, (1950)]

C.

Legislative Supervision

=

1%

II. Question Hour v. Inquiries In Aid of Legislation 

Macalintal v. Comelec, (2003), Puno, C.J., Concurring and Dissenting Opinion:

Categories of Congressional Oversight Functions A.

Scrutiny

1.

Primary purpose is to determine economy and efficiency of the operation of government activities In the exercise of legislative scrutiny, Congress may request information and report from the other branches of government. based primarily on the power of appropriation of Congress Congress can ask the heads of departments to appear before and be heard by either House of Congress on any matter pertaining to their departments.

2.

3. 4.

Art. VI, Sec. 22. The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. 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

Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto provisions when granting the President or an executive agency the power to promulgate regulations with the force of law. These provisions require the President or an agency to present the proposed regulations to Congress, which retains a “right” to approve or disapprove any regulation before it takes effect.

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III. Executive Privilege

Chapter IV. CURRENT EVENTS and SPECIAL TOPICS 



Citing American sources, the SC defined and explained “executive privilege” as follows --(1) It is the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public; (2) It takes on various forms, whereby U.S. Presidents invoke it in order to prevent a subversion of crucial military or diplomatic objectives, or to protect the identity of informers, or to maintain the internal nature of the formulation of governmental decisions and policies; (3) It is based on the constitutional doctrine of separation of powers. [Senate v. Ermita, (2006)] 

 1. 2.

Two kinds of executive privilege: [citing In re: Sealed Case] Presidential Communications Privilege Deliberative Process Privilege

exempts the executive from disclosure requirements applicable to the ordinary citizen or organization

Scope

Who are covered

Basis Elements





where such exemption is necessary to the discharge of highly important executive responsibilities involved in maintaining governmental operations, and extends not only to military and diplomatic secrets but also to documents integral to an appropriate exercise of the executive domestic decisional and policy making functions, that is, those documents reflecting the frank expression necessary in intra-governmental advisory and deliberative communications. [Neri v Senate (2008)]

Presidential Communications Communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential o applies to documents in their entirety, and covers final and postdecisional materials as well as pre-deliberative ones President  operational proximity test: meant to encompass only those functions that form the core of presidential authority, involving what the court characterized as “quintessential and nondelegable Rooted in the constitutional principle of separation of power and the President’s unique constitutional role 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.

How does one draw the line, or balance, the competing claims of the presidency and the legislature? o Citing Senate v. Ermita (2006), the Court held that “the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation.” o It is conceded that it is difficult to draw the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much will depend on the content and the manner the inquiry is conducted.

Deliberative Process Advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. Executive officials

Common law privilege

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IV. People’s Initiative  Lambino v. COMELEC (2006): In Santiago v. COMELEC (1997), the SC declared RA. 6735 on People’s Initiative to be “incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned.” The Lambino petition seeks to use the same law for a new people’s initiative in order to convert the present government set-up into a parliamentary-unicameral system. Held: o The Court held that the Santiago decision need not be revisited. The Lambino petition warranted outright dismissal for failure to comply with the basic requirement of Section 2, Art. XVII such that an affirmation or reversal of Santiago will not change the outcome of the case. o

o

o

The Lambino petition failed to comply because: a) the initiative petition did not present the full text of the proposed amendments, and b) the proposed changes constituted revision, not amendment. The essence of amendments “directly proposed by the people through initiative upon petition” is that the entire proposal on its face is a petition by the people. This means the 2 essential elements must be present: 1) The people must author and thus sign the entire proposal. No agent or representative can sign on their behalf. 2) As an “initiative upon a petition”, the proposal must be embodied in the petition. Further, a people’s initiative could only propose amendments, not revisions. Only a Congress or a Constitutional Convention can propose both amendments and revisions to the Constitution. A change in the form of government—from presidential and bicameral to parliamentary and unicameral—constitutes revision and not merely an amendment.

Chapter IV. CURRENT EVENTS and SPECIAL TOPICS

V. Right of Reply Highlights of House Bill No. 3306 A.

To Whom the Right to Reply is Granted

1.

All persons accused of any crime or offense defined by law, or Criticized by innuendo, suggestion or rumor for any lapse in behavior in public or private life.

2.

B.

Where Reply is Published or Broadcast

1.

Same space of the printed media where accusation or criticism was published Same program where accusation or criticism was broadcast  Media covered include websites and any electronic devices

2.

C.

When Reply is Published or Broadcast

Not later than 1 day after the reply shall have been delivered to the editorial office of the publication concerned or to the station that carried the broadcast being replied to. D.

Length of Reply

Not longer than the accusation or criticism. E.

Other Provisions

1.

It is the obligation of the publication or broadcast network which featured the accusations against a person, if the latter is eventually cleared of the crime alluded to him, to correct its previous report. The publication or broadcasting of the reply shall be free of charge, payment or fees. Failure or refusal to publish or broadcast a reply or the correction of an erroneous news item is carries penal sanctions consisting of both fines and imprisonment. The publication of the reply or correction does not preclude recourse to the exercise of other legal rights and remedies available to the party concerned.

2. 3.

4.

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VI. The (Erstwhile) Kabunsuan 

Chapter IV. CURRENT EVENTS and SPECIAL TOPICS

Province

of

Shariff

2.

Sema v. Comelec, (2008):

Facts: o The ARMM's legislature, the ARMM Regional Assembly, exercising its power to create provinces under Section 19, Article VI of RA 9054, enacted Muslim Mindanao Autonomy Act No. 201 (MMA Act 201) creating the Province of Shariff Kabunsuan. o The province was composed of the eight municipalities in the first district of Maguindanao and the City of the Cotabato. However, Cotabato City, though part of the first legislative district of Maguindanao, voted against its inclusion in the ARMM in the plebiscite held in November 1989.

Only Congress can create provinces and cities because the creation of provinces and cities necessarily includes the creation of legislative districts, a power only Congress can exercise under Section 5, Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. The ARMM Regional Assembly cannot create a province without a legislative district because the Constitution mandates that every province shall have a legislative district. Thus, MMA Act 201, enacted by the ARMM Regional Assembly and creating the Province of Shariff Kabunsuan, is void.

VII. MOA on Ancestral Domain (MOA-AD)

Issue: WON the ARMM Regional Assembly can create the Province of Shariff Kabunsuan.



Held: 1. There is no provision in the Constitution that conflicts with the delegation to regional legislative bodies of the power to create municipalities and barangays, provided the provisions of Section 10, Article X of the Constitution is followed.

Facts:

However, the creation of provinces and cities is another matter. Section 5 (3), Article VI of the Constitution provides, “Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative” in the House of Representatives. Similarly, Section 3 of the Ordinance appended to the Constitution provides, “Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member. Thus, the power to create a province or city inherently involves the power to create a legislative district. 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. To allow the ARMM Regional Assembly to create a national office is to allow its legislative powers to operate outside the ARMM’s territorial jurisdiction. This violates Section 20, Article X of the Constitution which expressly limits the coverage of the Regional Assembly’s legislative powers “[w]ithin its territorial jurisdiction x x x.” Thus, the creation of the Province of Shariff Kabunsuan without a legislative district is unconstitutional.

Province of North Cotabato v. GRP, Esperon (2008)

In lieu of the historical hostilities occurring in Mindanao perpetrated by Muslim secessionist groups and the failure of a number of peace talks entered into between the government and the MNLF (the MILF broke away from MNLF and continued armed hostilities), President Arroyo issued Executive Order No.3 defining the policy and administrative structure for the government’s comprehensive peace effort. Later on, she issued Memorandum of Instructions to the GRP Peace Panel providing the General Guidelines on the Peace Talks with the MILF. Pursuant to this, the MILF and the AFP suspended all military actions and began the peace talks. But despite two rounds of formal peace talks, violence still ensued. Later on, the GRP and the MILF again agreed to a cessation of hostilities to give way to exploratory talks to be conducted in Kuala Lumpur. The exploratory talks culminated in the drafting of the subject of MOAAD intended to be signed on August 5, 2008 in Kuala Lumpur. Petitioners wanted to secure copies of the MOA but they were denied. They filed petitions which resulted to a cease and desist order from the Supreme Court restraining the government to sign the MOA-AD and prompted the SolGen to submit to the court the final draft of the MOA-AD. Later on, the Executive Department pronounced that it would not longer sign the MOA-AD and dissolved the GRP Peace Panel. Petitioners still filed 13 petitions assailing the constitutionality of the MOA-AD arguing that there remains a justiciable controversy to resolve. Held: Concrete acts under the MOA-AD are not necessary to render the present controversy ripe. In Pimentel, Jr. v. Aguirre (2000), this Court held that the mere enactment of the questioned law or the approval of

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the challenged action ripened the dispute to a judicial controversy even without any other overt act. By the same token, when an act of the President, who in our constitutional scheme is a coequal of Congress, is seriously alleged to have infringed the Constitution and the laws, settling the dispute becomes the duty and the responsibility of the courts. Contrary to the contention of the respondents, the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel did not moot the present petitions. It bears emphasis that the signing of the MOA-AD did not push through due to the Court's issuance of a Temporary Restraining Order. Likewise, the MOA-AD cannot be considered a mere "list of consensus points," especially given its nomenclature, the need to have it signed or initialed by all the parties concerned on August 5, 2008, and the far-reaching Constitutional implications of these "consensus points," foremost of which is the creation of the BJE. In fact, there is a commitment on the part of respondents to amend and effect necessary changes to the existing legal framework for certain provisions of the MOA-AD to take effect. Consequently, the present petitions are not confined to the terms and provisions of the MOA-AD, but to other on-going and future negotiations and agreements necessary for its realization. The petitions have not, therefore, been rendered moot and academic simply by the public disclosure of the MOAAD, the manifestation that it will not be signed as well as the disbanding of the GRP Panel not withstanding. Moreover, these petitions are imbued with paramount public interest, involving a significant part of the country's territory and the wide-ranging political modifications of affected LGUs. The assertion that the MOA-AD is subject to further legal enactments including possible Constitutional amendments more than ever provides impetus for the Court to formulate controlling principles to guide the bench, the bar, the public and, in this case, the government and its negotiating entity.

Also: 1. The Presidential Adviser on Peace Process, General Esperon, committed grave abuse of discretion when he failed to carry out the pertinent consultation process as required by EO 3, RA 7160 (LGC) and RA 8371 (IPRA). 2.

The MOA-AD cannot be reconciled with the Constitution and laws, particularly the associative relationship envisioned between GRP and BJE. Therefore, it is unconstitutional.

3.

The clause on the MOA-AD that “inconsistent provisions will not take effect until the framework is amended” does not cure the MOA-AD’s unconstitutionality.

4.

Respondent’s act of guaranteeing the amendments is, by itself, already a constitutional violation.

Nachura’s Dissent: In light of supervening events, there is no more actual case or controversy to be resolved. There can be no violation of the Constitution because the MOA-AD was not consummated. On the substantive aspect, Nachura believed that the constitutionality of the MOA-AD should be viewed from the perspective of executive power. As Chief Executive and Commander-in-Chief, there is an implied power given to the President as protector of peace. Implied from the calling out power of the President which does not require existence of actual invasion or rebellion, the President may exercise not only emergency powers, but day-to-day problems of maintaining peace and order and ensuring domestic tranquility. The mandate of the GRP Peace Panel emanated from Executive Order No. 3 which was issued pursuant to the power of the President to maintain peace and order.

- end of Constitutional Law I -

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TABLE of CONTENTS

CONSTITUTIONAL LAW II Table of Contents

Chapter II. Fundamental Powers ..................60 of the State......................................................60 I. Police Power .......................................60 A. Definition .........................................60 II. Eminent Domain..................................63 A. Definition .........................................63 B. Who May Exercise..........................63 C. Requisites .......................................64 III. Taxation ..............................................65 A. Definition and Scope.......................65 B. Who May Exercise.........................65 C. Limitations.......................................65 D. Double Taxation..............................66 Chapter III. Due Process................................67 I. In General ...........................................67 II. Substantive Due Process....................67 A. Scope..............................................68 B. Requisites .......................................68 C. Doctrines.........................................68 III. Procedural Due Process .....................69 A. Scope..............................................69 B. Kinds ...............................................69 IV. Due Process As Limitation On Fundamental State Powers .........................70 A. Vis-à-vis Police Power ....................70 B. Vis-à-vis Eminent Domain ..............70 C. Vis-à-vis Power to Tax....................71 Chapter IV. Equal Protection of the Laws....72 I. Definition and Scope of Protection......72 II. Requisites of Valid Classification ........72 III. Examples of Valid Classification .........72 A. Aliens ..............................................72 B. Filipino Female Domestics Working Abroad .....................................................73 C. Land-based vs. Sea-based Filipino Overseas Workers...................................73 D. Qualification for Elective Office.......73 E. Office of the Ombudsman...............73 F. Print vs. Broadcast Media...............73 IV. Standards of Judicial Review..............73 A. “Rational Basis Test” ......................73 B. “Strict Scrutiny Test” .......................73 C. “Intensified Means Test” .................73 Chapter V. Requirements for Fair Procedure .........................................................................74

I. II.

Nature and Scope ............................... 74 ARREST.............................................. 74 A. Requisites for Issuance of a Valid Arrest Warrant ......................................... 74 B. Requisites of a Valid Warrantless Arrest (Rule 113, Sec. 5, Rules on Criminal Procedure)............................................... 75 III. SEARCH AND SEIZURE.................... 77 IV. Detention/Custodial Investigation ....... 80 A. Rights under Custodial Investigation 80 B. Tests of Waiver of Miranda Rights . 83 V. Protocol After Conduct Of Investigation 84 VI. Other Rights Guaranteed Under Art. III. Sec. 12......................................................... 84 VII. Exclusionary Rules ......................... 84 VIII. Right to Bail .................................... 86 Chapter VI. Rights of the Accused ............... 88 II. Rights Post Trial.................................. 91 Chapter VII. Writs ........................................... 94 I. HABEAS CORPUS ............................. 94 II. WRIT OF AMPARO ............................ 96 III. WRIT OF HABEAS DATA................... 96 Chapter VIII. Privacy of Communication and Correspondence ............................................ 99 I. Intrusion, When Allowed ..................... 99 II. Forms of Correspondence Covered ... 99 III. ENABLING LAW ................................. 99 Chapter IX. Freedom of Expression ........... 101 I. Basis, Components, Scope and Limitations.................................................. 101 II. CONTENT-BASED RESTRICTIONS103 IV. CONTENT-NEUTRAL RESTRICTIONS 106 Chapter X. Freedom of Religion ................. 109 I. Non-establishment Clause................ 109 II. Free Exercise Clause........................ 110 III. Tests ................................................. 111 Chapter XI. Liberty of Abode and Travel ... 112 I. Liberty of Abode................................ 112 II. Right to Travel................................... 112 III. Right to Return to One’s Country...... 112 Chapter XII. RA 9372: Human Security Act* ....................................................................... 113 Chapter XIII. Latest Cases........................... 119

57 CONSTITUTIONAL LAW II

Chapter I. Bill of Rights .................................58 I. In General ...........................................58 II. Bases and Purpose.............................59 A. Bases: .............................................59 III. Accountability ......................................59

Prof. Ibarra M. Gutierrez Faculty Editor

Paula Deveraturda Lead Writer Tina Amador Dan Avila Richard Beltran Daniel Convocar Michael Manotoc Sam Nuñez Che Santos Alyanna Orbeta Writers

POLITICAL LAW Jennifer Go Subject Editor

ACADEMICS COMMITTEE Kristine Bongcaron Michelle Dy Patrich Leccio Editors-in-Chief

PRINTING & DISTRIBUTION Kae Guerrero

DESIGN & LAYOUT Pat Hernandez Viktor Fontanilla Romualdo Menzon Jr. Rania Joya

LECTURES COMMITTEE Michelle Arias Camille Maranan Angela Sandalo Heads Katz Manzano Mary Rose Beley Sam Nuñez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers

MOCK BAR COMMITTEE Lilibeth Perez

BAR CANDIDATES WELFARE Dahlia Salamat

LOGISTICS Charisse Mendoza

SECRETARIAT COMMITTEE Jill Hernandez Head Loraine Mendoza Faye Celso Mary Mendoza Joie Bajo Members

Chapter I. Bill of Rights I. IN GENERAL II. BASES AND PURPOSE A. BASES B. PURPOSE III. ACCOUNTABILITY

I.

In General

It is a declaration and enumeration of a person's fundamental civil and political rights. It also imposes safeguards against violations by the government, by individuals, or by groups of individuals. People vs. Marti, G.R. No. 81561 (January 18, 1991): “The Bill of Rights governs the relationship between the individual and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder.” (Sponsorship Speech of Commissioner Bernas , Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied) It is generally self-executing. Article III contains the chief protection for human rights but the body of the Constitution guarantees other rights as well. 1. Civil rights – rights that belong to an individual by virtue of his citizenship in a state or community (e.g. rights to property, marriage, freedom to contract, equal protection, etc.) 2. Political rights – rights that pertain to an individual’s citizenship vis-à-vis the management of the government (e.g. right of suffrage, right to petition government for redress, right to hold public office, etc.) 3. Social and economic rights – rights which are intended to insure the well-being and economic security of the individual 4. Rights of the accused – civil rights intended for the protection a person accused of any crime

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Chapter I. BILL of RIGHTS

III. Accountability

A. Bases: 1. Importance accorded to the dignity and worth of the individual. 2. Protection against arbitrary actions of government and other members of society B. Purpose: 1. To preserve democratic ideals 2. To safeguard fundamental rights 3. To promote the happiness of individual

an

Philippine Blooming Mills Employees Organization vs. Philippine Blooming Mills Co., Inc. (1973): The Bill of Rights is designed to preserve the ideals of liberty, equality and security "against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of those who have no patience with general principles." (Justice Cardoso, Nature of Judicial Process, 90-93; Tanada and Fernando, Constitution of the Philippines, 1952 ed., 71.) In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw "certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's rights to life, liberty and property, to free speech, or free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." (West Virginia State Board of Education vs. Barnette, 319 U.S. 624, 638)

People vs. Marti (1991): That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals… Serrano vs. NLRC (2000): Section 3 of Article XIII of the Constitution requires the State to give full protection to labor. We cannot be faithful to this duty if we give no protection to labor when the violator of its rights happens to be private parties like private employers. A private person does not have a better right than the government to violate an employee's right to due process. To be sure, violation of the particular right of employees to security of tenure comes almost always from their private employers.

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II. Bases and Purpose

POLITICAL LAW REVIEWER

I.

POLICE POWER A. DEFINITION B. SCOPE AND LIMITATIONS C. WHO MAY EXERCISE D. TESTS FOR VALIDITY OF EXERCISE E. ILLUSTRATION ON THE EXERCISE II. EMINENT DOMAIN A. DEFINITION B. WHO MAY EXERCISE C. REQUISITES III. TAXATION A. DEFINITION AND SCOPE B. WHO MAY EXERCISE C. LIMITATIONS D. DOUBLE TAXATION

Bank and Trust Co. (1979): …the state, in order to promote the general welfare, may interfere with personal liberty, with property, and with business and occupations. Persons may be subjected to all kinds of restraints and burdens, in order to secure the general comfort health and prosperity of the state and to this fundamental aim of our Government, the rights of the individual are subordinated. (citations omitted) Ermita-Malate Hotel and Motel Operators Assoc. vs. Mayor of Manila (1967):

A. Definition

...has been properly characterized as the most essential, insistent and the least limitable of powers, (Cf. Ichong v. Hernandez, (1957) 101 Phil. 1155, at p. 1163) extending as it does "to all the great public needs." (Noble state Bank vs. Haskell, 219 U.S. 412)

Ermita-Malate Hotel and Motel Operators Association, Inc. vs. Mayor of Manila (1967):

Specific Coverage

I.

Police Power

It is the inherent and plenary power of the state which enables it to prohibit all that is hurtful to the comfort, safety and welfare of society.

B. Scope and Limitations 1. Scope General Coverage: Rubi vs. Provincial Board, G.R. No. L-14078 (March 7, 1919) "The police power of the State," one court has said, "is a power coextensive with selfprotection, and is not inaptly termed the 'law of overruling necessity.' It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society." (Lake View vs. Rose Hill Cemetery Co. [1873], 70 Ill., 191.) It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society." (Lake View vs. Rose Hill Cemetery Co. [1873], 70 Ill., 191.) Ortigas & Co., Limited Partnership vs. Feati

   

Public Health Public Morals Public Safety Public Welfare

2. Limitations US vs. Toribio (1910): The legislative determination “as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the court.” (Mr. Justice Brown in his opinion in the case of Lawton vs. Steele [152 U.S., 133, 136]

C. Who May Exercise 1. Legislature Police power is lodged primarily in the national legislature. 2. Executive By virtue of a valid delegation of legislative power, it may also be exercised by the president, administrative bodies, and lawmaking bodies of LGUs (R.A. 7160, sec. 16).

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Chapter II. Fundamental Powers of the State

Chapter II. FUNDAMENTAL POWERS

Churchill and Tait vs. Rafferty (1915): ...this power is limited only by the Acts of Congress and those fundamentals principles which lie at the foundation of all republican forms of government. An Act of the Legislature which is obviously and undoubtedly foreign to any of the purposes of the police power and interferes with the ordinary enjoyment of property would, without doubt, be held to be invalid. Note: MMDA vs. Garin (2005): Rep. Act No. 7924 does not grant the MMDA with police power, let alone legislative power, and that all its functions are administrative in nature. (MMDA v. Bel-Air Village Association, G.R. No. 135962, March 27, 2000) BUT it is not precluded—and in fact is duty-bound—to confiscate and suspend or revoke drivers' licenses in the exercise of its mandate of transport and traffic management, as well as the administration and implementation of all traffic enforcement operations, traffic engineering services and traffic education programs. (Section 3(b), Rep. Act No. 7924)

D. Tests for Validity of Exercise of Police Power 1. LAWFUL SUBJECT: Interest of the general public (as distinguished from a particular class required exercise). 2. LAWFUL MEANS: Means employed is reasonably necessary for the accomplishment of the purpose, and is not unduly oppressive

E. Illustrations on the Exercise of Police Power 1. National Security

Chapter II. FUNDAMENTAL POWERS

Scope of the police power: Since the Courts cannot foresee the needs and demands of public interest and welfare, they cannot delimit beforehand the extent or scope of the police power by which and through which the state seeks to attain or achieve public interest and welfare. Police power and national security: “The disputed law was enacted to remedy a real actual threat and danger to national economy posed by alien dominance and control of the retail business; the enactment clearly falls within the scope of the police power of the State, thru which and by which it protects its own personality and insures its security and future.”

2. Public Safety Agustin vs. Edu, (1979): Agustin questions President Marcos’ Letter of Instruction No. 229 compelling owners of motor vehicles to install specific early warning devices to reduce road accidents. Agustin already installed warning devices in his car but they were not the same ones specified in the LOI. He argued that the said LOI violated the police power of the state for being oppressive, arbitrary and unconscionable. Police power, public safety: The Court identified police power as a dynamic agency, suitably vague and far from precisely defined, rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to communal peace, safety, good order, and welfare. According to the Court, a heavy burden lies in the hands of the petitioner who questions the state’s police power if was clearly intended to promote public safety.

Ichong vs. Hernandez (1957): SC upheld the constitutionality of RA 1180 (An Act to Regulate the Retail Business) which sought to nationalize the retail trade business by prohibiting aliens in general from engaging directly or indirectly in the retail trade. Aliens did not question the exercise of police power; they claim, however, that there was a violation of the due process and equal protection clauses.

3. Public Morals Ermita-Malate Motel and Motel Operators Assn. vs. City Mayor of Manila (1967): Ermita Malate Hotel and Motel Operations Assoc. assails the constitutionality of Ordinance No. 4760.

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POLITICAL LAW REVIEWER

The grounds adduced were: (1) unreasonable and violative of due process insofar as it would impose different fees for different classes of hotels/motels and prohibit 18 year-olds from being accepted in such hotels, unless accompanied by parents or a lawful guardian and making it unlawful for the owner, manager, keeper or duly authorized representative of such establishments to lease any room or portion more than twice every 24 hours, and (2) invasion of the right to privacy and the guaranty against self-incrimination because it requires clients to fill up the prescribed form in a lobby open to public view at all times and in his presence, wherein personal information are mandated to be divulged. Police power, public morals: The mantle of protection associated with the due process guaranty does not cover petitioners. This particular manifestation of a police power measure being specifically aimed to safeguard public morals is immune from such imputation of nullity resting purely on conjecture and unsupported by anything of substance. Police power is "that inherent and plenary power in the State which enables it to prohibit all that is hurt full to the comfort, safety, and welfare of society xxx There is no question but that the challenged ordinance was precisely enacted to minimize certain practices hurtful to public morals. Cf. White Light Corporation, et al vs. City of Manila (2009): The case of White Light vs. City of Manila was termed by Justice Tinga as a “middle case”. It was meant to identify its case within a spectrum of cases decided by the Supreme Court which dealt with ordinances which has for its view the regulation of public morals. It is called a “middle case” because unlike its predecessors where the issue is either a wholesale ban against hotels and motels or a reasonable regulatory device as the one found in Ermita-Malate vs. City of Manila, this is a case where the ordinance in question severely restricts the services of the abovementioned establishments. The ratio decidendi started with an outline of the test of a valid ordinance i.e. it must be within the corporate powers of the local government to enact and pass and it must conform with substantive requirements.

Chapter II. FUNDAMENTAL POWERS

A reading of the ordinance at bar would yield that it prohibits two practices: the wash rate admission and renting out a room more than twice per day. These prohibitions are anchored in the power of the LGU to implement ordinances hinged on the general welfare clause—the devolved aspect of police power. This case churned out three standards for judicial review: the STRICT SCRUTINY TEST for laws dealing with freedom of the mind and curtailment of political process and the RATIONAL BASIS STANDARD OF REVIEW for economic legislation. A third standard was created known as the IMMEDIATE SCRUTINY for evaluating standards based on gender and legitimacy. The Supreme Court justified the application of the strict scrutiny test to this particular ordinance despite its lack of political significance by saying that it is not gravitas alone which is sheltered by the Bill of Rights. It is precisely these reflexive exercises of fundamental acts which best reflect the degree of liberty enjoyed. Sexual behavior is one of these fundamental acts covered by the penumbra of rights. While the reality of illicit activity is judicially recognized, it cannot be denied that sexual behavior between consenting adults is constitutionally protected. Apart from the right to privacy, the ordinance also proscribes other legitimate activities most of which are grounded on the convenience of having a place to stay during the short intervals between travels. The Ordinance was struck down as an arbitrary intrusion to private rights. It made no distinction between lodgings and placed every establishment as susceptible to illicit patronage. 4. The National Economy U.S. vs. Toribio, G.R. No. L-5060 (January 26, 1910) Police power, national economy The State can restrict or limit private use, if such is deemed by the legislature to be detrimental to the public welfare.

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POLITICAL LAW REVIEWER

POLITICAL LAW REVIEWER

The scarcity of these animals, the increase in their sale value, and the prevalence of carabao thefts, justified Legislature to adopt reasonable measures for the preservation of these work animals, even to the extent of prohibiting and penalizing what would, under ordinary conditions, be a perfectly legitimate and proper exercise of rights of ownership and control of the private property of the citizen. The police power rests upon necessity and the right of self-protection and. “…it is clear that the enactment of the provisions of the statute under consideration was required by "the interests of the public generally, as distinguished from those of a particular class;" and that the prohibition of the slaughter of carabaos for human consumption, so long as these animals are fit for agricultural work or draft purposes was a "reasonably necessary" limitation on private ownership, to protect the community from the loss of the services of such animals by their slaughter by improvident owners.

II. Eminent Domain Art. III, Sec. 9. Private property shall not be take for public use without just compensation. Art. XII, 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. Art. XIII, Sec. 4 The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe,

taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small landowners. The State shall further provide incentives for voluntary land-sharing. Art. XIII, Sec. 9 The State shall, by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost, decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners. Art XIV, Sec. 13. The National assembly may authorize, upon payment of just compensation, the expropriation of private lands to be subdivided into small lots and conveyed at cost to deserving citizens.

A. Definition It is the right of the government to take private property with just compensation. Visayan Refining Co. vs. Camus, G.R. No. L15870 (December 3, 1919): The power of eminent domain does not depend for its existence on a specific grant in the constitution. It is inherent in sovereignty and exists in a sovereign state without any recognition of it in the constitution. The provisions found in most of the state constitutions relating to the taking of property for the public use do not by implication grant the power to the government of the state, but limit a power which would otherwise be without limit. (citations omitted)

B. Who May Exercise Inherently:  

Executive Legislative

Visayan Refining Co. vs. Camus, G.R. No. L15870 (December 3, 1919):

63 CONSTITUTIONAL LAW II

In this case, the general public interest and the country’s material welfare is affected because of the contagious disease that threatened to kill all the carabaos in the country, such carabaos being the work animal almost exclusively in use in the fields as well as for draft purposes.

Chapter II. FUNDAMENTAL POWERS

…the performance of the administrative acts necessary to the exercise of the power of eminent domain in behalf of the state is lodged by tradition in the Sovereign or other Chief Executive. …where the Legislature has expressly conferred the authority to maintain expropriation proceedings upon the Chief Executive, the right of the latter to proceed therein is clear. …"Once authority is given to exercise the power of eminent domain, the matter ceases to be wholly legislative. The executive authorities may then decide whether the power will be invoked and to what extent." (citations omitted)

Chapter II. FUNDAMENTAL POWERS

Extent of Power

Question of Necessity

AS EXERCISED BY CONGRESS Pervasive and allencompassing

Political question

By Delegation: City of Manila vs. Chinese Community of Manila, G.R. No. L-14355 (October 31, 1919)

Re: private property

The general power to exercise the right of eminent domain must not be confused with the right to exercise it in a particular case. The power of the legislature to confer, upon municipal corporations and other entities within the State, general authority to exercise the right of eminent domain cannot be questioned by the courts, but that general authority of municipalities or entities must not be confused with the right to exercise it in particular instances. The moment the municipal corporation or entity attempts to exercise the authority conferred, it must comply with the conditions accompanying the authority. The necessity for conferring the authority upon a municipal corporation to exercise the right of eminent domain is admittedly within the power of the legislature. But whether or not the municipal corporation or entity is exercising the right in a particular case under the conditions imposed by the general authority, is a question which the courts have the right to inquire into. When a stature or charter or by general law has conferred the right of eminent domain upon a private entity. (Tenorio vs. Manila Railroad Co., G.R. No. L-6690, March 29, 1912)

AS EXERCISED BY DELEGATES

Can only be as broad as the enabling law and the conferring authorities want it to be Justiciable question. RTC has to determine whether there is a genuine necessity for its exercise, as well as what the property’s value is Delegate cannot expropriate private property already devoted to public use

C. Requisites Generally a. Taking of Private Property b. for Public Use, c. with Just Compensation, and d. Due Process. Specifically (LGUs, Sec. 19, Local Government Code): a. Ordinance by a local legislature council is enacted authorizing local chief executive to exercise eminent domain, b. For public use, purpose or welfare or for the benefit of the poor and of the landless, c. Payment of just compensation, d. Valid and definite offer has been previously made to owner of the property sought to be expropriated but such offer was not accepted (Municipality of Parañaque vs. VM Realty, 1998) Heirs of Ardona vs. Reyes, G.R. Nos. L-60549, 60553 to 60555 (October 26, 1983): The particular mention in the Constitution of agrarian reform and the transfer of utilities and other private enterprises to public ownership merely underscores the magnitude of the

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POLITICAL LAW REVIEWER

POLITICAL LAW REVIEWER

There can be no doubt that expropriation for such traditions' purposes as the construction of roads, bridges, ports, waterworks, schools, electric and telecommunications systems, hydroelectric power plants, markets and slaughterhouses, parks, hospitals, government office buildings, and flood control or irrigation systems is valid. However, the concept of public use is not limited to traditional purposes. Here as elsewhere the Idea that "public use" is strictly limited to clear cases of "use by the public" has been discarded. Private bus firms, taxicab fleets, roadside restaurants, and other private businesses using public streets end highways do not diminish in the least bit the public character of expropriations for roads and streets. The lease of store spaces in underpasses of streets built on expropriated land does not make the taking for a private purpose. Airports and piers catering exclusively to private airlines and shipping companies are still for public use. The expropriation of private land for slum clearance and urban development is for a public purpose even if the developed area is later sold to private homeowners, commercial firms, entertainment and service companies, and other private concerns.

III. Taxation A. Definition and Scope It is the enforced proportional contributions from persons and property, levied by the State by virtue of its sovereignty, for the support of the government and for all public needs. It is as broad as the purpose for which it is given. Purpose:  To raise revenue  Tool for regulation  Protection/power to keep alive

B. Who May Exercise  

legislature (primarily) local legislative bodies (Sec. 5 Art. 10, 1987 Consti)



President (o a limited extent, when granted delegated tariff powers under Sec. 28 (2) Art. 6, 1987 Consti)

C. Limitations General Limitations   

Power to tax exists for the general welfare; should be exercised only for a public purpose might be justified as for public purpose even if the immediate beneficiaries are private individuals Tax should not be confiscatory: If a tax measure is so unconscionable as to amount to confiscation of property, the Court will invalidate it. But invalidating a tax measure must be exercised with utmost caution, otherwise, the State’s power to legislate for the public welfare might be seriously curtailed

Specific Limitations 

Uniformity of taxation: a. General Rule: simply geographical uniformity, meaning it operates with the same force and effect in every place where the subject of it is found b. Exception: rule does not prohibit classification for purposes of taxation, provided the ff requisites are met: i. standards used are substantial and not arbitrary ii. categorization is germane to achieve the legislative purpose iii. the law applies, all things being equal to both present and future conditions iv. applies equally to members of the same class c. Rules: i. Equal protection clause: taxes should be uniform (persons or things belonging to the same class shall be taxed at the same rate) and equitable (taxes should be apportioned among the people according to their capacity to pay) ii. Progressive system of taxation: The rate increases as the tax base increases, with basis as social justice  Taxation as an instrument for a more equitable distribution of wealth iii. Delegated tax legislation: Congress may delegate law-making

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problems sought to be remedied by these programs. They do not preclude nor limit the exercise of the power of eminent domain for such purposes like tourism and other development programs.

Chapter II. FUNDAMENTAL POWERS

Chapter II. FUNDAMENTAL POWERS

authority when the constitution itself specifically authorizes it. 



members of Congress (Art. VI, sec. 28 (4)) d. Constitutional exemptions (1987 CONST., art. VI, sec. 28(3)) i. Educational institutions (both profit and non-profit): Benefits redound to students, but only applied to property taxes not excise taxes ii. Charitable institutions: Religious and charitable institutions give considerable assistance to the State in the improvement of the morality of the people and the care of the indigent and the handicapped iii. Religious property

Impairment of Obligations of Contracts a. General Rule: Power of taxation may not be used to violate the constitutional right of every person to be secured against any statute that impairs the obligation of contracts; b. Exception: But if the statute exempts a party from any one class of taxes, the imposition of a different tax is not an impairment of the obligation of contracts. Tax Exemptions a. A corollary power but must be for a public purpose, uniform and equitable and in conformity with the equal protection clause b. Tax exemptions are granted gratuitously and may be revoked at will, except when it was granted for valuable consideration c. May either be constitutional or statutory i. If statutory, it has to have been passed by majority of all the

D. Double Taxation Occurs when additional taxes are laid on the same subject by the same taxing jurisdiction during the same taxing period for the same purpose 

No provision in the Constitution specifically prohibiting double taxation, but will not be allowed if it violates equal protection clause.

COMPARATIVE TABLE

Compensation

POLICE POWER

EMINENT DOMAIN

TAXATION

None (The altruistic feeling that one has contributed to the public good [NACHURA])

Just compensation (Full and fair equivalent of the property taken) required.

Not appropriated for public use

Appropriated for public use

To destroy noxious property or to restrain the noxious use of property Liberty and Property

Property taken for public use; it is not necessarily noxious

None (The protection given and public improvements instituted by the State because of these taxes [NACHURA]) Use taxing power as an implement for the attainment of a legitimate police objective—to regulate a business or trade Earn revenue for the government

Use of Property

Objective

What it Regulates

Property rights only

Property rights only

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POLITICAL LAW REVIEWER

POLITICAL LAW REVIEWER

Chapter III. DUE PROCESS

Chapter III. Due Process B. Noted Exceptions to Due Process I.

(Ynot vs. IAC, 1987) 

The conclusive presumption, bars the admission of contrary evidence as long as such presumption is based on human experience or there is a rational connection between the fact proved and the fact ultimately presumed therefrom.



There are instances when the need for expeditious action will justify omission of these requisites, as in the summary abatement of a nuisance per se, like a mad dog on the loose, which may be killed on sight because of the immediate danger it poses to the safety and lives of the people.

Art. III, Sec. 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.



Pornographic materials, contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed.

Art. XIII, Sec. 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities and remove cultural inequities by equitably diffusing wealth and political power for the common good.



The passport of a person sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has fled.



Filthy restaurants may be summarily padlocked in the interest of the public health and bawdy houses to protect the public morals.

To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.

I.

In General

Due process of law simply states that “[i]t is part of the sporting idea of fair play to hear "the other side" before an opinion is formed or a decision is made by those who sit in judgment.” (Ynot vs. IAC, 1987) It covers any governmental action which constitutes a deprivation of some person's life, liberty, or property.

A. Minimum Requirements Due process of law guarantees:  notice and  opportunity to be heard  to persons who would be affected by the order or act contemplated.

In such instances, previous judicial hearing may be omitted without violation of due process in view of: 1) the nature of the property involved; or 2) the urgency of the need to protect the general welfare from a clear and present danger.

II. Substantive Due Process City of Manila vs. Laguio, (2005) Substantive due process, asks whether the government has an adequate reason for taking away a person’s life, liberty, or property. In other words, substantive due process looks to whether there is a sufficient justification for the government’s action.

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IN GENERAL A. MINIMUM REQUIREMENTS B. NOTED EXCEPTIONS TO DUE PROCESS II. SUBSTANTIVE DUE PROCESS A. SCOPE B. REQUISITES C. DOCTRINES III. PROCEDURAL DUE PROCESS A. SCOPE B. KINDS IV. DUE PROCESS AS LIMITATION ON FUNDAMENTAL STATE POWERS A. VIS-A-VIS POLICE POWER B. VIS-A-VIS EMINENT DOMAIN C. VIS-A-VIS POWER TO TAX

A. Scope Substantive due process is an aspect of due process which serves as a restriction on the lawmaking and rule-making power of the government. The law itself, not merely the procedures by which the law would be enforced, should be fair, reasonable, and just.

B. Requisites (US vs. Toribio, 1910) 

Laws which interfere with life, liberty or property satisfy substantive due process when there is:

1. Lawful object i.e. the interests of the public in general (as distinguished from those of a particular class) require the intervention of the State, and 2. Lawful means i.e. means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive on individuals. Tañada vs. Tuvera (1986): Publication of laws is part of substantive due process. People vs. Nazario (1988): VOID FOR VAGUENESS DOCTRINE: An accused is denied the right to be informed of the charge against him and to DUE PROCESS where the statute itself is couched in such INDEFINITE LANGUAGE that it’s not possible for men of ordinary intelligence to determine therefrom what acts/omissions are punished.

C. Doctrines 1. Overbreadth Doctrine: A governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. David vs. Arroyo (2006) a. Claims of facial overbreadth are entertained in cases involving statutes which by their terms seek to regulate only spoken words. Such claims have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct. b. A facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of

Chapter III. DUE PROCESS

its actual operation to petitioners, but on the assumption or prediction that its very existence may cause others not before the Court to refrain from constitutionally protected speech or expression. c. Also, the challenger must establish that there can be no instance when the assailed law may be valid. A plain reading of PP 1017 shows that it is not primarily directed to speech / speech-related conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless violence. Petitioners did not show WON there’s an instance when PP1017 may be valid. 2. Void for Vagueness: An act is vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its common meaning and differ as to its application. The statute is repugnant to the constitution in 2 respects: a. It violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid, b. It leaves law enforcers an unbridled discretion in carrying out its provisions. Still on David vs. Arroyo: Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application." It is subject to the same principles governing overbreadth doctrine. For one, it is also an analytical tool for testing "on their faces" statutes in free speech cases. Like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. A facial review of PP 1017 on the ground of vagueness is unwarranted. Petitioners did not even attempt to show that PP 1017 is vague in all its application. They also failed to establish that men of common intelligence cannot understand the meaning and application of PP 1017.

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Chapter III. DUE PROCESS

III. Procedural Due Process

Criminal Due Process

A. Scope

Requisites (People vs. Vera, 1937)

Procedural due process is that aspect of due process which serves as a restriction on actions of judicial and quasi-judicial agencies of the government. It refers to the method or manner by which a law is enforced.

B. Kinds

a) Accused is heard by competent jurisdiction;

a

court

of

b) Accused is proceeded against under the orderly process of law; c) Accused is given notice and opportunity to be heard;

1. Judicial Due Process d) Judgment rendered is within the authority of a constitutional law. (Mejia vs. Pamaran, 1988)

Civil Due Process Requisites (Banco Espanol vs. Palanca, 1918) a) An impartial court of tribunal clothed with judicial power to hear and determine the matter before it. b) Jurisdiction must be lawfully acquired over the person of the defendant and over the property subject matter of the proceeding Note: NOTICE is an essential element of due process, otherwise the Court will not acquire jurisdiction and its judgment will not bind the defendant. To be meaningful, it must be both as to time and place. c) The defendant must be opportunity to be heard

given

an

d) Judgment must be rendered upon lawful hearing and must clearly explain its factual and legal bases... (Sec. 14, Art. 8, 1987 Consti; Banco EspañolFilipino vs. Palanca) 

Note: Reyes vs. CA (1977): The allowance or denial of motions for extension rests principally on the sound discretion of the court to which it is addressed, but such discretion must be exercised wisely and prudently, with a view to substantial justice. Poverty is recognized as a sufficient ground for extending existing period for filing. The right to appeal is part of due process of law.

2. Administrative due process Requisites of Procedural Due Process in Administrative Agencies (Ang Tibay vs. CIR; also known as the Ang Tibay Rules): 1. Right to a hearing to present own case and submit evidence in support thereof. 2. Tribunal must consider the evidence presented. 3. Decision rendered must have support. 4. Evidence which supports the finding or conclusion is substantial (such relevant evidence as a reasonable mind accept as adequate to support a conclusion). 5. The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. 6. The tribunal or any of its judges, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. 7. The tribunal should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decision rendered.

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IV. Due Process As Limitation Fundamental State Powers

Chapter III. DUE PROCESS

On

A. Vis-à-vis Police Power Cruz vs. Paras (1983): Petitioners are operators of nightclubs in Bulacan. They filed a prohibition suit to stop the Municipality of Bacaue from enforcing an ordinance prohibiting the operation of said nightclubs. The Court held that a municipal corp cannot prohibit the operation of nightclubs. They may only regulate such. RA 938 granted municipalities the power to regulate establishments. While another act amended it to include the power to prohibit its operation, such a construction of the amendatory act would be to construe it in a way that it violates the constitutional provision that “every bill shall embrace only 1 subject which shall be expressed in the title thereof.” Here, the title of the amended RA remained the same so that the power granted is still regulation not prohibition. Bautista vs. Juinio (1984): LOI No. 869 banned the use of vehicles with A and EH plates on weekends and holidays in view of the energy crisis. Some exceptions are service, truck, consular corps vehicles. Petitioners, owners of an 8 cylinder 1969 Buick and a 6 cylinder Willy’s Kaiser Jeep questioned the validity of LOI on grounds of it being discriminatory and a denial of due process. Court held that it cannot be held void on its face. It has a presumption of validity. LOI is an energy conservation measure; it is an appropriate response to a problem. Nor does it deny equal protection to petitioners since the LOI operates equally and uniformly w/ class to w/c petitioners belong. The government is not required to adhere to a policy of “all or none.”

B. Vis-à-vis Eminent Domain De Knecht vs. Bautista (1980): CHOICE OF PROPERTY TO BE EXPROPRIATED IS SUBJECT TO JUDICIAL REVIEW AS TO REASONABLENESS: Under Section 2, Article IV of the Philippine Constitution, the Republic of the Philippines can take private property upon payment of just compensation. However, private property to be taken cannot be chosen arbitrarily and capriciously, as the landowner is entitled to

due process. The Department of Public Highways originally established the extension in Cuneta Avenue, and it is assumed that they made extensive studies regarding it. The change from Cuneta Avenue to Fernando Rein-Del Pan Streets cannot be justified on the ground of social impact, as the properties to be affected along Cuneta Avenue are mostly motels. EPZA vs. Dulay (1987): DETERMINATION OF JUST COMPENSATION IS JUDICIAL FUNCTION: The Presidential Decrees merely serve as a guide or a factor for the courts in determining amount of just compensation (which should be the fair and full value of the property at time of taking). The courts have the power and authority to determine just compensation, independent of what the decrees state, and thus may appoint commissioners to help in determining just compensation. Sumulong vs. Guerrero (1987): SCOPE OF JUDICIAL REVIEW IN EXPROPRIATION PROCEEDINGS: In this case the Court held that “socialized housing” falls under the scope of public use, and is therefore a valid basis for expropriation. Manotok vs. NHA (1987): HEARING: What the due process clause requires is that the landowner must be given reasonable opportunity to be heard and to present his claim or defense. Although due process does not always necessarily demand that a proceeding be had before a court of law, it still mandates some form of proceeding wherein notice and reasonable opportunity to be heard are given to the owner to protect his property rights. Although there are exceptional situations when in the exercise of the power of eminent domain, the requirement does not need judicial process, when it is alleged that the landowner’s right to due process of law has been violated in the taking of his property, the courts can probe and check on the alleged violation. Subjects of Judicial Review in Eminent Domain: a. Validity of taking b. Adequacy of compensation, c. “Public use” character of the purpose of taking. 1. Taking

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Requisites for a valid taking: a. The expropriator must enter a private property b. Entry must be for more than a momentary period c. Entry must be under warrant or color of legal authority d. Proerty must be devoted to public use or otherwise informally appropriated or injuriously affected e. Utilization of the property must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property (Republic vs. Castelvi, 1974) Q: What happens if the expropriator does not use the property for a public purpose but sells it to a private user? A: Property reverts back to the owner in fee simple. (Heirs of Moreno vs. Mactan-Cebu International Airport, 2005)

Price fixed by a buyer (desirous but not compelled to buy) and a seller (willing but not compelled to sell). Must include consequential damages (damages to other interest of the owner attribute to the expropriation) and deduct consequential benefits (increase of value of other interests attribute to new use of the former property) “Taking” via eminent domain vs. “taking” under social justice clause Agrarian Reform (Art. XIII, Sec. 4) This provision is an exercise of the police power of the State through eminent domain (Association of Small Landowners vs. Secretary of Agrarian Reform) as it is a means to regulate private property.

C. Vis-à-vis Power to Tax 

The inherent limitation on the power of taxation is public purpose. Taxes are exacted only for a public purpose. They cannot be used for purely private purposes or for the exclusive benefit of private persons



The reason for this is simple. The power to tax exists for the general welfare; hence, implicit in its power is the limitation that it should be used only for a public purpose.



Taxation should be exercised with caution to minimize the injury to the proprietary rights of a taxpayer.



It must be exercised fairly, equally, and uniformly, lest the tax collector kill the ‘hen that lays the golden eggs.’ in order to maintain the general public’s trust and confidence in the Government, this power must be used justly and not treacherously. (Roxas y Cia vs. CTA, 23 SCRA 276)

2. Public Use Definition The idea that "public use" means "use by the public" has been discarded. At present, whatever may be beneficially employed for the general welfare satisfies the requirement of public use. (Heirs of Juancho Ardona vs. Reyes, 123 SCRA 220) That only a few benefit from the expropriation does not diminish its public-use character, inasmuch as pubic use now includes the broader notion of indirect public benefit or advantage (Filstream International vs. CA, 284 SCRA 716) 3. Just Compensation Definition Province of Tayabas vs. Perez (1938): It is the just and complete equivalent of the loss which the owner of the thing expropriated has to suffer by reason of the expropriation.

BASIS: Fair Market Value

Premature issuance of final assessment notice and demand letter is tantamount to denial of reply to the preliminary assessment notice. [THESE ARE] essential elements of due process because they constitute the notice and opportunity to present one’s side. (Phil. Health Care Providers vs. CIR, 2008)

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Definition  A physical dispossession of the owner of his actual property, or its use.  It may include trespass without actual eviction of owner, such as the material impairment of value of property, or preventions of ordinary uses for which the property was intended.

Chapter III. DUE PROCESS

Chapter IV. Equal Protection of the Laws I.

DEFINITION AND SCOPE OF PROTECTION II. REQUISITES OF VALID CLASSIFICATION III. EXAMPLES OF VALID CLASSIFICATION A. ALIEN B. FILIPINO FEMALE DOMESTICS WORKING ABROAD C. LAND-BASED VS. SEA-BASED FILIPINO OVERSEAS WORKERS D. QUALIFICATION FOR ELECTIVE OFFICE E. OFFICE OF THE OMBUDSMAN F. PRINT VS. BROADCAST MEDIA IV. THREE STANDARDS OF JUDICIAL REVIEW A. RATIONAL BASIS TEST B. STRICT SCRUTINY TEST C. INTENSIFIED MEANS TEST

I.

Definition and Scope of Protection

Definition City of Manila vs. Laguio (2005) citing Ichong vs. Hernandez (1957): 





Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances.

Scope  Natural and juridical Persons (the equal protection clause extends to artificial persons but only insofar as their property is concerned.)  A corporation as an artificial person is protected under the Bill of Rights against denial of due process, and it enjoys the equal protection of the law. (Smith, Bell & Co., vs. Natividad, 1919)  A corporation is also protected against unreasonable searches and seizures. (See Stonehill vs. Diokno, 1967)  It can only be proceeded against by due process of law, and is protected against

Chapter IV. EQUAL PROTECTION of the LAWS

unlawful discrimination. (Bache & Co. vs. Ruiz, 1971)

II. Requisites of Valid Classification People vs. Cayat (1939): a. It must rest on substantial distinctions; b. It must be germane to the purpose of the law; c. It must not be limited to existing conditions only. Ormoc Sugar Co. vs Treasurer of Ormoc City: An ordinance was declared void because it taxes only centrifugal sugar produced and exported by the Ormoc Sugar Company and none other, such that if a new sugar central is established in Ormoc, it would not be subject to the ordinance. d. It must apply equally to all members of the same class.

III. Examples of Valid Classification Lacson vs. Executive Secretary (1999): All classifications made by law are generally presumed to be valid unless shown otherwise by petitioner.

A. Aliens General rule: The general rule is that a legislative act may not validly classify the citizens of the State on the basis of their origin, race or parentage. Exceptions: 1. In times of great and imminent danger, such as a threatened invasion or war, such a classification is permitted by the Constitution when the facts so warrant (e.g. discriminatory legislation against Japanese citizens during WWII). 2. The political rights of aliens do not enjoy the same protection as that of citizens. 3. Statutes may validly limit to citizens exclusively the enjoyment of rights or privileges connected with the public domain, the public works, or the natural resources of the State. 4. The rights and interests of the state in these things are not simply political but also proprietary in nature; and so the citizens may lawfully be given preference over 'aliens in their use or enjoyment.

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Ichong vs, Hernandez (1957):



The Court upheld the Retail Trade Nationalization Law despite the objection that it violated the EP clause, because there exists real and actual, positive and fundamental differences between an alien and a national.

B. “Strict Scrutiny Test”

B. Filipino Female Domestics Working Abroad They are a class by themselves because of the special risks to which their class was exposed. (Phil Association of Service Exporters vs. Drilon)

C. Land-based vs. Sea-based Overseas Workers

Also important when the government attaches a morally irrelevant and negative significance to a difference between the advantaged and the disadvantaged.

This test is triggered when a fundamental constitutional right is limited by a law. This requires the government to show an overriding or compelling government interest so great that it justifies the limitation of fundamental constitutional rights (the courts make the decision of WON the purpose of the law makes the classification necessary).

Filipino

There is dissimilarity as to work environment, safety, danger to life and limb, and accessibility to social, civil and spiritual activities. (Conference of Maritime Manning Agencies vs. POEA)

Applied also when the classification has a "suspect" basis (Suspect Classes – classes subject to such a history of purposeful unequal treatment or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.)

D. Qualification for Elective Office Disqualification from running in the same elective office from which he retired of a retired elective provincial/municipal official who has received payment of retirement benefits and who shall have been 65 y.o. at the commencement of the term of office to which he seeks to be elected is valid. (Dumlao vs. Comelec)

E. Office of the Ombudsman Allowing it to start an investigation based on an anonymous letter does not violate EP clause. The Office of the Ombudsman is different from other investigatory and prosecutory agencies of government because those subject to its jurisdiction are public officials who, through official pressure and influence, can quash, delay or dismiss investigations against them (Almonte vs. Vasquez).

F. Print vs. Broadcast Media There are substantial distinctions between the two to warrant their different treatment under BP 881 (Telecommunications and Broadcast Attorneys of the Phil vs. COMELEC)

IV. Standards of Judicial Review A. “Rational Basis Test” The classification should bear a reasonable relation to government's purpose. Notes:  Important when there is no plausible difference between the disadvantaged class and those not disadvantaged.

C. “Intensified Means Test” In this situation the Court accepts the articulated purpose of the legislation but it should closely scrutinize the relationship between the classification and the purpose based on a spectrum of standards, by gauging the extent to which constitutionally guaranteed rights depend upon the affected individual interest. The balancing test or the equality test is used. Applicable to certain sensitive but not suspect classes; certain important but not fundamental interest. Immediate Scrutiny Test White Light Corporation vs. City of Manila (2009): A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S. Supreme Court for evaluating classifications based on gender and legitimacy. Immediate scrutiny was adopted by the U.S. Supreme Court in Craig. While the test may have first been articulated in equal protection analysis, it has in the United States since been applied in all substantive due process cases as well.

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Chapter V. Procedure

Requirements

Chapter V. REQUIREMENTS for FAIR PROCEDURE

for

Fair

seized.

Nature

THIS SECTION DEALS WITH THE RIGHTS OF A PERSON BEFORE AND DURING CUSTODIAL INVESTIGATIONS I.E. BEFORE HE HAS BEEN ACCUSED OF A CRIME

Personal

I.

It may be waived expressly or impliedly only by the person whose right is invaded, not by one who is not duly authorized to effect such waiver. (People vs. Damaso, 1992)

NATURE AND SCOPE OF THE RIGHT IN ART. III, SEC. 2 II. ARREST A. REQUISITES FOR ISSUANCE OF VALID ARREST WARRANT B. WHEN ARREST MAY BE MADE WITHOUT A WARRANT III. SEARCH AND SEIZURE A. REQUISITES OF A VALID SEARCH WARRANT B. WHEN SEARCH MAY BE MADE WITHOUT WARRANT C. PROPERTIES SUBJECT OF SEIZURE IV. DETENTION/CUSTODIAL INVESTIGATION A. RIGHTS UNDER CUSTODIAL INVESTIGATION B. TESTS OF WAIVER OF MIRANDA RIGHTS V. PROTOCOL AFTER CONDUCT OF INVESTIGATION VI. OTHER RIGHTS GUARANTEED UNDER ART. III. SEC. 12 VII. EXCLUSIONARY RULES A. VIS-À-VIS VIOLATION OF THE RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES B. VIS-À-VIS VIOLATION OF THE RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION C. VIS-À-VIS VIOLATION OF THE RIGHT AGAINST SELF-INCRIMINATION VIII.RIGHT TO BAIL

I.

Nature and Scope

ART. III, SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be

It may be invoked only by the person entitled to it. (Stonehill vs. Diokno)

Directed Against the Government and Its Agencies (State Action Requirement) The right cannot be set up against acts committed by private individuals (People vs. Marti)

Scope Natural Persons It protects all persons including aliens (Qua Chee Gan vs. Deportation Board, 1963). Artificial Persons Artificial persons are protected to a limited extent. (Bache & Co. Inc vs. Ruiz, 1971) The opening of their account books is not protected, by virtue of police and taxing powers of the State.

II. ARREST A. Requisites for Issuance of a Valid Arrest Warrant Beltran vs. Makasiar (1988): What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: 1) Personally evaluate the report and the

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Chapter V. REQUIREMENTS for FAIR PROCEDURE

supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or 2) If he finds no probable cause,  He may disregard the fiscal's report and  Require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

B. Requisites of a Valid Warrantless Arrest (Rule 113, Sec. 5, Rules on Criminal Procedure)

Existence of probable cause

Rebellion is a continuing offense. Therefore a rebel may be arrested w/o a warrant at any time of the day or the night as he is deemed to be in the act of committing rebellion.

Such facts and circumstances which would lead a reasonably discreet and prudent mean to believe that an offense has been committed by the person sought to be arrested. (Webb vs. De Leon, 1995) Determination of probable cause personally by the judge. i.

ii.

Personally evaluate the report and supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue the arrest warrant; OR If he finds no probable cause, he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause (Cruz vs. Judge Areola, 2002).

As to warrant of arrest: i. On the basis of their personal knowledge of the facts they are testifying to. ii. The arrest warrant must describe particularly the person to be seized. o By stating the name of the person to be arrested. o If not known, then a “John Doe warrant” may be issued, with some descriptio persona that will enable the officer to identify the accused. Pangandaman vs. Casar (1988): JOHN DOE WARRANT: Warrants issued against 50 John Does, none of whom the witnesses could identify, were considered as “general warrants” and thus void.

1. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; Umil vs. Ramos:

Parulan vs. Dir of Prisons: Though kidnapping w/ serious illegal detention is deemed a continuing crime, it can be considered as such only when the deprivation of liberty is persistent and continuing from one place to another. People vs. De Lara (1994): HOT PURSUIT: The arrest of the accused inside his house following hot pursuit of the person who committed the offense in flagrante was held valid. People vs. Hindoy (2001): BUY-BUST: A buy-bust operation is a valid in flagrante arrest. The subsequent search of the person arrested and the premises within his immediate control is valid as an incident to a lawful arrest. People vs. Rodrigueza: EXCEPTION TO BUY-BUST. Instead of arresting the suspect after the sale in a buy-bust op, the officer returned to the police headquarters and filed his report. It was only in the evening that he, without warrant, arrested the suspect at his house where dried marijuana leaves were found and seized. Unlawful arrest.

2. When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it;

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Requisites: i. ii.

Offense had JUST been committed; Person making the arrest has probable cause to believe based on PERSONAL KNOWLEDGE.

Note: There must be a large measure of immediacy between the time the offense is committed and the time of the arrest. If there was an appreciable lapse of time bet. arrest and commission of crime, warrant of arrest must be secured. (NACHURA) People vs Kimura: Warrantless arrest of accused for selling MJ 2 days after he escaped is invalid. People vs Gerente: PERSONAL KNOWLEDGE: The police saw the victim dead at the hospital and when they inspected the crime scene, they found the instruments of death. The eyewitnesses reported the happening and pointed to Gerente as one of the killers. Here the warrantless arrest only 3 hrs after the killing was held valid since personal knowledge was established as to the fact of death and facts indicating that Gerente killed the victim. People vs. Burgos (1986) Burgos was convicted for the crime of Illegal Possession of Firearms in Furtherance of Subversion. One Masamlok claimed that he had been forcibly recruited by Burgos to the NPA, threatening him with the use of firearm against his life and family. Masamlok was also allegedly threatened to attend an NPA seminar. The next day the authorities went to arrest Burgos without a warrant. They found him in his residence plowing his field. Burgos denied the accusation, but his wife pointed to a place below their house where a gun was buried in the ground. After the firearm was recovered, Burgos allegedly pointed to a stock pile of cogon where he had hidden subversive documents. The prosecution presented an extrajudicial confession made by Burgos. However, Burgos claimed that he had been mauled and hit repeatedly until he would admit and sign an extrajudicial confession. Exceptions to warrant of arrest: Art. IV, Sec. 3 of the Constitution safeguards against wanton and unreasonable invasion of the privacy and

Chapter V. REQUIREMENTS for FAIR PROCEDURE

liberty of a citizen as to his person, papers, and effects. Rule 113, Sec. 6 of the Rules of Court provides the exceptions to the warrant requirement. However, the instant case does not fall under any of the exceptions in Rule 113, Sec. 6. First, it requires that the officer arresting a person who has committed, is committing, or is about to commit an offense must have personal knowledge of that fact. The offense must be committed in his presence or within his view. In the instant case:  The knowledge as to the offense was furnished by Masamlok.  The location of the firearm was given by the Burgos’ wife.  At the time of the arrest, Burgos was not in actual possession of any firearm or subversive document.  Neither was he committing any act which could be described as subversive. He was in fact plowing his field at the time of his arrest. It is clear that the arresting officers had no personal knowledge of the commission of the offense because such information was only supplied to them by an informant. Neither has Burgos committed any offense in their presence as he was merely plowing his field at the time of arrest. On the other hand, Sec. 6 (b) of Rule 113 requires that a crime must in fact or actually have been committed first. It is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. That a crime has actually been committed is an essential precondition. In the instant case, it was not even established that indeed a crime has been committed. The information that a crime was probably committed was supplied by Masamlok who did not even give his testimony under oath. Finally, the Court finds no compelling reason for the haste of the arresting officers to arrest Burgos if indeed he committed a crime. There is no showing that there was real apprehension that Burgos was on the verge of flight or escape and that his whereabouts are unknown.

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



The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and attach them to the record.



Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his declarations are false



It is axiomatic that the examination must be probing and exhaustive, not merely routinary or pro-forma, if the claimed probable cause is to be established.



The examining magistrate must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. (Roan vs. Gonzales, 1984)

ADDITIONAL EXCEPTION (NOT IN THE RULES): When the right is voluntarily waived (estoppel). People vs. Salvatierra: Appellant is estopped from questioning the illegality of the arrest when he voluntarily submitted himself to the jurisdiction of the court by entering a plea of not guilty and by participating in the trial. SCOPE OF WAIVER: Waiver is limited to the illegal arrest. It does not extend to the search made as an incident thereto, or the subsequent seizure of evidence allegedly found during the search (People vs. Peralta, 2004).

4. On the basis of their personal knowledge of the facts they are testifying to.

III. SEARCH AND SEIZURE A. Requisites of a Valid Search Warrant 1. Existence of probable cause    

Such facts and circumstances; which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. (Burgos vs. Chief of Staff, 1984)

2. Determination of probable personally by the judge.

PLACE TO BE SEARCHED: The search warrant issued to search petitioner’s compound for unlicensed firearms was held invalid for failing to describe the place with particularity, considering that the compound was made up of 200 bldgs, 15 plants, 84 staff houses, 1 airstrip etc spread out over 155 hectares. (PICOP vs. Asuncion, 1999).

cause

3. After personal examination under oath or affirmation of the complainant and the witnesses he may produce. How it is done: In the form of searching questions and answers, in writing and under oath (Rule 126, Sec. 6, ROC) 

5. The warrant must describe particularly the place to be searched and the persons or things to be seized.

Mere affidavits of the complainant and his witnesses are thus not sufficient.

DESCRIPTION OF PLACE: The description of the property to be seized need not be technically accurate nor precise. Its nature will vary according to whether the identity of the property is a matter of concern. The description is required to be specific only in so far as the circumstances will allow. (Kho vs. Judge Makalintal, 1999) DESCRIPTION OF PERSONS SEARCHED: SW valid despite the mistake in the name of the persons to be searched. The authorities conducted surveillance and test-buy ops before obtaining the SW and subsequently

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implementing it. They had personal knowledge of the identity of the persons and the place to be searched, although they did not specifically know the names of the accused. (People vs. Tiu Won Chua, 2003) GENERAL WARRANT: One that (1) does not describe with particularity the things subject of the search and seizure; and (2) where probable cause has not been properly established. It is a void warrant. (Nolasco vs. Paño, 1985) EXCEPTION TO GENERAL WARRANTS: General descriptions will not invalidate the entire warrant if other items have been particularly described. (Uy vs. BIR, 2000) Conduct of the Search (Sec. 7, Rule 126, ROC)  In the presence of a lawful occupant thereof or any member of his family, OR  If occupant or members of the family are absent: In the presence of 2 witnesses of o sufficient age o discretion o residing in the same locality  Force may be used in entering a dwelling if justified by Rule 126 ROC. People vs. Gesmundo: Failure to comply with Sec. 7 Rule 126 invalidates the search.

People vs. Salanguit: FORCIBLE ENTRY JUSTIFIED: Occupants of the house refused to open the door despite the fact that the searching party knocked several times, and the agents saw suspicious movements of the people inside the house. People vs. Benny Go (2003): UNLAWFUL SEARCH: Police officers arrived at appellant’s residence and “side-swiped (sinagi) appellant’s car (which was parked outside) to gain entry into the house. Appellant’s son, who is the only one present in the house, opened the door and was immediately handcuffed to a chair after being informed that they are policemen with a warrant to search the premises.

Chapter V. REQUIREMENTS for FAIR PROCEDURE

B. Searches without Warrant, when Valid General rule: Areas within the reach and control of the accused are the permissible areas of search for both stop-and-frisk and search-incident-to-a-valid-arrest (Espano vs. CA; People vs. Cubcubin, 2001). People vs. Veloso (1925): It was alleged that Parliamentary Club was a gambling house; search warrant was obtained. Veloso read the warrant and said that he was not “John Doe”. The Court ruled that the John Doe search warrant was valid and held that there is nothing to prevent issue and service of warrant against a party whose name is unknown. Besides, the officers had the right to arrest the persons engaged in prohibited game. An officer making an arrest may take from the person arrested any money / property found upon his person, w/c was used in commission of crime, or was the fruit of the crime, or w/c may furnish the person w/ means of committing violence or escaping, or w/c may be used as evidence on trial, but not otherwise. Other specific situations: Quick Look: 1. Search is an Incident to a Lawful Arrest. 2. Search of Moving Vehicles 3. Plain View Doctrine 4. Stop and Frisk Searches 5. Valid Express Waiver 6. Customs search 7. Visual Search at Checkpoints 8. Conduct of “Areal Target Zoning” and “saturation drive” 9. Exigent and Emergency Circumstances

1. Search is an incident to a lawful arrest. Sec. 12, Rule 126, Rules of Court. Search incident to lawful arrest. - A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant.  The provision (R126, S12) is declaratory in the sense that it is confined to the search, without a search warrant, of a person who had been arrested.  It is also a general rule that, as an incident of an arrest, the place or premises where the arrest was made can also be search without a search warrant. In this latter case, "the extent and reasonableness of the

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

search must be decided on its own facts and circumstances. What must be considered is the balancing of the individual's right to privacy and the public's interest in the prevention of crime and the apprehension of criminals. (Nolasco vs. Pano, 1985)

Test for validity:  Item to be searched was within the arrester’s custody;  Search was contemporaneous with the arrest Nolasco vs Cruz Paño (1985): Aguilar-Roque and Nolasco, allegedly connected w/ the CPP-NPA and accused of rebellion and subversion, assert that the search warrant in this case is void because (1) it doesn’t sufficiently describe things subject of the search & seizure and (2) probable cause hasn’t been established for lack of searching questions propounded to applicant’s witness. Court ruled that the search warrant is void. However, the Court also ruled that the search in question did not need a search warrant. Under the Rules of Court, a person charged w/ an offense may be searched for dangerous weapons or anything w/c may be used as proof of the commission of the offense. As an incident of an arrest, the premises where the arrest was made can also be searched w/o search warrant. Nolasco vs. Paño, M.R., 1987: In this Motion for Partial Reconsideration of the 1985 decision, the petitioners submit that a warrantless search can be justified only if it’s an incident to a lawful arrest and that since Aguilar wasn’t lawfully arrested, a search w/o warrant couldn’t be made. The SolGen offered no objection to declaration that the search was illegal and to the return of the seized items. The Motion for Partial Reconsideration is granted.

2. Search of Moving Vehicles Securing SW is not practicable since the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought (Papa vs. Mago 1968)

Chapter V. REQUIREMENTS for FAIR PROCEDURE

3. Plain View Doctrine: Things seized are within plain view of a searching party Requisites (People vs. Musa; People vs. Sarap, 2003): a. Prior valid intrusion into a place; b. Evidence:  inadvertently discovered  by police who had the right to be where they were; c. Evidence must be immediately apparent and d. Noticed without further search

4. Stop and Frisk Searches There should be a genuine reason to “stopand-frisk in the light of the police officer’s experience and surrounding conditions to warrant a belief that the person detained has weapons concealed. (Malacat vs. CA 1997, citing Terry vs. Ohio)

5. Valid Express Waiver made Voluntarily and Intelligently Requisites (People vs. Peralta, 2004): a. Must appear that right exists; b. Person involved had actual/ constructive knowledge of the existence of such right; c. Said person had an actual interest to relinquish the right; d. Waiver is limited only to the arrest; e. Waiver does not extend to search made as an incident thereto, or to any subsequent seizure of evidence found in the search. People vs. Kagui Malasugui (1936): It was ruled that the right to be secure from unreasonable search may be waived. Waiver may be express or implied. When one voluntarily submits to a search or consents to have it made of his person / premises, he is precluded from later complaining. In this case, the appellant neither made objection nor even muttered a bit of protest when the search was conducted on his person. Also, as held in Weeks v. United States, when the search of the person detained or arrested and seizure of effects found in his possession are incidental to an arrest made in conformity w/ the law, they cannot be considered unreasonable, much less unlawful.

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6. Customs Search Searches of vessel and aircraft for violation of immigration and smuggling laws. (Papa vs. Mago, 1968) 7. Visual Search at Checkpoints (Valmonte vs. de Villa) 8. Conduct of “areal target zoning” and “saturation drive” in the exercise of the military powers of the President (Guanzon vs. de Villa, 1990) 9. Exigent and Emergency Circumstances (People vs. de Gracia 1994) Example: 1989 Coup d’etat

C. Properties Subject to Seizure General rule: Only the articles particularly described in the warrant may be seized. o o o

Property subject of an offense Stolen or embezzled property and other proceeds or fruits of an offense Used or intended to be used as a means of committing an offense (Sec. 2 Rule 126, ROC)

People vs. Salanguit: Where the warrant authorized only the seizure of shabu, and not marijuana, the seizure of the latter was held unlawful. Burgos vs. Chief of Staff: It is not necessary that the property to be searched or seized should be owned by the person against whom the person is issued; it is sufficient that the property is within his control or possession.

Comparison of Procedures in Obtaining Search Warrants and Arrest Warrants R112, Sec. 6. When warrant of arrest may issue. – (a) By the Regional Trial Court. – Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he

Chapter V. REQUIREMENTS for FAIR PROCEDURE

shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence (THIS IS NOT FOUND IN THE PROCEDURE FOR A SEARCH WARRANT) within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information. R126, Sec. 4. Requisites for issuing search warrant. – A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.

IV. Detention/Custodial Investigation A. Rights under Custodial Investigation ART. III, SEC. 12, 1987 CONSTITUTION 1. Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. 2. No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. 3. Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. 4. The law shall provide for penal and civil sanctions for violations of this section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families.

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In Miranda vs. Arizona: The Federal Supreme Court made it clear that what is prohibited is the "incommunicado interrogation of individuals in a police dominated atmosphere, resulting in selfincriminating statements without full warnings of constitutional rights.” MIRANDA RIGHTS The person under custodial investigation must be warned that— 1. He has a right to remain silent, 2. That any statement he does make may be used as evidence against him, and 3. That he has a right to the presence of an attorney, either retained or appointed. People vs. Galit (1985): The long question during the appraisal of Galit’s constitutional rights followed by a monosyllabic answer does not satisfy the requirements of the law that the accused be informed of his rights. Instead there should be several short and clear questions and every right explained in simple words in a dialect or language known to the person under investigation. In this case, the accused is from Samar and there is no showing that he understands Tagalog. Furthermore, waiver of the right to counsel must be done in the presence of counsel, otherwise, the procured statements will be inadmissible. People vs. Duero (1985): “Inasmuch as the prosecution in this case failed to prove that before Duero made his alleged oral confession he was informed of his rights to remain silent and to have counsel and because there is no proof that he knowingly and intelligently waived those rights, his confession is inadmissible in evidence.” Accused repudiated his alleged oral confession during trial. Since, the SC found that the procedure set out in the Miranda case was not followed, oral confession of accused to police station commander is inadmisible in evidence. (enshrined in Art. III, Sec. 12 of the 1987 Constitution) People vs. Andag (1980): The SC reversed the lower court’s imposition of death penalty because “the accused was not even informed at the start of the investigation of his right to counsel, much less afforded the

Chapter V. REQUIREMENTS for FAIR PROCEDURE

service of counsel notwithstanding his insistence.” He was given the unacceptable excuse that there were no available lawyers. As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law. NOTE: These rights were further reiterated under RA 7438, otherwise known as AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF RA 7438, Rights of Persons under Custodial Investigation; Section 1. Statement of Policy. - It is the policy of the Senate to value the dignity of every human being and guarantee full respect for human rights Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. – (b) Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense:  shall inform the latter, in a language known to and understood by him,  of his rights to remain silent and  to have competent and independent counsel, preferably of his own choice,  who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation.  If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer.

1. When Rights are Available: 

When the custody

person

is

already

in

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 

Custodial investigation involves any questioning initiated by law enforcement During “critical pre-trial stages” in the criminal process

People vs. Mara, (1994): The rights under sec. 12, Art. 3 are available when the investigation is no longer a general inquiry unto an unsolved crime but has begun to focus on a particular suspect, as when the suspect has been taken into police custody and the police carries out a process of interrogation that lends itself to eliciting incriminating statements. People vs. Escordial: An out-of-court identification may be made in a “show up” (accused is brought face to face with the witness for identification), or “police line-up” (suspect is identified by witness from a group of persons gathered for that purpose).

Chapter V. REQUIREMENTS for FAIR PROCEDURE

Babst vs. NBI (1984): Ordinarily, an invitation to attend a hearing and answer some questions which the person invited may heed or refuse is not unconstitutional. Under certain circumstances, however, such an invitation can easily assume a different appearance. Here, where the invitation comes from a powerful group composed predominantly of ranking military officers issued at a time when the country has just emerged from martial rule and when the suspension of the privilege of the writ of habeas corpus has not entirely been lifted and the designated interrogation site is a military camp, the same can easily be taken not as a strictly voluntary invitation but as an authoritative command which one can only defy at his peril, especially where the invitation carries the ominous seaming that "failure to appear . . . shall be considered as a waiver…and this Committee will be constrained to proceed in accordance with law."

U.S. vs. Wade 388 U.S. 218 (1967):

2. Discussion of Rights Accorded

Neither the lineup itself nor anything required therein violated respondent's Fifth Amendment privilege against self-incrimination, since merely exhibiting his person for observation by witnesses and using his voice as an identifying physical characteristic involved no compulsion of the accused to give evidence of a testimonial nature against himself which is prohibited by that Amendment. HOWEVER, the Sixth Amendment guarantees an accused the right to counsel not only at his trial but at any critical confrontation by the prosecution at pretrial proceedings where the results might well determine his fate and where the absence of counsel might derogate from his right to a fair trial.

People vs. Agustin, (1995): This carries the correlative obligation on the part of the investigator to explain, and contemplates effective communication which results in the subject/accused understanding what is conveyed.

During custodial investigations, these types of identification have been recognized as “critical confrontations of the accused by the prosecution, necessitating presence of counsel for the accused. Otherwise, the identification will be inadmissible in evidence. Note: INVITATIONS - Sec. 2, RA 7438 provides that custodial investigation shall include the practice of issuing an invitation to a person who is under investigation in connection with an offense he is suspected to have committed.

a. Right to Remain Silent  The warning is needed simply to make the person under custodial investigation aware of the existence of the right;  This warning is the threshold requirement for an intelligent decision as to its exercise.  More importantly, such a warning is an absolute pre-requisite in overcoming the inherent pressures of the interrogation atmosphere.  Further, the warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it. b. Right against Self-Incrimination under Art. III, Sec. 12  The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court.

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

This warning is needed in order to make him aware not only of the privilege to remain silent, but also of the consequences of forgoing it.

Chapter V. REQUIREMENTS for FAIR PROCEDURE



c. Right to Counsel RA 7438, Rights of Persons under Custodial Investigation; Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. –



(a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel; 

  





The Miranda doctrine was modified to qualify the right to counsel to mean competent and independent counsel preferably of the suspect's own choice. An individual need not make a preinterrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made AFTER the warnings have been given. o The accused who does not know his rights and therefore does not make a request may be the person who most needs counsel. If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney. In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him.

POLICE LINE-UPS (Gamboa vs. Cruz, 1988): 



When petitioner was identified by the complainant at the police line-up, he had not been held yet to answer for a criminal offense. The police line-up is not a part of the custodial inquest, hence, he was not yet entitled to counsel.

Thus, it was held that when the process had not yet shifted from the investigatory to the accusatory as when police investigation does not elicit a confession the accused may not yet avail of the services of his lawyer (Escobedo vs. Illinois of the United States Federal Supreme Court, 1964). However, given the clear constitutional intent in the 1987 Constitution, the moment there is a move or even an urge of said investigators to elicit admissions or confessions or even plain information which may appear innocent or innocuous at the time, from said suspect, he should then and there be assisted by counsel, unless he waives the right, but the waiver shall be made in writing and in the presence of counsel.

d. Rights to Visitation and Conference Sec. 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. – (f) Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with  any member of his immediate family, or  any medical doctor;  priest or religious minister chosen by him; or  by his counsel; or  by any national non-governmental organization duly accredited by the Commission on Human Rights or  by any international nongovernmental organization duly accredited by the Office of the President.  The person's "immediate family" shall include his or her spouse, fiance or fiancee, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward.

B. Tests of Waiver of Miranda Rights 1. What Cannot be Waived  

The right to remain silent and the right to counsel may be waived. What cannot be waived is THE RIGHT TO BE GIVEN THE MIRANDA WARNINGS.

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Chapter V. REQUIREMENTS for FAIR PROCEDURE

2. Rule on Waiver

detained does not know how to read and write). EFFECT OF FAILURE TO FOLLOW PROTOCOL: Such investigation report shall be null and void and of no effect whatsoever.

RA 7438, Rights of Persons under Custodial Investigation; Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. – (e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise the waiver shall be null and void and of no effect.

3. Burden of Proving Voluntariness of Waiver (People vs. Jara, 1986) 



Whenever a protection given by the Constitution is waived by the person entitled to that protection, the presumption is always against the waiver. Consequently, the prosecution must prove with strongly convincing evidence to the satisfaction of this Court that indeed the accused:  Willingly and voluntarily submitted his confession and  Knowingly and deliberately manifested that he was not interested in having a lawyer assist him during the taking of that confession.

V. Protocol After Investigation

Conduct

Of

Sec. 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. – (c) The custodial investigation report shall be:  Reduced to writing by the investigating officer;  It shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person,  The reading and explanation SHOULD BE DONE BEFORE such report is signed, or thumb-marked (if the person arrested or

VI. Other Rights Guaranteed Under Art. III. Sec. 12 A. No torture, force, violence, threat intimidation or any other means which vitiate the free will shall be used against him B. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited C. Confessions or admissions obtained in violation of these rights are inadmissible evidence.

VII. Exclusionary Rules RA 7438, Rights of Persons under Custodial Investigation; Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. (d) Any extrajudicial confession made by a person arrested, detained or under custodial investigation:  shall be in writing and signed by such person in the presence of his counsel or in the latter's absence,  upon a valid waiver, and  in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding.

A. Vis-à-vis Violation of the Right Against Unreasonable Searches and Seizures Sec. 3(2), Art. 3, 1987 CONSTI. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

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ART. III, SEC. 12: (1) Must be in writing (2) Made in the presence of counsel

Chapter V. REQUIREMENTS for FAIR PROCEDURE

Evidence obtained in violation of Sec. 2 Art. 3 shall be inadmissible for any purpose and in any proceeding (Stonehill vs, Diokno, 1967)

C. Vis-à-vis Violation of the Right Against Self-incrimination

Nardone vs. US:

ART. III. SEC. 17: No person shall be compelled to be a witness against himself. [in relation to SEC. 12(3)]

Once the primary source is shown to have been unlawfully obtained, any secondary or derivative evidence is also inadmissible.

B. Vis-à-vis Violation of the Rights of Persons under Custodial Investigation ART. III, SEC. 12(3): Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

RA 7438 | Rights of Persons under Custodial Investigation Section 4. Penalty Clause. PERSON LIABLE FOR WHAT ACTS PENALTY Any arresting public fails to inform any person arrested, o a fine of Six thousand pesos or under custodial officer or employee, detained (P6,000.00) or a penalty of or any investigating investigation of his right to remain imprisonment of not less than silent and to have competent and officer eight (8) years but not more than independent counsel preferably of his ten (10) years, or both. own choice o The penalty of perpetual absolute disqualification shall also be imposed upon the investigating officer who has been previously convicted of a similar offense. Public officer or fails to provide a competent and Same as above employee, or anyone independent counsel to a person acting upon orders of arrested, detained or under custodial such investigating investigation for the commission of an officer or in his place offense if the latter cannot afford the services of his own counsel who obstructs, prevents or prohibits penalty of imprisonment of not less Any person any lawyer, any member of the than four (4) years nor more than immediate family of a person arrested six (6) years, and a fine of four from visiting and conferring privately thousand pesos (P4,000.00) with him, or from examining and treating him, or from ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night

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VIII.

Right to Bail

Art. III. Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. the right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

Definition (Rule 114, Sec. 1, ROC) Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance before any court as may be required.

Chapter V. REQUIREMENTS for FAIR PROCEDURE

be an overt act constitutive of rebellion taking place in the presence of the arresting officer. xxx This requirement was not complied with particularly in the arrest of Senator Enrile. In the Court's Resolution of May 5, 2001 in the petition for habeas corpus filed by Senator Enrile, the Court noted that the sworn statements of the policemen who purportedly arrested him were hearsay. Senator Enrile was arrested two (2) days after he delivered allegedly seditious speeches. Consequently, his arrest without warrant cannot be justified under Section 5(b) which states that an arrest without a warrant is lawful when made after an offense has just been committed and the arresting officer or private person has probable cause to believe based on personal knowledge of facts and circumstances that the person arrested has committed the offense.

Dela Camara vs. Enage (1971) Before conviction, every person is bailable except if charged with capital offenses when the evidence of guilt is strong. Such a right flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. Comendador vs. De Villa (1991) The military men who participated in the failed coup d’ etat should be denied release on bail. The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable, given that the officers and members of the military are not similarly situated with others. They are allowed a fiduciary use of firearms and can easily continue their insurgent activities against the government. National security considerations should impress upon the Court that release on bail of respondents constitutes a damaging precedent. Enrile vs. Perez (En Banc Resolution, 2001) It has not been alleged that the persons to be arrested for their alleged participation in the "rebellion" on May 1, 2001 are members of an outlawed organization intending to overthrow the government. Therefore, to justify a warrantless arrest under Section 5(a), there must be a showing that the persons arrested or to be arrested has committed, is actually committing or is attempting to commit the offense of rebellion. In other words, there must

“Since the evidence in this case is hearsay, the evidence of guilt is not strong, bail is allowed.”

1. Bail as a Matter of Right vs. Matter of Discretion Matter of right Bail is a matter of right in all cases not punishable by reclusion perpetua.

Matter of Discretion In case the evidence of guilt is strong. In such a case, according to People vs. San Diego, (1966), the court's discretion to grant bail must be exercised in the light of a summary of the evidence presented by the prosecution. Thus, the order granting or refusing bail must contain a summary of the evidence for the prosecution followed by the conclusion on whether or not the evidence of guilt is strong (Note: it is not the existence of guilt itself which is concluded but the strength of the probability that guilt exists). Also discretionary in extradition proceedings, because extradition courts do not render judgments of conviction or acquittal so it

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does not matter WON the crimes the accused is being extradited for is punishable by reclusion perpetua (US Government vs. Judge Puruganan and Mark Jimenez, 2002)

2. When Available: 

From the very moment of arrest (which may be before or after the filing of formal charges in court) up to the time of conviction by final judgment (which means after appeal).



No charge need be filed formally before one can file for bail, so long as one is under arrest. (Heras Teehankee vs. Rovica, 1945) Lavides vs CA, 2000: Arraigment of the accused is not essential to the approval of the bail bond. When bail is authorized, it should be granted before arraignment. Otherwise the accused may be precluded from filing a motion to quash. Also, the court will be assured of the presence of the accused at the arraignment precisely by grating bail and ordering his presence at any stage of the proceeding.

3. Standards for Fixing Bail RULE 114. Sec. 9. Amount of bail; guidelines. – The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors: (a) (b) (c) (d) (e) (f) (g)

Financial liability of the accused to give bail; Nature and circumstance of the offense; Penalty for the offense charged; Character and reputation of the accused; Age and health of the accused; Weight of the evidence against the accused; Probability of the accused appearing at the trial; (h) Forfeiture of other bail; (i) The fact that the accused was a fugitive from justice when arrested; and (j) Pendency of other cases where the accused is on bail. Excessive bail shall not be required.

Dela Camara v. Enage (1971):

Chapter V. REQUIREMENTS for FAIR PROCEDURE

The constitution prohibits “excessive bail.” Where the lower court fixed bail at P 1, 195, 200.00, it rendered the right to bail nugatory. / "Discretion…is with the court called upon to rule on the question of bail. We must stress, however, that where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisory powers to provide the required remedy. STANDARDS FOR FIXING BAIL: Citing Villaseñor vs. Abano, guidelines in the fixing of bail are: (1) ability of the accused to give bail; (2) nature of the offense; (3) penalty for the offense charged; (4) character and reputation of the accused; (5) health of the accused; (6) character and strength of the evidence; (7) probability of the accused appearing in trial; (8) forfeiture of other bonds; (9) whether the accused wasa fugitive from justice when arrested; and (10) if th e accused is under bond for appearance at trial in other cases."

4. Right to Bail and Right to Travel Abroad Manotok vs CA (1986): The main issue in this case is WON a person facing a criminal indictment and provisionally released on bail have an unrestricted right to travel. The Court held that the “constitutional right to travel being invoked by petitioner is not an absolute right. Section 5, Article IV of the 1973 Constitution states: The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety or public health. The Court considered the order of the TC releasing petitioner on bail as a lawful order contemplated by the above-quoted constitutional provision.

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Chapter VI. Rights of the Accused I.

RIGHTS DURING TRIAL A. PRESUMPTION OF INNOCENCE B. RIGHT TO BE HEARD PERSONALLY OR BY COUNSEL C. RIGHT TO BE INFORMED OF NATURE AND CAUSE OF ACCUSATION D. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL E. RIGHT OF CONFRONTATION F. RIGHT TO COMPULSORY PROCESSES G. TRIAL IN ABSENTIA H. RIGHT AGAINST SELFINCRIMINATION

II. RIGHTS POST TRIAL A. RIGHT AGAINST DOUBLE JEOPARDY B. EXCESSIVE FINES AND CRUEL, DEGRADING AND INHUMAN PUNISHMENT C. INVOLUNTARY SERVITUDE D. IMPRISONMENT FOR DEBT E. EX POST FACTO LAWS AND BILLS OF ATTAINDER

I.

Rights During Trial

ART. III. SEC. 14. 1987 CONSTITUTION. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable.

Chapter VI. RIGHTS of the ACCUSED

ROC. RULE 115. RIGHTS OF ACCUSED Section 1. Rights of accused at trial. – In all criminal prosecutions, the accused shall be entitled to the following rights: (a) To be presumed innocent until the contrary is proved beyond reasonable doubt. (b) To be informed of the nature and cause of the accusation against him. (c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel. (d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him. (e) To be exempt from being compelled to be a witness against himself. (f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or cannot with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him. (g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf. (h) To have speedy, impartial and public trial. (i) To appeal in all cases allowed and in the manner prescribed by law.

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Chapter VI. RIGHTS of the ACCUSED

A. Presumption of Innocence

Elements of the Right to Counsel:

People vs. Dramavo (1971):

1. Court’s duty to inform the accused of right to counsel before being arraigned;

The requirement of proof beyond reasonable doubt is a necessary corollary of the constitutional right to be presumed innocent. Alejandro vs. Pepito (1980): The accused cannot present evidence before the prosecution does so, even if the accused pleads guilty. It violates the presumption of innocence. People vs. Acuram: The presumption of regularity (in official duties) cannot by itself prevail over the presumption of innocence of the accused. But where it is not the sole basis for conviction, the presumption of regularity of performance of official functions may prevail over the constitutional presumption of innocence. Corpus vs. People: EQUIPOISE RULE: Where the evidence adduced by the parties are evenly balanced, the constitutional presumption of innocence should tilt the balance in favor of the accused.

B. Right to be Heard Personally or by Counsel ART. III. SEC. 12. 1987 CONSTITUTION. 1. Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

2. It must ask him if he desires the services of counsel; 3. If he does, and is unable to get one, the Court must give him one; if the accused wishes to procure private counsel, the Court must give him time to obtain one. 4. Where no lawyer is available, the Court may appoint any person resident of the province and of good repute for probity and ability.

C. Right to be Informed of Nature and Cause of Accusation Vera vs. People: Procedural due process requires that the accused must be informed why he is being prosecuted and what charge he must meet.

D. Right to Speedy, Impartial and Public Trial ART. III. SEC. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. ART. III. SEC. 3. Civilian authority is, at all times, supreme over the military. xxx Sec. 10. Law on speedy trial not a bar to provision on speedy trial in the Constitution. – No provision of law on speedy trial and no rule implementing the same shall be interpreted as a bar to any charge of denial of the right to speedy trial guaranteed by Section 14(2), Article III, of the 1987 Constitution. Olaguer vs. Military Commission (1987):

RA 7438. Rights of Persons under Custodial Investigation. SEC. 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. –(a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel;

IMPARTIAL TRIAL A civilian cannot be tried by a military court so long as the civil courts are open and operating, even during Martial Law. Acevedo vs. Sarmiento (1970): Dismissal based on the denial of the right to speedy trial amounts to an acquittal.

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Chapter VI. RIGHTS of the ACCUSED

Note: RA 8493 provides: a 30-day arraignment within the filing of the information or from the date the accused appeared before the court; trial shall commence 30 days from the arraignment, as fixed by the court. The entire trial period shall not exceed 180 days, except as otherwise authorized by the SC Chief Justice.

Aquino vs. Military Commission (1975)

E. Right of Confrontation





This is the basis of the right to crossexamination.

F. Right to Compulsory Processes 1. Right to Secure Attendance of Witness 2. Right to Production of Other Evidence

G. Trial in Absentia Borja vs. Mendoza (1977): WHEN CAN TRIAL IN ABSENTIA BE DONE: Accused failed to appear for trial despite postponement and notice to his bondsmen. The Court then allowed prosecution to present evidence despite the fact that accused had not been arraigned. Petitioner was found guilty. The issue is WON the court has jurisdiction. The Court held that because accused was not arraigned, he was not informed of the nature and cause of accusation against him, Therefore, the Court has no jurisdiction. The indispensable requisite for trial in absentia is that it should come after arraignment. Gimenez vs. Nazareno (1988) After arraignment, during which accused pleaded not guilty, case was set for hearing but the accused escaped. He was tried in absentia. Lower court held the proceedings against him in abeyance to give him the opportunity to cross examine witnesses against him and present his evidence. The Court held that abeyance of proceedings was invalid. Such right to cross examine and present evidence on his behalf is waived by failure to appear during the trial of which he had notice. When Presence of the Accused is a DUTY 1) Arraignment and Plea 2) During Trial, for identification 3) Promulgation of Sentence (Exception: Light offense -> can be via counsel)

Petitioner challenges the jurisdiction of military commissions to try him (for murder, illegal possession of firearms and for violation of the Anti-Subversion Act) arguing that he being a civilian, such trial during martial law deprives him of his right to due process. An issue has been raised as to WON petitioner could waive his right to be present during trial.

On a 7-5 voting: SEVEN justices voted that petitioner may waive his right to be present at ALL stages of the proceedings while FIVE voted that this waiver is qualified, he cannot waive when he is to be identified. Trial in Absentia: As a general rule, subject to certain exceptions, any constitutional or statutory right may be waived if such waiver is not against public policy. Considering Art IV, Sec 19, 1973 Constitution (trial of a capital offense may proceed even in the absence of the accused) and the absence of any law specifically requiring his presence at all stages of his trial, there appears, no logical reason why petitioner, although he is charged with a capital offense, should be precluded from waiving his right to be present in the proceedings for the perpetuation of testimony, since this right was conferred upon him for his protection and benefit.

H. Right Against Self-Incrimination Sec. 17, Art. 3. No person shall be compelled to be a witness against himself. 1. Scope 

Compulsory testimonial self-incrimination



It refers therefore to the use of the mental process and the communicative faculties, and not to a merely physical activity.



If the act is physical or mechanical, the accused can be compelled to allow or perform the act, and the result can be used in evidence against him.

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2. Examples a. Handwriting in connection with a prosecution for falsification is NOT allowed, for this involves the use of the mental processes (Beltran vs. Samson, 53 Phil 570; Bermudez vs. Castillo, 1937). b. Re-enactment of the crime by the accused is NOT allowed, for this also involves the mental process. c.

The accused can be required to allow a sample of a substance taken from his body (U.S. vs. Tan Teh, 1912), or be ordered to expel the morphine from his mouth (U.S. vs. Ong Sio Hong, 1917)

d. Accused may be made to take off her garments and shoes and be photographed (People vs. Otadura, 96 Phil 244, 1950); compelled to show her body for physical investigation to see if she is pregnant by an adulterous relation (Villaflor vs. Summers, 1920)

Chapter VI. RIGHTS of the ACCUSED

ART. XIII. SEC. 18. 1987 CONSTITUTION. The Commission on Human Rights shall have the following powers and functions: xxx (8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority; b. Use and Fruit of Immunity Galman vs. Pamaran (1985): “Use immunity” prohibits use of a witness’ compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. On the other hand “transactional immunity” grants immunity to witness from prosecution for an offense to which his compelled testimony relates.

5. Effect of Denial of Privilege

e. Order to give a footprint sample to see if it matches the ones found in the scene of the crime is allowed (People vs. Salas and People vs. Sara).

EXCLUSIONARY RULE under ART. III. SEC. 17 in relation to SEC. 12: When the privilege against self-incrimination is violated outside of court (e.g. police), then the testimony, as already noted, is not admissible.

3. Kinds of Proceeding Applicable

OUSTED OF JURISDICTION: When the privilege is violated by the Court itself, that is, by the judge, the court is ousted of its jurisdiction, all its proceedings and even judgment are null and void. (Chavez vs. CA, 1968)

General rule: The privilege is available in any proceedings, even outside the court, for they may eventually lead to a criminal prosecution. a. It extends to administrative proceedings which possess a criminal or penal aspect. A doctor who was being investigated by a medical board for alleged malpractice who would lose his license if found guilty, could not be compelled to take the witness stand without his consent. (Pascual vs. Board of Medical Examiners, 1969) b. It extends to a fact-finding investigation by an ad hoc body. A person can be compelled to testify provided he is given immunity co-extensive with the privilege against self-incrimination (Galman vs. Pamaran, 1985)

II. Rights Post Trial A. Right against Double Jeopardy ART. III. SEC. 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. 1. Elements of Double Jeopardy (Rule 117, Sec. 7; People vs. Obsania, 1968)

4. Use Immunity v. Transactional Immunity a. Transactional Immunity

a. Court of competent jurisdiction; b. A Complaint/Information sufficient in form and substance to sustain a conviction;

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c. Arraignment and plea by the accused; d. Conviction, acquittal, or dismissal of the case without the express consent, of the accused.

Chapter VI. RIGHTS of the ACCUSED

dismissal is regarded as “with express consent of the accused”, who is therefore deemed to have waived the right to plea double jeopardy.

6. Termination of Jeopardy

a. b. c. d.

a. By acquittal b. By final conviction c. By dismissal without express consent of accused d. By “dismissal” on the merits

Same offense Attempt of the same offense Frustration of the same offense Offense necessarily included in the 1st offense (All the elements of the 2nd constitute some of the elements of the 1st offense) e. Offense that necessarily includes the 1st offense (All the elements of the 1st constitute some of the elements of the 2nd offense)

3. Exceptions a. The graver offense developed due to "supervening facts" arising from the same act or omission constituting the former charged. b. The facts constituting the graver charge became known or were discovered only after the filing of the former complaint or information. c.

The plea of guilty to the lesser offense was made without the consent of the fiscal and the offended party.

A. Excessive Fines and Cruel, Degrading and Inhuman Punishment ART. III. SEC. 19. 1987 CONSTITUTION. 1. Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. 2. The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law. People vs. dela Cruz (1953):

4. When Defense of Double Jeopardy is Available a. Dismissal based on insufficiency of evidence; b. Dismissal because of denial of right to speedy trial; c. Accused is discharged to be a state witness.

5. When Defense of Double Jeopardy is NOT Available RULE 117. Sec. 8, par 1. Provisional dismissal.—A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. 

When the case is dismissed other than on the merits, upon motion of the accused personally, or through counsel, such

In this case the Court took into account, in lowering the penalty to reclusion perpetua of the accused most of whom were already death row convicts, the deplorable sub-human conditions of the National Penitentiary where the crime was committed. RA 9346 (June 24, 2006): An Act Prohibiting the Imposition of Death Penalty in the Philippines: Sec. 1. The imposition of the penalty of death is hereby prohibited. Accordingly, R.A. No. 8177, otherwise known as the Act Designating Death by Lethal Injection is hereby repealed. R.A. No. 7659, otherwise known as the Death Penalty Law, and all other laws, executive orders and decrees, insofar as they impose the death penalty are hereby repealed or amended accordingly.

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B. Involuntary Servitude

C. Imprisonment for Debt ART. III. SEC. 20. 1987 CONSTITUTION. No person shall be imprisoned for debt or nonpayment of a poll tax.

D. Ex Post Facto Laws and Bills Of Attainder ART. III. SEC. 22. 1987 CONSTITUTION. No ex post facto law or bill of attainder shall be enacted. People vs. Ferrer (1972): RA 1700 which declared the Communist Party of the Philippines a clear and present danger to Philippine security, and thus prohibited membership in such organization, was contended to be a bill of attainder. Although the law mentions the CPP in particular, its purpose is not to define a crime but only to lay a basis or to justify the legislative determination that membership in such organization is a crime because of the clear and present danger to national security.

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ART. III. SEC. 18 (2). 1987 CONSTITUTION. No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.

Chapter VII. WRITS

Chapter VII. Writs  I. HABEAS CORPUS II. WRIT OF AMPARO III. HABEAS DATA

I.

Habeas Corpus

thereof, and 5) 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. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

ART. III. SEC. 15. 1987 CONSTITUTION. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it.



ART. VII. SEC. 18. 1987 CONSTITUTION.  The President shall be the Commander-inChief 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: 1) review, 2) in an appropriate proceeding; 3) filed by any citizen, 4) the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension

Villavicencio vs. Lukban (1919): "A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. The forcible taking of these women from Manila by officials of that city, who handed them over to other parties, who deposited them in a distant region, deprived these women of freedom of locomotion just as effectively as if they had been imprisoned. Placed in Davao without either money or personal belongings, they were prevented from exercising the liberty of going when and where they pleased. The restraint of liberty which began in Manila continued until the aggrieved parties were returned to Manila and released or until they freely and truly waived his right." "We believe the true principle should be that, if the respondent is within the jurisdiction of the court and has it in his power to obey the order of the court and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party to whom the writ is addressed has illegally parted with the custody of a person before the application for the writ is no reason why the writ should not issue. Lansang vs. Garcia (1971): Petitioners were arrested without warrants and detained, upon the authority of Proclamation 889 (Which suspended the privilege of the Writ of

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Habeas Corpus) and subsequently filed a petition for writ of habeas corpus, assailing the validity of the said Proclamation and their detention. The Court upheld the violation of the Proclamation and dismissed the petitions. The Supreme Court held that the authority to suspend the privilege of the writ is circumscribed, confined and restricted, not only by the prescribed setting or the conditions essential to its existence, but, also, as regards the time when and the place where it may be exercised. Thus, the Court has the authority to inquire into the existence of the factual bases for the proclamation in order to determine its constitutional sufficiency. The test for such judicial inquiry is whether or not the Executive acted arbitrarily in issuing the Proclamation. The test is not correctness, but arbitrariness. For the suspension of the privilege of the writ to be valid, (a) there must be "invasion, insurrection or rebellion" or, pursuant to paragraph (2), section 10 of Art. VII of the Constitution, "imminent danger thereof"; and (b) public safety must require the aforementioned suspension. The President declared in Proclamation No. 889, as amended, that both conditions are present, and the Supreme Court agreed. The President did not act arbitrarily; the Court acknowledged the existence of a sizeable group of men (Communists and the NPA) who have publicly risen in arms to overthrow the government and have thus been and still are engaged in rebellion against the Government of the Philippines. Moncupa vs. Enrile (1986): It is not physical restraint alone which can be inquired into by means of the writ of habeas corpus. In this case, the petition is valid as petitioner’s temporary release from detention is accompanied with restrictions w/ the ff effects: 1) curtailed freedom of movement by the condition that he must get approval of respondents for any travel outside Metro Manila, 2) abridged liberty of abode because prior approval of respondent is required in case petitioner wants to change place of residence, 3) abridged freedom of speech due to prohibition from taking any interviews inimical to national security, and 4) petitioner is required to report regularly to respondents or their reps. Gumabon vs. Director of Prisons (1971):

Chapter VII. WRITS

It being undeniable that if the Hernandez ruling were to be given a retroactive effect petitioners had served the full term for which they could have been legally committed, is habeas corpus the appropriate remedy?” YES. In Cruz vs. Director of Prisons (1910), "The courts uniformly hold that where a sentence imposes punishment in excess of the power of the court to impose, such sentence is void as to the excess, The rule is that the petitioner is not entitled to his discharge on a writ of habeas corpus unless he has served out so much of the sentence as was valid." xxx “While the above decision speaks of a trial judge losing jurisdiction over the case, insofar as the remedy of habeas corpus is concerned, the emphatic affirmation that it is the only means of benefiting the accused by the retroactive character of a favorable decision holds true. Petitioners clearly have thus successfully sustained the burden of justifying their release.” Sombong vs. CA (1990): Sombong claims that she is the mother of the child Christina, who is under the custody of Neri, and filed a petition for the issuance of the writ of habeas corpus. The Supreme Court denied the petition. In order to justify the grant of the writ of habeas corpus, the restraint of liberty must be in the nature of an illegal and involuntary deprivation of freedom of action. However, habeas corpus may still be resorted to even if the restraint is voluntary in cases where the rightful custody of any person is withheld from the person entitled thereto. The said writ is the proper legal remedy to enable parents to regain the custody of a minor child even if the child is in the custody of a third person of her own free will. Sombong does not have the right of custody over the child, because the evidence adduced does not warrant the conclusion that Christina is the same person as her child Arabella. Velasco vs. CA (1995): Larkins was arrested after a certain Alinea filed a complaint-affidavit for rape against him before the NBI. There was no warrant. A complaint for rape was subsequently filed before the RTC. His common-law wife filed a petition for habeas corpus.

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Chapter VII. WRITS



Another is the filing of a complaint or information for the offense for which the accused is detained. By then, the restraint of liberty is already by virtue of the complaint or information and, therefore, the writ of habeas corpus is no longer available. Section 4 of Rule 102 reads in part as follows: "Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted an offense in the Philippines." It may also be said that by filing his motion for bail, Larkins admitted that he was under the custody of the court and voluntarily submitted his person to its jurisdiction.

II. Writ of Amparo and Writ of Habeas Data QUERY What is the writ amparo?

of

     

WRIT OF AMPARO Remedy Available to any person Whose right to life, liberty, and security has been violated or is threatened with violation By an unlawful act or omission of a public official or employee, or of a private individual or entity.

The writ covers extralegal killings and enforced disappearances or threats thereof.

     

HABEAS DATA Remedy Available to any person Whose right to life, liberty, and security has been violated or is threatened with violation 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. The Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC), which was approved by the Supreme Court on 22 January 2008. That Rule shall not diminish, increase or modify substantive rights.

It is governed by The Rule on the Writ of Amparo (A.M. No. 07-9-12SC ), which was approved by the Supreme Court on 25 September 2007. This Rule also governs existing cases involving extralegal killings and enforced disappearances or threats thereof. What is the Supreme The Rule was drafted pursuant to (Constitution, Art. VIII, Sec. 5[5]). Court’s basis in issuing the Supreme Court’s constitutional the Rule? power to promulgate rules for the protection and enforcement of constitutional rights (Constitution, Art. VIII, Sec. 5[5]). When does the Rule take The Rule takes effect on 24 October The Rule takes effect on 2 February effect? 2007, following its publication in 2008, following its publication in three three (3) newspapers of general (3) newspapers of general circulation. circulation. Who may file a petition  the aggrieved party or by any  The aggrieved party. for the issuance of a writ qualified person or entity in the  However, in cases of extralegal of amparo? following order: killings and enforced What rule governs petitions for and the issuance of a writ of amparo?

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The Supreme Court held that even if the arrest of a person is illegal, supervening events may bar his release or discharge from custody. The court must thus look into the legality of his detention as of, at the earliest, the filing of the application for a writ of habeas corpus, for even if the detention is at its inception illegal, it may, by reason of some supervening events, such as the instances mentioned in Section 4 of Rule 102, be no longer illegal at the time of the filing of the application. Among such supervening events are:  The issuance of a judicial process preventing the discharge of the detained person.

QUERY

Chapter VII. WRITS

WRIT OF AMPARO Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party;  Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or  Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party. The petition may be filed on any day and at any time with: 

Where can the petition be filed?

The Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred,  the writ shall be returnable before such court or judge. or with the Sandiganbayan, the Court of Appeals, or any justice of such courts.  The writ shall be enforceable anywhere in the Philippines.  It may be returnable before such court or any justice thereof, or to any Regional Trial Court to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred.

How much is the docket or filing fees for the petition?

The Supreme Court, or any justice  The writ shall be enforceable anywhere in the Philippines.  it may be returnable before such Court or any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of their justices, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred. There is NO docket and other lawful fees for the petition. The court, justice or judge shall docket the

HABEAS DATA disappearances, the petition may be filed by o Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or o Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph.

Regional Trial Court  where the petitioner or respondent resides,  or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner. Supreme Court; Court of Appeals; Sandiganbayan: when the action concerns public data files of government offices.

No docket and other lawful fees shall be required from an indigent petitioner.

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QUERY

Chapter VII. WRITS

WRIT OF AMPARO petition and act upon it immediately.

HABEAS DATA The petition of the indigent shall be docketed and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than 15 days from the filing of the petition.

What is the required burden of proof?

The parties shall establish their claims by substantial evidence. The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty.

Instead of having the hearing in open court, can it be done in chambers?

Can the respondent invoke the legal presumption (Rules of Court, Rule 131, Sec. 3[m]) that official duty has been regularly performed?

The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty.

Yes. It can be done when the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character

No. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability.

Secretary of National Defense vs. Manalo (2008):

government also failed to provide an effective investigation.

The Manalo brothers were abducted, detained, and tortured repeatedly by the military. After their escape, they filed a petition for the privilege of the Writ of Amparo. The Supreme Court granted the petition and held that there was a continuing violation of the Manalos’ right to security. Considering that they only escaped from captivity and have implicated military officers, there is still a threat to their lives, liberty, and security. The threat vitiates their free will and they are forced to limit their movements and activities. The government also failed to provide them protection because the military themselves perpetrated the abduction, detention, and torture. The

As regards the relief granted, the Court held that the production order under the Amparo rule is different from a search warrant and may be likened to the production of documents or things under Rule27.1, ROC. They also said that the disclosure of the present places of assignment of the implicated military officers would not jeopardize the exercise of the military functions of the officers. Such disclosure is relevant in ensuring the safety of the Manalo brothers.

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Chapter VIII. PRIVACY of COMMUNICATION and CORRESPONDENCE

detectaphone or walkie-talkie or tape recorder, or however otherwise described.

Chapter VIII. Privacy of Communication and Correspondence I. INTRUSION, WHEN ALLOWED II. FORMS OF CORRESPONDENCE COVERED III. ENABLING LAW

3. For any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law

ART. III. SEC. 3. 1987 CONSTITUTION. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

4. to replay the same for any other person/persons 5. to communicate the contents thereof, either verbally or in writing,

I.

Intrusion, When Allowed

1. By lawful order of the court 2. When public safety or public order requires otherwise, as may be provided by law

II. Forms of Correspondence Covered 1. 2. 3. 4.

letters messages telephone calls telegrams, and the like (BERNAS)

6. to furnish transcriptions thereof, whether complete or partial, to any other person Exception 1: That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Sec. 3 hereof, shall not be covered by this prohibition. Section 3. Exception 2:

III. ENABLING LAW Republic Act 4200: AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES (1965) Section 1. Unlawful Acts: 1. For any person not being authorized by all the parties to any private communication or spoken word to tap any wire or cable, or by using any other device or arrangement, 2. to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or

Any peace officer, who is authorized by a written order of the Court may lawfully execute any of the acts declared to be unlawful in the two preceding Sections in cases involving the crimes of: 1. 2. 3. 4. 5.

treason espionage provoking war and disloyalty in case of war piracy, and mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion 6. sedition, conspiracy to commit sedition, inciting to sedition 7. kidnapping as defined by the RPC 8. violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security Requirements for valid issuance of written order:

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Chapter VIII. PRIVACY of COMMUNICATION and CORRESPONDENCE

1. Upon written application and examination under oath or affirmation of the applicant and the witnesses he may produce, and

Section 4.

2. A showing of: i. reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; ii. reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and iii. no other means readily available for obtaining such evidence.

Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasijudicial, legislative or administrative hearing or investigation.

Contents of the order: 1. the identity of the person/persons whose communications, conversations, discussions, or spoken words are to be overheard, intercepted, or recorded and, in the case of telegraphic or telephonic communications, the telegraph line or the telephone number involved and its location; 2. the identity of the peace officer authorized to overhear, intercept, or record the communications, conversations, discussions, or spoken words 3. the offense/offenses committed or sought to be prevented 4. the period of the authorization. The authorization shall be effective for the period specified in the order which shall not exceed sixty (60) days from the date of issuance of the order, unless extended or renewed by the court upon being satisfied that such extension or renewal is in the public interest.

Inadmissibility:

Gaanan vs. IAC (1986): The use of a telephone extension for the purpose of overhearing a private conversation without authorization did NOT violate R.A. 4200 because a telephone extension device was not among those "device(s) or arrangement(s)" enumerated therein, following the principle that "penal statutes must be construed strictly in favor of the accused”.

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Chapter IX. FREEDOM of EXPRESSION

Chapter IX. Freedom of Expression I.

BASIS, COMPONENTS, SCOPE AND LIMITATIONS A. FREEDOM FROM CENSORSHIP OR PRIOR RESTRAINT B. FREEDOM FROM SUBSEQUENT PUNISHMENT II. CONTENT-BASED RESTRICTIONS A. TESTS B. APPLICATIONS OF VARIOUS TESTS IN SPECIFIC INSTANCES 1. FREEDOM OF EXPRESSION AND NATIONAL SECURITY 2. FREEDOM OF EXPRESSION AND LIBEL 3. FREEDOM OF EXPRESSION AND THE RIGHT TO PRIVACY 4. FREEDOM OF EXPRESSION AND THE ADMINISTRATION OF JUSTICE 5. FREEDOM OF INFORMATION III. CONTENT-NEUTRAL RESTRICTIONS A. FREEDOM OF ASSEMBLY B. FREEDOM OF ASSOCIATION AND SELF-ORGANIZATION C. MOVIE CENSORSHIP D. BROADCAST MEDIA

I.

Basis, Components, Limitations

Scope

accordingly shifted to the plaintiff, that is, that he must prove that the defendants were actuated by ill-will in what they caused to be printed and published, with a design to carelessly or wantonly injure the plaintiff.

Components Speech, expression, and press include: a) Written or spoken words (recorded or not) b) Symbolic speech (e.g. wearing armbands as symbol of protest) c) Movies (BERNAS)

Scope of Protected Freedoms Any and all modes of protection are embraced in the guaranty. It is reinforced by Sec. 18(1), Art. 3.

A. Freedom from Censorship or Prior Restraint Concept: Censorship conditions the exercise of freedom of expression upon the prior approval of the government.

and

Basis Sec. 4, Art. 3. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

The censor serves therefore as the political, moral, social and artistic arbiter for the people, usually applying only his own subjective standards in determining what is good and what’s not.

General rules: 1.

All are indispensable to the “uninhibited, robust and wide-open debate in the free marketplace of ideas” (Abrams vs. US)

Any system of prior restraints of expression comes to the Court bearing a heavy presumption against its constitutionality, giving the government a heavy burden to show justification for the imposition of such restraint. (New York vs. United States 1971)

2.

U.S. vs. Bustos (1909): While indeed, the news item subject of the present case might have ruffled the sensitivities of plaintiff, this Court however believes that the alleged defamatory articles fall within the purview of a qualifiedly privileged matter, and that therefore, it cannot be presumed to be malicious. The onus of proving malice is

There need not be total suppression. Even restriction of circulation constitutes censorship (Grosjean vs. American Press Co. 297 US 233)

Examples Restraint:

Sec. 18. (1), Art. 3 No person shall be detained solely by reason of his political beliefs and aspirations.

1.

of

Unconstitutional

Prior

COMELEC prohibition against radio commentators or newspaper columnists

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from commenting on the issues involved in a scheduled plebiscite (Sanidad vs. COMELEC) 2.

Arbitrary closure of a radio station (Eastern Broadcasting vs. Dans)

3.

COMELEC resolution prohibiting the posting of decals and stickers in mobile units like cars and other moving vehicles (Adiong vs. COMELEC)

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the sailing dates of transports or the number and location of troops c. Obscene publications d. Incitements to acts of violence and the overthrow by force of orderly government

B. Freedom from Subsequent Punishment Concept:

4.

5.

Search, padlocking and sealing of the offices of newspaper publishers (We Forum) by military authorities (Burgos vs. Chief of Staff) An announcement of a public figure to prohibit the media to issue a specific kind of statement amounts to prior restraint, which is violative of the right to free press. (Chavez vs. Gonzales, 2006)

Freedom of speech includes freedom after speech. Without this assurance, the citizen would hesitate to speak for fear he might be provoking the vengeance of the officials he has criticized (chilling effect). If criticism is not to be conditioned on the government’s consent, then neither should it be subject to the government’s subsequent chastisement.

Examples of Constitutional Prior Restraint: Examples of Valid Subsequent Restraints: 1. Law which prohibits, except during the prescribed election period, the making of speeches, announcements or commentaries for or against the election of any candidate for office (Gonzales vs. COMELEC) 2. Prohibition on any person making use of the media to sell or to give free of charge print space or air time for campaign or other political purposes except to the COMELEC. Ratio: police power of State to regulate media for purpose of ensuring equal opportunity, time and space for political campaigns. (National Press Club vs. COMELEC, Osmena vs. COMELEC) 3. Movie censorship: the power of the MTCRB can be exercised only for purposes of reasonable classification, not censorship. (NACHURA citing Gonzales vs. Katigbak and Ayer vs. Judge Capulong) 4. Near vs. Minnesota, (1931): a. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right b. Actual obstruction to the government’s recruiting service or the publication of

1. Libel. Every defamatory imputation is presumed to be malicious. (Alonzo vs. CA) Exceptions to this presumption are found in Art. 354 of the RPC. 2. Obscenity. The determination of what is obscene is a judicial function. (Pita vs. CA) U.S. vs. Kottinger: Accused was convicted for exhibiting nude painting and pictures, notwithstanding his claim that he had done so in the interest of art. Court said that the purpose was commercial, not merely artistic, because he charged admission fees to the exhibition. 3. Contempt for criticism/publications tending to impede, obstruct, embarrass or influence the courts in administering justice in a pending suit or proceeding (sub judice) (People vs. Alarcon) 4. Being a public figure does not automatically destroy in toto a person's right to privacy. The limits of freedom of expression are reached when it touches upon matters of private concern (Lagunzad vs. Gonzales) 5. Right of students to free speech in school premises must not infringe on the school’s

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right to discipline its students (Miriam College Foundation vs. CA 2000).

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test most applied to cases re: freedom of expression.

Exceptions:

3. Balancing of Interest Test

1.

American Communications Douds, (339 US 282):

2.

Fair comment on matters of public interest. Fair comment is that which is true or, if false, expresses the real opinion of the author based upon reasonable degree of care and on reasonable grounds. Criticism of official conduct is given the widest latitude. (US vs. Bustos)

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vs.

When a particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional and partial abridgement of speech, the duty of the courts is to determine which of the two conflicting interests demands greater protection. Gonzales vs. Comelec:

II. Content-Based Restrictions A. Tests

The test is applied when two legitimate values not involving national security crimes compete.

1. Dangerous Tendency Test

4. Direct Incitement Test

Cabansag vs. Fernandez:

Salonga vs. Cruz Paño (1986):

If the words uttered create a dangerous tendency of an evil which the State has the right to prevent, then such words are punishable.

In this case, the Petitioner was charged with violation of the Revised Anti-Subversion Act after being apparently implicated by a certain Victor Lovely as being involved in the series of bombings in Metro Manila.

People vs. Perez: It is sufficient if the natural tendency and the probable effect of the utterance were to bring about the substantive evil that the legislative body seeks to prevent.

Direct Incitement Test: In the case before us, there is no teaching of the moral propriety of a resort to violence, much less an advocacy of force or a conspiracy to organize the use of force against the duly constituted authorities.

2. Clear and Present Danger Test Schenck vs. United States (1919): The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. Gonzales vs. COMELEC: This rule requires that “the danger created must not only be clear and present but also traceable to the ideas expressed”. Note: This test has been adopted by the Philippine SC lock, stock and barrel and is the

The alleged remark about the likelihood of violent struggle unless reforms are instituted is not a threat against the government. Nor is it even the uninhibited, robust, caustic, or unpleasantly sharp attack which is protected by the guarantee of free speech. Parenthetically, the American case of Brandenburg vs. Ohio (395 U.S. 444) states that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Political discussion even among those opposed to the present administration is

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within the protective clause of freedom of speech and expression. The same cannot be construed as subversive activities per se or as evidence of membership in a subversive organization.

5. Grave-But-Improbable Danger Test Dennis vs. U.S. (1951): In this case, the Petitioners, leaders of the Communist Party in this country, were indicted in a federal district court under § 3 of the Smith Act for (1) wilfully and knowingly conspiring to organize as the Communist Party a group of persons to teach and advocate the overthrow and destruction of the Government of the United States by force and violence, and (2) to knowingly and wilfully advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence. Grave-But-Improbable Danger Test: To determine the clear and present danger of the utterances bringing about the evil which that legislature has the power to punish, "In each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." In this case, an attempt to overthrow the Government by force is a sufficient evil for Congress to prevent. It is the existence of the conspiracy which creates the danger.

B. Applications of Various Specific Instances I.

Tests

in

Freedom of Expression and National Security

Espuelas vs. People (1951) Espuelas was convicted in the lower court of the crime of inciting to sedition. Espuelas had his picture taken, making it to appear as if he were hanging lifeless at the end of a piece of rope suspended from the limb of a tree, when in truth and in fact, he was merely standing on a barrel. After securing copies of his photograph, he sent copies to several newspapers and weeklies of general circulation throughout the Philippines and abroad, for their publication with a suicide note or letter, wherein he made to appear that it

was written by a fictitious suicidee, Alberto Reveniera and addressed to the latter's supposed wife. These reasons point to the Roxas administration, his disappointments and humiliations because of the former and his lack of power to put under Juez de Cuchillo all the Roxas people in power. Finally, the letter instructed the wife to teach their children to burn pictures of Roxas if they come across one. Espuelas admitted the fact that he wrote the letter and caused its publication and that he had impersonated one Alberto Reveniera and posed himself as Alberto Reveniera in a picture taken wherein he was shown hanging by the end of a rope tied to a limb of a tree. Freedom of Expression, national security: The letter is a scurrilous libel against the Government. It suggests or incites rebellious conspiracies or riots and tends to stir up the people against the constituted authorities, or to provoke violence from opposition groups who may seek to silence the writer, which is the sum and substance of the offense under consideration. Such writings are criminal not only because they tend to incite to a breach of the peace but because they are conducive to the destruction of the very government itself. Malicious endeavors to stir up public strife are prohibited. Our Legislature has spoken in article 142 of the RPC and the law must be applied. This kind of legislation must be weighed carefully vis-à-vis the fundamental right to freedom of speech. Such freedom, although secured by the Constitution, does not confer an absolute right to speak or publish without responsibility whatever one may choose. It is not unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. The privilege of any citizen to criticize his government and government officials and to submit his criticism to the "free trade of ideas" and to plead for its acceptance in "the competition of the market" is not to be restrained. However, let such criticism be specific and therefore constructive, reasoned or tempered, and not a contemptuous condemnation of the entire government set-up. Such wholesale attack is nothing less than an invitation to disloyalty to the government….

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When the use of irritating language centers not on persuading the readers but on creating disturbance, the rationale of free speech cannot apply and the speaker or writer is removed from the protection of the constitutional guaranty.

II. Freedom of Expression and Libel Bulletin Publishing vs. Noel NATIONAL COMMUNITY STANDARD AS BASIS OF WHAT IS DEFAMATORY: Facts: An article in Phil. Panorama described Amir Mindalano as not belonging to a royal house. Held: Court held that there is no libel. Such a description cannot be regarded as defamatory, an imputation of a vice or defect, or tending to cast dishonor, discredit or contempt or to blacken the memory of one who is dead. In a community like ours which is both republican and egalitarian, such an ascription, whether correct or not, cannot be defamatory. It is to the standards of the national community, not to those of the region that a court must refer especially where a newspaper is national in reach and coverage.xxx Newsweek vs. IAC (1986): REPORT OF OFFICIAL CONDUCT IS PRIVILEGED AND COVERED BY PRESS FREEDOM: Where the defamation is alleged to have been directed at a group/class, it is essential that the statement must be so sweeping or all-embracing as to apply to every individual in that group or class, or sufficiently specific so that each individual in the class or group can prove that the defamatory statement specifically pointed to him, so that he can bring the action separately, if need be. Also, the report in the Newsweek article referring as it does to an official act performed by an elective public official (i.e. that the victim had been arrested by members of special police unit brought by the mayor of Kabankalan who incidentally is a sugar planter), is w/in the realm of privilege and is protected by the constitutional guarantees of free speech and press. MVRS v. Islamic Da’Wah Council of the Phil (2003) Islamic Da’Wah Council of the Philippines, Inc., a local federation of more than 70 Muslim religious organizations, filed a complaint for

Chapter IX. FREEDOM of EXPRESSION

damages against MVRS Publications, Inc., arising from an article, which says that the pig is sacred for the Muslims. Freedom of Expression, Libel: As the size of these groups increases, the chances for members of such groups to recover damages on tortious libel become elusive. This principle is said to embrace two important public policies: first, where the group referred to is large, the courts presume that no reasonable reader would take the statements as so literally applying to each individual member; and second, the limitation on liability would satisfactorily safeguard freedom of speech and expression, as well as of the press, effecting a sound compromise between the conflicting fundamental interests involved in libel cases. Courts must be viewpoint-neutral when it comes to religious matters if only to affirm the neutrality principle of free speech rights under modern jurisprudence where "all ideas are treated equal in the eyes of the First Amendment - even those ideas that are universally condemned and run counter to constitutional principles." Under the right to free speech, "there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Denying certiorari and affirming the appellate court decision would surely create a chilling effect on the constitutional guarantees of freedom of speech, of expression, and of the press.

III. Freedom of Expression and the Right to Privacy Lagunzad vs. Sotto (1979) Being a public figure does not automatically destroy in toto a person’s right to privacy. The right to invade a person’s privacy to disseminate public info does not extend to a fictional representation of a person, no matter how public a figure he/she may be. In the case at bar, petitioner admits that he included a little romance in the film about Moises Padilla (despite efforts to present the true-to-life story of the latter) because w/o it, it would be a drab story of torture and brutality. Ayer Productions vs. Capulong (1988): Facts: TC issued a writ of preliminary injunction against petitioners ordering them to desist from

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producing the movie “The Four-Day Revolution”, a docu-drama of EDSA I, on the ground that it violated the right to privacy of Juan Ponce Enrile who was featured in the documentary. Held: 1) Freedom of speech and expression includes freedom of filming and producing motion pictures and to exhibit them. The fact that such film production is a commercial activity is not a disqualification for availing of freedom of speech and expression. 2) The right to privacy cannot be involved to resist publication and dissemination of matter of public interest. 3) The intrusion is no more than necessary to keep the film a truthful historical account. Enrile is a public figure because of his participation as a principal actor in the culminating events of the revolution. 4) There must be no knowing or reckless disregard of truth in depicting the participation of Enrile in EDSA I. Also, there must be no presentation of his private life and no revelation of intimate or embarrassing personal facts.

IV. Freedom of Expression Administration Of Justice

and

the

Cabansag vs. Fernandez (1957) Facts: Due to the delay in the disposition of his original case, Cabansag asked for help from the President through a letter addressed to the Presidential Complaints and Actions Commission (PCAC). A contempt charge was brought against him for sending that letter which tended to degrade the lower court in the eyes of the President and of the people. SC reversed the ruling which cited him in contempt. Held: Freedom of Expression and the Administration of Justice: For his act (of sending his letter to the President and not to the Sec of Justice or SC) to be contemptuous, the danger must cause a serious imminent threat to the administration of justice. We cannot infer that such act has "a dangerous tendency" to belittle the court or undermine the administration of justice for the writer merely exercised his constitutional right to petition the government for redress of a legitimate grievance.

V. Freedom of Information Valmonte vs. Belmonte Facts: Media practitioners requested information from the GM of GSIS regarding clean loans granted to certain members of the defunct Batasang Pambansa on the guaranty of Imelda Marcos shortly before the Feb 1986 elections. Request was refused on the ground of confidentiality. Held: The right to information is not absolute. It is limited to matters of public concern and is subject to such limitations as may be provided by law. That the GSIS was exercising a proprietary function would not justify its exclusion of the transactions from the coverage of the right to info. But although citizens have such right and, pursuant thereto, are entitled to “access to official records,” the Constitution does not accord them the right to compel custodians of official records to prepare lists, summaries and the like in their desire to get info on matters of public concern.

III. Content-Neutral Restrictions 1. Freedom of Assembly Primicias vs. Fugoso (1948): The right to freedom of speech and to peaceably assemble and petition the government for redress of grievances are fundamental personal rights of the people guaranteed by the constitutions of democratic countries. City or town mayors are not conferred the power to refuse to grant the permit, but only the discretion in issuing the permit to determine or specify the streets or public places where the parade may pass or the meeting may be held. J.B.L. Reyes vs. Bagatsing (1983): The Court held here that freedom of speech and freedom to peaceably assemble is entitled to be accorded utmost deference and respect, and cannot be limited or denied unless there is showing of a clear and present danger of a substantive evil that the State has a right to prevent. For the constitutional right to be invoked, riotous conduct, injury to property and acts of vandalism must be avoided. Furthermore, absent any clear and present

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Chapter IX. FREEDOM of EXPRESSION

danger of a substantive evil, peaceable assembly in public places like streets or parks cannot be denied.

mayor to allow proper coordination and orderly activities.





Bayan vs. Ermita (2006)

CPR serves no valid purpose if it means the same thing as maximum tolerance (Sec. 3 [c] of B.P. 880), and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated by the law itself, namely, maximum tolerance.

B.P. 880 not unconstitutional  B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. The law is not vague or overbroad. There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation. A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies that would use public places. Freedom Parks  B.P. 880 provides that every city and municipality must set aside a freedom park within six months from the law’s effectivity in 1985, or 20 years ago. Section 15 of the law provides for an alternative forum through the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at any time. According to the SolGen (Nachura), however, he is aware of only ONE declared freedom park Fuente Osmena in Cebu City. Without such alternative forum, to deny the permit would in effect be to deny the right. 

Hence, local governments are given a deadline of 30 days within which to designate specific freedom parks as provided under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The only requirement will be written notices to the police and the office of the

In such a situation, as a necessary consequence and part of maximum tolerance, rallyists who can show the police an application duly filed on a given date can, after two days from said date, rally in accordance with their application without the need to show a permit, the grant of the permit being then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law.

Conclusion  For this reason, the so-called calibrated pre-emptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. 

Far from being insidious, “maximum tolerance” is for the benefit of rallyists, not the government. The delegation to the mayors of the power to issue rally permits is valid because it is subject to the constitutionally-sound clear and present danger standard.

2. Freedom of Association and SelfOrganization SEC. 17. Human Security Act: SEC. 17. Proscription of Terrorist Organizations, Association, or Group of Persons. -- Any organization, association, or group of persons organized for the purpose of engaging in

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The CPR, insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID

Permit Application  There is need to address the situation adverted to by petitioners where mayors do not act on applications for a permit and when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed.

terrorism, or which, although not organized for that purpose, actually uses the acts to terrorize mentioned in this Act or to sow and create a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand shall, upon application of the Department of Justice before a competent Regional Trial Court, with due notice and opportunity to be heard given to the organization, association, or group of persons concerned, be declared as a terrorist and outlawed organization, association, or group of persons by the said Regional Trial Court.

Chapter IX. FREEDOM of EXPRESSION

including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

3. Movie Censorship Gonzales vs. Kalaw Katigbak (1985): Facts: Gonzales was the producer of the movie Kapit sa Patalim w/c the Board of Review for Motion Pictures and Televisions classified as fit “For Adults Only.”

People vs. Ferrer (1972): The right to associate is not absolute. Sec. 2 (5), Art 9-B. 1987 Constitution. The right to self-organization shall not be denied to government employees. Sec. 8, Art. 3, 1987 Constitution. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. par. 2, Sec. 3(2), Art. 13, 1987 Constitution. It shall guarantee the rights of all workers to selforganization, collective bargaining and negotiations, and peaceful concerted activities,

Held: Here the Court held that the power of the Board is limited to the classification of films. For freedom of expression is the rule and restrictions the exception. Censorship is allowable only under the clearest proof of a clear and present danger of a substantive evil to public safety, morals, health or any other legit public interest. 1) There should be no doubt what is feared may be traced to the expression complained of. 2) Also, there must be reasonable apprehension about its imminence. It does not suffice that the danger is only probable.

4. Broadcast Media

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3.

I.

NON-ESTABLISHMENT CLAUSE A. CONCEPT B. BASIS C. ACTS NOT PERMITTED BY THE ESTABLISHMENT CLAUSE D. ACTS PERMITTED BY THE ESTABLISHMENT CLAUSE E. TEST II. FREE EXERCISE CLAUSE A. DUAL ASPECT B. LAWS JUSTIFIED UNDER THE FREE EXERCISE CLAUSE III. TESTS A. CLEAR AND PRESENT DANGER TEST B. COMPELLING STATE INTEREST TEST C. CONSCIENTIOUS OBJECTOR TEST Art. III, Sec. 5. No law shall be made respecting an establishment of religion; or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

I.

Glassroth vs. Moore, 335 F.3d 1282 (11th Cir. 2003): Display of granite monument of 10 commandments in front of a courthouse is unconstitutional for being is unmistakably nonsecular. Nothing in its setting de-emphasizes its religious nature. It engenders in viewers a sense that Christianity is endorsed by the government. 4.

Mandatory religious subjects or prohibition of secular subjects (evolution) in schools (Epperson vs. Arkansas)

5.

Mandatory bible reading in school (a form of preference for belief over non-belief) (School District vs. Schempp)

6.

Word “God” in the Pledge of Allegiance

Newdow vs. US (2003): Mandatory recitation in school of such a Pledge of Allegiance would tend to discriminate against students who are atheists.

D. Acts Permitted by the Establishment Clause 1. Tax exemption

Non-establishment Clause

A. Concept The clause prohibits excessive government entanglement with, endorsement or disapproval of religion (Victoriano v. Elizalde Rope Workers Union 1974, Lynch v. Donnelly, 465 US 668 (1984) O'Connor, J., concurring); Allegheny County v. Greater Pittsburg ACLU 1989).

B. Basis Rooted in the separation of Church and State (Sec. 2(5), Art. 9-C; Sec. 5(2), Sec. 29(2) Art. 6, 1987 Consti).

C. Acts NOT permitted establishment Clause

Religious displays in public spaces

by

Sec. 28 (3), Art. 6. 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. 2. Operation of sectarian schools Sec. 4(2), Art. 14. Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of which is owned by such citizens…

Non-

1.

Prayer and Bible-reading in public schools (Engel v. Vitale 1967; Abington School District v. Schemp 1963)

2.

Financial subsidy for parochial schools (Lemon vs. Kurtzman)

3. Religious instruction in public schools Sec. 3(3), Art. 14. At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or

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Civil Code, Art. 359. The government promotes the full growth of the faculties of every child. For this purpose, the government will establish, whenever possible: (1) Schools in every barrio, municipality and city where optional religious instruction shall be taught as part of the curriculum at the option of the parent or guardian.xxx 4. Public aid to religion Sec. 29 (2), Art. 6. 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. 5. Postage stamps depicting Philippines as the site of a significant religious event Aglipay vs. Ruiz, (64 Phil. 201): Postage stamps which promote a Catholic event are constitutional. The benefit to religious sect is incidental to promotion of Philippines as a tourist destination. 6. Government sponsorship of town fiestas. Traditions which used to be purely religious but have now acquired secular character are permissible (Garces vs. Estenzo) 7. Book lending program for students in parochial schools. The benefit redounds to students and parents and not to any particular sect. (Board of Education vs. Allen, 392 U.S. 236) 8. Display of crèche in a secular setting Lynch vs. Donnely, (1984): Crèche is displayed in a secular manner, and merely depicts the origins of the holiday. The Constitution mandates accommodation and not merely tolerance. Instead of an absolutist approach, court inquires if the law or conduct has a secular purpose.

9. Financial support for secular academic facilities Tilton vs. Richardson, (403 U.S. 672): WON a law that grants financial support for expansion of educational facilities in parochial schools is constitutional. HELD: Yes, secular purpose – facilities to be used for secular activities. The facilities built here were a library and a science center. 10. Exemption from zoning requirements to accommodate unique architectural features of religious buildings Martin vs. Corporation of the Presiding Bishop, (434 Mass. 141): WON zoning law giving exemption to religious sect (Mormons building a tall pointed steeple) is constitutional. HELD: Yes, court may not determine whether architectural features are necessary for a particular religion, e.g. steeple pointing upwards into heaven for Mormons.

E. Test Lemon vs. Kurtzman, (403 U.S. 602): Lemon Test 1. Statute must have a secular legislative purpose. 2. Primary effect must be one that neither advances nor inhibits religion. 3. Must not foster excessive entanglement between government and religion.

II. Free Exercise Clause A. Dual Aspect 1. Freedom to believe - absolute 2. Freedom to act on one’s belief – subject to regulation

B. Laws Justified under Free Exercise Clause 1. Exemption from flag salute Ebralinag vs. Division Superintendent of Schools of Cebu (1993): Conscientious Objectors cannot be compelled to salute the flag on pain of being dismissed from one's job or of being expelled from school.

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approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.

Chapter X. FREEDOM of RELIGION

2. Freedom to propagate religious doctrines American Bible Society vs. City of Manila (1957):

Chapter X. FREEDOM of RELIGION

health or any other legitimate interest, that the state has a right to prevent.

B. Compelling State Interest Test (from a benevolent neutrality stance)

The power to tax the exercise of the privilege is the power to control or suppress its enjoyment. Those who can tax the exercise of religious practice can make its exercise so costly as to deprive it of the resources necessary for its maintenance.

1. Determine sincerity and centrality of claimed religious belief and practice 2. Compelling state interest must override religious belief and practice 3. The means adopted in pursuing its interest is the least restrictive to religious freedom

3. Exemption from union shop

Estrada vs. Escritor (2003):

Victoriano vs. Elizalde Rope Workers Union (1974):

Although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests.

Neither does the law constitute an establishment of religion. It has been held that in order to withstand objections based on this ground, the statute must have a secular purpose and that purpose must not directly advance or diminish the interest of any religion. Congress acted merely to relieve persons of the burden imposed by union security agreements. The free exercise of religious profession or belief is superior to contract rights.

4. Non-disqualification from local government office Pamil vs. Teleron (1978): For lack of votes, law disqualifying religious leaders from public office is held valid. As per free exercise clause, it is invalid for it requires a religious test for qualification. Dean Pangalangan: There should be no distinction between ordinary believer and the Pope; if the former can hold office, why not the latter.

III. Tests A. Clear and Present Danger Test Ebralinag vs. Div. Superintendent: The existence of a grave and present danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public

C. Conscientious Objector Test 1. Conscientiously opposed to war in any form. 2. Opposition is based upon religious training and belief. 3. Objection is sincere. (See Cassious Clay vs. US) Note: Meaning of religious training and belief: WON it is sincere and meaningful and occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God. (US vs. Seeger, 380 US 163). This expands the meaning of religion to cover not just recognized sects but also personal beliefs akin to traditional religion.

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Chapter XI. LIBERTY of ABODE and TRAVEL

Chapter XI. Liberty of Abode and Travel

police chief to restrain the liberty of abode of citizens of the Philippines.

I. LIBERTY OF ABODE II. RIGHT TO TRAVEL III. RIGHT TO RETURN TO ONE’S COUNTRY

II. Right to Travel Manotok vs. CA (1986):

I.

Liberty of Abode

The right of the individual is necessarily subject to reasonable restraint by general law for the common good. The Liberty of the citizens may be restrained in the interest of the public health, or of the public order and safety, or otherwise within the proper scope of the police power.

RIGHT NOT ABSOLUTE: The Constitutional Right to Travel under Sec. 5, Art. IV of the 1973 Consitution is not an Absolute Right, and can only be impaired upon lawful order of the court, or when necessary in the interest of national security, public safety or public health. Releasing the petitioner on bail and that as a condition, he make himself available at all times is a valid restriction on his right to travel. To allow him to travel, especially abroad will make the order of the court nugatory as the court's jurisdiction cannot extend beyond the Philippines.

None of the rights of the citizen can be taken away except by due process of law.

III. Right to Return to One’s Country

Rubi vs. Provincial Board (1919): "Liberty" as understood in democracies, is not license; it is "Liberty regulated by law."

The government's measure in relocating the Manguianes, a nomadic people with a wayfaring life and without permanent individual property is necessary both in the interest of the public as owner of the lands about which they are roving and for the proper accomplishment of the purposes and objectives of the government. For as people accustomed to nomadic habit, they will always long to return to the mountains and follow a wayfaring life, and unless a penalty is provinced for, you can not make them live together and the noble intention of the Government of organizing them politically will come to naught. Furthermore, their relocation (and the imposition that they are not allowed to emigrate to some other places under penalty of imprisonment) is a proper restraint to their liberty, they being taught and guided in Tigbao to improve their living conditions, and improve their education. In short, everything is being done from them in order that their advancement in civilization and material prosperity may be assured. Villavicencio vs. Lukban (1919): The executive of a municipality does not have the right to force citizens of the Philippine Islands to change their domicile from one locality to another. Law defines power, and there is no law nor regulation that allows a mayor or a

Marcos vs. Manglapus (1989): The threats to the government, to which the return of the Marcoses has been viewed to provide a catalytic effect, have not been shown to have ceased. The President has unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. One of her duties is to protect and promote the the interest and welfare of the people. Her decision to bar the return of the Marcoses and subsequently, the remains of Mr. Marcos at the present time and under present circumstances is in compliance with this bounden duty.

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Chapter XII. RA 9372: HUMAN SECURITY ACT

Chapter XII. RA 9372: Human Security Act* RELEVANT PROVISIONS VIS-À-VIS CONSTITUTIONAL GUARANTEES CRITICISM If terrorism is defined by result, then how can a conspiracy to commit the Section 3 offense arise?

Surveillance of suspects and interception and recording of communications, § 7

ART. III. SEC. 3. 1987 CONSTITUTION. 1. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. 2. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.



Upon written order of the Court of Appeals, “The provisions of RA 4200 to the contrary notwithstanding” Intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment of intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association or group of persons or of any person charged with or suspected of the crime of terrorism or of conspiracy to commit terrorism. Proscription of Terrorist Organizations, Association or Group of Persons, § 17 

Any organization, association or group of persons organized for the purpose of engaging in terrorism, or which although not organized for this purpose, actually uses the acts to terrorize shall, upon application of the Department of Justice before a competent Regional Trial Court, with due notice and opportunity to be heard given to the organization, association or group of persons concerned, be declared as a terrorist and outlawed organization, association, or group of persons by the court.

Note: “to terrorize” ≠ to commit the crime of terrorism? Periods of Detention without Judicial (sic) Warrant of Arrest, §18 

The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding, any police or law enforcement personnel, who, having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall, without incurring any criminal liability for delay in the delivery of detained persons

ART. III. SEC. 4. 1987 CONSTITUTION. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. ART. III. SEC. 8. 1987 CONSTITUTION. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. ART. III. SEC. 18. 1987 CONSTITUTION. 1) No person shall be detained solely by reason of his political beliefs and aspirations. ART. III. SEC. 1. 1987 CONSTITUTION. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

ART. 125., REVISED PENAL CODE Delay in the delivery of detained persons to the proper judicial authorities. — The penalties provided in the next preceding article

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REPUBLIC ACT 9327 Conspiracy to Commit Terrorism, § 4

to the proper judicial authorities, deliver said charged or suspected person to the proper judicial authority within a period of three (3) days counted from the moment the said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said police, or law enforcement personnel. 

Periods of Detention in the Event of an Actual or Imminent Terrorist Attack, §19



“suspects” may be detained for more than 3 days without the written approval of the Human Rights Commission or judge of the nearest court.

Chapter XII. RA 9372: HUMAN SECURITY ACT

shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of; twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent.



Note: Law is silent as to the MAXIMUM PERIOD OF DETENTION Restriction on Travel, §26 o o

o

Situation contemplated: Bail is granted because “evidence of guilt is not strong” Court may, upon application of the prosecution, limit the right to travel of the accused to within the municipality or city where he resides or where the case is pending, in the interest of national security and public safety; May also be placed under house arrest by order of the court at his or her usual place of residence; while under house arrest, he/she may not use telephones, cellphones, emails, computers, the internet or other means of communication with people outside the residence until otherwise ordered by the court.

_____________________________________________ * Acknowledgment: Thank you to Prof. Theodore Te for allowing us to substantially lift the materials from his report on the HSA.

ART. III. SEC. 13. 1987 CONSTITUTION. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. ART. III. SEC. 14. 1987 CONSTITUTION. 1. XXX 2. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved,

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BATAS PAMBANSA BLG. 880 AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF THEIR RIGHT PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT FOR OTHER PURPOSES Section 1. Title - This Act shall be known as "The Public Assembly Act of 1985." Section 2. Declaration of policy - The constitutional right of the people peaceably to assemble and petition the government for redress of grievances is essential and vital to the strength and stability of the State. To this end, the State shall ensure the free exercise of such right without prejudice to the rights of others to life, liberty and equal protection of the law. Section 3. Definition of terms - For purposes of this Act: (a) "Public assembly" means any rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place for the purpose of presenting a lawful cause; or expressing an opinion to the general public on any particular issue; or protesting or influencing any state of affairs whether political, economic or social; or petitioning the government for redress of grievances. The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall be governed by local ordinances: Provided, however, That the declaration of policy as provided in Section 2 of this Act shall be faithfully observed. The definition herein contained shall not include picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227. (b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza, square, and/or any open space of public ownership where the people are allowed access. (c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same. (d) "Modification of permit" shall include the change of the place and time of the public assembly, rerouting of the parade or street

Chapter XII. BP 880

march, the volume of loud-speakers or sound system and similar changes. Section 4. Permit when required and when not required - A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a governmentowned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act. Section 5. Application requirements - All applications for a permit shall comply with the following guidelines: (a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used. (b) The application shall incorporate the duty and responsibility of applicant under Section 8 hereof. (c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly. (d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building. Section 6. Action to be taken on the application (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health. (b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application

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(c)

(d)

(e)

(f)

(g)

(h) (i)

was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed. If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter. The action on the permit shall be in writing and served on the application within twentyfour hours. If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law. In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall, be immediately executory. All cases filed in court under this Section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank. In all cases, any decision may be appealed to the Supreme Court. Telegraphic appeals to be followed by formal appeals are hereby allowed.

Section 7. Use of public thoroughfare - Should the proposed public assembly involve the use, for an appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or any official acting in his behalf may, to prevent grave public inconvenience, designate the route thereof which is convenient to the participants or reroute the vehicular traffic to another direction so that there will be no serious or undue interference with the free flow of commerce and trade. Section 8. Responsibility of applicant - It shall be the duty and responsibility of the leaders and organizers of a public assembly to take all

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reasonable measures and steps to the end that the intended public assembly shall be conducted peacefully in accordance with the terms of the permit. These shall include but not be limited to the following: (a) To inform the participants of their responsibility under the permit; (b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful activities of the public assembly; (c) To confer with local government officials concerned and law enforcers to the end that the public assembly may be held peacefully; (d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and (e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with the rights of other persons not participating in the public assembly. Section 9. Non-interference by law enforcement authorities - Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meter away from the area of activity ready to maintain peace and order at all times. Section 10. Police assistance when requested It shall be imperative for law enforcement agencies, when their assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this end, law enforcement agencies shall observe the following guidelines: (a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance" as herein defined; (b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards; (c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended by actual violence or serious threats of

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violence, property.

or

deliberate

Chapter XII. BP 880

destruction

of (b)

Section 11. Dispersal of public assembly with permit - No public assembly with a permit shall be dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as follows: (a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance; (b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed; (c) If the violence or disturbances prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse; (d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as amended: (e) Isolated acts or incidents of disorder or branch of the peace during the public assembly shall not constitute a group for dispersal. Section 12. Dispersal of public assembly without permit - When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed. Section 13. Prohibited acts - The following shall constitute violations of this Act: (a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that written permit where a permit is required from the office concerned, or the use of such permit for such purposes in any place other than those set out in said permit: Provided, however, That no person can be punished

(c)

(d)

(e)

(f) (g)

or held criminally liable for participating in or attending an otherwise peaceful assembly; Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor or any other official acting in his behalf. The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor or any official acting in his behalf; Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly; The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly; Acts in violation of Section 10 hereof; Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the occasion thereof; 1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like; 2. the carrying of a bladed weapon and the like; 3. the malicious burning of any object in the streets or thoroughfares; 4. the carrying of firearms by members of the law enforcement unit; 5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound systems.

Section 14. Penalties - Any person found guilty and convicted of any of the prohibited acts defined in the immediately preceding Section shall be punished as follows: (a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to six months; (b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be punished by imprisonment of six months and one day to six years; (c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months and one day to six years without prejudice to prosecution under Presidential Decree No. 1866; (d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by imprisonment of one day to thirty days. Section 15. Freedom parks - Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable "freedom park"

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or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity of this Act. Section 16. Constitutionality - Should any provision of this Act be declared invalid or unconstitutional, the validity or constitutionality of the other provisions shall not be affected thereby. Section 17. Repealing clause - All laws, decrees, letters of instructions, resolutions, orders, ordinances or parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended, or modified accordingly. Section 18. Effectivity - This Act shall take effect upon its approval. Approved, October 22, 1985.

Chapter XII. BP 880

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Chapter XIII. Latest Cases Salonga vs. Daniel Smith (February 2009): Petitioners contend that these undertakings violate another provision of the Constitution, namely, that providing for the exclusive power of this Court to adopt rules of procedure for all courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the transfer of custody of an accused to a foreign power is to provide for a different rule of procedure for that accused, which also violates the equal protection clause of the Constitution (Art. III, Sec. 1.).The Court finds no violation of the Constitution because there is a substantial basis for a different treatment of a member of a foreign military armed forces allowed to enter our territory and all other accused. The rule in international law is that a foreign armed forces allowed to enter one’s territory is immune from local jurisdiction, except to the extent agreed upon. The Status of Forces Agreements involving foreign military units around the world vary in terms and conditions, according to the situation of the parties involved, and reflect their bargaining power. But the principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the sending State only to the extent agreed upon by the parties.12 As a result, the situation involved is not one in which the power of this Court to adopt rules of procedure is curtailed or violated, but rather one in which, as is normally encountered around the world, the laws (including rules of procedure) of one State do not extend or apply—except to the extent agreed upon—to subjects of another State due to the recognition of extraterritorial immunity given to such bodies as visiting foreign armed forces.

Soriano vs. Laguardia (29 April 2009): There is nothing in petitioner’s statements subject of the complaints expressing any particular religious belief, nothing furthering his avowed evangelical mission. The fact that he came out with his statements in a televised bible exposition program does not automatically accord them the character of a religious discourse. Plain and simple insults directed at another person cannot be elevated to the status of religious speech.

Chapter XIII. LATEST CASES

Villanueva vs. Philippine Daily Inquirer (15 May 2009) The rule on privileged communication had its genesis not in the nation’s penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press. As early as 1918, in United States v. Cañete,23 this Court ruled that publications which are privileged for reasons of public policy are protected by the constitutional guaranty of freedom of speech.24 In the instant case, there is no denying that the questioned articles dealt with matters of public interest. These are matters about which the public has the right to be informed, taking into account the very public character of the election itself. For this reason, they attracted media mileage and drew public attention not only to the election itself but to the candidates. As a political candidate, petitioner consequently assumed the status of a public figure. But even assuming a person would not qualify as a public figure, it would not necessarily follow that he could not validly be the subject of a public comment. For he could; for instance, if and when he would be involved in a public issue. If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved or because in some sense the individual did not voluntarily choose to become involved. The public’s primary interest is in the event; the public focus is on the conduct of the participant and the content, effect and significance of the conduct, not the participant’s prior anonymity or notoriety.

Pates vs. COMELEC (June 2009) Procedural rules should be treated with utmost respect and due regard since they are designed to facilitate the adjudication of cases to remedy the worsening problem of delay in the resolution of rival claims and in the administration of justice. The requirement is in pursuance to the bill of rights inscribed in the Constitution which guarantees that "all persons shall have a right to the speedy disposition of their before all judicial, quasi-judicial and administrative bodies," the adjudicatory bodies and the parties to a case are thus enjoined to abide strictly by the rules. While it is true that a litigation is not a game of technicalities, it is equally true that every case must be prosecuted in accordance with the prescribed procedure to ensure an orderly and speedy administration of justice. There have

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Chapter XIII. LATEST CASES

People vs. Lopez (26 September 2008): There are eight (8) instances when a warrantless search and seizure is valid, to wit: (1) consented searches; (2) as an incident to a lawful arrest; (3) searches of vessels and aircraft for violation of immigration, customs, and drug laws; (4) searches of moving vehicles; (5) searches of automobiles at borders or constructive borders; (6) where the prohibited articles are in "plain view;" (7) searches of buildings and premises to enforce fire, sanitary, and building regulations; and (8) "stop and frisk" operations.

Quinto vs. Comelec (01 December 2009): The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.

ON TIMBER LICENSE AND THE NON-IMPAIRMENT CLAUSE Alvarez substituted by Gozun (DENR) vs. PICOP (03 December 2009): A timber license is not a contract within the purview of the nonimpairment clause is edifying. Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protected by the due process clause of the Constitution because timber license is an instrument by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. A timber license is not a contract within the purview of the due process clause; it is only a license or a privilege, which can be validly withdrawn whenever dictated by public interest or public welfare as in this case. A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal, state, or municipal, granting it and the person to whom it is granted; neither is it a property or a property right, nor does it create a vested right; nor is it taxation. The granting of license does not create irrevocable rights, neither is it property or property rights.

Sison vs. PNCC (04 December 2009): (NOTE: Also involves Remedial Law) Unquestionably, the Court has the power to suspend procedural rules in the exercise of its inherent power, as expressly recognized in the Constitution, to promulgate rules concerning ‘pleading, practice and procedure in all courts.’ In proper cases, procedural rules may be relaxed or suspended in the interest of substantial justice, which otherwise may be miscarried because of a rigid and formalistic adherence to such rules. x x x Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. x x x Time and again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require.

- end of Constitutional Law II -

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been some instances wherein this Court allowed a relaxation in the application of the rules, but this flexibility was "never intended to forge a bastion for erring litigants to violate the rules with impunity." A liberal interpretation and application of the rules of procedure can be resorted to only in proper cases and under justifiable causes and circumstances.

POLITICAL LAW REVIEWER

TABLE of CONTENTS

PUBLIC INTERNATIONAL LAW Table of Contents

Chapter II. Actors of International Law ......126 I. Subjects and Objects of International Law 126 A. States............................................126 B. Individuals .....................................128 C. International Organizations (IO)....128 Chapter III. The Norms of International Law .......................................................................129 I. Concepts ...........................................129 II. Sources of International Law ............129 A. Treaty as Source of Law...............129 B. Customary International Law ........129 C. General Principle of Law...............131 D. Subsidiary Source: Judicial Decisions 132 E. Subsidiary Source: Publicists .......132 F. Other Sources...............................132 III. Status of Norms ................................132 A. Jus Cogens or Peremptory Norms132 B. Erga Omnes Norms ......................132 Chapter IV. The Law of Treaties .................133 I. Definition ...........................................133 II. Requisites for Validity........................133 A. Treaty Making Capacity ................133 B. Competence of the Representative/Organ Making the Treaty 133 C. Parties Must Freely Give Consent 133 D. Object and Subject Matter Must be Lawful ....................................................133 E. Ratification in Accordance with the Constitutional Process of the Parties Concerned .............................................133 III. The Treaty-Making Process ..............133 A. Negotiation....................................133 B. Adoption (Article 9, VCLOT) .........133 C. Authentication of the Text (Article 10, VCLOT) .................................................134

D. Expression of Consent to be bound by the Treaty (Article 11, VCLOT)......... 134 E. Registration with the UN............... 135 IV. Philippine Law................................... 135 V. Amendment or Modification of Treaty 135 VI. Reservations ..................................... 135 VII. Invalid Treaties ............................. 135 VIII. Grounds for Termination............... 135 Chapter V. International Responsibility..... 137 I. Breach............................................... 137 A. Is Fault or Malice Necessary? ...... 137 B. The Standard of Diligence ............ 137 II. Attribution .......................................... 137 A. Direct and Indirect Attribution ....... 138 B. Conduct Attributable to the State . 138 III. Consequences of State Responsibility 138 A. Duty to Make Reparation.............. 138 B. Forms of Reparation..................... 138 IV. Circumstances Precluding Wrongfulness 139 V. Diplomatic Protection (“Espousal of Claim”) ....................................................... 139 A. Material Dates............................... 140 B. Exhaustion of Local Remedies ..... 140 Chapter VI. Sovereignty and Jurisdiction . 141 I. Sovereignty ....................................... 141 A. Characteristics .............................. 141 B. Sovereign Equality of States ........ 141 C. Corollaries..................................... 141 II. Jurisdiction ........................................ 141 A. Criminal Jurisdiction ..................... 141 B. Reserved Domain of Domestic Jurisdiction ............................................ 141 C. Doctrine of State Immunity ........... 141 Chapter VII. The Law of the Sea ................. 143 I. Concepts ........................................... 143 A. Distinguished from Maritime or Admiralty Law........................................ 143 B. Baseline ........................................ 143 II. Waters............................................... 143 A. Internal Waters ............................. 144 B. Territorial Waters .......................... 144 C. Contiguous Zone .......................... 144 D. Exclusive Economic Zone ............ 144 E. High Seas ..................................... 145 III. Archipelagic State ............................. 146 IV. Continental Shelf............................... 146 A. Limits of the Continental Shelf...... 148

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Chapter I. Preliminaries ...............................124 I. Public International Law (PIL) ...........124 II. Contra-Distinctions............................124 III. Relationship between PIL and Municipal Law 125 A. Monist View...................................125 B. Dualist View ..................................125 C. Monist-Naturalist View ..................125 D. Coordinationist View .....................125 IV. The Philippine Doctrine .....................125 A. Doctrine of Incorporation ..............125 B. Doctrine of Transformation ...........125

B. Rights of the Coastal State over the Continental Shelf ...................................148 C. Rights with Respect to Continental Shelf vs. EEZ.........................................148 V. Settlement of Disputes ......................149 A. Peaceful Settlement of Disputes ..149 B. Compulsory Settlement of Disputes 149 C. Jurisdiction of Court or Tribunal....149 D. Composition of the International Tribunal for the Law of the Sea (ITLOS)149 E. Jurisdiction of ITLOS ....................149 F. Applicable Laws in Settlement of Disputes by the ITLOS ..........................149 Chapter VIII. The Use of Force in International Law..........................................150 I. Jus Ad Bellum v Jus in Bello .............150 II. Rules on the Use of Force ................150 A. General Rule.................................150 B. Exceptions ....................................150 Chapter IX. International Human Rights Law .......................................................................152 I. Definition of Human Rights ...............152 II. Classification of Human Rights .........152 III. “Internationalization” of Human Rights 152 IV. Sources of Human Rights .................152 A. Convention....................................152 B. Custom..........................................152 V. International Bill of Human Rights.....153 A. Universal Declaration of Human Rights (UDHR).......................................153 B. International Covenant on Civil and Political Rights (ICCPR) ........................153 C. International Covenant on Economic, Social and Cultural Rights (ICESCR) ....154 D. Common Provisions in the ICCPR and the ICESCR and differences ..........154 VI. Specific Norms in Human Rights ......154 A. Genocide.......................................154 B. Torture ..........................................155 C. Rights of the Child ........................155 D. Law against Discrimination ...........155 E. Refugee Law.................................156 Chapter X. International Humanitarian Law .......................................................................157 I. Definition of “Armed Conflict” ............157 II. Fundamental Principles of IHL..........157 III. Application of IHL ..............................158 IV. The Four Geneva Conventions and the Two Additional Protocols ...........................158 V. Application of the Four Geneva Conventions and the Two Additional Protocols ....................................................158 VI. Definition of Concepts and Phrases..159 A. Combatants...................................159

TABLE of CONTENTS

B. Hors de combat ............................ 159 C. Protected Persons ........................ 159 D. Martens clause ............................. 159 E. Military Objective .......................... 159 F. Belligerency Status ....................... 159 VII. IHL and Weapons of Mass Destruction................................................. 160 VIII. IHL and Non-International Armed Conflict 160 A. Common Article 3 and Protocol II. 160 B. Control-of-Territory ....................... 161 C. War of National Liberation ............ 161 IX. Neutrality ........................................... 161 X. Protective Emblems .......................... 161 A. Who May Use ............................... 162 B. Misuse of the Emblem .................. 162 C. Punishment................................... 162 XI. The International Criminal Court ....... 162 A. Crimes within the Court’s Jurisdiction 162 B. Modes of Incurring Criminal Liability 163 C. Sources of Law ............................. 163 D. Other Key Concepts ..................... 163 E. Landmark Cases .......................... 163 Chapter XI. Diplomatic Intercourse ............ 165 I. Agents of Diplomatic Intercourse...... 165 A. Head of State................................ 165 B. The Foreign Office........................ 165 C. The Diplomatic Corps ................... 165 II. Functions and Duties ........................ 165 III. Diplomatic Immunities and Privileges165 A. Personal Inviolability..................... 165 B. Inviolability of Premises and Archives 166 C. Right of Official Communication ... 166 D. Immunity from Local Jurisdiction .. 166 E. Exemption from Taxes and Customs Duties .................................................... 166 IV. Consular Relations............................ 167 A. Ranks............................................ 167 B. Necessary Documents ................. 167 C. Immunities and Privileges............. 167 Chapter XII. Recent International Law Issues in Philippine Law.......................................... 168 I. Daniel Smith and the Visiting Forces Agreement ................................................. 168 II. The Constitutionality of the Baselines Law 169 III. VIOLENCE AGAINST WOMEN (VAW) AS A FORM OF TORTURE ...................... 169 Appendix 1 - Straight and Normal Baselines ....................................................................... 171 Appendix 2 - Continental Shelf and the Maritime Zones............................................. 171

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Prof. Jay Batongbacal Faculty Editor

Ma. Florence Therese Martirez Maricris Real Lead Writers

POLITICAL LAW Jennifer Go Subject Head

ACADEMICS COMMITTEE Kristine Bongcaron Michelle Dy Patrich Jerome Leccio Committee Heads

PRINTING & DISTRIBUTION Kae Guerrero

DESIGN & LAYOUT Pat Hernandez Malds Menzon Viktor Fontanilla Rania Joya

LECTURES COMMITTEE Micha Arias Cams Maranan Anj Sandalo Committee Heads Katz Manzano Mary Rose Beley Sam Nuñez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers

BAR CANDIDATES WELFARE Da Salamat

LOGISTICS Cha Mendoza

SECRETARIAT COMMITTEE Jill Hernandez Head Loraine Mendoza Faye Celso Mary Mendoza Joie Bajo Members

Chapter I. Preliminaries I. PUBLIC INTERNATIONAL LAW II. CONTRA-DISTINCTIONS III. RELATIONSHIP BETWEEN PIL MUNICIPAL LAW A. MONIST VIEW B. DUALIST VIEW C. MONIST-NATURALIST VIEW D. COORDINATIONIST VIEW IV. THE PHILIPPINE DOCTRINE A. DOCTRINE OF INCORPORATION B. DOCTRINE OF TRANSFORMATION

I.

AND

Public International Law (PIL)

Traditionally, PIL is understood to be the body of principles, norms and processes which regulates the relations of states and other international persons, and governs their conduct affecting the interests of States (MAGALLONA). Other jurists, however, have defined PIL as "a continuing process of authoritative decisions by authorized decision-makers, when authority and power coincide (HIGGINS). It is not just the reference to the trend of past decisions which are termed 'rules' but a matrix of norms and process that come into being through the interaction of authority and international reality (MAGALLONA).

II. Contra-Distinctions Municipal Law deals with the conduct or status of individuals, corporations, and other ‘private’ entities within states. PIL may be distinguished therefrom in that it prescribes rules and processes that govern the relations of states with each other, and the rights of other entities insofar as they implicate the community of states (note: whom it governs). (vs. PIL, Asked 1 time in the Bar)) Private International Law is that part of the laws of each State (conflict of laws rules) which determines whether in dealing with a factual situation involving a foreign element, the law or judgment of some other State will be recognized or applied in the forum (SALONGA). Unlike PIL which is international in character and origin, private international law is national or municipal in character (note: character of norms being applied). It even involves the recognition and enforcement of a foreign judgment from another jurisdiction.

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PUBLIC INTERNATIONAL LAW TEAM

Chapter I. PRELIMINARIES

PUBLIC INTERNATIONAL LAW

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PIL

and

Although distinct, PIL and Municipal are interrelated. Below are the four theoretical views on how they are related (CARTER AND TRIMBLE):

A. Monist View International and municipal legal systems are fundamentally part of one legal order. This view considers international law to be superior, with municipal law being a mere subset of international law. Thus, international norms are applicable within municipal systemseven without some positive act of the State.

B. Dualist View International law and municipal law are separate systems. Only those problems affecting international relations are within the scope of international law. Thus, before an international norm can have an effect within a municipal legal system, that norm must be transformed, or adopted into the municipal system through a positive act by a State organ. (Exception: Customary International Law and General Principles of International Law)

C. Monist-Naturalist View PIL is superior to municipal law, and that both systems are but a part of a higher system of natural law.

D. Coordinationist View International law and municipal law operate in different spheres, but municipal law is (generally) obliged to be in conformity with international law.

IV. The Philippine Doctrine A. Doctrine of Incorporation The Philippines “adopts the generally accepted principles of international law as part of the law of the land” (Art.II, Sec.2, Constitution). These “generally accepted principles of international law” refer to norms that are binding upon all states (international customs and general principles of international law). Though these principles do not become part of the Constitution, they nonetheless become part of the Philippine legal system, and may be subject to judicial notice as law (MAGALLONA). 

Secretary of Justice vs. Lantion, (2000)

“Under the doctrine of incorporation, rules of international law form part of the law of the land, and no further legislative action is needed to make such rules applicable in the domestic sphere.”

B. Doctrine of Transformation The rule is different with respect to treaties. They have to be transformed in order to be part of Philippine law. A treaty is “transformed” when a treaty is ratified after it has been concurred in by the Senate (Art.VII, Sec.21, Constitution). After ratification, a treaty shall be deemed as if legislated by our Legislature. Note: Executive Agreements shall be effective in the Philippines after they are ratified by the Chief Executive, without need for Senate concurrence or ratification (BERNAS).

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III. Relationship between Municipal Law

Chapter I. PRELIMINARIES

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Chapter II. ACTORS of INTERNATIONAL LAW

entering into legal relations with other states(Montevideo Convention on the Rights and Duties of States, Art.1 [1933]).

Chapter II. Actors of International Law SUBJECTS AND OBJECTS INTERNATIONAL LAW A. STATES 1. REQUISITE ELEMENTS i. PEOPLE ii. TERRITORY iii. GOVERNMENT iv. INDEPENDENCE OR SOVEREIGNTY 2. RECOGNITION B.INDIVIDUALS C.INTERNATIONAL ORGANIZATIONS

OF

1. Requisite Elements i.

ii.

I.

Subjects and Objects of International Law

Subjects of International Law refer to entities:  capable of possessing international rights and duties; and  having the capacity to maintain these rights by bringing international claims (Reparations for Injuries Advisory Opinion, 1949). A State is a quintessential example of a subject of international law. By contrast, an Object of International Law is the person or thing in respect of which rights are held and obligations are assumed by the subject. It is, therefore, not directly governed by the rules of international law. Its rights may be asserted and its responsibilities imposed indirectly, through the instrumentality of an intermediate agency (the subject). For example, individuals are objects in respect of which human rights obligations are imposed upon States. When an individual’s human rights is violated by another State, the aggrieved person’s State of nationality may “espouse” his claim and invoke the erring state’s responsibility (see: Discussion on Diplomatic Protection in Chapter 5, Part V). Notwithstanding this distinction, both subjects and objects are considered actors in international law. They are:

A. States States remain the most important actors in international law. A state is defined as a group of people, more or less numerous, permanently living in a definite territory, under an independent government organized for political ends and capable of

People The term “people” refers to an aggregate of individuals of both sexes who live together as a community despite racial or cultural differences. Although no minimum number is provided, they should be permanent, and sufficient to maintain and perpetuate themselves. Territory A state must exercise control over a certain area. It need not be exactly defined by metes and bounds, so long as there exists a reasonable certainty of identifying it. No minimum land area is required.

iii. Government Government is the physical manifestation of a state. Government must be organized, exercising control over and capable of maintaining law and order within its territory. Note: Under the Rules on Succession of States, even changes of entire governments do not affect the identity and personality of the state. Once statehood is established, neither invasion nor disorder alone can remove its character as a state (BROWLIE). a. “Effective” Government Although an effective government is the best evidence of the existence of a State, an effective government is not always strictly necessary (BROWLIE). The requirement of effective government is not strictly applied when the State, already long-existing, happens to undergo a period of civil strife or internal chaos due to natural disaster or invasion. Thus, with the collapse of their governments, Afghanistan and Somalia were deemed failed states, but they remained states. Further, some states were deemed states even before their governments were "very well organized" (ex. Poland, Burundi, and Rwanda).

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I.

b. Governments de facto & de jure A government de jureis a government from law, that is, one with a color of legitimacy. A government de facto is one that governs without a mandate of law. So long as it is in place, it may command obedience from the inhabitants of the occupied area.

Chapter II. ACTORS of INTERNATIONAL LAW

The practice of states has been to ignore— so far as the issue of statehood is concerned—various forms of political and emotional blackmail and interference directed against the weaker members of the community." Thus, it is sufficient for a State to possess external appearanceof capacity to enter into international relations (BROWNLIE).

The de facto ruler may suspend laws and enact new ones.

2. Recognition

The establishment of a de facto government does not by itself abolish all lawsand structures established by thedeposedgovernment.

Act by which a state acknowledges the existence of another state, government or belligerent community and indicates willingness to deal with the entity as such under international law.

Only “laws of political nature affecting political relations” are suspended ipso facto; laws that enforce public order and regulate social and commercial life remain in effect unless they are changed by the de facto sovereign. Conversely, the re-establishment of the de jure government does not void the acts of the preceding de facto government. Three kinds of de facto government: (1) Government de facto in the strict legal sense is that which usurps – either by force or the will of the majority – the legal government and maintains and control against it; (2) Government by paramount force is that which results from the occupation of a state or a part thereof by invading forces in time of war; and (3) Government established as an independent government by inhabitants of a country who rise in insurrection against the parent state. iv. Independence or Sovereignty (Asked 1 time in the Bar) Refers to the capacity to enter into relations with other states. A state must be free from outside control in conducting foreign and internal affairs. It has, however, been advanced that the fact that a State “may be acting under the direction of another State” is not of concern to international law (SALONGA).

Declaratory View vs. (Asked 1 time in the Bar).

Constitutive

View

The Declaratory View (Prevailing View) posits that recognition is a mere declaration or acknowledgement of an existing state of law and fact, legal personality having been previously conferred by operation of law (BROWNLIE). The Constitutive View (Minority View) posits that the political act of recognition is a precondition to the existence of legal rights of a state. In its logical extreme, this is to say that the very personality of a state depends on the political decision of other states (BROWNLIE). Important Doctrines:  Wilson/Tobar Doctrine(Asked 1 time in the Bar)– precludes recognition of government established by revolution, civil war, coup d’etat or other forms of internal violence until freely elected representatives of the people have organized a constitutional government (US President Woodrow Wilson, 1913 and Ecuadorian FM, 1907)  Stimson Doctine – precludes recognition of any government established as a result of external aggression (US Sec. of State Henry Stimson, 1932)  Estrada Doctrine(Asked 1 time in the Bar) – dealing or not dealing with the government established through a political upheaval is not a judgment on the legitimacy of the said government (Mexican Minister Genaro Estrada, 1930)

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Chapter II. ACTORS of INTERNATIONAL LAW

B. Individuals While States are have traditionally been deemed to be subject of international law, individuals have likewise become in some degree subjects of that law. (This will be discussed further in the Chapter on Human Rights)

C. International Organizations (IO) The status and powers of an IO is determined by agreement and not by general or customary international law. IO’s are considered subjects of international law “if their legal personality is established by their constituent instrument (charter).” Further, its constituent rights and duties, or capacities and immunities, are limited to those set forth in the treaty creating the international organization” (MAGALLONA). 1. Preconditions Personality of IO

for

International

I.

It must constitute a permanent association of states, with lawful objects, equipped with organs; II. There must be a distinction, in terms of legal powers and purposes, between the organization [and] its member states; and III. It must have legal powers that it may exercise on the internationalplane and not solely within the national systems of one or more states. 2. Capacity to Bring a Claim for Reparation 

An IO such as the United Nations (UN) must be deemed to have such powers which, though not expressly granted in its Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.

Thus, though the UN Charter did not expressly clothe the UN with the capacity to bring an international claim for reparations, the UN nevertheless possessed functional personality (Reparations for Injuries Advisory Opinion, ¶147). 

IO’s are deemed to have powers not expressly granted in their charters where these unstated powers are either  implicitly bestowed in their charters or  necessary to effect powers expressly granted.

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Effects of Recognition: 1. Diplomatic relations 2. Right to sue in courts of recognizing state 3. Right to possession of properties of predecessor in the recognizing state 4. All acts of the recognized state or government are validated retroactively, preventing the recognizing state from passing upon their legality in its own court.

Chapter III. The NORMS of INTERNATIONAL LAW



Chapter III. The Norms of International Law I. II.

CONCEPTS SOURCES OF INTERNATIONAL LAW A. TREATY AS SOURCE OF LAW B. CUSTOMARY INTERNATIONAL LAW 1. ELEMENTS 2. SCOPE 3. DUALITY OF NORMS C. GENERAL PRINCIPLE OF LAW D. SUBSIDIARY SOURCE: JUDICIAL DECISIONS E. SUBSIDIARY SOURCE: PUBLICISTS F. OTHER SOURCES III. STATUS OF NORMS A. JUS COGENS OR PEREMPTORY NORMS B. ERGA OMNES NORMS

I.

Concepts



Formal Sources vs. Material Sources Formal sources consist of the methods and procedures for the creation of rules of general application which are legally binding upon States. Material sources, upon the other hand, are the substantive evidence of the existence of the norms.



A. Treaty as Source of Law A 'treaty' means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation" (Art.2(1), Vienna Convention on the Law of Treaties (VCLOT)) 

Material sources supply the substance of the rule, while formal sources confer upon it the force of law. 

Lex lata vs. Lex ferenda Lex lata – what the law is Lex ferenda – what jurists think the law should be or will become



 II. Sources of International Law (Asked 1 time in the Bar) Primary Sources:  International Conventions, whether general or particular, establishing rules expressly recognized by the contracting states (Treaties);  International Custom, as evidence of a general custom accepted as law;  General Principles of Law recognized by civilized nations; Subsidiary Sources:  Judicial Decisions; and  Teachings of the most highly qualified publicists of the various nations (Art. 38, ICJ Statute).

Treaties, Customs and General Principles (Primary Sources) create law, while court decisions publicists’ teachings constitute evidence of what is the law. With respect to the three primary sources, the order the enumeration does not provide a hierarchy in all cases. Thus, although treaties are mentioned first, they are not ipso facto superior to customs and general principles.



Under the VCLOT, the term “treaty” includes all agreements between states, regardless of how they are called. Thus, for purposes of international law, treaties, executive agreements, exchanges of notes, etc. are all treaties. Note, however, that Philippine law makes a distinction between treaties and executive agreements. Although they are equally binding, only treaties require the concurrence of the Senate to be effective.(Art. 7, Sec. 21, 1987 Constitution) A state party to a treaty is bound to comply with the obligations it assumed under such treaty in good faith [Pacta sunt servanda](Art.26, VCLOT). Treaty Obligation is based on consent. No state may be bound by a treaty obligation unless it has so consented [Pacta tertiis nec nocet nec prosunt ](Art. 34, VCLOT). As a general rule, treaties do not bind nonparties to the treaty

Treaties shall be further discussed on the Chapter on the Law of Treaties.

B. Customary International Law Norms of international law are those that result from a general and consistent practiceof states which they follow under a sense of legal obligation. For custom to exist, it requires the concurrence of 2 elements: (1) State Practice and (2) Opinio juris.

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

Unlike treaties, customary norms are legally binding upon states regardless of whether they consent, subject to the Persistent Objector rule.

1. Elements i.

State Practice For custom to exist, the customary practice must be both consistent and general. (1) Consistency requires substantial uniformity, and not necessarily complete uniformity in practice. (2) Generality likewise does not require universality. The absence of protest could be considered evidence of the binding nature of customary practice (AKEHURST).

Acts Evidencing State Practice (HARRIS): a. Diplomatic correspondence b. Policy statements c. Press releases d. Opinions of official legal advisers e. Official manuals on legal decisions (executive decisions and practices; government comments on drafts by the ILC) f. International and national judicial decisions g. Recitals in treaties and international instruments h. Practice of international organs UN General Assembly Resolutionsare generally just recommendations. They have no binding effect under the Charter, save in limited fields like budgetary concerns. However,such resolutions may nonetheless be an evidence of state practice that is relevant in the development of custom. ii. Opinio juris sive necessitatis Refers to the belief on the part of States that a particular practice is required by law. It is the existence of opinio juris that distinguishes binding custom from mere usage, from comity, and from courtesy or protocol. Note: It is not a “maxim,” it is an element required in order for custom to come into fruition.

Chapter III. The NORMS of INTERNATIONAL LAW

2. Scope Custom may be: General  binding upon all or most statesor Particular  binding between only two or among a few states. In cases it has decided, the ICJ has indeed recognized the possibility of regional custom (Asylum Case) and of bilateral custom (Right of Passage over Indian Territory Case). Norms or Principles of Customary International Lawas Identified by the Philippine Supreme Court as forming part of Philippine Law 1. Rules and principles of land warfare and of humanitarian law under the Hague Convention and the Geneva Convention (Kuroda v. Jalandoni, 1949) 2. Pacta sunt servanda (La Chemise Lacoste v. Fernandez, 1984) 3. Human Rights as defined under the Universal Declaration of Human Rights (Reyes v. Bagatsing, 1983) 4. The principle of restrictive sovereign immunity (Sanders v. Veridiano, 1988) 5. The principle in diplomatic law that the receiving State has the special duty to protect the premises of the diplomatic mission of the sending State (Reyes v. Bagatsing, 1983) 6. The right of a citizen to return to his own country (Marcos v. Manglapus, 1989) 7. The principle that “a foreign army allowed to march through friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from criminal jurisdiction of the place”. (Raquiza v. Bradford, 1945) 8. The principle that judicial acts not of a political complexion of a de facto government established by the military occupant in an enemy territory, is valid under international law. (Montebon v. Director of Prisons, 1947) 9. The principle that private property seized and used by the enemy in times of war under circumstances not constituting valid requisition does not become enemy property and its private ownership is retained, the enemy having acquired only its temporary use. (Noceda v. Escobar, 1950) 10. The principle that a State has the right to protect itself and its revenues, a right not limited to its own territory but extending to the high seas (Asaali v. Commissioner, 1968)

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The Persistent Objector.When a State has continuously objected to a new customary norm at the time when it is yet in the process of formation, by such persistent objection the norm will not be applicable as against that State. 3. Duality of Norms It is possible for a norm of international law to exist both as a customary norm and a conventional norm(ex. The Prohibition against the Use of Force). Such norms are said to be of dual character. Norms of dual character come into being through any of the following ways: a. A treaty provision may simply restate a customary norm (as is true of many of the provisions in the VCLOT; b. A treaty provision may constitute evidence of custom; c. A treaty provision may crystallize into a customary norm. 





For a treaty provision to crystallize into custom, the provision must be normcreating. The treaty must be law-making, creating legal obligations which are not dissolved by their fulfilment. The number of parties, the explicit acceptance of rules of law, and, in some cases, the declaratory nature of the provisions produce a strong law-creating effect at least as great as the general practice considered sufficient to support a customary rule (BROWNLIE). The customary norm retains a separate identity even if its content is identical with that of a treaty norm. Thus, a state that cannot hold a state responsibility for a breach of a treaty obligation can still hold the erring state responsible for the breach of the identical customary norm (See Nicaragua vs. US Case).

Chapter III. The NORMS of INTERNATIONAL LAW

Examples: 1. Principles in Roman Law – estoppel, res judicata, res inter alios acta, prescription. When Thailand did not object to, and has in fact benefited from, the Treaty of 1904 for 50 years, it is deemed to have accepted said treaty. It is thereby precluded from questioning Annex I thereof, which showed that the Temple of Preah Vihear was within Cambodian territory (Temple of Preah Vihear Case). 2. Procedural Rules – the use of circumstantial evidence, hearsay evidence (press reports). Press reports can be used to corroborate the existence of a fact; and, when they demonstrate matters of public knowledge which have received extensive press coverage, they can be used to prove a fact to the satisfaction of the court(Nicaragua vs. US Case, ¶62-63). Circumstantial evidence is admitted as indirect evidence in all systems of law and its use is recognized by international decisions. Such circumstantial evidence, however, must consist of a series of facts or events that lead to a single conclusion.(Corfu Channel Case) 3. Substantive – duty to make reparations, principle of reciprocity, pacta sunt servanda, separate corporate personality (Barcelona Traction Case). Every breach of an engagement (international obligation) entails the obligation to make reparation. The amount of reparation required is that amount which is necessary to bring the injured party back to the situation had the wrong not occurred [The Standard of “Full” Reparations] (Chorzow Factory Case).

C. General Principle of Law Refer to those general principles in municipal law (particularly those of private law) that may be appropriated to apply to the relations of states (OPPENHEIM). Unlike custom, it does not require to be supported by state practice that is consistent and virtually uniform; it being sufficient that such principle is found in a number of legal jurisdictions (ROQUE).

4. Jurisdictional Principles – The power of a tribunal to determine the extent of its own jurisdiction (competence de la competence). Note: International tribunals have not been consistent in their manner of determining whether a principle in municipal law constitutes a general principle. In some instances they have examined different legal systems; in others, they merely declared a principle in municipal law as constituting a general principle of international law.

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a. Preliminary note: International law does not follow the rule on stare decisis. Art. 59 of the ICJ State (which Art.38(1)(d) makes reference to) expressly limits the effect of a decision only to the parties to the case. b. Be that as it may, decisions of international tribunals exercise considerable influence as impartial and well-considered statements of the law by (qualified) jurists made in light of actual problems. Decisions of international tribunals constitute evidence of the state of the law (BROWLIE).

E. Subsidiary Source: Publicists Writings of highly qualified publicists likewise constitute evidence the state of the law. The problem, though, is that some publicists may be expressing not what the law is (lex lata), but what they think the law should be or will be (lex ferenda).

F. Other Sources a. Ex Aequo et Bono the court may apply this standard of “what is equitable and good” to decide a case when the parties to the dispute so agree. b. Equity  refers to the application of standards of justice that are not contained in the letter of existing law. It has often been applied in cases involving territorial disputes and maritime delimitations. c. Unilateral Declarations declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Nothing in the nature of a quid pro quo, nor any subsequent acceptance, nor even any reaction from other states is required for such declaration to take effect. Verily, unilateral declarations bind the State that makes them. In the Eastern Greenland case, the ICJ held that Denmark not only had a superior claim over the contested territory, but that Norway was further bound by the Ihlen Declaration not to oppose Denmark’s claim. The Ihlen Declaration is a statement made by the Norwegian Foreign Minister, Nils Claus Ihlen, on the topic of Denmark's sovereignty over Greenland, which Mr. Ihlen declared verbally to the Danish Minister that "...the plans of the Royal [Danish]

Government respecting Danish sovereignty over the whole of Greenland would be met with no difficulties on the part of Norway." Also in the Nuclear Test cases, France declared that it would cease atmospheric nuclear tests. This signaled that there had ceased to be a dispute, since it had bound itself to do what Australia and New Zealand wanted.

III. Status of Norms A. Jus Cogens or Peremptory Norms Refer to norms accepted and recognized by the international community of States as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of such character (Art.53, VCLOT). When a treaty provision violates jus cogens norms, it would be void; and a subsisting treaty provision shall be voided by the emergence of a new jus cogens norm.

B. Erga Omnes Norms International obligations of such character and importance that:  their violation by any state allows any other state to invoke the violator's liability,  even if only one state or only a few incurred direct material damage. 

It usually has to do with issues on standing.

In the Barcelona Traction Light and Power Co. Case, the grant of standing to sue because of violations of an erga omnes obligation is premised on the idea that the maintenance of some norms are of interest to the entire world community, their violation being an injury to the interest, not only of the state directly offended, but of all states (i.e. outlawing acts of genocide or aggression).

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D. Subsidiary Source: Judicial Decisions

Chapter III. The NORMS of INTERNATIONAL LAW

POLITICAL LAW REVIEWER

Chapter IV. The LAW of TREATIES

I. DEFINITION II. REQUISITES FOR VALIDITY III. THE TREATY-MAKING PROCESS A. NEGOTIATION B. ADOPTION C. CONSENT 1. SIGNATURE 2. RATIFICATION D. EXCHANGE OF INSTRUMENTS OF RATIFICATION E. REGISTRATION WITH THE UN IV. PHILIPPINE LAW ON TREATIES V. AMENDMENT OR MODIFICATION OF TREATY VI. RESERVATIONS VII. INVALID TREATIES VIII. GROUNDS FOR TERMINATION

I.

Definition

A 'treaty' is:  an international agreement  concluded between States  in written form and  governed by international law,  whether embodied in a single instrument or in two or more related instruments and  whatever its particular designation(Art.2(1), VCLOT) 

Under the VCLOT, the term “treaty” includes all agreements between states, regardless of how they are called. Thus, for purposes of international law, treaties, executive agreements, exchanges of notes, etc. are all treaties. Note, however, that Philippine law makes a distinction between treaties and executive agreements. Both are equally binding, but only treaties require the concurrence of the Senate to be effective.

Subject Matter

Ratification

Treaty

Executive Agreements

1. Political Issues 2. Changes in national policy 3. Involves international agreements of a permanent character Requires ratification by the 2/3 of the Senate to be valid and effective (Art. VII, Sec. 21)

1. Transitory effectivity 2. Adjusts details to carry out wellestablished national policies and traditions 3. Temporary 4. Implements treaties, statutes, policies Does not require concurrence by Senate to be binding

II. Requisites for Validity A. Treaty Making Capacity 

Possessed by all states as an attribute of sovereignty. International organizations also possess treaty-making capacity, although limited by the organization’s purpose.

B. Competence of Representative/Organ Making Treaty 

the the

Generally exercised by the head of state.

Full Powers– refers to the authority of a person to sign a treaty or convention on behalf of a state. Plenipotentiary - Persons other than the head of state, head of government or foreign minister must produce such instrument in order to sign a treaty binding their government. Such a person is called a plenipotentiary.

C. Parties Must Freely Give Consent 

If consent was given erroneously, or it was induced by fraud, the treaty shall be voidable.

D. Object and Subject Matter Must be Lawful E. Ratification in Accordance with the Constitutional Process of the Parties Concerned

III. The Treaty-Making Process A. Negotiation State representatives discuss the terms and provisions of the treaty.

B. Adoption (Article 9, VCLOT) It means that the form and content have been settled by the negotiating States. It is preparatory to the authentication of the text of the treaty and to its signature.

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Chapter IV. The Law of Treaties

C. Authentication of the Text (Article 10, VCLOT) It means that the stage where the definitive text of the treaty is established as the correct and authentic one.

D. Expression of Consent to be bound by the Treaty (Article 11, VCLOT) Consent to be bound by the terms of a treaty may be expressed through: 1. Signature, when the negotiator is authorized to sign the treaty; Art.12(1), VCLOT.Signature alone would be sufficient to bind the state to the obligations under the treaty if (a) the treaty provides that signature shall have that effect; (b) it is otherwise established that the negotiating States agreed that signature should have that effect; or (c) if the State can be shown to have had the intention to be bound by the signature (look at full powers of its representative) 2. Ratification, the formal consent to the treaty given by the Head of State, sometimes in conjunction with the legislature; or 

3. 4. 5. 6.

7.

Under international law, ratification is necessary when (a) the treaty provides for such consent to be expressed by means of ratification; (b) it is otherwise established that the negotiating States agreed that ratification should be required; (c) the representative of the State has signed the treaty subject to ratification (Art.14(1), VCLOT), that is, when the intent was to make it subject to ratification. Exchange of instruments Constituting the Treaty Acceptance Approval Accession - the method by which a State, under certain conditions, becomes a party to a treaty of which it is not a signatory and in the negotiation of which it did not take part. By any other means agreed by the parties

Doctrine of Transformation. In Philippine Law, treaties have to be transformedin order to be part of Philippine law.

Chapter IV. The LAW of TREATIES

A treaty is “transformed” when a treaty is ratified after it has been concurred in by the Senate (Art.VII, Sec.21, Constitution). After ratification, a treaty shall be deemed as if legislated by our Legislature.

134 PUBLIC INTERNATIONAL LAW

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E. Registration with the UN

IV. Philippine Law In the Philippines, the negotiation of treaties and their ratification are executive functions, subject to concurrence of the Senate. Under Art.VII, Sec.21(Treaty Clause) of the Constitution, treaties must receive the concurrence of the Senate before they may be effective.

V. Amendment or Modification of Treaty General Rule: Consent of all parties is required. Exception:If the treaty itself so allows, two States may modify a provision only insofar as their relationship inter se.

VI. Reservations Definition:A unilateral statement made by a state upon entering a treaty whereby it purports to exclude or modify the legal effect of certain provision/s of the treaty in their application to the reserving state (Art.19. VCLOT). Exceptions: A reservation shall not operate to modify or exclude the provisions of a treaty: 1. Where the treaty expressly prohibits reservations in general; 2. Where the treaty expressly prohibits that specific reservation being made; or 3. Where the reservation is incompatible with treaty’s object and purpose (Reservation to the Genocide Conventions Advisory Opinion).

VII. Invalid Treaties 1. If the treaty violates a jus cogens norm of international law (void); 2. If the conclusion of a treaty is procured by threat or use of force (void); 3. Error of fact, provided that such fact formed an essential basis of a state’s consent to be bound; 4. If the representative of a state was corrupted to consent by another negotiating state; 5. If consent was obtained through fraudulent conduct of another negotiating state; 6. If the representative consented in violation of specific restrictions on authority, provided:  the restriction was notified to the other negotiating States  prior to the representative expressing such consent; 7. If consent was given in violation of provisions of internal law regarding competence to conclude treaties that is manifest and of fundamental importance.

VIII.

Grounds for Termination

1. Expiration of the term, or withdrawal of a party in accordance with the treaty; 2. Extinction of a party to the treaty, when the treaty rights and obligations would not devolve upon the successor-state; 3. Mutual agreement of parties; 4. Denunciation or desistance by a party; 5. Supervening impossibility of performance; 6. Conclusion of a subsequent inconsistent treaty; 7. Loss of subject matter; 8. Material breach or violation of treaty 9. Fundamental Change of Circumstance (Rebus sic stantibus) (Art.62, VCLOT) A contracting state may unilaterally withdraw from a treaty when a vital or fundamental change of circumstance occurs such that the foundation upon which its consent to be bound initially rested has disappeared. Requisites: i. Change is so substantial that the foundation of the treaty has altogether disappeared ii. Change was unforeseen or unforeseeable at the time of the treaty’s perfection iii. Change was not caused by the party invoking the doctrine iv. Doctrine was invoked within a

135 PUBLIC INTERNATIONAL LAW

La Chemise Lacoste v. Fernandez: Lacoste, a French corporation, sued local counterfeiters before Philippine courts. When the counterfeiters challenged its legal personality to sue before Philippine courts, the Court held that the Philippines has ratified international conventions for the protection of intellectual property, and it would frustrate the object of these conventions if Lacoste is barred from filing its claims directly in Philippine courts.

Chapter IV. The LAW of TREATIES

POLITICAL LAW REVIEWER

Chapter IV. The LAW of TREATIES

reasonable time v. Treaty’s duration is indefinite vi. Doctrine cannot operate retroactively (it must not adversely affect provisions which have already been complied with prior to the vital change)

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10. Outbreak of war between the parties, unless the treaty relates to the conduct of war (ex. The Four Geneva Conventions). 11. Severance of diplomatic relations (if such relationship is indispensable for the treaty’s application). 12. Jus Cogens Application: Emergence of a new peremptory norm of general international law which renders void any existing, conflicting treaty.

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I.

BREACH A. IS FAULT OR MALICE NECESSARY? B. THE STANDARD OF DILIGENCE II. ATTRIBUTION A. DIRECT AND INDIRECT ATTRIBUTION B. CONDUCT ATTRIBUTABLE TO THE STATE III. CONSEQUENCES OF STATE RESPONSIBILITY A. DUTY TO MAKE REPARATION B. FORMS OF REPARATION 1. RESTITUTION 2. COMPENSATION 3. SATISFACTION 4. DECLARATORY RELIEF IV. CIRCUMSTANCES PRECLUDING WRONGFULNESS V. DIPLOMATIC PROTECTION (“ESPOUSAL OF CLAIM”) A. MATERIAL DATES B. EXHAUSTION OF LOCAL REMEDIES

Every internationally wrongful act of a State entails the international responsibility of that State. Whether an act is “international wrongful” or not depends upon international law, and its wrongfulness is not affected by a contrary characterization in domestic law. Requisites to Engage the Responsibility of a State  A binding obligation and a failure to fulfill that obligation (breach)  The act or omission is attributable to the she state

I.

Breach

A. Is Fault or Malice Necessary? 

The issue of whether the failure to fulfill a binding obligation must be coupled with fault or malice is a contested area in international law. Those who subscribe to the Doctrine or Objective (or Strict) Liability hold that fault or malice is unnecessary to engage the responsibility of the state, it being sufficient that there is a causal connection between the act done and the injury suffered (or how “remote” the injury suffered is from the act perpetrated).

Though the general rule for determining liability is objective responsibility, the theory of culpa may be relevant in certain special situations, such as: i.

When the breach results from acts of individuals not employed by the state or from the activities of licensees or trespassers on its territory; ii. When a state engages in lawful activities, in which case responsibility may result from culpa in executing these lawful activities; iii. When determining the amount of the damages; iv. When due diligence or liability for culpa is stipulated in a treaty.

B. The Standard of Diligence 

A state breaches its international obligation if it fails to exercise the due diligence which could reasonably have prevented the conduct that caused the injury.



Where due diligence is relevant, is a state’s ability to fulfill an obligation relevant?

The Relativist view holds that circumstances affecting a State’s ability to perform its duties would be relevant in determining the degree of diligence that must characterize its performance of its obligations. Thus, a State breaches its obligation only if: i. It is aware of its obligation; ii. It had the means to fulfill them; iii. Yet it failed to do so (Tehran Hostages Case). The Objective view holds that the State’s ability to fulfill is irrelevant.

II. Attribution A State becomes liable for the acts of individuals, (1) when they are State organs or agent acting under color of authority. (2) If they are not officers, the State is nonetheless liable when the state adopts the acts of individuals or (3) when it is negligent in preventing or in punishing the acts. EXAMPLE: When a State is bound by a duty to prosecute, or has an international obligation to exert efforts to prevent certain acts, and the State maliciously or negligently fails to do so.

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Chapter V. International Responsibility

Chapter V. INTERNATIONAL RESPONSIBILITY

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Chapter V. INTERNATIONAL RESPONSIBILITY

A. Direct and Indirect Attribution

B. Conduct Attributable to the State 1. Conduct of State organs (Art.4, Articles of State Responsibility (ASR))  Refers to any person or entity that is considered as such under its domestic law.  The conduct of a State organ is an act of that State, whatever the function of that organ, whatever position it holds in the organization of the State, whether it is the organ of the central government or a local unit of the State. 2. Conduct of persons or entities not being state organs but exercising elements of government authority (Para-Statal Entities) (Art.5, ASR) 3. Conduct of organs placed at the disposal of a State by another State (Art.6, ASR) 4. Ultra vires conduct (Art.7, ASR)  The acts of public officials, when done withapparent authority or in their official capacity, are imputable to their State, even when these acts are beyond their authority or contravene superior orders 5. Conduct directed or controlled by a State (Art.8, ASR) 6. Conduct carried out in the absence or default of official authorities (Levee en masse) (Art.9, ASR) 7. Conduct of an insurrectional movement that becomes the new government of the State (Art.10, ASR)

9. Failure to Exercise Due Diligence  A State becomes indirectly responsible when it has an international obligation to prevent the internationally wrongful acts of individuals under its control, and the State maliciously or negligently fails to do so.

III. Consequences Responsibility

State

The responsible State is under the obligation: 1. To cease the act, if it is continuing; and 2. To offer appropriate assurances and guarantees of non-repetition(Art.30, ASR).

A. Duty to Make Reparation (Asked 1 time in the Bar) Every breach on an international obligation involves the duty to make reparations. The responsible State is under the obligation to make full reparation for the injury cause by the internationally wrongful act. Injury includes any damage, whether material or moral. NOTE: While a breach gives rise to state responsibility, the duty to make reparations is the consequence of state responsibility.

B. Forms of Reparation 

Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination (Art.34, ASR).

1. Restitution (Art.35, ASR) 

Wiping out all the consequences of the breach.  Re-establishing the situation which would probably have existed had the wrongful act not been committed.



Restitution could take the form of: (i) Legal Restitution – the declaration that an offending treaty, law, executive act, or other, is invalid; and (ii) Specific Restitution – restitution in kind.

NOTE: Where the insurrectional movement does not succeed, its conduct shall not be attributable to the State. 8. Conduct acknowledged and adopted by a State as its own (Art.11, ASR)  When a State “adopts” the acts of individuals as its own, it becomes responsible therefor. Adoption occurs when (i) the State encourages these acts, (ii) the individuals effectively act as

of

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1. Direct – State is liable for an act imputable to it that breaches an international obligation. 2. Indirect – the State becomes liable for being negligent in preventingor punishing the internationally wrongful conduct, not for the act itself.

agents in performing the offending acts, and (iii) the State endorses as its own the acts of the individuals.

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Chapter V. INTERNATIONAL RESPONSIBILITY



The payment of money as valuation of the wrong done. The amount thereof must correspond to: i. The value in which a restitution in kind would bear; and ii. The award of damages for loss sustained which would not be covered by restitution in kind or payment in place of it (Chorzow Factory Case).

3. Satisfaction (Art.37, ASR) 

Insofar as the injury suffered by the offended State is not made good by restitution or compensation, the responsible State is under the obligation to render satisfaction. It may consist of: i. Apology and other acknowledgment of wrongdoing; ii. Punishment of individuals concerned; and iii. Taking measures to prevent a recurrence of the wrong.



Satisfaction may also be in pecuniary form.



Pecuniary satisfaction, however, is distinguishable from compensation on the basis of their intention.  Pecuniary satisfaction is meant to be a token of regret and acknowledgement of wrongdoing (a monetary "sorry"), while compensation is intended to repair the injury caused.

4. Act done in compliance with the offender State's obligations under a peremptory norm (Art.23, ASR) 5. Author of the wrongful act has no other reasonable way, in a situation of distress, to save his life or the life of a person entrusted to his case. Exception: When the State caused the distress or the act in question will cause a greater peril (Art.23, ASR). In such cases, the act shall remain wrongful. 6. Act was done due to force majeure (Art.24, ASR) 7. Act was done in due to a state of necessity (Art. 25) 

As a general rule, necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State. Except when: a. The act was the only way to safeguard an essential interest from a grave and imminent peril b. Act must not seriously impair an essential interest of the State or States to which the obligation breached is owed, or of the international community as a whole c. The existence and imminence of such a peril must be duly established d. The means to avert the peril must be absolutely necessary to avert the danger e. The obligation violated must not be of peremptory character.

4. Declaratory Relief Tribunals may give declaratory judgments when: 1. It is, or the parties deem it to be, the proper way to deal with a dispute (ex. disputes over territory); or 2. The object is not to give satisfaction for the wrong received (BROWNLIE)

IV. Circumstances Wrongfulness

Precluding

1. Wronged State consented to the act that caused injury (Art.20, ASR) 2. Act was done in self-defense (Art.21, ASR) 3. Act was a countermeasure taken against the another State (Art.22, ASR)

V. Diplomatic Protection (“Espousal of Claim”) DEFINITIONS. A procedure whereby the State asks relief  for the violation of the rights of the State  through the harm done to its citizens, and  the tribunal would award damages to the State(OPPENHEIM). Consists of the invocation by a State, through diplomatic action or other means of peaceful settlement,  of the responsibility of another State  for an injury caused by an internationally wrongful act of that State

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2. Compensation (Art.36, ASR)

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



nationality by 2 states, the case now goes into the realm of international law.

to a natural or legal person that is a national of the former State with a view to the enforcement of such responsibility (Sec.1, Draft Articles on Diplomatic Protection).

The test for the nationality of a person is the most significant link. In this case, Nottebohm failed to satisfy the test. Even though he was a national of Liechtenstein, Guatemala was not bound to recognize such citizenship because he merely had a citizenship of convenience (not a genuinelink to Liechtenstein).

The State entitled to exercise diplomatic protection is the State of Nationality (Sec.3(1), DADP).

1. A natural person’s State of nationality pertains to the State whose nationality that person has acquired, in accordance with the law of that State, by birth, descent, naturalization, succession of States or in any other manner, not inconsistent with international law (Sec.4, DADP).

B. Exhaustion of Local Remedies 

Local remedies refers to the legal remedies which are open to an injured person before the judicial or administrative courts or bodies, whether ordinary or special, of the State alleged to be responsible for causing the injury.



The exhaustion of local remedies is a precondition before a State may present an international claim in behalf of its injured national.

2. A Corporation’s State of nationality pertains to the State under whose law the corporation was incorporated. However, when the corporation is  controlled by nationals of another State or States and  has no substantial business activities in the State of incorporation, and  the seat of management and the financial control of the corporation are both located in another State, that State shall be regarded as the State of nationality (Sec.4, DADP).

A. Material Dates 

A State is entitled to exercise diplomatic protection in respect of a person who was a national of that State continuously from the (1) date of injury to the date of the (2) official presentation of the claim. Continuity is presumed if that nationality existed at both these dates (Sec.5, DADP).



Mavromattis case: the primary nexus for diplomatic protection is nationality. An injury to the national is also an injury to the State



Amvatielos case: Since individuals are not within the jurisdiction of an international court, it is only through a State’s espousal of its national’s claims that the individual to the international scene upon its discretion. The decision whether to espouse a claim or not is entirely for the State to determine.



Nottebohm Case: Other states are not bound by another's claim of nationality. Determining nationality is a matter of domestic law. When

a

person,

however,

is

given

Exceptions: i. There are no reasonably available local remedies to provide effective redress, or the local remedies provide no reasonable possibility of such redress; ii. There is undue delay in the remedial process which is attributable to the State alleged to be responsible; iii. There was no relevant connection between the injured person and the State alleged to be responsible at the date of injury; iv. The injured person is manifestly precluded from pursuing local remedies; or v. The State alleged to be responsible has waived the requirement that local remedies be exhausted.

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

Chapter V. INTERNATIONAL RESPONSIBILITY

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I.

II.

SOVEREIGNTY A. CHARACTERISTICS B. SOVEREIGN EQUALITY OF STATES C. CORROLARIES JURISDICTION A. BASES OF CRIMINAL JURISDICTION B. RESERVED DOMAIN OF DOMESTIC JURISDICTION C. DOCTRINE OF STATE IMMUNITY

I.

Sovereignty



Sovereignty is the supreme and uncontrollable power inherent in a State by which that State is governed (CRUZ). Sovereignty has also been used to refer to the general legal competence of states, including its power to exercise legislative jurisdiction, and the power to acquire title to territory (BROWNLIE).



A. Characteristics (CRUZ): 1. Permanent 2. Exclusive 3. Comprehensive 4. Absolute 5. Inalienable 6. Imprescriptible

II. Jurisdiction 

State jurisdiction is the power of a state under international law to govern persons and property by its municipal law. This may be criminal or civil, and may be exclusive or concurrent with other states (HARRIS).

A. Criminal Jurisdiction BASES: 1. Territoriality Principle – jurisdiction is determined by reference to the place where the crime is committed. 2. Protective Principle – court is vested with jurisdiction if a national interest is injured. 3. Nationality Principle – court has jurisdiction if the offender is a national of the forum state. 4. Passive Personality Principle – a court has jurisdiction if the victim is a national of the forum state.(S.S. Lotus Case) 5. Universality Principle – jurisdiction is asserted with respect to crimes considered committed against the whole of humanity (hostes humani generis).For example, piracy in the high seas. (People v. Lo-lo and Saraw, 1922)

B. Sovereign Equality of States

B. Reserved Domain Jurisdiction

All States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature (Principle 6, Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States [UN GA Res.2625(XXV)]).

The domain of state activities where the jurisdiction of states is not bound by international law: the extent of this domain depends on international law and varies according to its development (i.e. when a norm crystallizes into custom).

C. Corollaries 1. States are juridically equal; 2. Each State enjoys the rights inherent in full sovereignty; 3. Each State has the duty to respect the personality of other States; 4. The territorial integrity and political independence of the State are inviolable; 5. Each State has the right freely to choose and develop its political, social, economic and cultural systems; 6. Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States.

of

Domestic

The reservation of this domain, however, is without prejudice to the use of enforcement measures under Chapter VII of the Charter.

C. Doctrine of State Immunity This refers to a principle by which a State, its agents, and property are immune from judicial process of another state. (MAGALLONA) Domestic courts must decline to hear cases against foreign sovereigns out of deference to their roles as sovereigns. This principle is premised on juridical equality of states, according to which a state may not

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Chapter VI. Sovereignty and Jurisdiction

Chapter VI. SOVEREIGNTY and JURISDICTION

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Chapter VI. SOVEREIGNTY and JURISDICTION

impose its authority or extend its jurisdiction on another state without the consent of the latter through a waiver of immunity. (Par in parem non habet imperium). This doctrine is embodied under Article XVI, Sec. 3 of the 1987 Constitution, to wit:

Application:(Asked 1 time in the Bar) 1. Absolute Sovereign Immunity - a State cannot be sued in a foreign court no matter what act it is sued for. 2. Restrictive Sovereign Immunity – a State is immune from suits involving governmental actions (jure imperii), but not for those arising from purely commercial or nongovernmental activity (jure gestionis). The Philippine Supreme Court recognizes the second theory, and has established certain rules in its application. Test: Whether, assuming the public officer is found liable, enforcement of the decision will require an affirmative act on the part of the State. If the answer is yes, then the act in question would be covered by State immunity. Acts characterised by the Supreme Court as Acts Juri Imperii: 1. The lease by a foreign government of apartment buildings for use of its military officers (Syquia v. Lopez, 1949) 2. The conduct of public bidding for the repair of wharf at a United States Naval Station (USA v. Ruiz, 1985) 3. The change of employment status of military base employees (Sanders v. Veridiano, 1988) Acts characterised as Acts Juri Gestionis: 1. The hiring of cook in the recreation center, consisting of 3 restaurants, a cafeteria, a bakery, a store, and a coffee and pastry shop at John Hay Air Station in Baguio City, to cater to American servicemen and the general public (USA v. Guinto, 1990) 2. The bidding for the operation of barber shops in Clark Air Base (USA v. Guinto, supra)

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“The State may not be sued without its consent.”

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Chapter VII. The LAW of the SEA

I.

CONCEPTS A. DISTINGUISHED FROM M MARITIME OR ADMIRALTY LAW: B. BASELINE II. WATERS A. INTERNAL WATERS B. TERRITORIAL WATERS C. CONTIGUOUS ZONE D. EXCLUSIVE ECONOMIC ZONE ONE E. HIGH SEAS III. ARCHIPELAGIC STATE IV. CONTINENTAL SHELF A. LIMITS OF THE CONTINENTAL ENTAL SHELF B. RIGHTS OF THE COASTAL STATE OV OVER THE CONTINENTAL SHELF C. RIGHTS WITH RESPECT TO CONTINENTAL SHELF VS.. EEZ V. SETTLEMENT OF DISPUTES A. PEACEFUL SETTLEMENT OF DISPUTES B. COMPULSORY SETTLEMEN SETTLEMENT OF DISPUTES C. JURISDICTION OF COURT T OR TRIBUNAL D. COMPOSITION OF THE INTERNATIONAL NTERNATIONAL TRIBUNAL NAL FOR THE LAW OF T THE SEA (ITLOS) E. JURISDICTION OF ITLOS F. APPLICABLE LAWS IN SETTLEMENT ETTLEMENT OF DISPUTES BY THE ITLOS

I.

Concepts

The Law of the Sea (LOS) is the body of treaty rules and customary norms governing the use of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes (MAGALLONA). It is the branch of PIL which regulates the relations tions of states with respect to the use of the oceans.(Asked 1 time in the Bar)

A. Distinguished Admiralty Law

from

Maritime

or

1. Content: Maritime law is (traditionally) associated with private law context of rights and obligations pertaining to carriage of persons and goods by sea. 2. Scope: Maritime law concerns the rights and duties of individual private persons in commercial transactions. LOS deals with rights and duties of states.

B. Baseline The e line from which a breadth of the territorial sea and other maritime zones, such as the “contiguous zone” and the “exclusive economic zone” is measured.

Its purpose is to determine the starting point to begin measuring maritime zones.boundary of the coastal state.(See Appendix 1) 1. Normal baseline – the territorial sea is the low-water water line along the coast as marked on large-scale scale charts officially recognized by the coastal state (Art. 5, UN Convention on the Law of the Sea, or UNCLOS). 2. Straight baseline– where the coastline is deeply indented or cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight lines joining the appropriate points may be employed in drawing the baseline from which the breadth th of the territorial sea is measured (Art. 7, UNCLOS)

II. Waters The waters of a state can be classified generally as internal, territorial, contiguous, or belonging to the exclusive economic zone (EEZ). The extent of these waters depend on their distance from the state’s baseline

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Chapter VII. The Law of the Sea

Chapter VII. The LAW of the SEA

A. Internal Waters

INNOCENT PASSAGE

(Asked 1 time in the Bar) These are waters of lakes, rivers, and bays landward of the baseline of the territorial sea. However, in case of archipelagic states, waters landward of the baseline other than those rivers, bays and lakes, are archipelagic waters. Internal waters are treated as part of a State's land territory, and is subject to the full exercise of sovereignty. Thus, the coastal state may designate which waters to open and which to close to foreign shipping.

B. Territorial Waters (Asked 1 time in the Bar) These waters stretch up to 12 miles from the baseline on the seaward direction. They are subject to the jurisdiction of the coastal state, which jurisdiction almost approximates that which is exercised over land territory. Except that the coastal state must respect the rights to (1) innocent passage and, in the case of certain straits, to (2) transit passage.(Asked 1 time in the Bar) 1. Innocent passage navigation through the territorial sea w/o entering internal waters, going to internal waters, or coming from internal waters and making for the high seas. It must (a) involve only acts that are required by navigation or by distress, and (b) not prejudice the peace, security, or good order of the coastal state. 2. Transit passage the right to exercise freedom of navigation and overflight solely for the purpose of continuous and expeditious transit through the straights used for international navigation. The right cannot be unilaterally suspended by the coastal state. INNOCENT PASSAGE Pertains to navigation of ships only Requires submarines and other underwater vehicles to navigate on the surface and show their flag. Can be suspended, but under the condition that it does not discriminate among foreign ships, and

TRANSIT PASSAGE Includes the right of overflight Submarines are allowed to navigate in “normal mode” – i.e. submerged Cannot be suspended

such suspension is essential for the protection of its security, and suspension is effective only after having been duly published (Art. 25, UNCLOS) In the designation of sea lanes and traffic separation schemes, the coastal state shall only take into account the recommendations of the competent international organization.

TRANSIT PASSAGE

Designation of sea lanes and traffic separation schemes is subject to adoption by competent international organization upon the proposal and agreement of states bordering the straits.

C. Contiguous Zone (Asked 1 time in the Bar) This is the maritime zone (up to 24 nautical miles) adjacent to the territorial sea where the coastal state may exercise certain protective jurisdiction. Thus, the coastal state may exercise the control necessary to: a. Prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; b. Punish infringement of the above laws and regulations committed within its territory or territorial sea. The coastal state must not extend its contiguous zone beyond 24 nautical miles from the baseline. Note that the contiguous zone is merely a zone of jurisdiction for a particular purpose. It is not a zone of sovereignty.

D. Exclusive Economic Zone (Asked 1 time in the Bar) A coastal state may establish an EEZ that may stretch up to 200 miles from its baselines. Within this zone, a State may regulate nonliving and living resources, other economic resources, artificial installations, scientific research, and pollution control. Under the UNCLOS, states have the sovereign right to exploit the resources of this zone, but shall share that part of the catch that is beyond its capacity to harvest. 1. Resources covered by sovereign rights of coastal states in the EEZ include living and

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non-living resources in the waters of the seabed and its subsoil. 2. Coastal states have the primary responsibility to utilize, manage and conserve the living resources within their EEZ, i.e. ensuring that living resources are not endangered by overexploitation, and the duty to promote optimum utilization of living resources by determining allowable catch. 3. If after determining the maximum allowable catch, the coastal state does not have the capacity to harvest the entire catch, it shall give other states access to the surplus by means of arrangements allowable under the UNCLOS. Note however that the UNLCOS does not specify the method for determining “allowable catch.” Hence, states may establish illusory levels. 4. Geographically disadvantaged states (those who have no EEZ of their own or those coastal states whose geographical situations make them dependent on the exploitation of the living resources of the EEZ of other states) and land-locked stateshave the right to participate, on equitable basis, in the exploitation of the surplus of the living resources in the EEZ of coastal states of the same subregion or region. Note: a coastal state whose economy is overwhelmingly dependent on the exploitation of its EEZ is not required to share its resources. 5. The coastal state has jurisdiction over the i. establishment and use of artificial islands, installations and structures, ii. scientific research, iii. the preservation and protection of marine environment. 6. Under Art. 58 of the UNCLOS, all states enjoy the freedom of navigation, overflight, and laying of submarine cables and pipelines in the EEZ of coastal states. 7. The coastal state has the right to enforce all laws and regulations enacted to conserve and manage the living resources in its EEZ. It may board and inspect a ship, arrest a ship and its crew and institute judicial proceedings against them. Note: In detention of foreign vessels, the coastal state has the duty to promptly notify the flag state of the action taken.

Chapter VII. The LAW of the SEA

Conflicts regarding the attribution of rights and jurisdiction in the EEZ must be resolved on the basis of  equity and in the light of all relevant circumstances,  taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole. (Art. 59, UNCLOS).

E. High Seas These are all parts of the sea that are not included in the EEZ, in the territorial sea, or in the internal waters of a state, or are in the archipelagic waters of the archipelagic state. They are beyond the jurisdiction and sovereign rights of states. a. High seas are open to all states, whether coastal or land-locked, and no state may validly purport to subject any of the high seas to its sovereignty. b. It is the right of every state to sail ships flying its flag on the high seas, and thus no state can prevent ships or other states from using the high seas for lawful purposes. The high seas, however, is reserved for peaceful purposes. c.

“Freedom of the high seas” comprises the (a) freedom of navigation, (b) freedom of overflight, (c) freedom of fishing, (d) freedom to lay submarine cables and pipelines, (e) freedom to construct artificial islands and installations, and (f) freedom of scientific research. All states must exercise these freedoms with due regard for the interests of other states.

d. In the high seas, a state has exclusive jurisdiction over ships sailing under its flag, hence it is called a “flag state”. Warships and ships owned and operated by a State also enjoy immunity from the jurisdiction of any other state other than the flag state. Exceptions to this rule include collision of ships, where the master or any person in the service of the ship is subject to concurrent jurisdiction of the flag state and the state of which such person is a national. Also, every state may seize a pirate ship, or ships taken by pirates. In cases of hot pursuit, a warship or aircraft of a state may stop and arrest a foreign ship on the high seas.

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It is a state up made up of wholly one or more archipelagos. It may include other islands. An archipelago is a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely related that such islands, waters and natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such. Baselines of archipelagic states.Straight baselines join the outermost points of the outermost islands and drying reefs of an archipelago, provided that within such baselines are included the main islands and an area in which the ratio of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. Such are called straight archipelagic baselines. Two Kinds of Archipelagoes 1.Coastal – situated close to a mainland and may be considered part thereof, i.e. Norway 2.Mid-ocean– situated in the ocean at such distance from the coasts of firm land, i.e. Indonesia (note: The Archipelagic State provisions apply only to mid-ocean archipelagos composed of islands, and NOT to a partly continental state.) 

Territorial sea and other maritime zones – the breadth of the territorial sea, the contiguous zone, and the EEZ is measured from the straight archipelagic baselines.



Archipelagic waters– these are the waters enclosed by the straight archipelagic baselines, regardless of their depth or distance from the coast. It is subject to the sovereignty of the archipelagic state, but subject to the right of innocent passage for the ships of all states.

Other Rights with Respect to Archipelagic Waters 1. Rights under existing agreement on the part of third states should be respected by the archipelagic state. 2. Within its archipelagic waters, the archipelagic state shall recognize traditional fishing rightsand other legitimate activities of immediately adjacent neighboring states.

3. The archipelagic state shall respect existing submarine cables laid by other states and “passing through its waters without making a landfall”. 4. Right of archipelagic sea lanes passage: It is the right of foreign ships and aircraft to have continuous, expeditious, and unobstructed passage in sea lanes and air routes through or over archipelagic waters and the adjacent territorial sea of the archipelagic state. Note: the archipelagic state designates the sea lanes as proposals to the “competent international organization”. It is the International Marine Organization (IMO) which adopts them through Art. 53(9) of the UNCLOS which states that “the Organization may adopt only sea lanes and traffic separation schemes as may be agreed with the archipelagic state, after which such state may designate, prescribe or substitute them”. Special Issue: Under Art. 1 of the 1987 Constitution, the archipelagic waters of the Philippines are characterized as forming part of “the internal waters of the Philippines.” However, under the UNCLOS, archipelagic waters consist mainly of the “waters around, between, and connecting the islands of the archipelago, regardless of breadth or dimension.” Thus, conversion from internal waters under the Constitution into archipelagic waters under the UNCLOS gravely derogates the sovereignty of the Philippine state. Remember that sovereignty over internal waters precludes the right of innocent passage and other rights pertaining to archipelagic waters under the UNCLOS.

IV. Continental Shelf (See Appendix 2) Definition– it is the seabed and subsoil of the submarine areas extending beyond the territorial sea of the coastal state throughout the natural prolongation of its lands territory up to 1. the outer edge of the continental margin, or 2. a distance of 200 nautical miles from the baselines of the territorial sea where the outer edge of the continental margin does not extend up to that distance. Continental margin the submerged prolongation of the land mass of the continental

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III. Archipelagic State

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Chapter VII. The LAW of the SEA

state, consisting of the continental shelf proper, the continental slope, and the continental rise.

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Chapter VII. The LAW of the SEA

A. Limits of the Continental Shelf  



Juridical or Legal Continental Shelf: 0 0-200 nautical miles from baselines Extended Continental Shelf: 200 200-350 nautical miles from baselines depending on geomorphological or geological data and information When the continental shelf extends beyond 200 nautical miles, the coastal state shall establish its outer limits.

At any rate, the continental shelf shall not extend beyond 350 nautical miles from the baseline of the territorial sea,, or 100 nautical miles from the 2500-meter meter isobath (or the point where the waters are 2500 meters deep).

B. Rights of the Coastal al State over the Continental Shelf 



*

The continental shelf does not form part of the territory of the coastal state. It only has sovereign rights with respect to the exploration and exploitation of its natural resources resources, including the mineral and other no non-living resources of the seabed and subsoil together with living organisms belonging to * the sedentary species. For example, the coastal state has the exclusive right to authorize and regulate oil oildrilling on its continental shelf. These rights are exclusive in the sense that when the coastal state does not explore

Sedentary species are organisms which, at the harvestable state, are either immobile on or under the seabed, or are unable to move except in constant physical contact with the seabed or subsoil.

its continental shelf or exploit its resources, no one may undertake these activities without the coastal state’s consent. Note:: In instances where the continental margin is more than 200 nautical miles from the baselines, and hence extends beyond the EEZ, the coastal state has the exclusive right to exploit mineral and non-living living resources in the “excess area”.

C. Rights with Respect to Continental Shelf vs. EEZ

Duty to manage and conserve living resources Rights of the coastal state as to natural resources

Rights of the coastal state as to living resources

Continental Shelf No duty

EEZ

Relate to mineral and other non-living resources of the seabed and the subsoil

Have to do with natural resources of both waters superadjacent to the seabed and those of the seabed and subsoil Do not pertain to sedentary species

Apply only to sedentary species of such living resources

Coastal state is obliged to manage and conserve living resources in the EEZ

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V. Settlement of Disputes

E. Jurisdiction of ITLOS

A. Peaceful Settlement of Disputes

Its jurisdiction covers all disputes submitted to it in accordance with the UNCLOS. It also includes matters submitted to it under any other agreement.

Under par. 3, Art. 2 of the UN Charter, States have the duty to settle disputes by peaceful means. This obligation extends to State Parties of the UNCLOS, underscoring the right of the parties to resort to peaceful means of their own choice on which they can agree any time.

B. Compulsory Settlement of Disputes Where no successful settlement can be achieved, or if the parties are unable to agree on the means of settlement of a dispute concerning the application of UNCLOS, such dispute may be governed by the principle of compulsory settlement, where procedures entail binding decisions. Compulsory Procedures that States Parties Can Choose From: i. International Tribunal for the Law of the * Sea ; ii. International Court of Justice; * iii. Arbitral Tribunal ; * iv. Special Arbitral Tribunal ; The choice of the State Parties must be expressed in a written declaration, which is revocable and replaceable.

C. Jurisdiction of Court or Tribunal The court or Tribunal has jurisdiction over: 1. any dispute submitted to it concerning the application or interpretation of UNCLOS 2. any dispute concerning the interpretation or application of an international agreement:  related to the purposes of the UNCLOS  when such dispute is submitted to it in accordance with that agreement.

D. Composition of the International Tribunal for the Law of the Sea (ITLOS) It is composed of 21 “independent members elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea”. The composition shall also be representative of the world’s principal legal systems and of equitable geographical distribution.

*

as established under the UNCLOS.

F. Applicable Laws in Disputes by the ITLOS

Settlement

of

The Tribunal shall apply the UNLCOS and other rules of international law not incompatible with the UNCLOS. It may also decide a case ex aequo et bono (what is equitable and just) if the parties so agree.

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Chapter VIII. The Use of Force in International Law

Chapter VIII. The USE of FORCE in INTERNATIONAL LAW

a. Self-Defense (Asked 2 times in the Bar) 

I. II.

I.

JUS AD BELLUM v JUS IN BELLO RULES ON THE USE OF FORCE A. GENERAL RULE B. EXCEPTIONS 1. EXCEPTIONS UNDER THE CHARTER a. SELF-DEFENSE b. AUTHORIZED ENFORCEMENT ACTION 2. EXCEPTIONS UNDER CUSTOM a. RESPONSIBILITY TO PROTECT (“R2P”) b. HUMANITARIAN INTERVENTION c. GENERAL ASSEMBLY RESOLUTION d. WARS OF NATIONAL LIBERATION

Jus in bello The laws that govern the conduct of war by States. (To be discussed further in the Chapter on International Humanitarian Law)

II. Rules on the Use of Force (Asked 5 times in the Bar)

A. General Rule States are to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the purposes of the United Nations. This norm is of dual character, existing both in treaty law (Art.2[4], UN Charter) and customary international law.

B. Exceptions (Asked 2 times in the Bar) 1. Exceptions under the Charter 

Requisites: i. There be an armed attack; An armed attack is understood as including not merely action by regular armed forces across an international border, but also "the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to" (inter alia) an actual armed attack conducted by regular forces, "or its substantial involvement therein" (Art.3(g), Definition of Aggression annexed to General Assembly resolution 3314 [XXIX])

Jus Ad Bellum v Jus in Bello

Jus ad bellum Refers to the body of norms that govern the conditions when a State may have recourse to war or other uses of force.

The Charter provides two exceptions to the general prohibition against the use of force.

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security (Art.51, UN Charter).

ii.

The use of force must be necessary to defend against an armed attack (Necessity); iii. The forcible response must be promptly after the attack (Immediacy); iv. The force used must be proportional to the attack made (Proportionality) (Nicaragua v. US Case). b. Authorization Enforcement Action by Security Council acting under its Chapter VII Powers 

The collective security apparatus contained in Chapter VII of the Charter, which allows for a successive process of conflict resolution, culminating in armed enforcement actions carried out under the aegis of the Security Council.

2. Exceptions under Custom a. Responsibility to Protect (“R2P”) 

A recently developed concept in international relations which relates to: (a) a state's responsibilities towards its population and to (b) the international community's responsibility in case a state fails to fulfill its responsibilities.

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One important aim, among many others, is to provide a legal and ethical basis for humanitarian intervention. b. Humanitarian Intervention 

The forcible intervention by external actors (ex. the international community through the UN) into a state that is unwilling or unable to prevent or rectify massive violations of human rights (ex. Genocide). Humanitarian intervention, it has been argued, finds legal support under Art.1(3), UN Charter may provide a basis for the use of force to.

c. Peacekeeping Operations through General Assembly’s Uniting for Peace Resolution 

This was necessitated by the paralysis of the Security Council that resulted from the disagreement of the latter's veto-wielding members, and was inaugurated by the Uniting for Peace Resolution. The peacekeeping operations initiated by the General Assembly constitute an interpretation of the Charter that creates another exception to the rule against the use of force.

d. Wars of National Liberation 

Wars by peoples against racist, colonial and alien domination "for the implementation of their right to selfdetermination and independence is legitimate and in full accord with principles of international law," and that any attempt to suppress such struggle is unlawful (Resolution 3103 [XXVIII]). When peoples subjected to alien domination resort to forcible action in order to exercise their right to selfdetermination, they "are entitled to seek and to receive support in accordance with the purposes and principles of the Charter (1970 Resolution 2625 [XXV]).

Chapter VIII. The USE of FORCE in INTERNATIONAL LAW

These declarations constitute either an authoritative interpretation of the Charter, being the subsequent practice of the parties, or an irregular amendment of the Charter's provisions through the creation of new norms of customary law (Art.31(3), VCLOT; Case concerning the Interpretation of the Air Transport Agreement Between the United States and Italy)

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Chapter IX. INTERNATIONAL HUMAN RIGHTS LAW

Chapter IX. International Human Rights Law I. DEFINITION OF HUMAN RIGHTS II. CLASSIFICATION OF HUMAN RIGHTS III. “INTERNATIONALIZATION” OF HUMAN RIGHTS IV. SOURCES OF HUMAN RIGHTS A. CONVENTION B. CUSTOM V. INTERNATIONAL BILL OF HUMAN RIGHTS A. UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR) B. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) C. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR) D. COMMON PROVISIONS IN THE ICCPR AND ICESCR AND DIFFERENCES VI. SPECIFIC NORMS IN HUMAN RIGHTS A. GENOCIDE B. TORTURE C. RIGHTS OF THE CHILD D. LAW AGAINST DISCRIMINATION E. REFUGEE LAW

I. 

Derogation/ Restriction, when allowed

may only be derogated in a public emergency

III. “Internationalization” Rights 

available resources” may be restricted for the general welfare, with or without an “emergency that threatens the independence or security of a State Party.”

of

Human

The international community, through the UN Charter, has accepted the regulation of human rights, and has therefore shifted matters or questions pertaining to human rights from exclusive domestic jurisdiction to international regulation.

IV. Sources of Human Rights

Definition of Human Rights

A. Convention

(Asked 3 times in the Bar)



The first important multilateral convention protecting human rights was the United Nations Charter, which imposes the obligation to promote and protect human rights (UN Charter, Art 1(1), par. 2).



Two important general conventions protecting human rights in international law are the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).

Human rights are those fundamental and inalienable rights which are essential for life as a human being. They pertain to rights of an individual as a human being which are recognized by the international community as a whole through their protection and promotion under contemporary international law.

These are considered to be authoritative interpretations of the UN Charter

II. Classification of Human Rights A. First generation – consists political rights; B. Second generation – consists social and cultural rights; C. Third generation – refers development, right to peace, environment.

Obligatory Force under International Law

First generation strictly (or objectively) obligatory, whatever the economic or other conditions of the states obligated

of civil and

B. Custom of economic, to right to and right to

Second generation relatively obligatory: States are required to progressively achieve the full realization of these rights “to the maximum of their



It has been proposed that the protection of human rights now exists even in customary law. This is evidenced by the widespread acceptance of numerous international conventions and instrumentsthat require or signify assent to the protection of human rights. Widespread acceptance of the UN Declaration of Human Rights as a codification of international human rights law is evidence that international custom protects human rights (MERON).

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Chapter IX. INTERNATIONAL HUMAN RIGHTS LAW

a. The right to social security; b. The right to work and protection against unemployment; c. The right to equal pay for equal work; d. The right to form and join trade unions; e. The right to rest and leisure.



The “International Bill of Human Rights” is a convenient designation of the three main instruments of human rights on the international plane. These are 1.) the Universal Declaration of Human Rights, 2.) the International Covenant on Civil and Political Rights, and 3.) the International Covenant on Economic, Social and Cultural Rights.

A. Universal Declaration of Human Rights (UDHR) 

The UDHR is the first comprehensive catalogue of human rights proclaimed by an international organization. It must be noted, however, that the UDHR is not a treaty. It has no obligatory character because it was adopted by the UN GA as Resolution 217A (III). As a resolution, it is merely recommendatory. Despite this, the UNDHR is considered a normative instrument that creates binding obligations for all States because of the consensus evidenced by the practice of States that the Declaration is now binding as part of international law (Juan Carillo Salcedo, Human Rights, Universal Declaration).





The UDHR embodies both first and second generation rights. The civil and political rights enumerated include: 1. The right to life, liberty, privacy and security of person; 2. Prohibition against slavery; 3. The right not to be subjected to arbitrary arrest, detention or exile; 4. The right to fair trial and presumption of innocence; 5. The right to a nationality; 6. The right to freedom of thought, conscience and religion; 7. The right to freedom of opinion and expression; 8. Right to peaceful assembly and association; 9. The right to take part in the government of his country. Economic, social and cultural enumerated in the UDHR include:

rights

B. International Covenant on Civil and Political Rights (ICCPR) (Asked 1 time in the Bar) 

The ICCPR is an international covenant and is binding on the respective State Parties.



It embodies the first generation of human rights, although it lists more rights than the UDHR: 1. The right to own property; 2. The right to seek in other countries asylum from prosecution; 3. The right of members of ethnic, religious or linguistic groups not to be denied to enjoy their own culture, to profess and practice their own religion, or to use their own language; 4. The right to compensation in case of unlawful arrest; 5. The right to legal assistance in criminal prosecution; 6. The right against self-incrimination; 7. Protection against double jeopardy; 8. Right to review by higher tribunal in case of criminal conviction; 9. Right of every child to nationality; 10. Right to protection of a child as required by his status as a minor; 11. Right of persons below 18 years old not to be sentenced to death for crimes; 12. Right against the carrying out of death sentence on the part of a pregnant woman.

Obligations of State Parties 1. Under the ICCPR, State Parties undertake to respect and to ensure to all individuals within their territory the rights enumerated therein, without distinction of any kind, such as race, color, sec, language, religion, political or other opinion, national or social origin, birth or other status. 2. State Parties are required to take the necessary steps to adopt legislative or other measures that are necessary to give effect to the rights recognized in the ICCPR. 3. State Parties must ensure that any person whose rights or freedoms are violate have an effective remedy, notwithstanding that

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4. State Parties must ensure that any person claiming such remedy shall have his right thereto determined by competent judicial, administrative or legislative authority, and that they shall enforce the remedy when granted.

VI. Specific Norms in Human Rights A. Genocide (Asked 1 time in the Bar) 

C. International Covenant on Economic, Social and Cultural Rights (ICESCR) 

Obligations of State Parties 

1. Killing members of the group; 2. Causing serious bodily or mental harm to the members of the group; 3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 4. Imposing measures intended to prevent births within the group; and 5. Forcibly transferring children of the group to another group (Article 6, Statute of the International Criminal Court)

The ICESCR, like the ICCPR, is an international covenant and is binding on the respective State Parties. It embodies the second generation of human rights, although it lists more rights than the UDHR: 1. Right to health; 2. Right to strike; 3. Right to be free from hunger; 4. Rights to enjoy the benefits of scientific progress; 5. Freedom for scientific research and creativity.

Nature of the Prohibition 

State Parties are required to undertake the necessary steps to the maximum of its available resources, with a view to achieving progressively the full realization of the rights enumerated in the covenant by all appropriate means.

D. Common Provisions in the ICCPR and the ICESCR and differences

Note – these rights are not covered by the UDHR.

Genocide is covered by the Convention on the Prevention and Punishment of the Crime of Genocide. The ICJ, in its advisory opinion, explained the nature of genocide as a crime under international law involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity. The ICJ also recognized the customary nature of the proscription, stating that the principle under the Convention are recognized by civilized nations as binding on States even without conventional obligation.

Note – unlike the ICCPR, the states under the ICESCR merely agree to take steps to the maximum of its available resources.

The common provisions of the two Covenants deal with collective rights, namely: 1. The right of self-determination of peoples; 2. the right of peoples to freely dispose of their natural wealth and resources; 3. the right not of peoples not to be deprived of their own means of subsistence

Under international law, genocide refers to any of the following acts (actus reus), when such acts are committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such (dolus specialis):

Acts Punishable 

The Convention defines the following acts as punishable: 1. Genocide; 2. Conspiracy to commit genocide; 3. Direct and public incitement to commit genocide; 4. Complicity in genocide.



The Genocide convention provides that the crime of genocide shall be tried by a competent tribunal of  the State in which the act was committed, or

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the violation has been committed by persons action in an official capacity.

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by such international tribunal as may have jurisdiction with respect to the State Parties which shall have accepted its jurisdiction.

C. Rights of the Child 

One such tribunal is the International Criminal Court (Art 5, Rome Statute).

Concerns pertaining to his personhood, legal protection and in general human rights standards have come under the regime of international law and are no longer confined to the exclusive domestic jurisdiction of States that are parties to the CRC.

Notes – Individual criminal liability is provided for the crime of genocide, whether such individual is a public official or a private person. Genocide may be committed during war/armed conflict or during time of peace.

B. Torture The Convention Against Torture and Other Cruel, Inhumane or Degrading Punishment defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as 1. Obtaining from him or a third person information or a confession; 2. Punishing him for an act he or a third person has committed, or is suspected of having committed; 3. Intimidating or coercing him or a third person; 4. For any reason based on discrimination of any kind 

When such pain or suffering is inflicted by or at the instigation of or with consent or acquiescence of a public official or person acting in an official capacity.

Nature of the prohibition As a principle of international law, prohibition against torture is created by an obligation erga omnes, an obligation of every state towards the international community as a whole. It forms part of the principles and rules concerning the basic rights of the human person. Salient Features Under the Convention, the prohibition against torture is non-derogable. No exceptional circumstance, such as war or public emergency, may be invoked to justify torture nor a superior’s order or other authority be used as a justification for torture. It is an obligation for State Parties to take measures to prevent torture and to ensure that the acts of torture are legally punishable in their jurisdiction.

The Convention on the Rights of the Child (CRC) is the primary international instrument concerning the legal status of the child in international law.

Substantive Rights of the Child Under the CRC: 1. The inherent right to life 2. To have a name from birth; 3. To acquire a nationality, adequate standard of living, social security and health care; 4. Political, civil, economic, social and cultural rights, including freedom of thought, conscience, religion, expression, association, education, access to information, minority rights, and civil and criminal procedural rights; 5. Prohibition against discrimination; 6. Protection during armed conflict and refugee right; 7. Right to family environment and the right to know the parents and be cared for by them.

D. Law against Discrimination 

The International Convention on the Elimination of All Forms of Racial Discrimination defines racial discrimination as  any distinction, exclusion, restriction or preference based on race, color, gender, descent, or national or ethnic origin  which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing, of human rights and fundamental freedoms  in the political, economic, social, cultural, or any other field of public life.

Notes: the definition of racial discrimination is considered as an authoritative interpretation of the non-discrimination clause of the UN Charter (Art. 55 and 56). Also, affirmative action, or positive discrimination, are not considered as contrary to the Convention.

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

Chapter IX. INTERNATIONAL HUMAN RIGHTS LAW

E. Refugee Law 

A refugee is a person who,  owing to a well founded fear of being persecuted  for reasons of race, religion, nationality, membership in a particular social group or political opinion,  is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country; or  who, not having a nationality and being outside the country of his former habitual residence,  is unable or, owing to such fear, is unwell to return to it (Convention Relating to the Status of Refugees)

Cessation of Status as Refugee A refugee ceases to be such when: 1. He has voluntarily re-availed himself of the protection of the country of his nationality; 2. He has voluntarily acquired his nationality, having lost it; 3. He has acquired a new nationality and enjoys the protection of the state of his new nationality; 4. He has voluntarily re-established himself in the country which he has left or outside which he remained owing to fear of persecution; 5. He can no longer continue to refuse the protection of the country of his nationality because the circumstance by which he has acquire the status of refugee no longer exists. Who May Not Qualify as Refugees 

A status of a refugee may not apply to the following persons with respect to whom there are serious reasons for considering that: 1. He has committed a crime against peace, a war crime, or a crime against humanity; 2. He has committed a serious, non-political crime outside the country of refuge prior to his admission to that country as a refugee; 3. He has been guilty of acts contrary to the purposes and principles of the UN. The Right of Non-Refoulment 

It is the right of the refugee no to be expelled or returned in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his of race, religion, nationality, membership in a particular social group or political opinion.

Chapter IX. INTERNATIONAL HUMAN RIGHTS LAW

Note: the Convention requires that the refugee conform to the laws and regulations, as well as measures taken for the maintenance of public order, of the country of refuge.

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I. II. III. IV.

ARMED CONFLICT FUNDAMENTAL PRINCIPLES OF IHL APPLICATION OF IHL THE FOUR GENEVA CONVENTIONS AND THE TWO ADDITIONAL PROTOCOLS V. APPLICATION VI. CONCEPTS A. COMBATANTS B. HORS DE COMBAT C. PROTECTED PERSONS D. THE MARTENS CLAUSE E. MILITARY OBJECTIVE F. BELLIGERENCY STATUS VII. IHL AND WEAPONS OF MASS DESTRUCTION VIII. NON-INTERNATIONAL ARMED CONFLICT A. COMMON ARTICLE 3 AND PROTOCOL II B. CONTROL OF TERRITORY C. WAR OF NATIONAL LIBERATION IX. NEUTRALITY X. PROTECTIVE EMBLEMS A. WHO MAY USE B. MISUSE OF EMBLEM C. PUNISHMENT XI. THE INTERNATIONAL CRIMINAL COURT (ICC) A. CRIMES WITHIN THE COURT’S JURISDICTION B. MODES OF INCURRING CRIMINAL LIABILITY C. SOURCES OF LAW D. OTHER KEY CONCEPTS E. LANDMARK CASES





IHL is the branch of public international law which governs armed conflicts to the end that the use of violence is limited and that human suffering is mitigated or reduced by regulating or limiting the means of military operations and by protecting those who do not or no longer participate in the hostilities. IHL has Two Branches: (1) Law of The Hague, which establishes the rights and obligations of belligerents in the conduct of military operations, and limits the means of harming the enemy; and the (2) Law of Geneva, which is designed to safeguard military personnel who are no longer taking par in the fighting and people not actively engaged in hostilities (i.e. civilians) (INTERNATIONAL COMMITTEE OF THE RED CROSS [“ICRC”]). Note: The two branches draw their names from the cities where each was initially codifies. With the adoption of the Additional Protocols of 1977, which combine both branches, that distinction is now of merely historical and instructive value (ICRC).

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HUMANITARIAN LAW V. HUMAN RIGHTS LAW IHL and IHR are complementary. Both strive to protect the lives, health and dignity of human persons, albeit from different angle. The following distinctions may be noted (ICRC): 1. Application. IHL applies in situations of armed conflict, whereas IHR applies both in times of peace and in war. 2. Derogation. Some human rights treaties permit governments to derogate from certain rights in times of public emergency (Art.4, ICCPR). No derogations are permitted under IHL as it was conceived precisely to emergency situations, such as an armed conflict. 3. Holder of Obligation. IHL imposes duties only upon those who are parties to an armed conflict. Human rights apply to all State governments.

I.

Definition of “Armed Conflict” (Prosecutor vs. Tadic, Para.70).

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An Armed Conflict exists when there is resort to the use of force  between two states (international armed conflict), or  between government authorities and an organized armed group, or  between such groups within the same territory (non-international armed conflict) Note: Wars of National Liberation have been classified as international armed conflicts (ICRC) Mere internal disturbances and tensions, or riots or isolated or sporadic acts of armed violence does not amount to an armed conflict (Tadic) Note: Cases of this type are governed by the provisions of human rights law and the relevant domestic laws.

II. Fundamental Principles of IHL 1. Parties to an armed conflict, together with their armed forces, do not have unlimited choice of methods or means of warfare. They are prohibited from employing weapons or means of warfare that cause unnecessary damage or excessive suffering. 2. Parties to an armed conflict shall, at all times, distinguish between civilian population and the combatants (Principle

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of Distinction). Civilians shall be spared from military attacks which shall be directed only against military objectives.

IV. The Four Geneva Conventions and the Two Additional Protocols 

5. The wounded and the sick shall be protected and cared for by the party to the conflict which has them in its power. Protection shall also apply to medical personnel, establishments, transports and material. 6. Combatants and civilian who are captured by authority of the party to a dispute are entitled to respect for their right to life, dignity, conviction, and other personal rights. They shall be protected against acts of violence or reprisals. (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion by the ICJ)

III. Application of IHL IHL is not concerned with the lawfulness or unlawfulness of armed conflict. The application of IHL in armed conflict, whether such is the result of an unlawful threat or use of force, pertains solely to the fact of armed conflict, even if the use of force remains unlawful. As such, IHL applies to all armed conflicts, regardless of whether resort to threat or the use of force was lawful or unlawful 

IHL governs in both international and non-international armed conflicts. Common Article 2 and 3 of the four Geneva Conventions states that the Convention shall apply in all cases of declared war or any other armed conflict between to or more [Contracting Parties] even if the state of war is not recognized by one of them. As used in Article 3, armed conflict pertains to non-international armed conflicts in that it deals with armed confrontation between the

The four Geneva Conventions and the Additional Protocols are the primary legal instruments that embody IHL. Namely, they are: 1. The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces st in the Field (“1 Geneva Convention”, Aug. 12, 1949); 2. The Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea nd (“2 Geneva Convention”, Aug. 12, 1949); 3. The Geneva Convention Relative to the rd Treatment of Prisoners of War (“3 Geneva Convention”, Aug. 12, 1949); 4. The Geneva Convention Relative to the Protection of Civilian Persons in Time th of War (“4 Geneva Convention”, Aug. 12, 1949); 5. Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (“Protocol I”, June 8, 1977); 6. Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Victims of NonInternational Armed Conflict (“Protocol II”, June 8, 1977).

4. It is prohibited to kill or injure an enemy who is hors de combat or who surrenders.

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insurgent

V. Application of the Four Geneva Conventions and the Two Additional Protocols 

The principles under the four Geneva Conventions are regarded by the international community as a whole as having a character of general or customary international law, and therefore binding on all states. In the ICJ advisory opinion in the Legality of the Threat or Use of Nuclear Weapons, the Court expressed that the fundamental rules of IHL are to be observed by all states whether or not they have ratified the conventions that contain them,

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3. Persons hors de combat are those who have been injured in the course of hostile battle action and are no longer able to directly take part in hostilities. They shall be protected and treated humanely without any adverse distinction. Their right to life and physical and moral integrity shall be respected.

government and a rebel or movement, not between states.

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The four Conventions are applicable only to international armed conflicts,

C. Protected Persons Protected persons are those who enjoy or are entitled to protection under the Geneva Conventions.

EXCEPT common Article 3 which applies in the case of armed conflict not of an international character occurring in the territory of one of the State Parties.

Categories of protected persons include:

As to the Protocols, Protocol I is designed for the protection of victims of international armed conflicts, while Protocol II pertains to the protection of victims of non-international armed conflicts.

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a. The wounded, the sick, and shipwrecked; b. Prisoners of War c. Civilians

VI. Definition of Concepts and Phrases

For purposes of protection, civilians are further classified as: a. Civilians who are victims of conflict in countries involved b. Civilians in territories of the enemy; c. Civilians in occupied territories; d. Civilians internees

A. Combatants

D. Martens clause

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Combatants are members of the armed forces of a Party to a conflict (Art. 3(2), Protocol 1).

In fact, only combatants are allowed to engage in hostilities.

B. Hors de combat 

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Under Art. 41(2) of Protocol I, a person is hors de combat if he: a. Is in the power of an adverse party to the conflict; b. He clearly expresses an intention to surrender; or c. He has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and is therefore incapable of defending himself, provided that in any of these cases, he abstains from any hostile act and does not attempt to escape. Persons hors de combat shall be protected and treated humanely without any adverse distinction. Their right to life and physical and moral integrity shall be respected

is

an

“umbrella

“In cases not covered by Protocol I, or by any other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity, and from the dictates of public conscience.”

They have the right to participate directly and indirectly in hostilities (Art 43(2) Protocol 1).

According to one commentator, a combatant is allowed to use force, even to kill, and will not be held personally responsible for his acts, as he would be where he to the same as a normal citizen (Gasser, IHL-An Introduction)

The Martens Clause provision” which reads:

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Where gaps or loopholes arise in the interpretation and application of international agreements or treaties of humanitarian law, resort to the Martens Clause may be made.

E. Military Objective 

An object, which by its nature, purpose, use, or location,  makes an effective contribution to military action, and  whose total or partial destruction, neutralization or capture makes an effective contribution to military action.

F. Belligerency Status 

It is the formal acknowledgement by a third party of the existence of a state of war between the central government and a portion of such state.

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Belligerency exists when  a sizeable portion of the territory of a state is under the effective control of an insurgent community,  which seeks to establish a separate government and

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because they constitute intransgressible principles of customary international law.

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   

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VII. IHL and Destruction

Weapons

of

Mass

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Art. 51(4) of Protocol I provide that as a measure of protection of civilian population, indiscriminate attacks are prohibited.

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Attacks which are considered indiscriminate, or those that do not distinguish between military objectives and civilians or civilian objects, are: 1. Those which are not directed at a specific military objective; 2. Those which employ a method or means of combat which cannot be directed at a specific military objective; or 3. Those that employ a method or means of combat the effect of which cannot be limited as required by the protocol.

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An attack is also considered indiscriminate if it may be expected to cause incidental loss to human life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated (Art. 54, para. 5(b), Protocol I)

Nuclear Weapons In its advisory opinion in Legality of the Threat or Use of Nuclear Weapons, the ICJ expressed that nuclear weapons, having been developed after most of the principles and rules of IHL applicable to armed conflicts, are governed by such principles and rules.

VIII. IHL and Non-International Armed Conflict 

those placed hors de combat, shall in all instances be treated humanely without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria. 2. With respect to the persons mentioned above, the following acts shall remain prohibited: i. Violence to life and person, in particular, murder of all kinds, mutilation, cruel treatment and torture; ii. Taking of hostages; iii. Outrages upon personal dignity, in particular humiliating and degrading treatment; iv. The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 3. The wounded and the sick shall becollected and cared for.

the insurgents are in de facto control of a portion of the territory and population, have a political organization, are able to maintain such control, and conduct themselves according to the laws of war (Asked 1 time in the Bar).

Common Article 3 of the four Geneva Conventions is the only provision applicable to non-international armed conflicts.

The application of provisions above does not affect the legal status of the parties to the conflict. Hence, an insurgent or a rebel group does not assume belligerency status. Article 3 is indifferent to the legal character of such group. It must be noted that Article 3 is to be applied as a minimum.

A. Common Article 3 and Protocol II 

Protocol II develops and supplements common Article 3 (Art. 1, Protocol II). It applies to:  all armed conflicts which take place in the territory of a State Party,  between its armed forces and dissident armed forces or other organized groups  which, under responsible command, exercise such control over a part of its territory  as to enable to carry out sustained and concerted military operations and to implement the Protocol.

It defines the following obligations:

Application of Article 3 and Protocol II

1. Persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and

The rules in Article 3 are recognized as customary norms of international law, and therefore applicable to all States. However, Protocol II is a treaty and binding only States that are parties to it.

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Its rules, however, may still develop into customary norms binding on all states, by the general practice of states coupled with their acceptance of them as law (opinio juris).

B. Control-of-Territory 

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The test of whether a dissident armed force has control of territory is when such armed force can (1) carry out sustained and concerted military operations, and whether it has (2) the capacity to comply with the provisions of the Protocol. In a non-international armed conflict where the dissident armed forces do not exercise such control over territory, Article 3, and not Protocol II may be applicable. The result is that this situation may give rise to two categories of non-international armed conflicts: one where only Article 3 applies, and the other where both Article 3 and Protocol II apply.

C. War of National Liberation 

An armed conflict may be of such nature in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination. This conflict, however, is considered an international armed conflict under Art. 1, par. 3 and 4 of Protocol I. Article 2 common to the four Geneva conventions provides that “all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” Hence, the Geneva conventions and Protocol I govern wars of national liberation.

IX. Neutrality (Asked 1 time in the Bar) Neutrality is the legal status of a State in times of war,  by which it adopts impartiality in relation to the belligerents with their recognition. The Hague Convention Respecting the Rights and Duties of Neutral Powers (Oct. 18, 1907) governs the status of neutrality by the following rules: a. The territory of the neutral Power is inviolable;

Chapter X. INTERNATIONAL HUMANITARIAN LAW

b. Belligerents are forbidden to move troops or munitions of war and supplies across the territory of a neutral Power; c. A neutral power is forbidden to allow belligerents to use its territory for moving troops, establishing communication facilities, or forming corps of combatants. d. Troops of belligerent armies received by a neutral Power in its territory shall be interned by away from the theatre of war; e. The neutral Power may supply them with food, clothing or relief required by humanity; f. If the neutral Power receives escaped prisoners of war, it shall leave them at liberty. It may assign them a place of residence if it allows them to remain in its territory; g. The neutral power may authorize the passage into its territory of the sick and wounded if the means of transport bringing them does not carry personnel or materials of war The Third Geneva Convention (Prisoners of War) allows neutral Powers to cooperate with the parties to the armed conflict in making arrangements for the accommodation in the former’s territory of the sick and wounded prisoners of war. Interned persons among the civilian population, in particular the children, the pregnant women, the mothers with infants and young children, wounded and sick, may be accommodated in a neutral state in the course of hostilities, by agreement between the parties to the conflict. Protecting Power A protecting power is a State or an organization  not taking part in the hostilities,  which may be a neutral state,  designated by one party to an armed conflict with the consent of the other  to safeguard or protect its humanitarian interests in the conflict, the performance of which IHL defines specific rights and duties.

X. Protective Emblems Emblems: 1. Red Cross (Geneva Conventions) 2. Red Crescent (Geneva Conventions) 3. Red Crystal (Third Additional Protocol to the Geneva Conventions) Note: Protocol III is an amendment to the Geneva Conventions relating to the Adoption of an Additional Distinctive Emblem for use by

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national societies. It entered into force on 14 January 2007, six months after the second ratification.

A. Who May Use During armed conflict, the emblem may be used as a protective device by: 1. Medical services of armed forces; 2. National Red Cross, Red Crescent or Red Crystal societies duly recognized and authorized by their governments to lend assistance to the medical services of armed forces; 3. Civilian hospitals and other medical facilities recognized as such by the government (i.e. first-aid posts, ambulances); 4. Other voluntary relief agencies, subject to the same conditions as national societies (ICRC).

B. Misuse of the Emblem Any use not expressly authorized by IHL constitutes a misuse. They include: 1. Imitation – the use of a sign which, by its shape and/or color, may cause confusion with the emblem. 2. Usurpation – the use of the emblem by bodies or persons not entitled to do so. 3. Perfidy – making use of the emblem in time of conflict to protect combatants or military equipment.

C. Punishment State Parties to the Geneva Conventions are required to take steps to prevent and punish misuse of the emblem both in time of peace and in war. Art.8(2)(b)(vii) of the ICC Statute makes the improper use of the distinctive emblems of the Geneva Conventions a War Crime.

XI. The International Criminal Court The ICC is a permanent criminal tribunal established to prosecute individuals who have violated laws applicable during armed conflict. Requisites to be held criminally liable: 1. Act constituting a crime within the Court’s jurisdiction; and that 2. Requisite standards for incurring criminal liability are satisfied.

Chapter X. INTERNATIONAL HUMANITARIAN LAW

A. Crimes within the Court’s Jurisdiction (Art.5, ICC Statute) The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: 1. Genocide (Art.6, ICC Statute) Genocide refers to any of the following acts (actus reus) which are committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such (dolus specialis): 1. Killing members of the group; 2. Causing serious bodily or mental harm to the members of the group; 3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 4. Imposing measures intended to prevent births within the group; and 5. Forcibly transferring children of the group to another group (Art.6, ICC Statute). 2. Crimes Against Humanity (“CAH”) (Art.7, ICC Statute) Refers to acts (actus reus) committed knowingly as part of a widespread or systematic attack directed against any civilian population. In any case, the attack must involve the multiple commission of such acts, made pursuant to or in furtherance of a State or organizational policy. 3. War Crimes (Art.8, ICC Statute) Refer to grave breaches of the 1949 Geneva Conventions and other violations of the laws and customs applicable in international and non-international armed conflict. 4. The Crime of Aggression The ICC shall exercise jurisdiction over the crime of aggression once a provision defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. 

Such provision shall be adopted pursuant to the rules on amendment (Art.121, ICC Statute). This amendment may be proposed in the Review Conference to be convened by the UN Secretary General seven years after the Statute has entered into force (Art.123, ICC Statute).

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legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

B. Modes of Incurring Criminal Liability 1. Individual Criminal Responsibility (Direct)(Art.25, ICC Statute) A person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person commits, orders, solicits or induces the commission of such a crime, or aids, abets or otherwise assists in the its commission. 2. Command and Superior Responsibility (Indirect)(Art.28, ICC Statute) The responsibility of military commanders and civilian superiors for crimes committed by subordinate members of their armed forces or other persons subject to their control. Requisites: 1. The commander or superior must exercise effective control over those who committed the crime; 2. The commander knew or should have known of the violations being perpetrated by his subordinates (Art.28(a)(i), ICC Statute); or thatthe Superior knew or consciously disregarded information that indicate that the subordinates were committing or about to commit such crimes (Art.28(b)(ii), ICC Statute); Note: A civilian superior may not be held criminally liable upon the basis of imputed knowledge (“should have known”). He must have consciously disregarded information which would have notified him of the violations being perpetrated by his subordinates. 3. Failure to prevent or to punish said violations.

C. Sources of Law The Court shall apply: 1. In the first place, this Statute, the Elements of Crimes and its Rules of Procedure and Evidence; 2. In the second place, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; 3. Failing that, General principles of law derived by the Court from national laws of

D. Other Key Concepts Principle of Complementarity (Art.17, ICC Statute) The ICC is intended as a court of last resort, investigating and prosecuting only where national courts have failed. The ICC shall assume jurisdiction over a case only where national criminal jurisdictions are genuinely unwilling or unable to investigate and prosecute most serious crimes of international concern. Where a State is able or willing, a case is not admissible to the Court (CASSESE). Nullum crimen nullum poena sine lege (Art.22, ICC Statute) A general principle in criminal law which provides that a person shall not be criminally responsible (under the ICC Statute) unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. 

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As in any criminal proceeding, the accused shall be presumed innocent until proved guilty. The iota of evidence required to convict an accused is proof beyond reasonable doubt (Art.66, ICC Statute). Applicable Penalties: The ICC may impose (a) imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or (b) a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. In no case may the Court impose capital punishment.

E. Landmark Cases 1. The Case of Thomas Lubanga Dyilo Thomas Lubanga Dyilo is a former rebel leader from the Democratic Republic of the Congo. He founded and led the Union of Congolese Patriots (UPC) and was a key player in the Ituri conflict. Rebels under his command have been accused of massive human rights violations, including ethnic massacres, murder, torture, rape, mutilation, and forcibly conscripting child soldiers.

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Note: The ICC Statute entered into force in 2002. The Review Conference is scheduled to be convened this year (2009).

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On 17 March 2006, Lubanga became the first person ever arrested under a warrant issued by the International Criminal Court. He is on trial for the war crime of enlisting children under the age of fifteen years and using them to participate actively in hostilities.

2. Sudan President Omar Al Bashir On March 2009, the ICC Pre-Trial Chamber issued a warrant for the arrest of Omar Al Bashir, President of Sudan. Al Bashir is charged of war crimes and crimes against humanity. He is suspected of being criminally responsible, as an indirect (co-)perpetrator, for intentionally directing attacks against an important part of the civilian population of Darfur, Sudan, murdering, exterminating, raping, torturing and forcibly transferring large numbers of civilians, and pillaging their property. Significance: This is the first warrant of arrest ever issued for a sitting Head of State by the ICC. Under Article 27 0f the ICC Statute, Omar Al Bashir’s official capacity as sitting Head of State does not exclude his criminal responsibility, nor does it grant him immunity against prosecution before the ICC. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

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Status: The Pre-Trial Chamber I committed Thomas Lubanga Dyilo for trial. The Chamber found that there is sufficient evidence to establish substantial grounds to believe that Thomas Lubanga Dyilo is criminally responsible as co-perpetrator for the war crimes he is charged of.

Chapter XI. Diplomatic Intercourse I.

AGENTS OF DIPLOMATIC INTERCOURSE A. HEAD OF STATE B. THE FOREIGN OFFICE C. THE DIPLOMATIC CORPS II. FUNCTIONS AND DUTIES III. DIPLOMATIC IMMUNITIES AND PRIVILEGES A. PERSONAL INVIOLABILITY B. INVIOLABILITY OF PREMISES AND ARCHIVES C. RIGHT OF OFFICIAL COMMUNICATION D. IMMUNITY FROM LOCAL JURISDICTION E. EXEMPTION FROM TAXES AND CUSTOMS DUTIES IV. CONSULAR RELATIONS A. RANKS B. NECESSARY DOCUMENTS C. IMMUNITIES AND PRIVILEGES

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I.

Diplomatic Intercourse, also referred to as the Right of Legation, is the right of the State to send and receive diplomatic missions, which enables States to carry on friendly intercourse.

Agents of Diplomatic Intercourse

Chapter XI. DIPLOMATIC INTERCOURSE

It is composed of: 1. Head of Mission – classified into: (a) Ambassadors or nuncios – accredited to Heads of State, and other heads of mission of equivalent rank; (b) Envoys, Ministers and Internuncios – accredited to Heads of State; (c) Charges d’affaires – accredited to Ministers of Foreign Affairs. 2. Diplomatic Staff – those engaged in diplomatic activities and are accorded diplomatic rank. 3. Administrative and Technical Staff – thise employed in the administrative and technical service of the mission. 4. Service Staff – those engaged in the domestic service of the mission(NACHURA REVIEWER) 

II. Functions and Duties 

A. Head of State The head of State represents the sovereignty of the State, and enjoys the right to special protection for his physical safety and the preservation of his honor and reputation. Upon the principle of exterritoriality, his quarters, archives, property and means of transportation are inviolate. He is immune from criminal and civil jurisdiction, except when he himself is the plaintiff, and is not subject to tax or exchange or currency restrictions.

B. The Foreign Office The body entrusted with the conduct of actual day-to-day foreign affairs. It is headed by a Secretary or a Minister who, in proper cases, may make binding declarations on behalf of his government (Legal Status of Eastern Greenland Case).

C. The Diplomatic Corps Refers to the collectivity of all diplomatic envoys accredited to a State.

In the Philippines, the President appoints (Art.VII,Sec.16, Constitution), sends and instructs the diplomatic and consular representatives.

The main functions of a diplomatic mission are the following: 1. Represent the sending State in the receiving State; 2. Protect in the receiving State the interests of the sending State and its nationals, within the limits allowed by international law; 3. Negotiate with the government of the receiving State; 4. Ascertain, by all lawful means, the conditions and developments in the receiving State and reporting the same to the sending State; 5. Promote friendly relations between the sending State and receiving State, and developing their economic, cultural and scientific relations.

III. Diplomatic Immunities and Privileges (Asked 9 times in the Bar)

A. Personal Inviolability 

The receiving State shall treat him with due respect and take all steps to prevent any attack on his person, freedom or dignity. The diplomatic representative shall not be liable to any form of arrest or detention. The diplomatic envoy, however, may be arrested temporarily in case of urgent danger, such as when he commits an act of

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His properties are not subject to garnishment, seizure for debt, execution and the like. The diplomatic agent also cannot be compelled to testify, not even by deposition, before any judicial or administrative tribunal in the receiving State without the consent of his government.

B. Inviolability of Premises and Archives 

The premises occupied by a diplomatic mission, including the private residence of the diplomatic agent, are inviolable. Such premises cannot be entered or searched, and neither can the goods, records and archives be detained by local authorities even under lawful process.

E. Exemption from Taxes and Customs Duties 

The envoy must consent to such entry, except in extreme cases of necessity (ex. When there is imminent danger that a crime of violence is to be perpetrated in the premises; when the premises are on fire). 

He is also exempt from all customs duties of articles for the official use of the mission and those for the personal use of the envoy or members of the family forming part of his household, including articles intended for his establishment.

The service of writs, summons, orders or processes within the premises of mission or residence of the envoy is prohibited. Even if a criminal takes refuge within the premises, the peace officers cannot break into such premises to apprehend the same. The fugitive should, however, be surrendered upon demand by local authorities, except when the right of asylum exists.

C. Right of Official Communication 

The envoy is entitled to fully and freely communicate with his government. The mission may employ all appropriate means to send and receive messages by any of the usual modes of communication or by diplomatic courier, which shall enjoy inviolability.

D. Immunity from Local Jurisdiction 

A diplomatic agent enjoys immunity from criminal jurisdiction of the receiving State.

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He may not be arrested, prosecuted, prosecuted or punished for any offense he may commit, unless his immunity is waived. This privilege, however, only exempts a diplomatic agent from local jurisdiction; it does not import immunity from legal liability.

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The diplomatic agent also enjoys immunity from the civil and administrative jurisdiction of the receiving State, even with respect to his private life.

Diplomatic agents are exempt from all dues and taxes, whether personal or real, national, regional or municipal.

Baggage and effects are entitled to free entry and are usually exempt from inspection. Exception to Tax Exemption: i.

Indirect taxes incorporated in the price of goods purchased or services availed ii. Dues and taxes on private immovable property situated in the receiving State iii. Estate, succession or inheritance taxes levied by the receiving State iv. Dues and taxes on private income sourced within the receiving State v. Capital taxes on investments in commercial ventures in the receiving State Duration of Immunities and Privileges. These privileges are enjoyed by the envoy from the moment he enters the territory of the receiving State, and shall cease when he leaves the country. With respect to official acts, immunity shall continue indefinitely. Waiver of Immunities. Diplomatic privileges may be waived. Such waiver may be made only by the government of the sending State if it concerns the immunities of the head of the mission. In other cases, the waiver may be made either by the government or by the chief of the mission.

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violence which makes it necessary to put him under restraint for the purpose of preventing similar acts.

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Chapter XI. DIPLOMATIC INTERCOURSE

IV. Consular Relations

A. Ranks 1. Consul General: heads several consular districts, or one exceptionally large consular district. 2. Consul: in charge of a small district or town or port. 3. Vice Consul: assists the consul. 4. Consular agent:one entrusted with the performance of certain functions by the consul.

B. Necessary Documents 

The following documents are necessary for the assumption of Consular functions: 1. Letters Patent(letter de provision) – the letter of appointment or commission which is transmitted by the sending state to the Secretary of Foreign Affairs of the country where the consul is to serve. 2. Exequatur – the authorization given to the consul by the sovereign of the receiving State, allowing him to exercise his function within the territory.

C. Immunities and Privileges 1. Freedom of communication; 2. Inviolability of archives, but not of the premises where legal processes may be served and arrests made; 3. Exemption from local jurisdiction for offenses committed in the discharge of official functions, but not for other offense except for minor infractions; 4. Exemption from testifying on official communications or on matters pertaining to consular functions; 5. Exemption from taxes, customs duties, military or jury service.

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Consuls are State agents residing abroad for various purposes but mainly  in the interest of commerce and navigation,  issuance of visa (permit to visit his country), and  such other functions as are designed to protect nationals of the appointing State.

Chapter XII. Recent International Law Issues in Philippine Law I. II.

DANIEL SMITH AND THE VFA CONSTITUTIONALITY OF THE BASELINES LAW III. VIOLENCE AGAINST WOMEN AS TORTURE

I.

Daniel Smith and the Visiting Forces Agreement

The issue of the constitutionality of the Visiting Forces Agreement (VFA) was once again raised in Nicolas v. Romulo (G.R. No. 175888) involving the custody of convicted rapist Lance Corporal Daniel Smith after the Philippine Supreme Court had already ruled in favor of its constitutionality in Bayan v. Zamora. The controversy centers on a specific transitory provision in the 1987 Constitution which states that: After the expiration in 1991 of the Agreement between the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. (Art. XVIII, sec. 25). In particular, the main problem lies on what it means for the VFA “to be recognized as a treaty” by the United States. There is apparently an international law issue in this case involving, as it does, the recognition of a treaty. This seems to be the mindset of the Supreme Court in Bayan v. Zamora when it affirmed the constitutionality of the VFA saying that “the phrase ‘recognized as a treaty’ means that the other contracting party accepts or acknowledges the agreement as a treaty” even without the US following its constitutional requirements (i.e. Senate concurrence) for the acceptance of a treaty. Notably, the Court in Bayan said that “it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive

Chapter XII. RECENT INTERNATIONAL LAW ISSUES

agreement is as binding as a treaty”—in other words, treating the controversy as an international law issue. Dean Merlin Magallona argues that the Bayan Court should have treated the issue as a domestic case because it is a constitutional attack against the VFA, not a case in international law. The petitioners in the recent case of Nicolas v. Romulo contended that the Philippine Government should have custody of Daniel Smith because the VFA—which will govern such issue of custody—is void for being unconstitutional. They said this in the wake of Medellin v. Texas (552 U.S. ___ (2008)) decided by the US Supreme Court which held that treaties entered into by the United States are not automatically part of US domestic law unless:  these treaties are self-executing or  there is an implementing legislation to make them enforceable. The Philippine Supreme Court answered that the VFA is enforceable because it is considered as an implementation of the RP-US Mutual Defense Treaty and the VFA is covered by an implementing legislation—i.e. the Case-Zablocki Act, USC Sec. 112(b)—which treats VFA as an executive agreement to be immediately implemented 60 days from its ratification. The dissenting opinion of Chief Justice Reynato Puno follows his dissent in Bayan. He says that there is an “anomalous asymmetry” in the legal treatment of the VFA between the US and the Philippines because the VFA can never be considered as a binding treaty in the US if it has no concurrence of the US Senate; indeed, the acknowledgement of the US President of the VFA as a “treaty” is not enough. Moreover, nowhere in the text of the VFA states that it is self-executory both in the US and the Philippines. The dissent of Justice Carpio follows the same line of reasoning. He points out that “the CaseZablocki Act operates merely as a timely notification to the U.S. Congress of the executive agreements, “other than a treaty,” that the U.S. President has entered into with foreign States” as clearly stated in its provisions. Art. XVIII, sec. 25 of the Philippine Constitution, he says, “bars the efficacy of such a treaty that is enforceable as domestic law only in the

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II. The Constitutionality of the Baselines Law Republic Act 9522 was enacted to comply with the deadline set by the United Nations Convention of the Law of the Sea (UNCLOS) for member states to draw its baselines as a result of the Third United Nations Conference on the Law of the Sea in 1973 (the UNCLOS III regime). The statute amended Republic Act 3046 entitled “An Act to Define the Baselines of the Territorial Sea of the Philippines” by changing the baselines of the Philippines and specifically excluding the Kalayaan Island Group and the Scarborough Shoal (also known as Bajo de Masinloc) from such baselines. Instead they are considered as a regime of islands under Article 121 of the UNCLOS which can have its own territorial sea, contiguous zone and exclusive economic zone and a continental shelf in accordance with the provisions of the Convention (Sec. 2, RA 9522). There is currently a petition in the Supreme Court questioning its constitutionality for it allegedly violates Article 1 of the 1987 Constitution which used the Treaty of Paris, the Treaty of Washington and the 1930 Convention between the US and Great Britainas its basis in defining the national territory of the Philippines. The baselines set by RA 9522 is said to be a radical departure from the baselines set by such treaties on which our Constitution is based. Moreover, by disregarding Article 1 of the Philippine Constitution, the new baselines law allegedly converts the internal waters of the Philippines—“the waters around, between, and connecting the islands of the archipelago” into archipelagic waters under the UNCLOS III regime thus rendering nugatory the reservations of the Philippines under the UNCLOS and allowing ships of all states the right of innocent passage (UNCLOS Art. 52) and the right of archipelagic sea lanes passage, i.e., the rights of navigation and overflight solely for the purpose of continuous, expeditious, and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone (UNCLOS Art. 53).

Other provisions of the Constitution that are said to be violated are: 1. Art. II, sec. 7 on the pursuit of independent foreign policy; 2. Art. II. Sec. 8 on the policy of freedom from nuclear weapons in Philippine territory— since foreign ships of all kinds to navigate in Philippine waters including nuclear-powered submarines, nuclear-powered warships and other ships carrying weapons-grade nuclear substances (UNCLOS Art. 52 in relation to Arts. 20, 22, 23); 3. Art. II, sec, 16 on the policy of a balanced and healthful ecology; 4. Art. XII, sec. 2 on marine wealth and 5. Art. XIII, sec. 7 on the protection on offshore fishing grounds for fishermen.

III. VIOLENCE AGAINST WOMEN (VAW) AS A FORM OF TORTURE* State acquiescence in domestic violence can take many forms, some of which may be subtly disguised. For instance, Civil laws that appear to have little to do with violence also have an impact on women’s ability to protect themselves and assert their rights. Laws that restrict women’s right to divorce or inheritance, or that prevent them from gaining custody of their children, receiving financial compensation or owning property, all serve to make women dependent upon men and limit their ability to leave a violent situation…States should be held accountable for complicity in violence against women, whenever they create and implement discriminatory laws that may trap women in abusive circumstances State responsibility may also be engaged if domestic laws fail to provide adequate protection against any form of torture and ill-treatment in the home. International law has developed considerably over the years to become more genderinclusive. In 1996, the Special Rapporteur on violence against women stated that: “the argument that domestic violence should be *

Nowak, Manfred, Special Rapporteur, Report on Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment for Item 3 of the Provisional Agenda: Promotion and Protection of All Human Rights, Civil, Including The Right To Development during the Seventh Session of the United Nations Human Rights Council last January 15, 2008.

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Philippines but unenforceable as domestic law in the other contracting State”.

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Chapter XII. RECENT INTERNATIONAL LAW ISSUES

understood and treated as a form of torture and, when less severe, ill-treatment, is one that deserves consideration by the rapporteurs and treaty bodies that investigate these violations together perhaps with appropriate NGO experts and jurists”.

In line with this statement the Committee has mentioned the need for States to adopt specific legislation combating domestic violence, including legislation criminalizing marital rape.More specifically, it has called upon States to ensure that their justice systems incorporate restraining orders to protect women from violent family members, provide shelters and other support to victims, establish measures to encourage women to report domestic violence to the authorities,and offer “material and psychological relief to the victims.

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In 2000, the Human Rights Committee indicated that domestic violence can give rise to violations of the right not to be subjected to torture or ill-treatment under article 7 of the ICCPR.

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APPENDICES

Appendix 1 - Straight and Normal Baselines

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171

For States A and B, normal baselines baselines—the lines depicting the low water line—are are used. For State C, combinations of normal and straight baselines are used. Straight baselines are employed on the part of the coastwhich is fringed with islets.

Appendix 2 - Continental Shelf and the Maritime Zones

- end of Public International Law -

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TABLE of CONTENTS

ADMINISTRATIVE LAW Table of Contents

Chapter II. Powers of Administrative Agencies .......................................................176 A. Quasi-Legislative (Rule-making) Powers 176 1. Definition .......................................176 2. Non-delegation doctrine................176 3. Legislative Delegation...................176 B. Quasi-Judicial (Adjudicatory) Powers178 C. Determinative Powers .......................183 Chapter III. Judicial Review and Enforcement of Agency Action..........................................184 A. Considerations ..................................184 1. Basis .............................................184 2. Factors to Consider in Judicial Review: ..................................................184 3. The doctrines of forum shopping, litis pendentia and res judicata also apply to administrative agencies. ........................184 4. General Rule.................................184 5. Exceptions ....................................184 6. When judicial review is valid despite finality of administrative decisions: ........185 7. Availability of Judicial Review depends on:...........................................185 B. Four Important Doctrines in Judicial Review .......................................................185 1. Doctrine of Primary Jurisdiction or Preliminary Resort .................................185 2. Doctrine of Exhaustion of Administrative Remedies.......................186 3. Doctrine of Qualified Political Agency 187 4. Ripeness .......................................187 C. Extent of Judicial Review ..................188 1. General Rule.................................188 2. General Principles ........................188 3. Law-fact Distinction.......................188 4. Question of Law............................188 5. Question of Fact ...........................188 6. Question of Discretion ..................189 D. Modes of Judicial Review..................190 1. Certiorari .......................................190 2. Prohibition .....................................190 3. Mandamus ....................................191 4. Declaratory Relief .........................192

5. 6. 7. 8.

Habeas Corpus............................. 192 Writ of Amparo.............................. 193 Habeas Data................................. 193 Injunction as Provisional Remedy 193 E. Enforcement of Agency Action ......... 194 1. Res Judicata; Finality of Judgment 194 2. Writ of Execution; Mandamus....... 194

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Chapter I. Preliminary Considerations.......174 A. Definitions .........................................174 B. Historical Considerations ..................174 C. Modes of Creation of Administrative Agencies ....................................................174 D. When is an agency administrative? ..175 E. Types of Administrative Agencies .....175

Prof. Rodolfo Noel Quimbo Faculty Editor

Diana Lutgarda Bonilla Lead Writer

POLITICAL LAW Jennifer Go Subject Editor

ACADEMICS COMMITTEE Kristine Bongcaron Michelle Dy Patrich Leccio Editors-in-Chief

PRINTING & DISTRIBUTION Kae Guerrero

DESIGN & LAYOUT Pat Hernandez Viktor Fontanilla Rusell Aragones Romualdo Menzon Jr. Rania Joya

LECTURES COMMITTEE Michelle Arias Camille Maranan Angela Sandalo Heads Katz Manzano Mary Rose Beley Sam Nuñez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers

MOCK BAR COMMITTEE Lilibeth Perez

BAR CANDIDATES WELFARE Dahlia Salamat

LOGISTICS Charisse Mendoza

SECRETARIAT COMMITTEE Jill Hernandez Head Loraine Mendoza Faye Celso Mary Mendoza Joie Bajo Members

Chapter I. Preliminary Considerations A. B. C. D. E.

DEFINITIONS HISTORICAL CONSIDERATIONS MODES OF CREATION OF ADMINISTRATIVE AGENCIES WHEN IS AN AGENCY ADMINISTRATIVE? TYPES OF ADMINISTRATIVE AGENCIES

A. Definitions 1. Administrative Law is that branch of modern law under which the executive department of the government, acting in a quasi-legislative or quasi-judicial capacity, interferes with the conduct of the individual for the purpose of promoting the well-being of the community (DEAN ROSCOE POUND) 2. Administrative Agencies are the organs of government, other than a court and other than the legislature, which affect the rights of private parties either through adjudication or through rule-making.

B. Historical Considerations 1. Why did administrative agencies come about?  Growing complexities of modern life  Multiplication of number of subjects needing government regulation; and  Increased difficulty of administering laws [Pangasinan Transportation vs Public Service Commission (1940)] 2. Why are administrative agencies needed? Because the government lacks:  Time  Expertise and  Organizational aptitude for effective and continuing regulation of new developments in society (STONE)

C. Modes of Creation of Administrative Agencies 1. 1987 Constitution (e.g. CSC, COMELEC, COA, CHR, Commission on Appointments, Judicial and Bar Council and NEDA)

2. Legislative Enactment (e.g. NLRC, SEC, PRC, Social Security Commission, Commission on Immigration and Deportation, Philippine Patent Office, Games and

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ADMINISTRATIVE LAW TEAM

Chapter I. PRELIMINARY CONSIDERATIONS

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POLITICAL LAW REVIEWER Amusement Board, Board Insurance Commission)

Chapter I. PRELIMINARY CONSIDERATIONS of

Energy,

and

3. Executive Order/ Authority of law (e.g. Fact-finding Agencies)

D. When is an agency administrative?

2. On its rule-making authority, it is administrative when it does not have discretion to determine what the law shall be but merely prescribes details for the enforcement of the law.

E. Types of Administrative Agencies 1.

Government grant or gratuity, special privilege (e.g. Bureau of Lands, Phil. Veterans Admin., GSIS, SSS, PAO);

2.

Carrying out the actual business of government (e.g. BIR, Customs, Immigration, Land Registration Authority);

3.

Service for public benefit (e.g. Philpost, PNR, MWSS, NFA, NHA);

4.

Regulation of businesses affected with public interest (e.g. Insurance Commission, LTFRB, NTC, HLURB);

5.

Regulation of private individuals (e.g. SEC);

businesses

and

6. Adjustment of individual controversies because of a strong social policy involved (e.g. ECC, NLRC, SEC, DAR, COA).

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1. Where its function is primarily regulatory  EVEN IF it conducts hearings and determines controversies to carry out its regulatory duty.

Chapter II. POWERS of ADMINISTRATIVE AGENCIES

i.

Chapter II. Powers of Administrative Agencies A.

B.

C.

QUASI-LEGISLATIVE (RULE-MAKING) POWERS 1. DEFINITION 2. NON-DELEGATION DOCTRINE 3. LEGISLATIVE DELEGATION a. REQUISITES OF A VALID DELEGATION b. A SUFFICIENT STANDARD c. FORM OF THE SUFFICIENT STANDARD d. PERMISSIBLE DELEGATION QUASI-JUDICIAL (ADJUDICATORY) POWERS 1. DEFINITION 2. SOURCE 3. REQUISITES FOR VALID EXERCISE 4. GENERAL RULE 5. WHAT QUASI-JUDICIAL POWERS INCLUDE 6. INVESTIGATIVE POWERS 7. SUBPOENA POWERS 8. POWER TO CITE IN CONTEMPT 9. WARRANTS OF ARREST 10. ADMINISTRATIVE SEARCHES 11. DUE PROCESS 12. NOTICE AND HEARING 13. ADMINISTRATIVE AND JUDICIAL PROCEEDINGS ARISING FROM THE SAME FACTS 14. RULES OF EVIDENCE DETERMINATIVE POWERS

The powers of administrative agencies are:  Quasi-legislative (Rule-making)  Quasi-judicial (Adjudicatory) and  Determinative

A. Quasi-Legislative Powers

ii.

The law must be complete in itself and must set forth the policy to be executed The law must fix a standard, the limits of which are sufficiently determinate or determinable, to which the delegate must conform

b. A sufficient standard: i. Defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it; and ii. Indicates the circumstances under which the legislative command is to be effected. [Santiago v COMELEC (1997); ABAKADA Guro List vs Ermita (2005)] c.

Form of the sufficient standard: i. Express ii. Implied [Edu vs Ericta (1970)] iii. Embodied in other statutes on the same matter and not necessarily in the same law being challenged. [Chiongbian vs Orbos (1995)]

d. Permissible Delegation i. Ascertainment of Fact ii. Filling in of Details iii. Fixing of Rates, Wages, Prices iv. Licensing Function, and v. Administrative Rule-Making i.

Ascertainment of Fact. A statute may give to non-judicial officers:  the power to declare the existence of facts which call into operation the statute’s provisions and  may grant them and their subordinate officers the power to ascertain and determine appropriate facts as a basis of procedure in the enforcement of laws.  Such functions are merely incidental to the exercise of power granted by law to clear navigable streams of unauthorized obstructions. They can be conferred upon executive officials provided the party affected is given the opportunity to be heard. [Lovina vs. Moreno(1963)]

ii.

Filling in of details  For necessity and as a means of enforcement and execution [Alegre vs Collector of Customs (1920)]

(Rule-making)

(Asked 5 times in the Bar)

1. Definition The authority delegated by the law-making body to the administrative agency to adopt rules and regulations intended to carry out the provisions of a law and implement legislative policy.

2. Non-delegation doctrine Potestas delegata non delegare potest. What has been delegated cannot be delegated.

3. Legislative Delegation a. Requisites for a valid delegation

iii. Fixing of rates, wages, prices Sec. 2(3), 1987 Administrative Code. “Rate” means any charge to the public for a

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Chapter II. POWERS of ADMINISTRATIVE AGENCIES

service open to all and upon the same terms, including individual or joint rates, tolls, classification or schedules thereof, as well as communication, mileage, kilometrage and other special rates which shall be imposed by law of regulation to be observed and followed by any person.

determined by the agency. Sec. 2(10), 1987 Administrative Code. “License” includes the whole or any part of any agency permit, certificate, passport, clearance, approval, registration, charter, membership, statutory exemption or other form of permission, or regulation of the exercise of a right or privilege.

Sec. 9, 1987 Administrative Code. Public Participation. – (2) In the fixing of rates, no rule or final order shall be valid unless the proposed rates shall have been published in a newspaper of general circulation at least 2 weeks before the first hearing thereon.







Generally, the power to fix rates is a quasi-legislative function. However, it becomes judicial when the rate is applicable only to an individual. Can the power to fix rates be delegated to a common carrier or other public service? NO. The latter may propose new rates, but these will not be effective without the approval of the administrative agency. [KMU vs Garcia (1994)] What are considered in the fixing of rates? (1) the present valuation of all the property of a public utility, and (2) the fixed assets. The property is deemed taken and condemned by the public at the time of filing the petition, and the rate should go up and down with the physical valuation of the property. [Ynchausti vs Public Utility Commissioner (1922)]

Sec. 2(11), 1987 Administrative Code. “Licensing” includes agency process involving the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification or conditioning or a license.





v.

When are notice and hearing required in licensing? Only if it is a contested case. Otherwise, it can be dispensed with.(e.g. driver’s licenses). No expiry date does not mean the license is perpetual. A license permit is a special privilege, a permission or authority to do what is within its terms. It is always revocable. [Gonzalo Sy Trading vs Central bank (1976)]

Administrative Rule-making o Types of Administrative Rules: a. Supplementary legislation b. Interpretative legislation c. Contingent legislation a. Supplementary legislation Pertains to rules and regulations to fix details in the execution of a policy in the law. e.g. IRRs of the Labor Code.

iv. Licensing Function Sec. 17, 1987 Administrative Code. Licensing Procedure. – (1) When the grant, renewal, denial or cancellation of a license is required to be preceded by notice and hearing, the provisions concerning contested cases shall apply insofar as practicable. (2) Except in cases of willful violation of pertinent laws, rules and regulations or when public security, health, or safety requires otherwise, no license may be withdrawn, suspended, revoked or annulled without notice and hearing. Sec. 18, 1987 Administrative Code. Nonexpiration of License. – Where the licensee has made timely and sufficient application for the renewal of a license with reference to any activity of a continuing nature, the existing license shall not expire until the application shall have been finally

b. Interpretative legislation Pertains to rules and regulations construing or interpreting the provisions of a statute to be enforced and they are binding on all concerned until they are changed, i.e. BIR Circulars.

GENERAL DISTINCTIONS FROM LEGISLATIVE RULES Legislative Rules Promulgated pursuant to its quasi-legislative / rule-making functions. Create a new law, a new policy, with the force and effect of law. Need publication. So long as the court finds that the legislative rules are within the

Interpretative Rules Passed pursuant to quasi-judicial capacity.

its

Merely clarify the meaning of a pre-existing law by inferring its implications. Need not be published. The court may review their correctness of the interpretation of the law

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Legislative Rules power of the administrative agency to pass, as seen in the primary law, then the rules bind the court. The court cannot question the wisdom or correctness of the policy contained in the rules.

of the Admin Code in relation to the Civil Code.  EO 200 requires publication of laws in the Official Gazette or in a newspaper of general circulation. Publication is indispensable, especially if the rule is general. EXCEPTIONS:  Interpretative rules  Internal regulations (i.e. regulating personnel)  Letters of instructions issued by administrative superior to subordinates  Effectivity: 15 days after publication, not 15 days from date of filing with the UP Law Center. EXCEPTIONS:  Different date is fixed by law or specified in the rule.  In case of imminent danger to public health, safety and welfare.

o

o

o

o

Restrictions on interpretative regulations: (a) does not change the character of a ministerial duty, (b) does not involve unlawful use of legislative or judicial power. Administrative interpretations: may eliminate construction and uncertainty in doubtful cases. When laws are susceptible of two or more interpretations, the administrative agency should make known its official position. Administrative construction/ interpretation not controlling as to the proper construction of a statute, but generally it is given great weight, has a very persuasive influence and may actually be regarded by the courts as the controlling factor. Administrative interpretation is merely advisory; Courts finally determine what the law means.

c. Contingent legislation Pertains to rules and regulations made by an administrative authority on the existence of certain facts or things upon which the enforcement of the law depends. o

Requisites of a valid administrative rule (WRAP)  Authorized by law  Within the scope or authority of law  Reasonableness  promulgated in accordance with prescribed Procedure

o

Penal Rules Sec. 6, 1987 Administrative Code. Omission of Some Rules. – (2) Every rule establishing an offense or defining an act which, pursuant to law is punishable as a crime or subject to a penalty shall in all cases be published in full text.

a) The law itself must declare the act as punishable and must also define or fix the penalty for the violation. b) Can administrative bodies make penal rules? NO. Penal statutes are exclusive to the legislature and cannot be delegated. Administrative rules and regulations must not include, prohibit or punish acts which the law does not even define as a criminal act. [People vs Maceren (1977)] c) If a rule is penal, it must be published before it takes effect. [People vs Que Po Lay (1954)]

B. Quasi-Judicial (Adjudicatory) Powers (Asked 4 times in the Bar)

o

Publication Rules  Administrative rules and regulations are subject to the publication and effectivity rules

1. Definition. The power of the administrative agency to determine questions of fact to which the legislative policy is to apply, in

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Due process involves whether the parties were afforded the opportunity to be notified and heard before the issuance of the ruling.

Interpretative Rules given by the administrative body, and substitute its own view of what is correct to the administrative body. If it is not within the scope of the administrative agency, court can only invalidate the same but not substitute its decision or interpretation or give its own set of rules. Due process means that the body observed the proper procedure in passing rules.

Chapter II. POWERS of ADMINISTRATIVE AGENCIES

accordance with the standards laid down by the law itself. 2. Source. Incidental to the power of regulation but is often expressly conferred by the legislature through specific provisions in the charter of the agency.

DISTINCTIONS FROM JUDICAL PROCEEDINGS Kind of Proceedings Nature of Proceedings

Administrative

Judicial

Inquisitorial

Adversarial

Rules of Procedure

Liberally applied

Nature and Extent of Decision

Decision limited to matters of general concern

Parties

The agency itself may be a party to the proceedings before it

Follow technical rules in the Rules of Court Decision includes matters brought as issue by the parties The parties are only the private litigants

3. Requisites for a Valid Exercise: a. Jurisdiction b. Due process 4. General Rule: A tribunal, board or officer exercising judicial functions acts without jurisdiction if no authority has been conferred to it by law to hear and decide cases. a. Jurisdiction to hear is explicitly or by necessary implication, conferred through the terms of the enabling statute. b. Effect of administrative acts outside jurisdiction—VOID. 5. Quasi-judicial powers include: (SF-SWIP) a. Investigative b. Subpoenas c. Power to Cite in Contempt d. Warrants of Arrest (only upon final order of deportation) e. Administrative Searches f. Imposition of Fines and penalties 6. Investigative powers. Administrative agencies’ power to conduct investigations and hearings, and make findings and recommendations thereon is inherent in their functions as administrative agencies



Findings of facts by administrative bodies which observed procedural safeguards (e.g. notice and hearing parties, and a full consideration of evidence) are accorded the greatest respect by courts

7. Subpoena powers. All agencies with quasi-judicial functions have the power to issue subpoena even if the charter is silent as to such power. Why? Adjudicative power will be rendered inutile if there is no subpoena power. 

Test for valid enforcement of subpoena: [Evangelista vs Jarencio (1975)] (a) Within the authority of the agency. (b) Demand not too indefinite. (c) Information reasonably relevant.

8. Power to cite in contempt. This power must be expressly granted in the charter (ex. PD 902-A creating the SEC).  If there is no grant, the agency must go to the RTC. Why? Because the power to cite in contempt is inherently judicial.  Contempt power can be used for quasijudicial functions (but NOT ministerial ones) [Guevarra vs COMELEC (1958)] 9. Warrants of arrest. Administrative agencies cannot issue warrants of arrest. Only a judge may issue warrants. [Salazar v Achacoso (1990)] EXCEPTION: Deportation of illegal and undesirable aliens following a final order of deportation. [Qua Chee Gan v Deportation Board (1963)] 



Two ways of deporting: i. Commissioner of Immigration (Sec 37 of CA 618) ii. President after due investigation (Sec 69 of Administrative Code) Can the Commissioner issue warrants of arrest? Issuance of the warrants of arrest by the Commissioner, solely for the purpose of investigation and before a final order of deportation is issued, conflicts with paragraph 3, Sec. 1, Art. III of the 1935 Constitution, which states that the power to determine probable cause for warrants of arrest is limited to judges. Warrants of arrest issued solely for the purpose of investigation and before a final order of deportation is issued are therefore null and void. Notice and

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bonds are sufficient to ensure that the subject will appear at the hearing without prejudice to more drastic measures in case of recalcitrant respondents. [Vivo v Montesa (1968)] 

The cases of Harvey and Lucien Tran Van Nghia, however, diverge from the Qua Chee Gan ruling.  Harvey v Defensor-Santiago (1988]. The Commissioner can arrest aliens upon a warrant issued by him and deported upon warrant issued by the same after a determination of the existence of a ground for deportation by the Board of Commissioners. Deportation proceedings are administrative in nature, not penal, but merely preventive. Thus, it need not be conducted strictly in accordance with ordinary court proceedings. The requirement of probable cause, determined by a judge, does not extend to deportation proceedings. What is essential however is that (1) there be a specific charge against the alien, (2) there be a fair hearing conducted, and (3) the charge be substantiated by competent evidence 

Lucien Tran Van Nghia v Liwag (1989). In this case, the arrest and detention by the CID preparatory to the deportation proceedings was illegal. Here, the particular circumstances place doubt on the propriety of the arrest. The Mission Order was issued on the basis of sworn complaints of a single individual. The essential requisite of probable cause is absent (Implication: the Commissioner may issue warrants of arrest upon finding of probable cause). 

The Qua Chee Gan ruling is reinforced by a case more recent than the Harvey and Lucien cases.  Salazar v Achacoso (1990) Art. 38 of the Labor Code allowing the Secretary of Labor the power to issue warrants of arrest is unconstitutional. Only a judge may issue search or arrest warrants. The SC reaffirms the following principles: (1) Under Sec.2, Art. III of the Constitution, only judges may issue search warrants and warrants of arrest; and (2) the exception is in cases of deportation of illegal and

undesirable aliens, whom the President or the Commissioner may order arrested, following a final order of deportation, for the purpose of the same. 

Harvey or Qua Chee Gan? Qua Chee Gan prevails. It is supported by more recent cases. Note also that Salazar was decided en banc, while Harvey was decided by a division.

10. Administrative Searches. Warrantless nonemergency inspection of residential and commercial premises are significant intrusions upon the interests protected by th the 4 Amendment. 



It is surely anomalous to say that the individual and his private property are fully protected by the constitution only when he is suspected of criminal behavior. Warrants should normally be sought only after entry is refused unless there is a citizen complaint or other satisfactory reason for securing immediate entry. th There is no justification for relaxing 4 Amendment safeguards for commercial establishments. Warrants are a necessary and tolerable limitation on the right to enter upon and inspect places of business. [Camara vs Municipal Court (1967)]

Limitations on administrative subpoenas of corporate books and documents are: i. Limited in scope. ii. Relevant in purpose. iii. Specific directives so compliance will not be unreasonably burdensome. iv. Subpoena must designate the needed documents. v. Subpoena may not be made and enforced in the field. vi. Subpoenaed party may obtain judicial review of reasonableness of demand prior to suffering penalties for refusal to comply. vii. The particular agency’s demand for access will be measured against a flexible standard of reasonableness that takes into account the public need for effective enforcement of regulations. [See vs Seattle (1967)]

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[Nos. 11-14 cover Administrative Procedure (Asked 9 times in the Bar)] 11. Due Process.  Ang Tibay v CIR (1950) lays down the cardinal primary rights: i. Right to a hearing (Includes the right of a party to present his own case and submit evidence in support thereof) ii. The tribunal must consider the evidence presented iii. Decision must be supported by evidence. iv. Evidence must be substantial. Substantial Evidence: such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds equally reasonable would opine otherwise v. Decision must be rendered on the evidence presented at the hearing or at least contained in the record and disclosed to the parties affected vi. Independent consideration of judge (Must not simply accept the views of a subordinate) vii. Decision rendered in such a manner as to let the parties know the various issues involved and the reasons for the decision rendered. 

Due process does not always entail notice and hearing prior to the deprivation of a right. Hearing may occur after deprivation, as in emergency cases, in which case, there must be a chance to seek reconsideration. [UP Board of Regents vs CA (1999)]



Presence of a party at a trial is not always the essence of due process. All that the law requires is the element of fairness; that the parties be given notice of trial and i. an opportunity to be heard ii. in administrative proceedings, an opportunity to seek reconsideration iii. an opportunity to explain one’s side



The law, in prescribing a process of appeal to a higher level, contemplates that the reviewing officer is a person different from the one who issued the appealed decision. Otherwise, the review becomes a farce; it is rendered meaningless. [Rivera vs CSC (1995)]





Is a trial necessary? NO. WON to hold an adversarial trial is discretionary. Parties cannot demand it as a matter of right. [Vinta Maritime v NLRC (1978)].



The right of a party to confront and cross-examine opposing witness is a fundamental right which is part of due process. If without his fault, this right is violated, he is entitled to have the direct examination stricken off the record. [Bachrach Motors vs CIR (1978)]



Evidence on record must be fully disclosed to the parties. [American InterFashion vs Office of the President (1991)] BUT respondents in administrative cases are not entitled to be informed of findings of investigative committees but only of the decision of the administrative body. [Pefianco v Moral (2000)]



Due process is violated when: i. There is failure to sufficiently explain the reason for the decision rendered; or ii. If not supported by substantial evidence; iii. And imputation of a violation and imposition of a fine despite absence of due notice and hearing. [Globe Telecom v NTC (2004)].

Self-incrimination. The right against selfincrimination may be invoked by the respondent at the time he is called by the complainant as a witness. However, if he voluntarily takes the witness stand, he can be cross examined; but he may still invoke the right when the question calls for an answer which incriminates him for an offense other than that charged. [People vs Ayson (1989)]

12. Notice and Hearing.  When required: i. When the law specifically requires it. ii. When it affects a person’s status and liberty.  When not required: i. Urgent reasons. ii. Discretion is exercised by an officer vested with it upon an undisputed fact. iii. If it involves the exercise of discretion and there is no grave abuse.

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iv. When rules to govern future conduct of persons or enterprises, unless law provides otherwise. v. In the valid exercise of police power. 13. Administrative and judicial proceedings arising from the same facts.  The practice in the Philippines has been to allow an administrative proceeding and a judicial proceeding to take place at the same time so long as the 2 actions are independent of each other. 







The difference in the proceeding (one administrative, the other criminal) is not legal incompatibility, but merely physical incompatibility. They involve different causes of action and therefore can proceed simultaneously. [Galang vs CA (1961)] Material matters in an administrative case are not necessarily relevant in the criminal case. Findings in criminal cases cannot be conclusive for administrative purposes. There are defenses, excuses, and attenuating circumstances of value in administrative proceedings that are not admissible in criminal cases which can have a blunting effect on the conviction. Due process should be upheld. Conviction does not ex proprio vigore justify automatic suspension. [Villanos vs Subido (1971)] Acquittal in the criminal case does not carry with it relief from administrative liability. Different standards apply. The administrative case requires only a preponderance of evidence to establish administrative guilt; the criminal case requires proof beyond reasonable doubt of the criminal charge. [Police Commission vs Lood (1980)]

administrative agencies to act with speed and flexibility. The Pervasive Principle applies in at least three areas: i. Admissibility: Generally, agencies are not bound by the technical rules of admissibility. ii. Judicial Notice: Administrative bodies may take into account not only such evidence as may be presented by the parties in the determination of the case. They may also make their inquiry into facts at issue, and take judicial notice of certain other matters. iii. Quantum of Evidence: Only substantial evidence is required to support a decision. 

Ocular inspection is not equivalent to a trial or presentation of evidence, as it is only an auxiliary remedy. Parties are still entitled to a hearing. But if the issue can be resolved through ocular inspection, there is no prohibition. [Phil. Movie Pictures Workers Association vs Premiere Productions (1953)]



Can the order of testimony be changed? YES, it is within the discretion of the court. Such a relaxed procedure is especially true in administrative bodies. In the broad interest of justice, the administrative body may except itself from technical rules and apply such suitable procedure as shall promote the objectives. [Maceda v ERB (1991)]



When are findings of fact of administrative agencies not conclusive upon the courts?

i.

When the decision was rendered by an almost evenly divided court and the division was precisely on the facts as borne out by the evidence. [Gonzales vs Victory Labor Union (1969)]

ii.

When the decision was rendered in consequence of fraud, imposition or mistake, other than error of judgment in estimating the value or effect of the evidence. [Ortua vs Singson (1934)]

There can be a conviction in a criminal case and an acquittal in the administrative case. [Villanos vs Subido (supra)]

14. Rules of Evidence. Generally, apply the specific rules of the administrative agency. In the absence thereof, apply the general rules on procedure. 

Chapter II. POWERS of ADMINISTRATIVE AGENCIES

However, administrative agencies are not bound by the technical rules of evidence of ordinary courts, so long as due process is observed. (the Pervasive Principle) Why? To allow

iii. When the supported

decision is not by substantial

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evidence. (1988)]

Chapter II. POWERS of ADMINISTRATIVE AGENCIES

[Manahan

v

People

iv. When the findings are based merely on their position papers. There is no trial through position papers where the adversarial process would ensure a better presentation and appreciation of the evidence. [PAL vs Confessor (1994)] The SC will intervene only when the standard appears to have been misapprehended or grossly misapplied. [Universal Camera vs NLRC (1951)]

C. Determinative Powers Determinative powers are: (DEEDS) a. Enabling — to permit or allow something which the law undertakes to regulate, e.g. licenses b. Directing — i.e. assessment by the BIR or Customs c. Dispensing — to exempt from a general prohibition, or relieve an individual or corporation from an affirmative duty, e.g. authority of zoning d. Examining — investigatory power; consists in requiring production of books, papers, and the attendance of witnesses and compelling their testimony e. Summary — power to apply compulsion or force to effect a legal purpose without a judicial warrant to authorize such action, e.g. fields of health inspection, abatement of nuisances.

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Chapter III. Judicial Review Enforcement of Agency Action A.

B.

C.

D.

E.

and

CONSIDERATIONS 1. BASIS 2. FACTORS TO CONSIDER IN JUDICIAL REVIEW 3. DOCTRINES APPLICABLE TO ADMINISTRATIVE AGENCIES 4. GENERAL RULE 5. EXCEPTIONS 6. WHEN JUDICIAL REVIEW IS VALID DESPITE FINALITY OF ADMINISTRATIVE DECISIONS 7. AVAILABILITY OF JUDICIAL REVIEW FOUR IMPORTANT DOCTRINES IN JUDICIAL REVIEW 1. PRIMARY JURISDICTION 2. EXHAUSTION OF ADMINISTRATIVE REMEDIES 3. QUALIFIED POLITICAL AGENCY 4. RIPENESS EXTENT OF JUDICIAL REVIEW 1. GENERAL RULE 2. GENERAL PRINCIPLES 3. LAW-FACT DISTINCTION 4. QUESTION OF LAW 5. QUESTION OF FACT 6. QUESTION OF DISCRETION MODES OF JUDICIAL REVIEW 1. CERTIORARI 2. PROHIBITION 3. MANDAMUS 4. DECLARATORY RELIEF 5. HABEAS CORPUS 6. AMPARO 7. HABEAS DATA 8. INJUNCTION AS PROVISIONAL REMEDY ENFORCEMENT OF AGENCY ACTION 1. RES JUDICATA; FINAL JUDGMENT 2. WRIT OF EXECUTION; MANDAMUS

2. Factors to Consider in Judicial Review: a. If what is involved is a question of constitutionality, judicial review is available. b. Intention of Congress prevails. EXCEPTION: when the Constitution requires or allows it, judicial review may be granted or withheld as Congress chooses. Thus, the law may provide that a determination made by an administrative agency shall be final and irreviewable. In such a case, there is no violation of due process. However, Art. 8 Sec. 1 par. 2 of the 1987 Constitution, which provides that the judicial power includes the power of the courts of justice to determine WON there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any government agency or instrumentality, clearly means that judicial review of administrative decisions cannot be denied the courts when there is an allegation of grave abuse of discretion. c.

Nature of problem involved: i. Right (should be protected by law) v Privilege (can be unilaterally withdrawn) ii. Question of Law v Question of Fact (refer to discussion on Extent of Judicial Review on page 147)

d. Finality of the administrative decision.

3. The doctrines of forum shopping, litis pendentia and res judicata also apply to administrative agencies.

A. Considerations

4. General Rule

1. Basis

Courts will refuse to interfere with proceedings undertaken by administrative bodies or officials in the exercise of administrative functions.

There is an underlying power in the courts to scrutinize the acts of administrative agencies exercising quasi-judicial power on questions of law and jurisdiction even though no right of review is given by the statute. Judicial review keeps the administrative agency within its jurisdiction and protects substantial rights of parties affected by its decisions. Judicial review is proper in cases of lack of jurisdiction, error of law, grave abuse of discretion, fraud or collusion, or in case the administrative decision is corrupt, arbitrary or capricious. [San Miguel Corp. v Labor Secretary (1975)]

5. Exceptions Administrative proceedings may be reviewed by the courts upon a showing that the board or official: a. Has gone beyond his statutory authority; b. Exercised unconstitutional powers; c. Clearly acted arbitrarily and without regard to his duty, or with grave abuse of discretion; or d. The decision is vitiated by fraud, imposition or mistake. [Manuel vs Villena (1971)]

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6. When judicial review is valid despite finality of administrative decisions: a. Decision is wrong; b. Manifestly arbitrary, capricious, unjust decision; c. Not based upon any reasonable interpretation of law; d. Vitiated by fraud, imposition or mistake; e. Violates or fails to comply with some mandatory provision of law; f. Administrative body or officer has gone beyond its/his statutory authority; g. Administrative agency exercised unconstitutional powers; h. Lack of jurisdiction; Grave abuse of discretion.

B. Four Important Doctrines in Judicial Review 1. 2. 3. 4.

1. Doctrine of Primary Jurisdiction or Preliminary Resort a. General rule. Courts will not intervene if the question to be resolved is one which requires the expertise of administrative agencies and the legislative intent on the matter is to have uniformity in the rulings. It can only occur where there is a concurrence of jurisdiction between the court and the administrative agency.

7. Availability of Judicial Review depends on: Whether the enabling statute permits judicial review. There is no problem when the statute itself expressly grants or prohibits judicial review. But when it is silent, generally, judicial review is available j. Whether the plaintiff has standing. k. Whether the defendant is the proper defendant. The defendant could be either a private party, or the very administrative agency before whom the right is being applied. l. Whether the forum is the proper forum. The forum is usually provided for in the enacting statute. In its absence, the Uniform Appeals Act is applicable. It is very seldom that the forum is in the RTC, since administrative agencies are usually given the rank equal to or higher than the RTC. m. Whether the time for the filing of the case is proper. The period for filing the case must also be considered in view of the statute of limitations, as well as the period required by the statute or rules for the filing of appeals. n. Whether the case is ripe for adjudication. When a person has not exhausted all the administrative remedies available to him, his case is said to be not ripe for judicial review yet. He is said to have invoked the intervention of the court prematurely. Although this is not a jurisdictional requirement, failure to abide by the doctrine affects petitioner’s cause of action.

Primary Jurisdiction Exhaustion of Administrative Remedies Qualified Political Agency Ripeness

i.

It is a question of the court yielding to the agency because of the latter’s expertise, and does not amount to ouster of the court. [Texas & Pacific Railway v Abilene (1907)] o

It is the recent jurisprudential trend to apply the doctrine of primary jurisdiction in many cases that demand the special competence of administrative agencies. It may occur that the Court has jurisdiction to take cognizance of a particular case, which means that the matter involved is also judicial in character. However, if the determination of the case requires the expertise, specialized skills and knowledge of the proper administrative bodies because technical matters or intricate questions of facts are involved, then relief must first be obtained in an administrative proceeding before a remedy will be supplied by the courts even though the matter is within the proper jurisdiction of a court. [Industrial Enterprises v CA (1990)]

o

Well-entrenched is the rule that courts will not interfere in matters which are addressed to the sound discretion of the government agency entrusted with the regulation of activities coming under the special and technical training and knowledge of such agency. Administrative agencies are given a wide latitude in the evaluation of evidence and in the exercise of their adjudicative functions, latitude which includes the authority to take judicial notice of facts within their special competence [(Quiambao vs CA (2005)]

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o

o

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The doctrine of primary jurisdiction applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such case, the judicial process is suspended pending referral of such issues to the administrative body for its view. And, in such cases, the court cannot arrogate into itself the authority to resolve a controversy, the jurisdiction over which is initially lodged with an administrative body of special competence. [Sherwill vs Sitio Sto Nino (2005)] Reason: In this era of clogged docket courts, the need for specialized administrative boards with the special knowledge and capability to hear and determine promptly disputes on technical matters has become well nigh indispensable. Between the power lodged in an administrative body and a court, the unmistakable trend has been to refer it to the former. (GMA vs ABS CBN (2005)]

b. Requisites: 1. Administrative body and the regular court have concurrent and original jurisdiction 2. Question to be resolved requires expertise of administrative agency 3. Legislative intent on the matter is to have uniformity in rulings 4. Administrative agency is performing a quasi-judicial or adjudicatory function (not rule-making or quasi-legislative function [Smart vs NTC (2003)] 

Rationale: It is presumed that an administrative agency, if afforded an opportunity to pass upon a matter, would decide the same correctly, or correct any previous error committed in its forum [Caballes v Sison (2004)]



When the Doctrine is Inapplicable: i. If the agency has exclusive jurisdiction ii. When the issue is not within the competence of the administrative body to act on.

iii. When the issue involved is clearly a factual question that does not require specialized skills and knowledge for resolution to justify the exercise of primary jurisdiction. 

Effect. The case is not dismissed, but merely suspended until after the matters within the competence of the administrative agency are threshed out and determined. [Vidad vs RTC (1993)]

2. Doctrine of Exhaustion Administrative Remedies

of

1. General Rule: Where the law has delineated the procedure by which administrative appeal or remedy could be effected, the same should be followed before recourse to judicial action can be initiated. [Pascual vs Provincial Board (1959)] 2. Requisites: i. The administrative agency is performing a quasi-judicial function. ii. Judicial review is available. iii. The court acts in its appellate jurisdiction. 3. Rationale: i. Legal reason: The law prescribes a procedure. ii. Practical reason: To give the agency a chance to correct its own errors [and prevent unnecessary and premature resort to the courts ; iii. Reasons of comity: Expedience, courtesy, convenience. 4. Exceptions to the Doctrine of Exhaustion of Remedies:  Purely legal questions. [Castro vs Secretary (2001)]  Steps to be taken are merely matters of form. [Pascual vs Provincial Board (1959)]  Administrative remedy not exclusive but merely cumulative or concurrent to a judicial remedy. [Pascual vs Provincial Board (1959)]  Validity and urgency of judicial action or intervention. [Paat vs CA (1997)]  No other plain, speedy, adequate remedy in the ordinary course of the law. [Paat v CA (1997)t; Information

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







      

   

Chapter III. JUDICIAL REVIEW and ENFORCEMENT of AGENCY ACTION

Technology Found’n v COMELEC (2004)] Resort to exhaustion will only be oppressive and patently unreasonable. [Paat vs CA (1997); Cipriano vs Marcelino (1972)] Where the administrative remedy is only permissive or voluntary and not a prerequisite to the institution of judicial proceedings. [Corpuz vs Cuaderno (1962)] Application of the doctrine will only cause great and irreparable damage which cannot be prevented except by taking the appropriate court action. [Paat vs CA (1997); Cipriano vs Marcelino (1972)] When it involves the rule-making or quasi-legislative functions of an administrative agency. [Smart vs NTC (2003)] Administrative agency is in estoppel. [Republic vs Sandiganbayan (1996)] Doctrine of qualified political agency Subject of controversy is private land in land case proceedings. [Paat vs CA (1997)] Blatant violation of due process. [Paat vs CA (1997); Pagara vs CA] Where there is unreasonable delay or official inaction. [Republic vs Sandiganbayan (1996)] Administrative action is patently illegal amounting to lack or excess of jurisdiction. [Paat vs CA (1997)] Resort to administrative remedy will amount to a nullification of a claim. [DAR vs Apex Investment (2003); Paat vs CA (1997)] No administrative review provided for by law. [Estrada vs CA (2004)] Issue of non-exhaustion of administrative remedies rendered moot. [Estrada vs CA (2004)] In quo warranto proceedings. [Corpus vs Cuaderno (1962)] Law expressly provides for a different review procedure. [Samahang Magbubukid vs CA (1999)]

5. Effect of Failure to Exhaust Administrative Remedies: It does not affect jurisdiction of the court. The only effect of non-compliance is it that will deprive complainant of a cause of action, which is a ground for a motion to dismiss.

But if not invoked at the proper time, this ground is deemed waived.[Republic vs Sandiganbayan (1996)]

3. Doctrine of Qualified Political Agency 1. The act of the department head is presumptively the act of the President (as his alter ego), unless revoked by the latter. 2. Example: The President - through his duly constituted political agent and alter ego, the DOTC Secretary - may legally and validly decree the reorganization of the Department. [Sec of DOTC v Mabalot (2002)] 3. Exception: Where the law expressly provides for exhaustion via an appeal to the President. [Tan v Director of Forestry (1983)]

4. Ripeness 1. When applied: i. Administrative agency’s decision is final. ii. Judicial review is available/appropriate iii. Administrative agency exercising its rule-making or quasi-legislative function a. Purpose [Abbot Laboratories v Gardner (1967)] i. To prevent courts, thru avoidance of premature adjudication, from entangling themselves in abstract agreement over administrative policies. ii. To protect agencies from judicial interference until a decision has been formalized and its effect is felt in a concrete way or the imminence of the effect is demonstrable. b. Two-fold test for a controversy to be ripe [Abbot Laboratories v Gardner (1967)]  Fitness of the issue for judicial decision.  Hardship to the parties of withholding such court action.

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C. Extent of Judicial Review 1. 2. 3. 4.

General Rule General Principles Law-fact Distinction Question of Law a. General rule b. What may be questioned? c. Examples 5. Question of Fact a. Definition b. General Rule c. Examples 6. Question of Discretion a. Discretionary Acts v Ministerial Acts b. Judicial review of administrative discretion v Substitution of judicial discretion for administrative discretion c. General rule d. Rationale e. Exception f. Examples

1. General Rule Laws creating administrative agencies and providing for judicial review may indicate the scope of that review. Whether the courts may inquire into questions of law, of fact or of both as well as of administrative discretion will depend on the enabling act.

2. General Principles a. Questions of law are always reviewable by the courts; b. Substantial Evidence Rule: Findings of fact, if based on substantial evidence, are conclusive and binding on the courts; c. If the decision of a case is discretionary on the part of the agency, courts can review if the decision is attended with capriciousness; and d. Questions of jurisdiction are always reviewable as they go into the question of authority to decide.

3. Law-fact Distinction a. There is no clear-cut line that separates questions of law from questions of fact. There may be cases where the issues raised may easily be classified under one or the other, but some cases may involve mixed questions of law and fact; b. Brandeis Doctrine of Assimilation of Facts: Where what purports to be a finding upon a

question of fact is so involved with and dependent upon a question of law as to be in substance and effect a decision on the latter, the court will, in order to decide the legal question, examine the entire record including the evidence if necessary.

4. Question of Law a. General rule: Questions of law are subject to judicial review. b. What may be questioned? i. Constitutionality of the statute creating the agency and granting its powers; ii. Validity of the agency action if this transcends the limit established by law; or iii. Correctness of the agency’s interpretation and application of the law. c. Examples: i. Administrative official’s action which is based on a misconstruction of law can be corrected and is not conclusive upon the courts. ii. When the conclusion drawn by an administrative official from the facts found is erroneous or not warranted by law. iii. Where the act of the administrative official constitutes not only an excess of regulatory power conferred upon him, but also an exercise of legislative power which he does not have. iv. The issue of WON an EmployerEmployee relationship exists is a question of law. [Ysmael vs CIR (1960)]

5. Question of Fact a. Definition. A question of fact exists if the issue involved is the existence of a fact, the happening of an event, or which of the two versions of the happening of an event is correct. b. General Rule: Finality is attached to findings of fact of some agencies when these findings are supported by substantial evidence and as long as there is no grave abuse of discretion.

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c.

Chapter III. JUDICIAL REVIEW and ENFORCEMENT of AGENCY ACTION

Examples: GENERAL RULE: i.

It is not for the reviewing court to weigh the conflicting evidence, determine the credibility of witnesses, or otherwise substitute its judgment for that of the administrative agency on the sufficiency of evidence.

The court recognizes that the trial court or administrative body, as a trier of facts, is in a better position to assess the demeanor of the witnesses and the credibility of their testimonies as they were within its proximal view during the hearing or investigation. [Mollaneda vs Umacob (2001)] ii. Administrative proceedings are governed by the substantial evidence rule. A finding of guilt in an administrative case would have to be sustained for as long as it is supported by substantial evidence that the respondent has committed the acts stated in the complaint or formal charge. This is different from the quantum of proof required in criminal proceedings which necessitates a finding of guilt of the accused beyond reasonable doubt. Ergo, the dismissal of the criminal case will not foreclose administrative action against respondent. [Velasco vs Hernandez (2004)] iii. The substantial evidence standard is not modified in any way when officials of an administrative agency disagree in their findings. [Universal Camera vs NLRC (1951)] EXCEPTIONS: i. One circumstance where the court may not accept the agency’s findings of fact is when the decision rendered by an almost evenly divided court and the division was precisely on the facts as borne out by the evidence. In such a situation the court, in order to determine the substantiality of the evidence, must consider evidence not only in its quantitative but also in its qualitative aspects. For, to be substantial, evidence must first of all be credible. [Gonzales vs Victory Labor Union (1969)]

ii.

When there is grave abuse of discretion amounting to lack of jurisdiction, there is a justification for the courts to set aside the administrative determination. [ Banco Filipino vs Central Bank (1991)]

iii. The court is inclined to review the findings of fact of an administrative official if they are not based on a thorough examination of the parties’ contending claims wherein the adversarial process would ensure a better presentation and appreciation of evidence. [PAL v. Confessor (1994)]

6. Question of Discretion a. Discretionary Acts v Ministerial Acts Discretionary When applied to public functionaries, discretion may be defined as the power or right conferred upon them by law to act officially under certain circumstances, according to the dictates of their own judgment and conscience and not controlled by the judgment of others.

Ministerial A ministerial act has been defined as one performed in response to a duty which has been positively imposed by law and its performance required at a time and in a manner or upon conditions specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion.

Discretion is the power to make a choice among permissive actions or policies. The very essence of discretionary power is that the person or persons exercising it may choose which of several courses of action should be followed.

Ministerial duty is one in respect to which nothing is left to discretion. It is a simple, definite duty arising under conditions admitted or proved to exist, and imposed by law.

b. Judicial review of administrative discretion vs. Substitution of judicial discretion for administrative discretion o Questions of policy or discretion are reviewable only for unreasonableness, departure from statutory standards, or lack of evidentiary support; and questions of wisdom, propriety or expediency are for the agency and not for the courts.

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The court will not substitute its discretion or judgment for that of the administrative agency, but will determine the lawfulness of its action. The ruling of an administrative agency, on questions of law, while not as conclusive as its findings of facts, is nevertheless persuasive and given much weight especially if the agency is one of special competence and experience. c.

General rule: In the exercise of discretion lawfully given, the court will not interfere.

d. Rationale: Recognition of the expertise of the agency.

b. Requisites i. Involves question of lack of jurisdiction or grave abuse of discretion ii. No plain, adequate, and speedy remedy available iii. The administrative agency must be performing a quasi-judicial function. Certiorari cannot be invoked if what is involved is merely a ministerial function. c.

NOTE: Certiorari for COMELEC decisions is limited to Rule 65. For CSC and COA decisions, the rules on ordinary appeal apply. d. The special civil action of certiorari is still the proper vehicle for judicial review of the decision of the NLRC.

e. Exception: If discretion was exercised in a capricious, whimsical, arbitrary, abusive, partial, and hostile manner. f.

Examples: i. The erroneous appreciation of the significance of the facts before the administrative agency does not mean that the administrative agency had abused its discretion. [Laguna Tayabas vs PSC (1957)] ii.

Courts should not intervene in that administrative process, save upon a very clear showing of serious violation of law or of fraud, personal malice or wanton oppression.

A special civil action for certiorari however is within the concurrent original jurisdiction of the SC and CA and it would be advantageous to the aggrieved party to recourse from the NLRC to CA as an initial step in the process of judicial review. [St. Martin Funeral Homes vs NLRC (1998)] e. A motion for reconsideration is a remedy and since Purefoods filed a motion for reconsideration beyond the reglementary period, it should suffer the consequences of its own negligence. [Purefoods Corp. vs NLRC (1989)] f.

Courts have none of the technical and economic or financial competence which specialized administrative agencies have at their disposal. [PLDT vs NTC (1995)]

Failure of a party to perfect its appeal in the manner and within the period fixed by law renders the decision sought to be appealed final, with the result that no court can exercise appellate jurisdiction to review the decision. [Azores vs SEC (1996)]

2. Prohibition

D. Modes of Judicial Review The Modes of Judicial Review are: 1. Certiorari 2. Prohibition 3. Mandamus 4. Declaratory Relief 5. Habeas Corpus 6. Amparo 7. Habeas Data 8. Injunction as provisional remedy

1. Certiorari a. Purpose: The purpose of a certiorari is to set aside or nullify proceedings.

a. Nature. This action is preventive and not for acts already performed. Issues on the same grounds as certiorari must be timely availed of. b. Purpose. The purpose of prohibition is to prohibit or stop proceedings. c.

Prohibition is broader in scope compared to Certiorari because it applies to agencies performing both quasi-judicial and ministerial functions.

d. Requisites i. Ground raised is lack of jurisdiction or grave abuse of discretion; ii. No plain, adequate and speedy remedy available;

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iii. Applies to agencies performing both quasi-judicial and ministerial functions.

f.

e. When the evidence submitted is conclusive of his citizenship, the courts should promptly enjoin the deportation proceedings. When the evidence is not conclusive on either side, the citizenship issue should be allowed to be decided first in a judicial proceeding, suspending the administrative proceedings in the meantime that the alienage or citizenship is being determined in the courts. [Chua Hiong vs Deportation Board, (1955)] f.

The exception stated in Chua Hiong should be allowed only in the sound discretion of a competent court in a proper proceeding [Co vs Deportation Board, (1977)]

g. CHR had no jurisdiction to issue the writ of preliminary injunction since what is involved is neither political nor civil rights. CHR’s contention that prohibition is moot and academic cannot be sustained. While it is true that prohibition as a preventive remedy is not intended as a remedy to restrain what has already accomplished, the CHR, in this case, has yet to promulgate its resolutions, and the prohibition is intended to prevent just that. [Simon, Jr. vs CHR, (1994)]

g. Mandamus will lie only to compel the board to take some action when it refuses but it will not prescribe the action to be taken. Mandamus will not lie to review or control the action or decision of the Board where such action or decision is one resting in the discretion of the Board and involves the construction of the law and the application of the facts thereto. [Policarpio vs Phil. Veterans Board, (1956)] h. The Backpay Law enumerates those not entitled to backpay, and no prohibition is made against aliens in receiving backpay. Having been satisfied that Tan is not among those excluded from the coverage of said law, it becomes the ministerial duty of the Commission to give due course to petitioner’s application. [Tan vs Veterans Backpay Commission, (1959)] i.

If one seeks to settle contractual rights and obligations and to regulate a course of conduct, the remedy in this case is specific performance. The difference between the 2 remedies lies in their basis: mandamus is based on the ministerial duty imposed by law, while specific performance is based on contract. [Province of Pangasinan v. Reparations Commission, (1977)]

j.

Tax assessment is discretionary; therefore, mandamus will not lie. The Commissioner cannot be compelled to impose tax assessment not found by him to be due for that would be tantamount to a usurpation of an executive function. [Meralco Securities Corporation v. Savellano, (1982)]

k.

Mandamus will not issue to: o compel an official to do anything which is not his duty to do or o give the applicant anything to which he is not entitled by law. It is simply a command to exercise a power already possessed and to perform a duty already imposed. [Cruz v. CA, (1996)]

l.

Mandamus is a command issuing from a court of competent jurisdiction, in the name of the state or the sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person requiring the

3. Mandamus a. Nature. Mandamus is an order compelling a party to perform an act arising out of a positive duty imposed by law. b. Mandamus will lie against a ministerial duty when the official/agency refuses to exercise its ministerial duty to act on its quasi-judicial functions. c.

Mandamus will not lie to enforce a contractual obligation. The remedy will be specific performance.

d. Requisites: i. Duty is ministerial. ii. Petitioner has a clear, controlling right. iii. No other plain, speedy and adequate remedy. e. Mandamus will not issue to control or review the exercise of discretion of a public officer. The act of confirming is not a ministerial duty. [Blanco vs Board of Examiners, (1924)]

The issuance of a visa is a discretionary function on the part of the consul and carries with it the concern of public safety. Mandamus only lies to compel the performance of a ministerial duty. [Ng Gloc Liu vs Sec. of Foreign Affairs, (1950)]

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performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from operation of law. [PRC v. De Guzman, (2004)] m. MMDA’s obligation to perform their duties as defined by law, on one hand, and how they are to carry out such duties, on the other, are two different concepts. While the implementation of the MMDA’s mandated tasks may entail a decision-making process, the enforcement of the law or the very act of doing what the law exacts to be done is ministerial in nature and may be compelled by mandamus. [MMDA v. Concerned Citizens of Manila Bay (2008)]

4) There must be an actual justiciable controversy between persons with adverse interests. 5) Petitioner must have legal interest in the controversy. 6) Controversy must be ripe for adjudication 7) All administrative remedies have been exhausted. 8) Adequate relief is not available through other means or other forms of action or proceeding.

n. 2 Situations when a writ of mandamus may issue: When any tribunal, corporation, board, officer or person unlawfully: i. Neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station; or ii. Excludes another from the use and enjoyment of a right or office to which the other is entitled.

d. When Not Applicable  In securing a judicial declaration of citizenship.  Where petition for declaratory relief is filed after the breach of law took place.  Where petitioner never acquired any interest in the object of the controversy, and enjoyed no rights which were violated.  Where declaratory relief would not terminate the uncertainty of the controversy.  Where the relief sought would be determinative of issues rather than a construction of definite stated rights, status and other relations commonly expressed in written instruments  since this remedy is available only if it is limited to a declaration of rights, and not to a determination, trial or judicial investigation of issues.

4. Declaratory Relief

5. Habeas Corpus

a. Purpose: To determine the construction, validity and declaration of rights.

a. Nature: The great writ of liberty is intended as a speedy remedy to secure the release of a person deprived of his liberty.

A continuing mandamus is a mandamus issued by the court under extraordinary circumstances with directives with the end of ensuring that its decision would not be set to naught by administrative inaction or indifference.

b. An action for declaratory relief must brought in the RTC. It is not among actions within the original jurisdiction of SC even if only questions of law involved. c.

be the the are

Requisites. 1) Subject matter must be a deed, will, contract or written instrument in which petitioner is legally interested, or law or governmental regulation which affects his rights. 2) The terms of the written instrument are, or the validity of the law or regulation is doubtful and requires judicial construction. 3) Petition is filed before breach or violation of the instrument or regulation.

A person detained upon the orders of an agency may test the validity of his detention through the privilege of the writ of habeas corpus, which is a constitutionally guaranteed right. (Art. III, sec. 15, 1987 Constitution) b. Requisites i. There is illegal confinement or detention. ii. There is illegal restraint of liberty. iii. Rightful custody of any person is withheld from the person entitled thereto. c.

Purpose: Secure the release of a person deprived of his liberty, and test the validity of detention as ordered by an agency.

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d. The writ of habeas corpus will issue when:  an alien has been detained by the DOJ for an unreasonably long period of time after it has become apparent that the deportation order cannot be effectuated; and  no criminal charges have been formally made or a judicial order issued for his detention. In such case, the order of deportation which was not executed is functus officio and the alien is being held without authority of law. [Mejoff vs Director of Prisons, (1951)] e. Bail renders a writ of habeas corpus moot and academic, as the bail bond gives petitioner liberty. [Co v Deportation Board, (1977)] f.

people are already enforced through different remedies. iii. It covers both actual and threatened violations of such rights. iv. It covers violations committed by public officials or employees and private individuals or entities. (Annotation to the Writ of Amparo)

7. Habeas Data a. Nature and Purpose: The writ of habeas data is an independent remedy to protect the right to privacy, especially the right to informational privacy. The writ of habeas data is also a remedy to protect the right to life, liberty or security of a person from violation or threatened violation by an unlawful act or omission of a public official or employee or of a private individual or entity. It complements the writ of amparo and writ of habeas corpus. (Annotation to the Writ of Habeas Data)

The release of a detained person, whether permanent or temporary, renders a petition for the writ of habeas corpus moot and academic, unless there are restraints attached which preclude his freedom. [Lucien Tran Van Nghia v. Liwag, (1989)]

8. Injunction as Provisional Remedy 6. Writ of Amparo a. Nature: Amparo, literally “to protect,” is designed to protect those other fundamental rights in the Constitution not covered by habeas corpus. (The Rationale for the Writ of Amparo) b. Purposes/Types: i. For the protection of personal freedom, equivalent to the habeas corpus writ (called amparo libertad); ii. For the judicial review of the constitutionality of statutes (called amparo contra leyes); iii. For the judicial review of the constitutionality and legality of a judicial decision (called amparo casacion); iv. For the judicial review of administrative actions (called amparo administrativo); and v. For the protection of peasants’ rights derived from the agrarian reform process (called amparo agrario). (Annotation to the Writ of Amparo) c.

Philippine Version: i. Rights protected: (1) right to life, (2) liberty and (3) security of persons. ii. The reason for limiting the coverage of its protection only to the three rights is that other constitutional rights of our

a. Nature: An ancillary remedy provided to preserve the petitioner’s rights while main action is pending. b. Purpose. i. To prevent the commission of certain acts complained of; or ii. To order the continued performance of some act for the purpose of preventing further injury. c.

Requisites: i. Plaintiff is entitled to relief demanded. The right to the writ is clear when:  There is willful invasion of the petitioner’s right, and the injury is a continuing one; and effect of the writ is to re-establish the preexisting relation. [Lemi vs. Valencia (1966)]  Commission or continuance of an act complained of would probably work injustice to him.  Defendant, is doing, threatens or about to do an act in violation of petitioner’s rights which may render the judgment ineffective.

d. Injunction can only be issued by superior to an inferior body; if co-equals, the injunction cannot prosper. [Honda vs San Diego, (1966)]

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e. Types i. Preliminary Mandatory Injunction: Plaintiff wants to compel defendant to do something. ii. Preliminary Injunction: To prevent or stop defendant from doing something iii. Restraining Order: Life span of 20 days, after which hearing is then held to decide propriety of the injunction. iv. Permanent Injunction: If plaintiff wins the case, injunction becomes permanent (otherwise, the writ is dissolved). f.

The general rule is that injunction cannot be issued in tax collection. An exception is that if the collection of the tax is prejudicial to the interest of the government and of the taxpayer, the CTA is authorized to restrain the Collector from proceeding with its collection. [Collector vs. Reyes, (1957)]

ii.

It must have been rendered by a court having jurisdiction over the subject matter and the parties; iii. It must be a judgment on the merits; and iv. There must be identity of parties, subject matter and cause of action [Ipekdijan Merchandising vs CTA (1963), Firestone Ceramics vs CA (1999), DBP vs CA (2001)] c.

Effect. Decisions and orders of administrative bodies rendered pursuant to their quasi-judicial authority have, upon their finality, the force and effect of a final judgment within the purview of the doctrine of res judicata, which forbids the reopening of matters once judicially determined by competent authorities.

2. Writ of Execution; Mandamus

g. Sec. 11, RA 1125 (An Act Creating the Court of Tax Appeals): Who may appeal; effect of appeal. — xxx

a. General rule: Administrative agencies performing quasi-judicial functions have the implied power to issue writs of execution.

No appeal taken by the Court of Appeals from the decision of the Collector of Internal Revenue or the Collector of Customs shall suspend the payment, levy, distraint, and or sale of any property of the taxpayer for the satisfaction of his tax liability as provided by existing law; Provided, however, That when in the opinion of the Court the collection by the Bureau of Internal Revenue or the Commissioner of Customs may jeopardize the interest of the Government and/or the taxpayer the Court at any stage of the proceeding may suspend the said collection and require the taxpayer either to deposit the amount claimed or to file a surety bond for not more than double the amount with the Court.

b. EXCEPT: If the enabling law expressly provides otherwise.

E. Enforcement of Agency Action 1. Res Judicata; Finality of Judgment a. When it applies. The doctrine of res judicata applies only to judicial or quasi-judicial proceedings and not to the exercise of purely administrative functions. Administrative proceedings are non-litigious and summary in nature; hence, res judicata does not apply. [Nasipit Lumber Co. vs NLRC (1989)] b. Requisites: i. The former judgment must be final;

c.

If the law is silent, presume that the agency has the power to enforce its decisions emanating from its quasi-judicial powers. [Apolega vs Hizon, (1968)]

d. The legislature may aid the enforcement of administrative determination by providing for a penalty for failure to comply therewith. Also, direct and positive sanctions (grant of subpoena power and contempt powers) are afforded by provisions for administrative or judicial processes to compel obedience or prevent violation of the determination. e. Administrative enforcement includes: i. Revocation; ii. Suspension; iii. Refusal to renew license; iv. Refusal to grant clearance paper to ships; v. Withholding or denying benefits; vi. Imposing conditions, seizure and sale or destruction of property; vii. Exclusion and deportation; viii. Imposition and collection of fines and penalties; and ix. Summary enforcement without need for adjudication:  Distraint of personal property or levy on real property (Commissioner of Internal Revenue);

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 

Abatement of nuisance (Secretary of Health); and Sequestration of ill-gotten wealth (PCGG);

What is the remedy if officials refuse to implement a final and executory judgment? Mandamus. [Vda. De Corpuz vs The Commanding General of the Philippine Army (1978)]

g. Execution must conform to that ordained or decreed in the dispositive part of the decision. Where the order of execution is not in harmony with and exceeds the judgment which gives it life, the order pro tanto has no validity. [Clavano v HLURB, (2002)]

- end of Administrative Law -

195 ADMINISTRATIVE LAW

f.

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TABLE of CONTENTS

ELECTION LAW Table of Contents

Chapter II. COMELEC...................................200 A. Composition ......................................200 B. Qualifications.....................................200 C. Powers and Functions.......................200 1. Constitutional powers and functions [Art. IX-C, Sec. 2]...................................200 2. Statutory powers ...........................201 D. Rendition of Decision ........................201 1. Composition ..................................201 2. Time Period and Votes Required .202 3. COMELEC decisions reviewable by the Supreme Court ................................202 E. Measures Designed for COMELEC’s Independence ............................................202 Chapter III. Voters: Qualification and Registration ..................................................203 A. Qualifications.....................................203 B. Registration of Voters........................203 1. Definition .......................................203 2. System of Continuing Registration of Voters ....................................................204 3. Illiterate or disabled voters............204 4. Election Registration Board ..........204 5. Change of residence or address ..204 6. Challenges to right to register.......204 7. Deactivation of Registration..........205 8. Reactivation of Registration..........205 9. Certified List of Voters ..................205 C. Inclusion and Exclusion Proceedings205 D. Annulment of Book of Voters ............205 E. Overseas Absentee Voter .................206 1. Definitions .....................................206 2. Coverage ......................................206 3. Qualifications ................................206 4. Disqualifications ............................206 5. Personal Overseas Absentee Registration ...........................................206 6. Inclusion and Exclusion Proceedings 206 7. National Registry of Overseas Absentee Voters ....................................206 Chapter IV. Pre-Election Requirements .....207 A. Certificates of Candidacy ..................207 1. Candidate, Definition ....................207 2. Qualifications .....................................207

3. Disqualifications............................ 207 4. Filing and withdrawal of certificate of candidacy .............................................. 208 5. Effect of filing certificate of candidacy 209 6. Substitution of Candidates............ 209 7. Duty of COMELEC ....................... 209 8. Petition to declare a duly registered candidate as a nuisance candidate....... 209 9. Petition to Deny Due Course or to Cancel Certificate .................................. 210 10. Effect of disqualification case... 210 B. Registration of Political Parties ......... 210 1. Party System ................................ 210 2. Definitions ..................................... 210 3. Purpose ........................................ 211 4. Procedure for Registration............ 211 5. Who May Not be Registered ........ 211 6. Grounds for refusal and/or cancellation of registration .................... 211 7. Parameters in Allocation of Seats for Party-List Representatives .................... 212 8. Effect of Change of Affiliation... 212 9. Nomination of Party-List Representative ...................................... 212 C. Party-list and District Representatives Distinguished ............................................. 213 Chapter V. Election Campaign and Expenditures ................................................ 214 A. Election Campaign............................ 214 1. Election Campaign or Partisan Political Activity...................................... 214 2. Campaign Period .......................... 214 3. Lawful Election Propaganda......... 215 4. Prohibited Acts ............................. 215 5. Equal Access to Media Time and Space .................................................... 215 7. Election Surveys ........................... 216 8. Application for Rallies, Meetings and Other Political Activity............................ 216 B. Election Contributions and Expenditures 216 1. Definitions ..................................... 216 2. Prohibited Contributions ............... 217 3. Prohibited Fund-raising Activities . 217 4. Limitations on Expenses............... 217 5. Statement of Contributions and Expenses............................................... 217 6. Requisites of a Prohibited Donation 218 Chapter VI. Election Proper ........................ 219 A. In General ......................................... 219

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Chapter I. General Principles ......................198 A. Definitions .........................................198 1. Suffrage ........................................198 2. Scope............................................198 B. Constitutional Mandate on Congress 199 C. Election Period ..................................199

POLITICAL LAW REVIEWER

What Constitutes an Election........219 Failure of Elections .......................219 Postponement of Elections ...........219 Special Elections ..........................220 B. Board of Election Inspectors .............220 C. Casting of Votes................................220 1. Voting Hours .................................220 2. Voting............................................220 3. Challenge of Illegal Voters............221 4. Challenge based on certain illegal acts 221 D. Counting of Votes..............................222 1. Counting Proper............................222 2. Election Returns ...........................222 E. Canvassing of Votes .........................222 1. Definitions .....................................222 2. Composition of Board of Canvassers 223 3. Prohibitions on BOC .....................223 4. Canvass by the BOC ....................223 5. Certificate of Canvass and Statement of Votes .................................................223 6. Proclamation .................................224 Chapter VII. Modes of Challenging Candidacy and Election Results....................................225 A. Cancellation of Certificate of Candidacy 225 1. Grounds ........................................225 2. Nature of Proceedings.......................225 3. Procedure .....................................225 B. Pre-Proclamation Controversies .......225 1. Jurisdiction ....................................225 2. When Not Allowed ........................225 3. Nature of Proceedings ..................225 4. Issues That May Be Raised..........225 5. Issues That Cannot Be Raised .....226 6. Procedure .....................................226 7. Effect of Filing of Pre-Proclamation Controversy ...........................................226 8. Effect of Proclamation of Winning Candidate ..............................................226 9. Petition to Annul or Suspend Proclamation..........................................227 10. Declaration of Failure of Election 227 C. Disqualification Cases.......................227 1. Procedure .....................................227 2. Effect .................................................227 Chapter VIII. Election Offenses...................228 A. Jurisdiction over Election Offenses...228 B. Prosecution of Election Offenses......228 C. Preferential Disposition of Election Offenses.....................................................228 D. Election Offenses ..............................228 1. Registration...................................228 2. Certificate of Candidacy................228 3. Election Campaign........................228

4. 5. 6. 7.

Voting............................................ 228 Counting of Votes ......................... 229 Canvassing ................................... 229 Acts of Government or Public Officers 229 8. Coercion, Intimidation, Violence ... 229 9. Other Prohibitions ......................... 229 10. Penalties................................... 229 E. Arrests in Connection with Election Campaign .................................................. 230 F. Prescription ....................................... 230 G. Prohibited Acts Under R.A. 9369 ...... 230

3 ELECTION LAW

1. 2. 3. 4.

TABLE of CONTENTS

Prof. Rodolfo Noel Quimbo Faculty Editor

Ria Dooc Lead Writer Dianne Patawaran Mike Rivera Writers

POLITICAL LAW Jennifer Go Subject Editor

ACADEMICS COMMITTEE Kristine Bongcaron Michelle Dy Patrich Leccio Editors-in-Chief

PRINTING & DISTRIBUTION Kae Guerrero

DESIGN & LAYOUT Pat Hernandez Viktor Fontanilla Rusell Aragones Romualdo Menzon Jr. Rania Joya

LECTURES COMMITTEE Michelle Arias Camille Maranan Angela Sandalo

Chapter I. General Principles A.

DEFINITIONS 1. SUFFRAGE 2. SCOPE a. ELECTION b. PLEBISCITE c. REFERENDUM d. INITIATIVE e. RECALL B. CONSTITUTIONAL MANDATE ON CONGRESS C. ELECTION PERIOD

A. Definitions 1. Suffrage 

2. Scope i. Election: the means by which the people choose their officials for a definite and fixed period and to whom they entrust for the time being the exercise of the powers of government. 

Heads Katz Manzano Mary Rose Beley Sam Nuñez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers

Lilibeth Perez

Dahlia Salamat

LOGISTICS Charisse Mendoza

SECRETARIAT COMMITTEE Jill Hernandez

Kinds:  Regular: one provided by law for the election of officers either nation-wide or in certain subdivisions thereof, after the expiration of the full term of the former officers. 

MOCK BAR COMMITTEE BAR CANDIDATES WELFARE

The right to vote in the election of officers chosen by the people and in determination of questions submitted to the people.

Special: one held to fill a vacancy in office before the expiration of the full term for which the incumbent was elected.

ii. Plebiscite: election at which any proposed amendment to, or revision of, the Constitution is submitted to the people for their ratification. iii. Referendum: submission of a law pass by the national or local legislative body to the registered voters at an election called for the purpose for their ratification or rejection.

Head Loraine Mendoza Faye Celso Mary Mendoza Joie Bajo Members

iv. Initiative: the power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose. [Sec. 3a, R.A. 6735, The Initiative and Referendum Act] 

3 systems of initiative:  Initiative on the Constitution: petition

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Chapter I. GENERAL PRINCIPLES

ELECTION LAW

POLITICAL LAW REVIEWER

proposing amendments Constitution.  

Chapter I. GENERAL PRINCIPLES

to

the

Initiative on statutes: petition proposing to enact a national legislation. Initiative on local legislation: petition proposing to enact a regional, provincial, city, municipal or barangay law, resolution or ordinance.

The constitutional provision on people's initiative to amend the Constitution can only be implemented by law to be passed by Congress. No such law has been passed. R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Note: Section 2 of Art. XVII Constitution is limited to proposals to AMEND — not to REVISE — the Constitution. [Santiago vs COMELEC (1997)] v. Recall: the termination of official relationship of a local elective official for loss of confidence prior to the expiration of his term through the will of the electorate.

B. Constitutional Mandate on Congress [Art. V, Sec. 2, Constitution] i. To provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. 

Laws providing for absentee voting:  Sec. 12, R.A. 7166, An Act Providing for Synchronized National and Local Elections and Electoral Reforms:  applies only to elections for the President, Vice President and Senators  limited to members of the AFP and PNP and other government officers and employees who are: o duly registered voters and o on election day, may be temporarily assigned in connection with the performance of election duties to places where they are not registered voters. 

R.A. 9189 (The Overseas Absentee Voting Act of 2003)

Please refer to page 206 for a more detailed discussion The Overseas Absentee Voting Act of 2003. ii. To design a procedure for the disabled and the illiterate to vote without the assistance of other persons.

C. Election Period Unless otherwise fixed by the COMELEC in special cases, the election period shall commence 90 days before the day of the election and shall end 30 days thereafter. [Art. IX-C, Sec. 9, Const.]

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A. B. C.

COMPOSITION QUALIFICATIONS POWERS AND FUNCTIONS 1. CONSTITUTIONAL POWERS AND FUNCTIONS 2. STATUTORY POWERS D. RENDITION OF DECISION 1. COMPOSITION 2. TIME PERIOD AND VOTES REQUIRED 3. COMELEC DECISIONS REVIEWABLE BY THE SUPREME COURT E. MEASURES DESIGNED FOR COMELEC’S INDEPENDENCE

C. Powers and Functions 1. Constitutional powers and functions [Art. IX-C, Sec. 2] i.

  

A. Composition   

1 chairman and 6 Commissioners Appointed by the President with the consent of the Commission on Appointments for a term of 7 years without reappointment. No member shall be appointed or designated in a temporary or acting capacity. [Art. IX-C, Sec. 1, Constitution]

Enforce and administer all laws relative to the conduct of an election, plebiscite, initiative referendum and recall



ii.

Quasi-Judicial Powers 

B. Qualifications 1. 2. 3. 4.

Natural born Filipino citizens At least 35 years old Holders of a college degree Not candidates for any elective position in the immediately preceding election 5. Majority, including the chairman, must be members of the Bar who have been engaged in the practice of law for at least 10 years. [Art. IX-C, Sec. 1, Const.] 

Promulgate rules and regulations in the enforcement of laws relative to elections. Fix appropriate periods for accomplishment of pre-election acts. Annul/cancellation illegal registry lists of voters and order the preparation of a new one. Cancel canvass of election returns and annul proclamation based on incomplete results. (Note: COMELEC does not have the power to annul an election which may not have been free, orderly, and honest; such power is merely preventive, not curative.)

Exclusive original jurisdiction over all contests relating to the election, returns and qualifications of all elective regional, provincial and city officials. 

Synchronized National and Local Elections and Electoral Reforms, which prohibits pre-proclamation controversies in national offices.

Inhibitions/Disqualifications: 1. Shall not, during tenure, hold any other office or employment. 2. Shall not engage in the practice of any profession. 3. Shall not engage in the active management or control of any business which in any way may be affected by the functions of his office. 4. Shall not 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 GOCCs or their subsidiaries.

The possibility of a conflict of jurisdiction between the COMELEC and the Electoral Tribunal regarding contests involving congressional elections has been foreclosed by Sec. 15, R.A. 7166, An Act Providing for





Jurisdiction of the Electoral Tribunal is exercised over the members of the House or Senate. A party to the election controversy is a member of the House or Senate only after he has been proclaimed, has taken his oath and has assumed the functions of the office. [Aquino vs COMELEC (1995)]

Exclusive appellate jurisdiction over all contests involving municipal officials decided by the RTC, or involving elective barangay officials decided by the MTC. In these cases, the decisions therein shall be final, executory and unappealable. 

The fact that decisions, final orders or rulings of the COMELEC in contests

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Chapter II. COMELEC

Chapter II. COMELEC

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iii. Decide all questions affecting elections  Including:  Determination of the number and location of polling places  Appointment of election officials and inspectors  Registration of voters  However, it has no jurisdiction over questions involving the right to vote (i.e. disqualifications of voters, right of a person to be registered, etc.)

iv. Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities, including the AFP, for the exclusive purpose of ensuring free, orderly, honest, peaceful and credible elections. v.

Register political parties, organizations or coalitions.

vi. Accredit citizens' arms. vii. File, upon a verified complaint, or on its own initiative, petitions in court for the inclusion or exclusion of votes.



x.

ix. Recommend  to Congress effective measures  to minimize election spending  to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates  to the President  removal of any officer or employee it has deputized  imposition of disciplinary action for violation or disregard of, or disobedience to its directive, order, or decision

to ensure equal opportunity, time, and space, and the right to reply for the holding of free, orderly, honest and peaceful elections

i.

Sec. 52 and 57, B.P. 881, Omnibus Election Code

ii.

Power to postpone election [Sec. 5, B.P. 881]

iii. Power to declare failure of elections [Sec. 6, B.P. 881] iv. Power to call a special election [Sec. 4, R.A. 7166] Please refer to page 219 for a more detailed discussion of power to postpone election, declare failure of elections and to call a special election.

of election laws The COMELEC has the power of a public prosecutor with the exclusive authority to conduct the preliminary investigation and the prosecution of election offenses punishable under the election law. The power may be exercised upon complaint or motu proprio.

transportation and other public utilities media of communication or information all grants, special privileges, or concessions granted by the Government or any instrumentality thereof

2. Statutory powers

viii. Investigate and prosecute cases of violation



Supervise or regulate during the election period the use or enjoyment of all franchises or permits for operation of:   



pardon, amnesty, parole or suspension of sentence for violation of election laws, rules and regulations

D. Rendition of Decision 1. Composition The COMELEC may sit en banc or in 2 divisions. 

General Rule: Election cases, including preproclamation controversies, shall be heard and decided in division  The rule applies only when COMELEC exercises its adjudicatory or quasijudicial functions, not when it exercises purely administrative functions.



Exceptions: Decisions that must be rendered by the COMELEC en banc include: i. Decisions on motions for reconsideration [Art. IX-C, Sec. 3, Const.] ii. Petitions for correction of manifest

201 ELECTION LAW

involving elective municipal and barangay officials are final, executory and not appealable, does not preclude a recourse to the Supreme Court by way of a special civil action for certiorari.

Chapter II. COMELEC

errors in the tabulation or tallying of results [Sec. 5, Rule 27 of the 1993 Rules of the COMELEC] iii. Questions pertaining to proceedings of the Board of Canvassers [(Mastura v. Comelec, (1998)] iv. Postponement of election [Sec. 4, R.A. 7166, An Act Providing for

Synchronized National and Local Elections and Electoral Reforms] v. Declaration of failure of election [Sec. 4, R.A. 7166] vi. Calling of special elections [Sec. 4, R.A. 7166]

2. Time Period and Votes Required Decide by majority vote of all its members any case or matter brought before it within 60 days from the date of its submission for decision or resolution. [Art. IX-A, Sec. 7 Const.]

3. COMELEC decisions reviewable by the Supreme Court 





Only decisions of the COMELEC en banc may be brought to the Supreme Court by petition on certiorari within 30 days from receipt of a copy thereof. [Art. IX-A, Sec. 7, Const.]  By certiorari, a party raises questions of law in the Supreme Court. Findings of fact made by the COMELEC are conclusive upon the Supreme Court.  Only decisions of the COMELEC made in the exercise of its adjudicatory or quasi-judicial power may be brought to the Supreme Court on certiorari. Determinations made by the COMELEC which are merely administrative (not quasijudicial) in character, may be challenged in an ordinary civil action before the RTC. The Supreme Court has no power of supervision over the COMELEC except to review its decisions on petitions by certiorari.

Chapter II. COMELEC

E. Measures Designed for COMELEC’s Independence 1. Constitutionally created, may not be abolished by statute. 2. Conferred certain powers and functions which cannot be reduced by statute. 3. Chairmen and members cannot be removed except by impeachment. 4. Chairman and Commissioners are given fixed terms of 7 years. 5. Chairmen and members may not be reappointed or appointed in an acting capacity. 6. Salaries shall not be decreased during their continuance in office. 7. Enjoy fiscal autonomy. 8. May promulgate its own procedural rules, provided they do not diminish, increase or modify substantive rights (though subject to disapproval by the SC). 9. Chairmen and members are prohibited from engaging in the practice of any other profession or management of any business, or to be financially interested in any contract with the Government during their tenure in office. 10. May appoint their own officials and employees in accordance with the Civil Service Law.

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Chapter III. Voters: QUALIFICATION and REGISTRATION

It is not necessary that a person should have a house in order to establish his residence or domicile in a municipality. It is enough that he should live there, provided that his stay is accompanied by his intention to reside therein permanently. [Marcos vs COMELEC (1995)]

Chapter III. Voters: Qualification and Registration A. B.

C.

D. E.

QUALIFICATIONS REGISTRATION OF VOTERS 1. DEFINITION 2. SYSTEM OF CONTINUING REGISTRATION 3. DISQUALIFICATION 4. ELECTION REGISTRATION BOARD 5. CHANGE OF RESIDENCE OR ADDRESS 6. CHALLENGES TO RIGHT TO REGISTER 7. DEACTIVATION OF REGISTRATION 8. REACTIVATION OF REGISTRATION 9. CERTIFIED LIST OF VOTERS INCLUSION AND EXCLUSION PROCEEDINGS 1. JURISDICTION 2. PETITION FOR INCLUSION 3. PETITION FOR EXCLUSION ANNULMENT OF BOOK OF VOTERS OVERSEAS ABSENTEE VOTER 1. DEFINITIONS 2. COVERAGE 3. QUALIFICATIONS 4. DISQUALIFICATIONS 5. PERSONAL OVERSEAS ABSENTEE REGISTRATION 6. INCLUSION AND EXCLUSION PROCEEDINGS 7. NATIONAL REGISTRY OF OVERSEAS ABSENTEE VOTERS

ii.



A. Qualifications [Art. V, Sec. 1, 1987 Const.] 1. Citizenship: Filipino citizen by birth or naturalization

Note: These are the same 3 grounds for disqualification to register as a voter under Sec. 11, R.A. 8189, Voter’s Registration Act of 1996.

5.

Registered voter: In order that a qualified elector may vote in any election, plebiscite or referendum, he must be registered in the Permanent List of Voters for the city or municipality in which he resides. [Sec. 115, B.P. 881, Omnibus Election Code]



No literacy, property or other substantive requirement shall be imposed on the exercise of suffrage

2. Age: at least 18 at the time of the election 3. Residency: i. Resident of the Philippines for at least 1 year and ii. Resident of the place wherein they propose to vote for at least 6 months immediately preceding the election  Note: Any person who temporarily resides in another city, municipality or country solely by reason of his:  employment in private or public service  educational activities  work in the military or naval reservations within the Philippines  service in the AFP, PNP or  confinement or detention in government institutions in accordance with law shall not be deemed to have lost his original residence [Sec. 9, R.A. 8189, Voter’s Registration Act of 1996]

Not otherwise disqualified by law: i. Sentenced by final judgment to suffer imprisonment for not less than 1 year (unless granted a plenary pardon or an amnesty)  shall automatically reacquire right to vote upon the expiration of 5 years after the service of sentence ii. Adjudged by final judgment for having committed any crime involving disloyalty to the duly constituted government (e.g. rebellion, sedition, violation of the firearms law) or any crime against national security (unless restored to full civil and political rights in accordance with law)  shall automatically reacquire the right to vote upon the expiration of 5 years after the service of sentence iii. Insane or incompetent persons as declared by competent authority

B. Registration of Voters 1. Definition 

Act of accomplishing and filing of a sworn application for registration by a qualified voter before the election officer of the city or municipality wherein he resides and including the same in the book of registered voters upon approval by the Election Registration Board. [Sec. 3a, R.A. 8189]

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2. System of Continuing Registration of Voters 



The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours.

Chapter III. Voters: QUALIFICATION and REGISTRATION

3. Illiterate or disabled voters 

Illiterate person - may register with the assistance of the Election Officer or any member of an accredited citizen’s arms



Physically disabled person – application for registration may be prepared by:  any relative within the 4th civil degree of consanguinity or affinity or  by the Election Officer or  any member of an accredited citizen’s arm [Sec. 14, R.A. 8189]

Period of registration:  No registration shall be conducted within  120 days before a regular election  90 days before a special election [Sec. 8, R.A. 8189]



PALATINO VS COMELEC G.R. No. 189868, December 15. 2009 Facts: COMELEC Resolution 8585 set the deadline for voter registration to 31 October 2009. Petitioners asked the SC to declare the resolution null and void, and to require COMELEC to extend the voter registration until 9 January 2010, the day before the 120-day period prior to the 10 May 2010 regular elections. COMELEC argued that it is authorize under the law to fix other dates for pre-election acts which include voter registration and in Akbayan-Youth vs. COMELEC, the SC denied a similar prayer for extension of deadline for voter registration for the 14 May 2001 elections.

4. Election Registration Board 

Issue: WON COMELEC Resolution 8585 should be declared void. Ruling: Yes. By Sec. 8 R.A. 8189, Congress itself has determined that the period of 120 days before a regular election and 90 days before a special election is enough time for the COMELEC to make ALL the necessary preparations with respect to the coming elections. COMELEC is granted the power to fix other periods and dates for pre-election activities only if the same cannot be reasonably held within the period provided by law. There is no ground to hold that the mandate of continuing voter registration cannot be reasonably held within the period provided by Sec. 8 of R.A. 8189. The case is different from Akbayan-Youth vs. COMELEC, wherein the petitioners filed their petition with the Court and sought the conduct of a two-day registration all within the 120-day prohibitive period. In this case, both the dates of filing of the petition and the extension sought are prior to the 120-day prohibitive period.

R.A. 9369 The Poll Automation Law now defines a disabled voter as “a person with impaired capacity to use the Automated Election System (AES)” (Sec. 2, Par. 11)

Composition:  Chairman: Election Officer  If disqualified, COMELEC shall designate an acting Election Officer  Members:  Public school official most senior in rank  Local civil registrar, or in his absence, the city or municipal treasurer. If neither are available, any other appointive civil service official from the same locality as designated by the COMELEC.

 Disqualification: relation to each other or to any incumbent city or municipal elective th official within the 4 civil degree of consanguinity or affinity. [Sec. 15, R.A. 8189]

5. Change of residence or address 



Change of residence to another city or municipality – the registered voter may apply with the Election Officer of his new residence for the transfer of his registration records. [Sec. 12, R.A. 8189] Change of address in the same municipality or city – voter shall immediately notify the Election Officer in writing. [Sec. 13, R.A. 8189]

6. Challenges to right to register  

Who may challenge application for registration: Any voter, candidate or representative of a registered political party Form:  In writing

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  

State the grounds therefor Under oath and Attached to the application, together with the proof of notice of hearing to the challenger and the applicant

9. Certified List of Voters 

nd

When: must be filed not later than the 2 Monday of the month in which the same is scheduled to be heard or processed by the ERB [Sec. 18, R.A. 8189]

C. Inclusion and Exclusion Proceedings 

7. Deactivation of Registration 

The ERB shall prepare and post a certified list of voters 90 before a regular election and 60 days before a special election. [Sec. 30, R.A. 8189]

The board shall remove the registration records of the following persons from the corresponding precinct book of voters and place the same in the inactive file: i. Sentenced by final judgment to suffer imprisonment for not less than 1 year (unless granted a plenary pardon or an amnesty)  shall automatically reacquire right to vote upon the expiration of 5 years after the service of sentence as certified by clerks of courts ii. Adjudged by final judgment for having committed any crime involving disloyalty to the duly constituted government (e.g. rebellion, sedition, violation of the firearms law) or any crime against national security (unless restored to full civil and political rights in accordance with law)  shall automatically reacquire the right to vote upon the expiration of 5 years after the service of sentence iii. Insane or incompetent persons as declared by competent authority iv. Did not vote in the 2 successive preceding regular elections (excluding SK elections) v. Registration has been ordered excluded by the Court and vi. Lost his Filipino citizenship. [Sec. 27, R.A. 8189]

Jurisdiction in inclusion and exclusion case: The Municipal and Metropolitan Trial Courts shall have original and exclusive jurisdiction over all cases of inclusion and exclusion of voters in their respective cities or municipalities. [Sec. 33, R.A. 8189]



Appeal: Decisions of the MTC or MeTC may be appealed by the aggrieved party to the RTC within 5 days from receipt of notice thereof. No motion for reconsideration shall be entertained. [Sec. 33, R.A. 8189]



Petition for Inclusion of Voters in the List:  When: any time except 105 days prior to a regular election or 75 days prior to a special election.  Who may file:  One whose application for registration has been disapproved by the Board of Election Inspectors or  One whose name has been stricken out from the list [Sec. 34, R.A. 8189]



Petition for Exclusion of Voters in the List:  When: any time except 100 days prior to a regular election or 65 days prior to a special election.  Who may file:  Any registered voter;  Any representative of a political party;  the Election Officer

8. Reactivation of Registration

D. Annulment of Book of Voters







Any voter whose registration has been deactivated may file with the Election Officer a sworn application for reactivation of his registration in the form of an affidavit stating that the grounds for the deactivation no longer exist. When: Any time not later than 120 days before a regular election and 90 days before a special election. [Sec. 28, R.A. 8189]

The COMELEC shall, upon verified petition of any voter or election officer or duly registered political party, and after notice and hearing, annul any book of voters that is: i. ii.

iii.

not prepared in accordance with R.A. 8189 or the Voters’ Registration Act of 1996 prepared through fraud, bribery, forgery, impersonation, intimidation, force, or any similar irregularity contains data that are statistically improbable

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Chapter III. Voters: QUALIFICATION and REGISTRATION

POLITICAL LAW REVIEWER

Chapter III. Voters: QUALIFICATION and REGISTRATION

 No order, ruling or decision annulling a book of voters shall be executed within 90 days before an election. [Sec. 39, R.A. 8189] v.

E. Overseas Absentee Voter 1. Definitions 



Absentee Voting: process by which qualified citizens of the Philippines abroad exercise their right to vote. [Sec. 3a, R.A. 9189, The Overseas Absentee Voting Act] Overseas Absentee Voter: citizen of the Philippines who is qualified to register and vote under this Act, not otherwise disqualified by law, who is abroad on the day of elections. [Sec. 3f, R.A. 9189]

Effect of failure to return: cause for the removal of his/her name from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia Previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or foreign eservice establishments concerned. [Sec.5, R.A. 9189]

5. Personal Registration 

Overseas

Absentee

Registration as an overseas absentee voter shall be done in person. [Sec.5, R.A. 9189]

6. Inclusion and Exclusion Proceedings 2. Coverage 

Petition for Inclusion of Voters in the List: 

Elections for president, vice-president, senators and party-list representatives [Sec. 3f, R.A. 9189]

3. Qualifications   







Petition for Exclusion: 

All Filipino citizens abroad Not otherwise disqualified by law At least 18 years of age on the day of elections [Sec. 3f, R.A. 9189]

When: within 5 days from receipt of the notice of disapproval Who may file: applicant or his authorized representative [Sec. 6.7, R.A. 9189]



When: any time not later than 210 days before the day of the elections Who may file: any interested person [Sec. 6.7, R.A. 9189]

4. Disqualifications

7. National Registry Absentee Voters

i.



Definition: the consolidated list prepared, approved and maintained by the COMELEC, of overseas absentee voters whose applications for registration as absentee voters, including those registered voters who have applied to be certified as absentee voters, have been approved by the Election Registered Board. [Sec. 3e, R.A. 9189]



Grounds for cancellation/amendment entries therein:

have lost their Filipino citizenship in accordance with Philippine laws ii. have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country iii. have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than 1 year, including those who have committed and been found guilty of Disloyalty as defined under Article 137 of the RPC iv. immigrant or a permanent resident who is recognized as such in the host country  unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that:  he/she shall resume actual physical permanent residence in the Philippines not later than 3 years from approval of his/her registration and  he/she has not applied for citizenship in another country

i.

ii.

of

Overseas

of

When the overseas absentee voter files a letter under oath addressed to the Comelec that he/she wishes to be removed from the Registry of Overseas Absentee Voters, or that his/her name be transferred to the regular registry of voters. When an overseas absentee voter’s name was ordered removed by the Comelec from the Registry of Overseas Absentee Voters for his/her failure to exercise his/her right to vote under R.A. 9189 for 2 consecutive national elections. (Sec. 9, R.A. 9189)

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A.

B.

C.

CERTIFICATES OF CANDIDACY 1. CANDIDATE, DEFINITION 2. QUALIFICATIONS 3. DISQUALIFICATIONS 4. FILING AND WITHDRAWAL 5. EFFECT OF FILING 6. SUBSTITUTION OF CANDIDATES 7. DUTY OF COMELEC 8. PETITION TO DECLARE NUISANCE CANDIDATE 9. PETITION TO DENY DUE COURSE/CANCEL CERTIFICATE 10. EFFECT OF DISQUALIFICATION CASE REGISTRATION OF POLITICAL PARTY 1. PARTY SYSTEM 2. DEFINITIONS 3. PURPOSE 4. PROCEDURE FOR REGISTRATION 5. WHO MAY BE REGISTERED 6. GROUNDS FOR REFUSAL/CANCELLATION 7. PARAMETERS IN ALLOCATION OF SEATS 8. EFFECT OF CHANGE OF AFFLIATION 9. NOMINATION PARTY-LIST AND DISTRICT REPRESENTATIVES DISTINGUISHED

A. Certificates of Candidacy 1. Candidate, Definition 





Any person who files his certificate of candidacy within prescribed period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy. [Sec. 15, R.A. 9369, Poll Automation Law] Unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period. [Sec. 15, R.A. 9369] Any registered national, regional, or sectoral party, organization or coalition thereof that has filed a manifestation to participate under the party-list system which has not withdrawn or which has not been disqualified before the start of the campaign period. [Comelec Res. 8758, Feb. 4, 2010]

2. Qualifications 

Qualifications prescribed by law are continuing requirements and must be possessed for the duration of the officer's active tenure [Frivaldo v. COMELEC (1989); Labo v. COMELEC (1989)].

3. Disqualifications 

Under the Omnibus Election Code i. Declared incompetent or insane by competent authority (Sec. 12) ii. Permanent resident of or an immigrant to a foreign country  unless he has waived such status (Sec. 68) iii. Sentenced by final judgment for:  Subversion, insurrection, rebellion  Any offense for which he has been sentenced to a penalty of more than 18 months imprisonment  A crime involving moral turpitude (Sec. 12) iv. Given money or other material consideration to influence, induce or corrupt voters or public officials performing electoral functions (Sec. 68) v. Committed acts of terrorism to enhance his candidacy (Sec. 68) vi. Spent in his election campaign an amount in excess of that allowed (Sec. 68) vii. Solicited, received or made prohibited contributions (Sec. 68) viii. Engaged in election campaign or partisan political activity outside the campaign period and not pursuant to a political party nomination (Sec. 80) ix. Removed, destroyed, defaced lawful election propaganda (Sec. 83) x. Engaged in prohibited forms of election propaganda (Sec. 85) xi. Violated election rules and regulations on election propaganda through mass media (Sec. 86) xii. Coerced, intimidated, compelled, or influenced any of his subordinates, members, or employees to aid, campaign or vote for or against any candidate or aspirant for the nomination or selection of candidates (Sec. 261.d) xiii. Threatened, intimidated, caused, inflicted or produced any violence, injury, punishment, damage, loss or disadvantage upon any person or of the immediate members of his family, his honor or property, or used fraud to compel, induce or prevent the registration of any voter, or the participation in any campaign, or the casting of any vote, or any promise of such registration, campaign, vote, or omission therefrom (Sec. 261.e) xiv. Unlawful electioneering (Sec. 261.k) xv. Violated the prohibition against release, disbursement or expenditure of public

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Chapter IV. Pre-Election Requirements

Chapter IV. PRE-ELECTION REQUIREMENTS

Chapter IV. PRE-ELECTION REQUIREMENTS

funds 45 days before a regular election or 30 days before a special election (Sec. 261.v) xvi. Solicited votes or undertook propaganda on election day for or against any candidate or any political party within the polling place or within a 30m radius (Sec. 261.cc.6) 

Under Section 40 of the LGC i. Sentenced by final judgment for an offense punishable by at least 1 year imprisonment within 2 years after serving sentence ii. Removed from office as a result of an administrative case iii. Convicted by final judgment for violating the oath of allegiance to the Republic of the Philippines iv. Dual citizenship  Dual citizenship as a disqualification must refer to citizens with dual allegiance. [Mercado v. Manzano, (1999)]  Under R.A. 9225 Citizenship Retention and Re-acquisition Act of 2003, a Filipino who becomes a naturalized citizen of another country is allowed to retain his Filipino citizenship by swearing to the supreme authority of the Republic of the Philippines. The act of taking an oath of allegiance is an implicit renunciation of a naturalized citizen’s foreign citizenship.  Dual citizenship is not a ground for disqualification from running for elective position. Like any other natural-born Filipino, it is enough for a person with dual citizenship who seeks public office to (1) file his certificate of candidacy and (2) swear to the Oath of Allegiance contained therein. [Cordora vs. COMELEC, (February 2009)]  With respect to a person with dual allegiance, the Court held that candidate’s oath of allegiance to the Republic of the Philippines and his Certificate of Candidacy do not substantially comply with the requirement of a personal and sworn renunciation of foreign citizenship. Section 5(2) of R.A. No. 9225 compels natural-born Filipinos, who have been naturalized as citizens of a foreign country, but who reacquired or retained their Philippine citizenship (1) to take the

oath of allegiance under Section 3 of Republic Act No. 9225, and (2) for those seeking elective public offices in the Philippines, to additionally execute a personal and sworn renunciation of any and all foreign citizenship before an authorized public officer prior or simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections. [Jacot vs. Dal, (November 2008)] v. Fugitive from justice in criminal and nonpolitical cases here and abroad vi. Insane or feeble-minded

4. Filing and withdrawal of certificate of candidacy

 No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein. [Sec. 73, B.P. 881]  The certificate of candidacy shall be filed by the candidate personally or by his duly authorized representative.  When: any day from the commencement of the election period but not later than the day before the beginning of the campaign period.  In cases of postponement or failure of election, no additional certificate of candidacy shall be accepted except in cases of substitution of candidates. [Sec. 75, B.P. 881] 

Filing of 2 certificates of candidacy:  No person shall be eligible for more than one office to be filled in the same election.  If he files a certificate of candidacy for more than one office he shall not be eligible for either.  Before the expiration of the period for the filing of certificates of candidacy, the person who has filed more than one certificate of candidacy, may  declare under oath the office for which he desires to be eligible and  cancel the certificate of candidacy for the other office/s [Sec. 73, B.P. 881]



A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the

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6. Substitution of Candidates 

If after the last day for filing of the certificates of candidacy, an official candidate of a registered political party dies, withdraws or is disqualified for any cause:  He may be substituted by a candidate belonging to and nominated by the same political party.  No substitute shall be allowed for any independent candidate.  The substitute must file his certificate of candidacy not later than mid-day of the election day



If the death, withdrawal or disqualification should happen between the day before the election and mid-day of the election day, certificate may be filed with:  any Board of Election Inspectors in the political subdivision where he is a candidate or  with the COMELEC if it is a national position [Sec. 77, B.P. 881]

Effect of filing or withdrawal of a certificate of candidacy: shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred.

5. Effect of filing certificate of candidacy 



Any person holding a public appointive office or position including active members of the AFP, and other officers and employees in GOCCs, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. [Sec. 66(1), B.P. 881] Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position. [Sec. 4, Comelec Resolution No. 8678 Guidelines on the Filing of Certificates of Candidacy and Nomination of Official Candidates of Registered Political Parties in Connection with the May 10, 2010 National and Local Elections]  Sec. 67 B.P. 811 which deemed elective officials automatically resigned from office upon filing of their certificate of candidacy was repealed by Sec. 14 R.A 9006, Fair Election Act. QUINTO VS COMELEC (MR Ruling) GR 189698, February 22. 2010

Held: The SC reversed its earlier ruling (1 Dec. 2009) and upheld the constitutionality of 3 provisions in election laws – Sec. 13(3) R.A. 9369, Sec. 66 B.P. 881 and Sec. 4(a) COMELEC Resolution 8678 - that deemed appointive officials automatically resigned once they filed their certificates of candidacy. Ratio: By repealing Section 67 but retaining Section 66 of B.P. 881, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. It is not within the power of the Court to pass upon or look into the wisdom of this classification. Since the classification justifying Section 14 of R.A. 9006 is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.

7. Duty of COMELEC [Sec. 76, B.P. 881]  General rule: The COMELEC shall have the ministerial duty to receive and acknowledge receipt of the certificates of candidacy provided said certificates are: under oath and contain all the required data and in the form prescribed by the Commission.  Exception: COMELEC may go beyond the face of the certificate of candidacy – i. Nuisance candidates ii. Petition to deny due course or to cancel a certificate of candidacy  The COMELEC has no discretion to give or not to give due course to a certificate of candidacy filed in due form. While the COMELEC may look into patent defects in the certificate, it may not go into matters not appearing on their face. [Abcede v. Imperial, (1958)]

8. Petition to declare a duly registered candidate as a nuisance candidate [Sec. 5, R.A. 6646, The Electoral Reforms Law of 1987]  Who may file: any registered candidate for the same office  When: within 5 days from the last day for the filing of certificates of candidacy  How: personally or through duly authorized representative with the COMELEC

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office concerned a written declaration under oath.

Chapter IV. PRE-ELECTION REQUIREMENTS





Grounds: certificate of candidacy has been filed  To put the election process in mockery or disrepute or  To cause confusion among the voters by the similarity of the names of the registered candidates or  Clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate [Sec. 69, B.P. 881] Proceeding: summary in nature

Chapter IV. PRE-ELECTION REQUIREMENTS



9. Petition to Deny Due Course or to Cancel Certificate 1) Who may file: Any person 2) When: Any time not later than 25 days from the time of the filing of the certificate of candidacy 3) Exclusive ground: any material representation contained in the certificate of candidacy is false. 4) Decision: Shall be decided, after due notice and hearing, not later than 15 days before the election. [Sec. 78, B.P. 881]



SALIC MARUHOM VS COMELEC GR NO. 179430, July 27. 2009 Held: The false representation must pertain to a material fact that affects the right of the candidate to run for the election for which he filed his COC. Such material fact refers to a candidate’s eligibility or qualification for elective office like citizenship, residence or status as a registered voter. Aside from the requirement of materiality, the false representation must consist of a deliberate attempt to mislead, misinform, or hide a fact that would otherwise render a candidate ineligible. In other words, it must be made with the intention to deceive the electorate as to the would-be candidate’s qualifications for public office.

10. Effect of disqualification case 



Any candidate who has been declared by final judgment to be disqualified –  shall not be voted for and  the votes cast for him shall not be counted If a candidate is not declared by final judgment before an election to be

disqualified and he is voted for and receives the winning number of votes in such election  The Court or COMELEC shall continue with the trial and hearing of the action, inquiry, or protest and  Upon motion of the complainant or any intervenor, may during the pendency thereof, order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. [Sec. 6, R.A. 6646, The Electoral Reforms Law of 1987] Where a similar complaint/petition is filed: i. before the election and proclamation of the respondent and the case is not resolved before the election  the trial and hearing of the case shall continue and referred to the Law Department for preliminary investigation ii. after the election and before the proclamation of the respondent  the trial and hearing of the case shall be suspended and referred to the Law Department for preliminary investigation In either case, if the evidence of guilt is strong, the COMELEC may order the suspension of the proclamation of respondent, and if proclaimed, to suspend the effects of proclamation. [Sec. 4, Resolution No. 8678]

B. Registration of Political Parties 1. Party System 



A free and open party system shall be allowed to evolve according to the free choice of the people. [Art. IX-C, Sec. 6, Const.] No votes cast in favor of a political party, organization, coalition shall be valid, except for those registered under the party-list system. [Art. IX-C, Sec. 7, Const.]

2. Definitions i.

Party-List System: Mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions registered with the COMELEC.

ii.

Political party: An organized group of citizens advocating an ideology or platform, principles and policies for the general

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

3 kinds:  National party - constituency is spread over the geographical territory of at least a majority of the regions.  Regional party - constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region.  Sectoral party – organized group of citizens belonging to any of the following sectors: labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers and professionals whose principal advocacy pertains to the special interests and concerns of their sector.

iii. Sectoral organization: group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics, employment, interests or concerns. iv. Coalition: an aggrupation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes. [Sec. 3, R.A. 7941, Party-List System Act]

3. Purpose To enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack welldefined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. [Sec. 2, R.A. 7941]

4. Procedure for Registration i.

File with the COMELEC not later than 90 days before the election  a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations  attaching thereto its constitution, bylaws, platform or program of government, list of officers, coalition

agreement and other relevant information as the COMELEC may require ii.

COMELEC shall publish the petition in at least 2 national newspapers of general circulation

iii. COMELEC shall, after due notice and hearing, resolve the petition within 15 days from the date it was submitted for decision but in no case not later than 60 days before election [Sec. 5, R.A. 7941]

5. Who May Not be Registered i. ii.

Religious denominations and sects Those which seek to achieve their goals through violence or unlawful means iii. Those which refuse to uphold and adhere to the Constitution iv. Those supported by foreign governments [Art. IX-C, Sec. 2 (5), Constitution]

6. Grounds for refusal and/or cancellation of registration 

The COMELEC may, motu propio or upon verified complaint of any interested party, refuse or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds: i. Religious sect or denomination, organization or association, organized for religious purposes ii. Advocates violence or unlawful means to seek its goal iii. Foreign party or organization iv. Receives support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes v. Violates or fails to comply with laws, rules or regulations relating to elections vi. Declares untruthful statements in its petition vii. Ceased to exist for at least 1 year viii. Fails to participate in the last 2 preceding elections or ix. Fails to obtain at least 2% of the votes cast under the party-list system in the 2 preceding elections for the constituency in which it has registered [Sec. 6, R.A. 7941]

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conduct of government and which, as the most immediate means of securing their adoption, regularly nominates certain of its leaders and members as candidates for public office.

Chapter IV. PRE-ELECTION REQUIREMENTS

POLITICAL LAW REVIEWER

Chapter IV. PRE-ELECTION REQUIREMENTS

7. Parameters in Allocation of Seats for Party-List Representatives i.

Formula for percentage of votes garnered by each party-list candidate =

20% allocation – the combined number of all party-list congressmen shall not exceed 20% of the total membership of the House of Representatives, including those elected under the party-list. Number of seats available to legislative districts .80

Number of seats available to x .20 = party-list representatives

No. of votes garnered by each party

Total no. of votes cast for party-list candidates

÷

2) Assign one party-list seat to each of the parties next in rank until all available seats are completely distributed.

8. Effect of Change of Affiliation 2% threshold – only those parties garnering a minimum of 2% of the total votes cast for the party-list system shall be entitled to one guaranteed seat each. iii. Proportional representation – the additional seats shall be computed in “proportion to their total number of votes”. iv. 3-seat limit – each party, regardless of the number of votes it actually obtained, is entitled to a maximum of 3 seats; one qualifying and 2 additional seats. BANAT VS. COMELEC GR NO. 179271, July 8. 2009



9. Nomination Representative 

Held: In computing the allocation of additional seats, the continued operation of the 2% threshold for the distribution of the additional seats as found in the second clause of Sec. 11(b) of R.A. 7941 which provides that “those garnering more than 2% of the votes shall be entitled to additional seats in proportion to their total number of votes” is unconstitutional. The 2% threshold frustrates the attainment of the permissive ceiling that 20% of the members of the HR shall consist of party-list representatives.



There are 2 steps in the second round of seat allocation:



1) The percentage of votes garnered by each party-list candidate is multiplied by the remaining available seats. The whole integer of the product corresponds to a party’s share in the remaining available seats Formula for remaining available seats = No. of seats available to party-list representatives

Guaranteed seats of the twopercenters

Any elected party-list representative who changes his political party or sectoral affiliation:  during his term of office shall forfeit his seat  within 6 months before an election shall not be eligible for nomination as partylist representative under his new party or organization [Sec. 15, R.A. 7941]



of

Party-List

Each registered party, organization or coalition shall submit to the COMELEC not later 45 days before the election a list of at least 5 names from which party-list representatives shall be chosen in case it obtains the required number of votes. A person may be nominated:  in 1 list only  if he/she has given their consent in writing  is not a candidate for any elective office or  has not lost his bid for an elective office in the immediately preceding election No change of names or alteration of the order of nominees shall be allowed after the same shall have been submitted to the COMELEC except where the nominee:  dies  withdraws in writing his nomination or  becomes incapacitated in which case the name of the substitute nominee shall be placed last in the list Incumbent sectoral representatives in the HR who are nominated in the party-list system shall not be considered resigned. [Sec. 8, R.A. 7941]

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ii.

POLITICAL LAW REVIEWER

Chapter IV. PRE-ELECTION REQUIREMENTS

C. Party-list and District Representatives Distinguished

Manner of election Effect of disaffiliation with party Effect of vacancy

Effect of change in affiliation within 6 months prior to election Effect of loss during previous election

Party-list representative National None

Voted upon by party or organization. Loses his seat, will be substituted by another Substitution will be made within the party Prohibited from sitting as representative under his new party or organization. Cannot sit

District representative Legislative district Resident of his legislative district for at least 1 year immediately before the election Elected personally Does not lose seat Special elections provided that the vacancy takes place at least 1 year before the next election. Does not prevent a district representative from running under his new party. Can run again

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Scope of electorate Residence requirement

Chapter V. Election Expenditures A.

B.

Chapter V. ELECTION CAMPAIGN and EXPENDITURES

Campaign

and

ELECTION CAMPAIGN 1. ELECTION CAMPAIGN OR PARTISAN POLITICAL ACTIVITY 2. CAMPAIGN PERIOD 3. LAWFUL ELECTION PROPAGANDA 4. PROHIBITED ACTS 5. EQUAL ACCESS TO MEDIA TIME AND SPACE 6. ELECTION SURVEYS 7. RALLIES, MEETINGS AND OTHER POLITICAL ACTIVITY ELECTION CONTRIBUTIONS AND EXPENDITURES 1. DEFINITIONS 2. PROHIBITED CONTRIBUTIONS 3. PROHIBITED FUND-RAISING ACTIVITIES 4. LIMITATIONS ON EXPENSES 5. STATEMENT OF CONTRIBUTIONS AND EXPENSES 6. REQUISITES FOR PROHIBITED DONATION

A. Election Campaign 1. Election Campaign or Partisan Political Activity 





An act designed to promote the election or defeat of a particular candidate or candidates to a public office. [Sec. 79, B.P. 881] Exclusions: i. Acts performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties. ii. Public expressions of opinions or discussions of probable issues in a forthcoming election or on attributes or criticisms of probable candidates proposed to be nominated in a forthcoming political party convention. [Sec. 79, B.P. 881] Persons Prohibited from Campaigning: i. Members of the board of election inspections [Sec. 173, B.P. 881] ii. Civil service officers or employees [Art. IX-B, Sec. 2 (4), Const.] iii. Members of the military [Art. XVI, Sec. 5 (3), Const.] iv. Foreigners, whether juridical or natural persons.

2. Campaign Period i. ii.







For President, Vice-President and Senators - 90 days before the day of the election. For Members of the HR and elective provincial, city and municipal officials - 45 days before the day of the election. [Sec. 5, R.A. 7166] General rule: Any election campaign or partisan political activity for or against any candidate outside of the campaign period is prohibited and shall be considered as an election offense. [Sec. 80, B.P. 881] Exception: Political parties may hold political conventions to nominate their official candidates within 30 days before the start of the period for filing a certificate of candidacy. [Sec. 15, R.A. 9369, Poll Automation Law] Prohibited campaigning days: It is unlawful for any person to engage in an election campaign or partisan political activity on:  Maundy Thursday  Good Friday  eve of Election Day and  Election Day [Sec. 3, COMELEC Resolution 8758] PENERA VS COMELEC G.R. No. 181613, November 25. 2009

Facts: On 11 September 2009, the SC affirmed the COMELEC’s decision to disqualify Penera as mayoralty candidate in Sta. Monica, Surigao del Norte, for engaging in election campaign outside the campaign period, in violation of Sec. 80 of B.P. 881. Penera moved for reconsideration, arguing that she was not yet a candidate at the time of the supposed premature campaigning, since under Sec. 15 of R.A. 9369 one is not officially a candidate until the start of the campaign period. Issue: WON Penera’s disqualification for engaging in premature campaigning should be reconsidered. Held: At the time the supposed premature campaigning took place, Penera was not officially a “candidate” albeit she already filed her certificate of candidacy. Under Section 15 of R.A. 9369, a person who files his certificate of candidacy is considered a candidate only at the start of the campaign period, and unlawful acts applicable to such candidate take effect only at the start of such campaign period. Thus, a candidate is liable for an election offense only for acts done during the campaign period, not before. Before the start of the campaign period,

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Chapter V. ELECTION CAMPAIGN and EXPENDITURES

such election offenses cannot be committed and any partisan political activity is lawful.

ii.

Take part or influence in any manner any election iii. Contribute or make any expenditure in connection with any election campaign or partisan political activity [Sec. 81, B.P. 881]

3. Lawful Election Propaganda i.

ii.

Pamphlets, leaflets, cards, decals, stickers, or other written or printed materials not larger than 8.5x14 inches

iv. Paid advertisements in print or broadcast media  Bear and be identified by the reasonably legible or audible words “political advertisement paid for” followed by the true and correct name and address of the candidate or party for whose benefit the election propaganda was printed or aired. [Sec. 4.1, R.A. 9006]  If the broadcast is given free of charge by the radio or TV station, identified by the words "airtime for this broadcast was provided free of charge by" followed by the true and correct name and address of the broadcast entity. [Sec. 4.2, R.A. 9006]  Print, broadcast or outdoor advertisements donated to the candidate or political party shall not be printed, published, broadcast or exhibited without the written acceptance by said candidate or political party. Written acceptance must be attached to the advertising contract and submitted to the COMELEC within 5 days after its signing. [Sec. 4.3, R.A. 9006, cf. Sec. 6.3, R.A. 9006] All other forms of election propaganda not prohibited by the Omnibus Election Code or the Fair Election Act of 2001. [Sec. 3, R.A. 9006, The Fair Election Act]

4. Prohibited Acts 

For any person during the campaign period to: i. Remove, destroy, obliterate or in any manner deface or tamper with lawful election propaganda ii. Prevent the distribution of lawful election propaganda [Sec. 83, B.P.881]



For any candidate, political party, organization or any person to: i. Give or accept, directly or indirectly, free of charge, transportation, food or drinks or things of value during the five hours before and after a public meeting, on the day preceding the election, and on the day of the election; ii. Give or contribute, directly or indirectly, money or things of value for such purpose (Sec. 89, B.P. 881)



Note: Sec. 85 “Prohibited election propaganda” of B.P. 881 was repealed by Sec. 14 R.A. 9006.

Handwritten or printed letters urging voters to vote for or against any political party or candidate

iii. Cloth, paper or cardboard posters, framed or posted, not larger than 2x3 feet  Streamers not larger than 3x8 feet are allowed at a public meeting or rally or in announcing the holding of such. May be displayed 5 days before the meeting or rally and shall be removed within 24 hours after such

v.



For any foreigner to: i. Aid any candidate or political party, directly or indirectly

5. Equal Access to Media Time and Space 

Print advertisements shall not exceed 1/4 page, in broad sheet and 1/2 page in tabloids thrice a week per newspaper, magazine or other publications.



Bona fide candidates and registered political parties running for nationally elective office are entitled to not more than 120 mins of TV advertisement and 180 mins of radio advertisement whether by purchase or by donation.



Bona fide candidates and registered political parties running for locally elective office are entitled to not more than 60 mins of TV advertisement and 90 mins of radio advertisement whether by purchase or by donation.



Broadcast stations or entities are required to submit copies of their broadcast logs and certificates of performance to the COMELEC for the review and verification of the frequency, date, time and duration of advertisement broadcast for any candidate or political party.

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All mass media entities are required to furnish the COMELEC with a copy of all contracts for advertising, promoting or opposing any political party or the candidacy of any person for public office within 5 days after its signing.



No franchise or permit to operate a radio or TV station shall be granted or issued, suspended or cancelled during the election period.



Any mass media columnist, commentator, announcer, reporter, on-air correspondent or personality who is a candidate for any elective public office or is a campaign volunteer for or employed or retained in any capacity by any candidate or political party shall:  be deemed resigned, if so required by their employer or  take a leave of absence from his/her work as such during the campaign period



No movie, cinematograph or documentary shall be publicly exhibited in a theater, television station or any public forum during the campaign period which:  portrays the life or biography of a candidate  is portrayed by an actor or media personality who is himself a candidate. [Sec. 6, R.A. 9006]

Chapter V. ELECTION CAMPAIGN and EXPENDITURES

ii. Pollsters shall wear distinctive clothing iii. Pollsters shall inform the voters that they may refuse to answer and iv. The result of the exit polls may be announced after the closing of the polls on election day and must clearly identify the total number of respondents, and the places where they were taken. Said announcement shall state that the same is unofficial and does not represent a trend. [Sec. 5, R.A. 9006]

8. Application for Rallies, Meetings and Other Political Activity 

All applications for permits must immediately be posted in a conspicuous place in the city or municipal building, and the receipt thereof acknowledged in writing.



Applications must be acted upon in writing by local authorities concerned within 3 days after their filing. If not acted upon within said period, deemed approved.



The only justifiable ground for denial of the application is when a prior written application by any candidate or political party for the same purpose has been approved.



Denial of any application for said permit is appealable to the provincial election supervisor or to the COMELEC whose decision shall be made within 48 hours and which shall be final and executory. [Sec. 87, B.P. 881)]

7. Election Surveys 

The measurement of opinions and perceptions of the voters as regards a candidate's popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters' preference for candidates or publicly discussed issues during the campaign period.



Surveys affecting national candidates shall not be published 15 days before an election and surveys affecting local candidates shall not be published 7 days before an election.



Exit polls may only be taken subject to the following requirements: i. Pollsters shall not conduct their surveys within 50m from the polling place, whether said survey is taken in a home, dwelling place and other places

B. Election Contributions Expenditures

and

1. Definitions 

Contribution: gift, donation, subscription, loan, advance or deposit of money or anything of value, or a contract, promise or agreement to contribute  WON legally enforceable  made for influencing the results of the elections  excludes services rendered without compensation by individuals volunteering their time in behalf of a candidate or political party  includes the use of facilities voluntarily donated by other persons, the money value of which can be assessed based on the rates prevailing in the area. [Sec. 94, B.P. 881]

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

Expenditures: payment of money or anything of value or a contract, promise or agreement to make an expenditure  for the purpose of influencing the results of the election  includes the use of facilities personally owned by the candidate, the money value of the use of which can be assessed based on the rates prevailing in the area. [Sec. 94, B.P. 881]

Chapter V. ELECTION CAMPAIGN and EXPENDITURES

       

2. Prohibited Contributions i.

ii.

iii.

iv.

v.

vi.

vii.

viii.

From Public or private financial institutions  Unless:  the financial institutions are legally in the business of lending money  the loan is made in accordance with laws and regulations AND  the loan is made in the ordinary course of business Natural and juridical persons operating a public utility or in possession of or exploiting any natural resources of the nation Natural and juridical persons who hold contracts or sub-contracts to supply the government or any of its divisions, subdivisions or instrumentalities, with goods or services or to perform construction or other works Grantees of franchises, incentives, exemptions, allocations or similar privileges or concessions by the government or any of its divisions, subdivisions or instrumentalities, including GOCCs Grantees, within 1 year prior to the date of the election, of loans or other accommodations in excess of P100,000 by the government or any of its divisions, subdivisions or instrumentalities including GOCCs Educational institutions which have received grants of public funds amounting to no less than P100,000 Officials or employees in the Civil Service, or members of the Armed Forces of the Philippines Foreigners and foreign corporations, including foreign governments. [Sec. 95 and 96, B.P. 881]

3. Prohibited Fund-raising Activities 

The following are prohibited if held for raising campaign funds or for the support of any candidate from the start of the election period up to and including election day:  Dances

Lotteries Cockfights Games Boxing bouts Bingo Beauty contests Entertainments, or cinematographic, theatrical or other performances For any person or organization, civic or religious, directly or indirectly, to solicit and/or accept from any candidate or from his campaign manager, agent or representative, or any person acting in their behalf, any gift, food, transportation, contribution or donation in cash or in kind from the start of the election period up to and including election day  Except: normal and customary religious stipends, tithes, or collections on Sundays and/or other designated collection days [Sec. 97, B.P. 881]

4. Limitations on Expenses 

For Candidates  President and VP: P10 for every voter currently registered  Other candidates: P3 for every voter currently registered in the constituency where he filed his certificate of candidacy



Candidates Without a Political Party: P5 for every voter



For Political Parties: P5 for every voter currently registered in the constituency or constituencies where it has official candidates [Sec. 13, R.A. 7166, Act Providing for Synchronized National and Local Elections and Electoral Reforms]

5. Statement Expenses 



of

Contributions

and

Every candidate and treasurer of the political party shall file:  in duplicate with the COMELEC  the full, true and itemized statement of all contributions and expenditures in connection with the election  within 30 days after the day of the election Effect of failure to file statement:  No person elected to any public offices shall enter upon the duties of his office until he has filed the statement of contributions and expenditures

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POLITICAL LAW REVIEWER



Chapter V. ELECTION CAMPAIGN and EXPENDITURES

The same prohibition shall apply if the political party which nominated the winning candidate fails to file the statements

6. Requisites of a Prohibited Donation Who: By candidate, spouse, relative within 2nd civil degree of consanguinity or affinity, campaign manager, agent or representative; treasurers, agents or representatives of political party



When: During campaign period, day before and day of the election



Directly or indirectly:  



donation, contribution or gift in cash or in kind undertake or contribute to the construction or repair of roads, bridges, school buses, puericulture centers, medical clinics and hospitals, churches or chapels cement pavements, or any structure for public use or for the use of any religious or civic organization.

Exceptions:  Normal and customary religious dues or contributions  Periodic payments for legitimate scholarships established and school contributions habitually made before the prohibited period [Sec. 104, B.P. 881]

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

POLITICAL LAW REVIEWER

Chapter VI. ELECTION PROPER

election may occur before or after the casting of votes or on the day of the election. [Sec. 4, R.A. 7166]

A.

B. C.

D.

E.

IN GENERAL 1. WHAT CONSTITUTES AN ELECTION 2. FAILURE OF ELECTIONS; GROUNDS 3. POSTPONEMENT OF ELECTIONS 4. SPECIAL ELECTIONS BOARD OF ELECTION INSPECTORS CASTING OF VOTES 1. VOTING HOURS 2. VOTING 3. CHALLENGE OF ILLEGAL VOTERS 4. CHALLENGE BASED ON CERTAIN ILLEGAL ACTS COUNTING OF VOTES 1. COUNTING PROPER 2. ELECTION RETURNS CANVASS(ING OF VOTES) 1. DEFINITIONS 2. COMPOSITION OF BOARD OF CANVASSERS 3. PROHIBITION ON BOC 4. CANVASS BY THE BOC 5. CERTIFICATE OF CANVASS AND STATEMENT OF VOTES 6. PROCLAMATION



The postponement, declaration of failure of election and the calling of special elections shall be decided by the COMELEC sitting en banc by a majority vote of its members. [Sec. 4, R.A. 7166]



The COMELEC shall call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect:  upon a verified petition by any interested party and  after due notice and hearing [Sec. 6, B.P. 881]



A. In General

When: on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect  but not later than 30 days after the cessation of the cause of such postponement or suspension of the election or failure to elect. [Sec. 6, B.P. 881]

1. What Constitutes an Election 

Plurality of votes sufficient for:  a choice conditioned on the plurality of valid votes or  a valid constituency regardless of the actual number of votes cast.

3. Postponement of Elections 

Grounds: i. Violence ii. Terrorism iii. Loss or destruction of election paraphernalia or records iv. Force majeure v. Other analogous cause of such a nature that the holding of a free, orderly and honest election becomes impossible in any political subdivision. [Sec. 5, B.P. 881]



The COMELEC shall postpone the election therein motu proprio or upon a verified petition by any interested party and after due notice and hearing.  Decided en banc by a majority vote of its members. [Sec. 4, R.A. 7166]



When: on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect  but not later than 30 days after the cessation of the cause of such postponement or suspension of the election or failure to elect. [Sec. 5, B.P. 881]

2. Failure of Elections 



Grounds: in any of such cases the failure or suspension of election must affect the result of the election i. Election in any polling place has not been held on the date fixed due to force majeure, violence, terrorism, fraud, or other analogous causes. ii. Election in any polling place had been suspended before the hour fixed for the closing of the voting due to force majeure, violence, terrorism, fraud, or other analogous causes. iii. After the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof such election results in a failure to elect due to force majeure, violence, terrorism, fraud or other analogous causes. [Sec. 6, B.P. 881] Causes for the declaration of failure of

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Chapter VI. Election Proper

Chapter VI. ELECTION PROPER

4. Special Elections 

Ground: permanent vacancy in the Senate or House of Representatives at least 1 year before the expiration of the term. [Sec. 4, R.A. 7166]



The COMELEC shall call and hold a special election to fill the vacancy.



When:  Vacancy in HR (House of Representatives) – not earlier than 60 days nor longer than 90 days after the occurrence of the vacancy.  Vacancy in the Senate – simultaneous with the succeeding regular election. [Sec. 4, R.A. 7166]

electronically the election results, through the use of the PCOS machine, to the:  City/Municipal Board of Canvassers  Dominant majority party, dominant minority party, accredited citizens' arm and KBP and  Central server iii. Act as deputies of the COMELEC in the supervision and control of the election in the polling places wherein they are assigned iv. Perform such other functions prescribed by the Omnibus Election Code or by the rules and regulations promulgated by the Comelec. [Art. 1, Sec. 10, Comelec Res. 8739]

 Prohibitions: 

B. Board of Election Inspectors 







Constituted by COMELEC for each precinct at least 30 days before the date when the voter’s list is to be prepared (regular election) or 15 days before a special election. Composition:  Chairman, poll clerk and member  All of whom shall be public school teachers, with priority given to those with permanent appointments  If there are not enough public school teachers, the following may be appointed, provided that the Chairman shall be a public school teacher: i. teachers in private schools ii. employees in the civil service or iii. citizens of known probity and competence who are registered voters of the city or municipality  at least 1 member shall be an ITcapable person as certified by the DOST after the training of the same. [Art. 1, Sec. 1, COMELEC Res. 8739] Disqualification: He or his spouse is related th within the 4 civil degree of consanguinity or affinity to any member of the Board, or to any candidate to be voted for or to the latter’s spouse. [Art. 1, Sec. 3, Comelec Res. 8739] Powers: i. Conduct the voting in the polling place and administer the electronic counting of votes ii. Print the election returns and transmit



No member of the Board shall engage in any partisan political activity or take part in the election except to discharge his duties as such and to vote. [Sec. 173, BP 881] No member of the Board shall, before the termination of the voting, make any announcement as to whether a certain registered voter has already voted or not, as to how many have already voted or how many so far have failed to vote, or any other fact tending to show or showing the state of the polls, nor shall he make any statement at any time as to how any person voted, except as witness before a court. [Sec. 205, BP 881]

C. Casting of Votes 1. Voting Hours 

The voting period is from 7AM to 6PM. However, if after 6PM there are still voters within 30 meters from the polling place who have yet to cast their votes, such voters may still be allowed to vote. [Art. IV, Sec. 21, Comelec Res. 8739]

2. Voting

 Manner of voting: i.

Using a ballot secrecy folder and the marking pen provided by the COMELEC, fill his ballot by fully shading the oval beside the names of the candidates and political party of his choice.

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POLITICAL LAW REVIEWER

ii.



Rejected ballots:  In the event of a rejected ballot, the voter shall be allowed to re-insert the ballot. If the PCOS still rejects the ballot, the voter shall return the ballot to the Chairman who shall: i. Distinctly mark the back thereof as “Rejected” ii. Require all members of the BEI to sign at the back thereof, and place inside the Envelope for Rejected Ballots.  No replacement ballot shall be issued to a voter whose ballot is rejected by the PCOS.  Any party objecting to the rejection of the ballot shall reduce his objection in writing, which the board shall attach and note in the Minutes. [Art. V, Sec. 36, COMELEC Res. 8739]



No voter shall be allowed to: i. Bring the ballot, ballot secrecy folder or marking pen outside of the polling place ii. Speak with anyone other than as herein provided while inside the polling place iii. Prepare his ballot without using the ballot secrecy folder or exhibit its contents iv. Fill his ballot accompanied by another, except in the case of an illiterate or person with disability/disabled voter v. Erase any printing from the ballot, or put any distinguishing mark on the ballot vi. Use carbon paper, paraffin paper or other means of making a copy of the contents of the ballot, or otherwise make use of any other scheme to identify his vote, including the use of digital cameras, cellular phones with camera or similar gadgets vii. Intentionally tear or deface the ballot

viii. Disrupt or attempt to disrupt the normal operation of the Precinct Count Optical Scan (PCOS). [Art. IV, Sec. 29, COMELEC Res. 8739] 

Preparation of ballots for illiterates and disabled persons: i. No voter shall be allowed to vote as an illiterate or as a physically disabled unless it is so indicated in his registration record. ii. He may be assisted in the preparation of his ballot by:  A relative by affinity or th consanguinity within the 4 civil degree  Any person of his confidence who belongs to the same household  Any member of the board of election inspectors. iii. In no case shall an assistor assist more than 3 times, except the members of the BEI. iv. The person assisting shall:  Prepare the ballot using a ballot secrecy folder  Bind himself in writing and under oath to fill the ballot strictly in accordance with the instructions of the voter and not to reveal the contents thereof. v. A person with physically impaired capacity to use the AES may also be assisted in feeding his ballot into the PCOS. The assistor shall ensure that the contents of the ballot are not displayed during the feeding of the same into the PCOS. [Art. IV, Sec. 30, Comelec Res. 8739]

3. Challenge of Illegal Voters 

Any voter or watcher may challenge any person offering to vote for: i. not being registered ii. using the name of another iii. suffering from existing disqualification



In such case, the board of election inspectors shall satisfy itself as to whether or not the ground for the challenge is true by requiring proof of registration, identity or qualification of the voter. [Sec. 199, B.P. 881]

4. Challenge based on certain illegal acts 

Any voter or watcher may challenge any voter offering to vote on the ground that he:

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The voter shall approach the PCOS, insert his ballot in the ballot entry slot and wait until the ballot is dropped into the ballot box. iii. The BEI shall monitor the PCOS screen to make sure that the ballot was successfully accepted. iv. The chairman shall apply indelible ink at the right forefinger nail of the voter, or any other nail if there be no forefinger nail. v. The voter shall affix his thumbmark on the corresponding space in the Voter’s List. [Art. V, Sec. 35, Comelec Res. 8739]

Chapter VI. ELECTION PROPER

POLITICAL LAW REVIEWER

Chapter VI. ELECTION PROPER

Received or expects to receive, has paid, offered or promised to pay, has contributed, offered or promised to contribute money or anything of value as consideration for his vote or for the vote of another. ii. Made or received a promise to influence the giving or withholding of any such vote. iii. Made a bet or is interested directly or indirectly in a bet which depends upon the result of the election. [Sec. 200, B.P. 881] 



 The challenged person shall take an oath before the BEI that he has not committed the acts alleged. Upon the taking of oath, the challenge shall be dismissed and the voter allowed to vote, but in case of his refusal to take such oath, challenge shall be sustained and he shall not be allowed to vote. [Sec. 200, B.P. 881]

D. Counting of Votes 1. Counting Proper 

 

Unless otherwise ordered by the COMELEC, the BEI shall not stop or postpone the counting until it has been completed. the PCOS shall automatically count the votes After all the votes have been counted, the PCOS shall automatically print 30 copies of the Election Returns for the national and local positions. [Art. V, Sec. 38, Comelec Res. 8739]

2. Election Returns 

A document in electronic and printed form directly produced by the counting or voting machine. [Sec. 2(4), R.A. 9369]



Contents:  the date of the election  the province, municipality and the precinct in which it is held and  the votes in figures for each candidate [Sec. 2(4), R.A. 9369]



Number of copies and their distribution:  30 copies  Sec. 19, R.A. 9369 for manner of transmittal and distribution



Announcement of results:

The chairman shall publicly announce the total number of votes received by each candidate, stating their corresponding offices. The poll clerk shall announce the posting of a copy of the second copy of the ER both for national and local positions on a wall within the premises of the polling place/counting center which must be sufficiently lighted and accessible to the public, and proceed to post such copies. [Sec. 19, R.A. 9369]

Transmittal of ERs:  Within 1 hour after the printing of the election returns, the chairman or any official authorized by COMELEC shall, in the presence of watchers and representatives of the accredited citizen's arm, political parties/candidates, if any, electronically transmit the precinct results to: i. the respective levels of board of canvasser ii. to the dominant majority and minority party iii. to the accredited citizen's arm and iv. Kapisanan ng mga Broadcasters ng Pilipinas (KBP) [Sec. 19, R.A. 9369]

E. Canvassing of Votes 1. Definitions  

Canvass - the process by which the results in the election returns are tallied and totalled. Certificates of canvass - official tabulations of votes accomplished by district, municipal, city and provincial canvassers based on the election returns, which are the results of the ballot count at the precinct level.

222 ELECTION LAW



i.

POLITICAL LAW REVIEWER

Chapter VI. ELECTION PROPER

2. Composition of Board of Canvassers [Sec. 20, R.A. 6646]

Vice Chairman

Member



Province Provincial election supervisor or lawyer in the COMELEC regional office

Provincial fiscal Provincial superintendent of schools

City City election registrar or a lawyer of COMELEC; In cities with more than 1 election registrar, COMELEC shall designate City fiscal City superintendent of schools

Municipality Election registrar or COMELEC representative

Municipal treasurer Most senior district school supervisor or in his absence, a principal of the school district or elementary school

In case of non-availability, absence, disqualification due to relationship, or incapacity for any cause of any of the members, COMELEC may appoint the following as substitutes, in the order named:

Chairman Vice Chairman

Member

Province

City

Municipality

Ranking lawyer of the COMELEC a. Provincial auditor b. Registrar of Deeds c. Clerk of Court nominated by the Executive Judge of the RTC; d. Any other available appointive provincial official

Ranking lawyer of the COMELEC a. City auditor or equivalent; b. Registrar of Deeds; c. Clerk of Court nominated by the Executive Judge of the RTC; d. Any other available appointive city official

Same as Chairman

Same as Chairman

Ranking lawyer of the COMELEC a. Municipal Administrator; b. Municipal Assessor; c. Clerk of Court nominated by the Executive Judge of the MTC; d. Any other available appointive municipal official Same as for ViceChairman

for

Vice-

for

Vice-

3. Prohibitions on BOC

4. Canvass by the BOC



Chairman and members shall not be related th within the 4 civil degree of consanguinity or affinity to any of the candidates whose votes will be canvassed by said board, or to any member of the said board. [Sec. 222, B.P. 881]





No member or substitute member shall be transferred, assigned or detailed outside of his official station, nor shall he leave said station without prior authority of the COMELEC during the period beginning election day until the proclamation of the winning candidates. [Sec. 223, B.P. 881]



No member shall feign illness to be substituted on election day until the proclamation of the winning candidates. Feigning of illness constitutes an election offense. [Sec. 224, B.P. 881]

The BOC shall canvass the votes by consolidating the electronically transmitted results or the results contained in the data storage devices used in the printing of the election returns. [Sec. 20, R.A. 9369]

5. Certificate of Canvass and Statement of Votes 

Within one hour after the canvassing, the Chairman of the district or provincial BOC or the city BOC of those cities which comprise one or more legislative districts shall electronically transmit the certificates of canvass to:  COMELEC sitting as the National BOC for senators and party-list representatives and  Congress as the National BOC for the president and vice president, directed to

223 ELECTION LAW

Chairman



 



Chapter VI. ELECTION PROPER

the President of the Senate. [Sec. 20, R.A. 9369] The certificates of canvass transmitted electronically and digitally signed shall be considered as official election results and shall be used as the basis for the proclamation of a winning candidate. [Sec. 20, R.A. 9369] 30 copies shall be distributed in accordance to Sec. 21, R.A. 9369.

a. When proclamation void:  When it is based on incomplete returns [Castromayor v. Comelec (1995)] or  When there is yet no complete canvass. [Jamil v. Comelec (1997)]  A void proclamation is no proclamation at all, and the proclaimed candidate’s assumption into office cannot deprive the COMELEC of its power to annul the proclamation.

National BOC for president and vicepresident  Composition: The Senate and the House of Representatives in joint public session.  Upon receipt of the certificates of canvass, the President of the Senate shall, not later than 30 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.  Congress upon determination of the authenticity and the due execution thereof in the manner provided by law shall: i. canvass all the results for president and vice-president and ii. proclaim the winning candidates. [Sec. 22, R.A. 9369] National BOC for Senators and Party-List Representatives  Composition: The chairman and members of the COMELEC sitting en banc  It shall canvass the results by consolidating the certificates of canvass electronically transmitted. Thereafter, the national board shall proclaim the winning candidates for senators and party-list representatives. [Sec. 23, R.A. 9369]

b. Partial proclamation: Notwithstanding pendency of any pre-proclamation controversy, COMELEC may summarily order proclamation of other winning candidates whose election will not be affected by the outcome of the controversy. [Sec. 21, R.A. 7166]

6. Proclamation 

Proclamation shall be after the canvass of election returns, in the absence of a perfected appeal to the COMELEC, proclaim the candidates who obtained the highest number of votes cast in the province, city, municipality or barangay, on the basis of the certificates of canvass.



Failure to comply with this duty constitutes an election offense. [Sec. 231, B.P. 881]

c.

Election resulting in a tie: BOC, by resolution, upon 5 days notice to all tied candidates, shall hold a special public meeting at which the board shall proceed to the drawing of lots of tied candidates and shall proclaim as elected the candidates who may be favored by luck. [Sec. 240, B.P. 881]  There is a tie when:  2 or more candidates receive an equal and highest number of votes; or  2 or more candidates are to be elected for the same position and 2 or more candidates received the same number of votes for the LAST PLACE in the number to be elected.

d. Proclamation of a lone candidate: Upon the expiration of the deadline for the filing of certificates of candidacy in a special election called to fill a vacancy in an elective position other than for President and VP, when there is only 1 qualified candidate, he shall be proclaimed elected without holding the special election upon certification by the COMELEC that he is the only candidate for the office and is therefore deemed elected. [Sec. 2, R.A. 8295, Law on Proclamation of Solo Candidates]

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Chapter VII. MODES of CHALLENGING CANDIDACY and ELECTION RESULTS

Chapter VII. Modes of Challenging Candidacy and Election Results A.

B.

C.

CANCELLATION OF CERTIFICATE OF CANDIDACY 1. GROUNDS 2. NATURE OF PROCEEDINGS 3. PROCEDURE PRE-PROCLAMATION CONTROVERSIES 1. JURISDICTION 2. WHEN NOT ALLOWED 3. NATURE OF PROCEEDINGS 4. ISSUES THAT MAY BE RAISED 5. ISSUES THAT CANNOT BE RAISED 6. PROCEDURE 7. EFFECT OF FILING OF PREPROCLAMATION 8. EFFECT OF PROCLAMATION OF WINNING CANDIDATE 9. PETITION TO ANNUL/SUSPEND PROCLAMATION 10. DECLARATION OF FAILURE OF ELECTION DISQUALIFICATION CASES 1. PROCEDURE 2. EFFECT

A. Cancellation Candidacy

of

Certificate

of



any matter raised under Sec. 233-236 of BP 881 (see below) in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. [Sec. 241, BP 881]

1. Jurisdiction COMELEC has exclusive jurisdiction over preproclamation cases. It may order, motu proprio or upon written petition, the partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made. [Sec. 242, BP 881]

2. When Not Allowed For the positions of President, VP, Senator, and Member of the House of Representatives [Sec. 15, R.A. 7166]

3. Nature of Proceedings Heard summarily by the COMELEC after due notice and hearing. This is because canvass and proclamation should be delayed as little as possible.

1. Grounds i. ii.

False material representation in the certificate of candidacy; If the certificate filed is a substitute Certificate of Candidacy, when it is not a proper case of substitution under Sec. 77 of BP 881.

2. Nature of Proceedings 

Summary

3. Procedure   

Who may file: any citizen of voting age, or a duly registered political party, organization, or coalition of political parties When filed: Within 5 days from the last day for the filing of certificates of candidacy Where filed: With the Law Department of the COMELEC

B. Pre-Proclamation Controversies (asked in 1987, 1988, 1996) Any question or matter pertaining to or affecting:  the proceedings of the board of canvassers, or

4. Issues That May Be Raised 

This enumeration is restrictive and exclusive: i. Illegal composition or proceedings of the board of election canvassers; ii. Canvassed election returns are either:  Incomplete;  Contain material defects;  Appear to be tampered with or falsified;  Contain discrepancies in the same returns or in other authentic copies; iii. The election returns were: a) Prepared under duress, threats, coercion, intimidation or b) Obviously manufactured or not authentic iv. Substituted or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate(s). v. Manifest errors in the Certificates of Canvass or Election Returns [Sec. 15, R.A. 7166; Chavez v. COMELEC]

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Chapter VII. MODES of CHALLENGING CANDIDACY and ELECTION RESULTS

5. Issues That Cannot Be Raised i.

Appreciation of ballots, as this is performed by the BEI at the precinct level and is not part of the proceedings of the BOC [Sanchez v. Comelec, (1987)] ii. Technical examination of the signatures and thumb marks of voters [Matalam v. Comelec (1997)] iii. Prayer for re-opening of ballot boxes [Alfonso v. Comelec, (1997)] iv. Padding of the Registry List of Voters of a municipality, massive fraud and terrorism [Ututalum v. Comelec (1990)] v. Challenges directed against the Board of Election Inspectors [Ututalum v. Comele (supra)] vi. Fraud, terrorism and other illegal electoral practices. These are properly within the office of election contests over which electoral tribunals have sole, exclusive jurisdiction. [Loong v. Comelec, (1992)]

b. Matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns and certificates of canvass Where: Only with the Board of Canvassers When: At the time the questioned return presented for inclusion in the canvass.

Who: Any candidate, political party or coalition of political parties Note: Non-compliance with any of the steps above is fatal to the pre-proclamation petition.

7. Effect of Filing of Pre-Proclamation Controversy 

The period to file an election contest shall be suspended during the pendency of the pre-proclamation contest in the COMELEC or the Supreme Court.



The right of the prevailing party in the preproclamation contest to the execution of COMELEC’s decision does not bar the losing party from filing an election contest.



Despite the pendency of a pre-proclamation contest, the COMELEC may order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy.

6. Procedure a. Questions involving the composition or proceedings of the board of canvassers, or correction of manifest errors Where: Either in the Board of Canvassers or directly with the COMELEC. [Sec. 17, R.A. 7166] When: 1. a petition involves the illegal composition or proceedings of the board, must be filed immediately when the board begins to act as such [Laodeno v. Comelec], or at the time of the appointment of the member whose capacity to sit as such is objected to if it comes after the canvassing of the board, or immediately at the point where the proceedings are or begin to be illegal. Otherwise, by participating in the proceedings, the petitioner is deemed to have acquiesced in the composition of the BOC. 2. If the petition is for correction, it must be filed not later than 5 days following the date of proclamation, and must implead all candidates who may be adversely affected thereby. [Sec. 5(b), Rule 27, COMELEC Rules of Procedure]

is

8. Effect of Proclamation of Winning Candidate 

General rule: A pre-proclamation controversy shall no longer be viable after the proclamation and assumption into office by the candidate whose election is contested. The remedy is an election protest before the proper forum.



Exceptions: The prevailing candidate may still be unseated even though he has been proclaimed and installed in office if:  The opponent is adjudged the true winner of the election by final judgment of court in an election contest;  The prevailing party is declared ineligible or disqualified by final judgment of a court in a quo warranto case; or

226 ELECTION LAW

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

Chapter VII. MODES of CHALLENGING CANDIDACY and ELECTION RESULTS

The incumbent is removed from office for cause.

9. Petition to Proclamation

Annul

or

Suspend



The filing of the petition suspends the running of the period to file an election protest. [Alangdeo v. Comelec, (1989)]



No law provides for a reglementary period within which to file a petition for the annulment of an election if there is as yet no proclamation. [Loong v. Comelec (supra)]

10. Declaration of Failure of Election 

It is neither an election protest nor a preproclamation controversy. [Borja v. Comelec, (1998)]



Jurisdiction: COMELEC, sitting en banc, may declare a failure of election by a majority vote of its members.



Requisites: The following conditions must concur: a. No voting has taken place in the precincts concerned on the date fixed by law, or even if there was voting, the election nonetheless resulted in a failure to elect; and b. The votes cast would affect the results of the election.



Procedure: 1) Petitioner files verified petition with the Law Department of the COMELEC. 2) Unless a shorter period is deemed necessary by circumstances, within 24 hours, the Clerk of Court concerned serves notices to all interested parties, indicating therein the date of hearing, through the fastest means available. 3) Unless a shorter period is deemed necessary by the circumstances, within 2 days from receipt of the notice of hearing, any interested party may file an opposition with the Law Department of the COMELEC. 4) The COMELEC proceeds to hear the petition. The COMELEC may delegate the hearing of the case and the reception of evidence to any of its officials who are members of the Philippine Bar. 5) The COMELEC then decides whether to grant or deny the petition. This lies within the exclusive prerogative of the COMELEC.

C. Disqualification Cases 1. Procedure i.

Who may file: Any citizen of voting age, or any duly registered political party, organization or coalition of political parties ii. Where: Law Department of the COMELEC iii. When: Any day after the last day for filing of certificates of candidacy, but not later than the date of proclamation

2. Effect (asked in 1990, 1992, 1996, 2003) Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected, does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office.

227 ELECTION LAW

POLITICAL LAW REVIEWER

POLITICAL LAW REVIEWER

A. B. C.

JURISDICTION OVER ELECTION OFFENSES PROSECUTION OF ELECTION OFFENSES PREFERENTIAL DISPOSITION OF ELECTION OFFENSES D. ELECTION OFFENSES 1. REGISTRATION 2. CERTIFICATE OF CANDIDACY 3. ELECTION CAMPAIGN 4. VOTING 5. COUNTING OF VOTES 6. CANVASSING 7. ACTS OF GOVERNMENT AND PUBLIC OFFICERS 8. COERCION, INTIMIDATION, VIOLENCE 9. OTHER PROHIBITIONS 10. PENALTIES E. ARRESTS IN CONNECTION WITH ELECTION CAMPAIGN F. PRESCRIPTION G. PROHIBITED ACTS UNDER R.A. 9369

A. Jurisdiction over Election Offenses 

RTCs have exclusive original jurisdiction to try and decide any criminal actions or proceedings for violation of election laws. [Sec. 268, B.P. 881]

to post the list of voters in each precinct. [Sec. 9, R.A. 7166]; 2) Change or alteration or transfer of a voter's precinct assignment in the permanent list of voters without the express written consent of the voter [Sec. 4, R.A. 8189]

2. Certificate of Candidacy 1) Continued misrepresentation or holding out as a candidate of a disqualified candidate or one declared by final and executory judgment to be a nuisance candidate [Sec. 27f, R.A. 6646] 2) Knowingly inducing or abetting such misrepresentation of a disqualified or nuisance candidate [Sec. 27f, R.A. 6646]; 3) Coercing, bribing, threatening, harassing, intimidating, terrorizing, or actually causing, inflicting or producing violence, injury, punishment, torture, damage, loss or disadvantage to discourage any other person or persons from filing a certificate of candidacy in order to eliminate all other potential candidates from running in a special election [Sec. 5, R.A. 8295]

B. Prosecution of Election Offenses

3. Election Campaign



1) Appointment or use of special policemen, special agents or the like during the campaign period [Sec. 261m, B.P. 881] 2) Use of armored land, water or aircraft during the campaign period [Sec. 261r, B.P. 881] 3) Unlawful electioneering [Sec. 261k, B.P. 881] 4) Acting as bodyguards or security in the case of policemen and provincial guards during the campaign period (Sec. 261t, B.P. 881) 5) Removal, destruction, obliteration, or tampering of lawful election propaganda, or preventing the distribution thereof (Sec. 83, B.P. 881 vis-à-vis Sec. 262, B.P. 881)

 

The COMELEC has the exclusive power to investigate and prosecute cases involving violations of election laws. [Sec. 2 (6), Art. IX-C, 1987 Const] However, it may validly delegate the power to the Provincial Prosecutor or to the Ombudsman. In the event that the COMELEC fails to act on any complaint within 4 months from its filing, the complainant may file the complaint with the fiscal or the Department of Justice, if warranted. [Sec. 265, B.P. 881]

C. Preferential Disposition of Election Offenses  

The investigating officer shall resolve the case within 5 days from submission. The courts shall give preference to election cases over all other cases except petitions for writ of habeas corpus.

D. Election Offenses 1. Registration 1) Failure of the Board of Election Inspectors

4. Voting 1) Vote-buying and vote-selling (Sec. 261a, B.P. 881) 2) Conspiracy to bribe voters (Sec. 261b, B.P. 881): A disputable presumption of a conspiracy to bribe voters is created when there is proof that at least 1 voter in different precincts representing at least 20% of the total precincts in any municipality, city or province has been

228 ELECTION LAW

Chapter VIII. Election Offenses

Chapter VIII. ELECTION OFFENSES

POLITICAL LAW REVIEWER

5. Counting of Votes 1) Tampering, increasing, decreasing votes, or refusal to correct tampered votes after proper verification and hearing by any member of the board of election inspectors [Sec. 27b, R.A. 6646]  A special election offense to be known as electoral sabotage and the penalty to be imposed shall be life imprisonment. [Sec. 42, RA 9369] 2) Refusal to issue to duly accredited watchers the certificate of votes cast and the announcement of the election, by any member of the board of election inspectors [Sec. 27c, R.A. 6646]

6. Canvassing 

Any chairperson of the board of canvassers who fails to give notice of meeting to other members of the board, candidate or political party as required (Sec. 27e, R.A. 6646)

7. Acts of Government or Public Officers 1) Appointment of new employees, creation of new positions, promotion, or giving salary increases within the election period (Sec. 261g, B.P. 881) 2) Transfer of officers and employees in the civil service within the election period without the prior approval of the COMELEC (Sec. 261h, B.P. 881) 3) Intervening of public officers and employees in the civil service in any partisan political activity (Sec. 261i, B.P. 881) 4) Use of public funds for an election campaign (Sec. 261o, B.P. 881) 5) Illegal release of prisoners before and after election (Sec. 261n, B.P. 881) 6) Release, disbursement or expenditure of public funds during the prohibited period (Sec. 261v, B.P. 881)

7) Construction of public works, etc. during the prohibited period (Sec. 261w, B.P. 881) 8) Suspension of elective local officials during the election period without prior approval of the COMELEC (Sec. 261x, B.P. 881)

8. Coercion, Intimidation, Violence 1) Coercion of election officials and employees 2) Threats, intimidation, terrorism, use of fraudulent devices or other forms of coercion (Sec. 261e, B.P. 881) 3) Use of undue influence (Sec. 261j, B.P. 881) 4) Carrying deadly weapons within the prohibited area (Sec. 261p, B.P. 881) 5) Carrying firearms outside residence or place of business (Sec. 261q, B.P. 881) 6) Organization or maintenance of reaction forces, strike forces, or similar forces during the election period (Sec. 261u, B.P. 881)

9. Other Prohibitions 1) Unauthorized printing of official ballots and election returns with printing establishments that are not under contract with the COMELEC (Sec. 27a, R.A. 6646) 2) Wagering upon the results of elections (Sec. 261c, B.P. 881) 3) Sale, etc. of intoxicating liquor on the day fixed by law for the registration of voters in the polling place, or the day before the election or on election day (Sec. 261dd (1), B.P. 881) 4) Opening booths or stalls within 30 meters of any polling place (Sec, 261dd (2), B.P. 881) 5) Holding fairs, cockfights, etc. on election day (Sec. 261dd (3), B.P. 881) 6) Refusal to carry election mail during the election period (Sec. 261dd (4), B.P. 881). In addition to the prescribed penalty, such refusal constitutes a ground for cancellation or revocation of certificate of public convenience or franchise. 7) Discrimination in the sale of air time (Sec. 261dd (5), B.P. 881) In addition to the prescribed penalty, such refusal constitutes a ground for cancellation or revocation of the franchise. 

Good faith is not a defense, as election offenses are generally mala prohibita.

10. Penalties 

For individuals  Imprisonment of not less than 1 year but not more than 6 years, without probation

229 ELECTION LAW

offered, promised or given money, valuable consideration or other expenditure by a candidate's relatives, leaders and/or sympathizers for the purpose of promoting the election of such candidate. (Sec. 28, R.A. 6646) 3) Coercion of subordinates to vote for or against any candidate (Sec. 261d, B.P. 881) 4) Dismissal of employees, laborers, or tenants for refusing or failing to vote for any candidate (Sec. 261d(2), B.P. 881) 5) Being a flying voter (Sec. 261z (2), B.P. 881)

Chapter VIII. ELECTION OFFENSES

  



[Sec. 264, B.P. 881] Disqualification to hold public office Deprivation of the right of suffrage

For a Foreigner  Imprisonment of not less than 1 year but not more than 6 years (without probation);  Deportation after service of sentence For a Political Party  Payment of a fine not less than P10,000 after a criminal conviction

Chapter VIII. ELECTION OFFENSES

3.

4.

5.

Persons Required by Law to Keep Prisoners in their Custody: For prisoners illegally released from any penitentiary or jail during the prohibited period, where such prisoners commit any act of intimidation, terrorism or interference in the election, prison mayor in its maximum period. [Sec. 264, B.P. 881]

6.

E. Arrests in Connection with Election Campaign







Only upon a warrant of arrest issued by a competent judge after all the requirements of the Constitution have been strictly complied with.

F. Prescription 5 years from the date of their commission. If the discovery of the offense be made in an election contest proceeding, the period of prescription shall commence on the date on which the judgment in such proceedings becomes final and executory. [Sec. 267, B.P. 881]

G. Prohibited Acts Under R.A. 9369 1. Utilizing without authorization, tampering with, damaging, destroying or stealing: i. Official ballots, election returns, and certificates of canvass of votes used in the system; and ii. Electronic devices or their components, peripherals or supplies used in the AES such as counting machine, memory pack/diskette, memory pack receiver and computer set 2. Interfering with, impeding, absconding for purpose of gain, preventing the installation or use of computer counting devices and the processing, storage, generation and

7.

transmission of election results, data or information Gaining or causing access to using, altering, destroying or disclosing any computer data, program, system software, network, or any computer-related devices, facilities, hardware or equipment, whether classified or declassified Refusal of the citizens' arm to present for perusal its copy of election return to the board of canvassers Presentation by the citizens' arm of tampered or spurious election returns Refusal or failure to provide the dominant majority and dominant minority parties or the citizens'' arm their copy of election returns and The failure to post the voters' list within the specified time, duration and in the designated location shall constitute an election offense on the part the election officer concerned." PENALTY i. imprisonment of 8 years and one day to 12 years without possibility of parole ii. perpetual disqualification to hold public and any non-elective public office and iii. deprivation of the right of suffrage. Exception: Those convicted of the crime of electoral sabotage, which includes acts or offenses committed in any of the following instances: 

National elective office: a. When the tampering, increase and/or decrease of votes perpetrated or the refusal to credit the correct votes or to deduct tampered votes b. is/are committed in the election of a national elective office which is voted upon nationwide and c. the tampering, increase and/ or decrease votes refusal to credit the correct votes or to deduct tampered votes, shall adversely affect the results of the election to the said national office to the extent that losing candidate/s is /are made to appear the winner/s;

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

Chapter VIII. ELECTION OFFENSES

Regardless of the elective office involved, when the tampering, increase and/or decrease of votes committed or the refusal to credit the correct votes or to deduct tampered votes perpetrated a. is accomplished in a single election document or in the transposition of the figure / results from one election document to another and b. involved in the said tampering increase and/or decrease or refusal to credit correct votes or deduct tampered votes exceed 5,000 votes, and that the same adversely affects the true results of the election



Any and all other forms or tampering increase/s and/ or decrease/s of votes perpetuated or in cases of refusal to credit the correct votes or deduct the tampered votes, where the total votes involved exceed 10,000 votes



PENALTY - Any and all other persons or individuals determined to be in conspiracy or in connivance with the members of the BEIs or BOCs involved, shall be meted the same penalty of life imprisonment.

- end of Election Law -

231 ELECTION LAW

POLITICAL LAW REVIEWER

POLITICAL LAW REVIEWER

TABLE of CONTENTS

LAW ON PUBLIC OFFICERS Table of Contents

Chapter II. Eligibility and Qualifications ....243 A. Definition ...........................................243 B. Power to Prescribe Qualifications .....243 C. Time of Possession of Qualifications 244 D. Eligibility is Presumed .......................244 E. Qualifications Prescribed By Constitution ................................................244 F. Religious Test or Qualification is not Required ....................................................245 G. Disqualifications to Hold Public Office 245 Chapter III. Formation of Official Relation .248 A. Modes of Commencing Official Relation 248

B. C.

Election ............................................. 248 Appointment...................................... 248 1. Definition....................................... 248 2. Nature of Power to Appoint .......... 248 3. Classification of Appointments ..... 248 4. Steps in Appointing Process......... 249 5. Presidential Appointees................ 249 D. Qualification Standards and Requirements under the Civil Service Law250 1. Qualification Standards ................ 250 2. Political Qualifications for an Office 250 3. No Property Qualifications............ 250 4. Citizenship .................................... 250 5. Effect of Removal of Qualifications During the Term .................................... 251 6. Effect of Pardon upon the Disqualification to Hold Public Office .... 251 E. Discretion of Appointing Official ........ 251 F. Effectivity of Appointment ................. 251 G. Effects of a Complete, Final and Irrevocable Appointment............................ 252 H. Civil Service Commission’s (CSC’s) Jurisdiction................................................. 252 I. Appointments to the Civil Service ..... 252

233 LAW ON PUBLIC OFFICERS

Chapter I. Public Office and Officers .........234 A. Public Office ......................................234 1. Definition .......................................234 2. Purpose.........................................235 3. Nature ...........................................235 4. Elements .......................................235 5. Public Office v. Public Employment 235 6. Public Office v. Public Contract ....236 7. No vested right to public office. ....236 8. Public Office is not Property. ........236 9. Creation of Public Office ...............236 10. Methods of Organizing Public Offices 237 11. Modification and Abolition of Public Office 237 12. Estoppel in Denying Existence of Office 237 B. Public Officer.....................................237 1. Definition .......................................237 2. A Person Cannot be Compelled to Accept a Public Office. ..........................238 3. Public Officer’s Power is Delegated (not Presumed)......................................238 C. Classification of Public Offices and Public Officers............................................239 D. De Facto Officers ..............................239 1. De Facto Doctrine.........................239 2. De Facto Officer Defined ..............239 3. Elements of a De Facto Officership 240 4. Office created under an unconstitutional statute..........................241 5. Legal Effect of Acts of De Facto Officers ..................................................241 6. Liabilities of De Facto Officers ......241 7. Right to Compensation of De Facto Officer ....................................................241

Prof. Gisella Dizon-Reyes Faculty Editor

Ria Dooc Lead Writer Dianne Patawaran Mike Rivera Writers

POLITICAL LAW Jennifer Go Subject Editor

ACADEMICS COMMITTEE Kristine Bongcaron Michelle Dy Patrich Leccio Editors-in-Chief

PRINTING & DISTRIBUTION Kae Guerrero

DESIGN & LAYOUT Pat Hernandez Viktor Fontanilla Rusell Aragones Romualdo Menzon Jr. Rania Joya

LECTURES COMMITTEE Michelle Arias Camille Maranan Angela Sandalo Heads Katz Manzano Mary Rose Beley Sam Nuñez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers

MOCK BAR COMMITTEE Lilibeth Perez

BAR CANDIDATES WELFARE Dahlia Salamat

LOGISTICS Charisse Mendoza

SECRETARIAT COMMITTEE Jill Hernandez Head Loraine Mendoza Faye Celso Mary Mendoza Joie Bajo Members

Chapter I. Public Office and Officers A.

B.

C. D.

PUBLIC OFFICE 1. DEFINITION 2. PURPOSE 3. NATURE 4. ELEMENTS 5. PUBLIC OFFICE V. PUBLIC EMPLOYMENT 6. PUBLIC OFFICE V. PUBLIC CONTRACT 7. NO VESTED RIGHT TO PUBLIC OFFICE 8. PUBLIC OFFICE V. PROPERTY 9. CREATION OF PUBLIC OFFICE 10. METHODS OF ORGANIZING PUBLIC OFFICE 11. MODIFICATION AND ABOLITION OF PUBLIC OFFICE 12. ESTOPPEL IN DENYING EXISTENCE OF OFFICE PUBLIC OFFICER 1. DEFINITION 2. A PERSON CANNOT BE COMPELLED TO ACCEPT PUBLIC OFFICE; EXCEPTIONS 3. PUBLIC OFFICER’S POWER IS DELEGATED, NOT PRESUMED CLASSIFICATION OF PUBLIC OFFICES AND PUBLIC OFFICERS DE FACTO OFFICERS 1. DE FACTO DOCTRINE 2. DEFINITION OF DE FACTO OFFICER A. DE FACTO V. DE JURE B. OFFICER DE FACTO V. INTRUDER 3. ELEMENTS OF DE FACTO OFFICERSHIP 4. OFFICE CREATED UNDER AN UNCONSTITUTIONAL STATUTE 5. LEGAL EFFECT OF ACTS OF DE FACTO OFFICERS 6. LIABILITIES OF DE FACTO OFFICERS 7. RIGHT TO COMPENSATION OF DE FACTO OFFICER

A. Public Office 1. Definition 

The term "public office" is frequently used to refer to 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 government, to be exercised by that individual for the benefit of the public. [Fernandez v. Sto. Tomas (1995)]



Breakdown of the definition:  (nature) right, authority and duty  (origin) created and conferred by law  (duration) by which for a given period – either: 1) fixed by law or

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

inferior or subordinate office that created or authorized by the Legislature and which inferior or subordinate office is placed under the general control of a superior office or body  Defined as unhindered performance. v.

Must have permanence and continuity

2. Purpose





to effect the end for the government’s institution : common good;





NOT profit, honor, or private interest of any person, family or class of persons [63 Am Jur 2d 667]

Note: The elements of permanence and continuity are dispensable. On the dispensability of the element of permanence: an example is the public office of the Board of Canvassers, yet its duties are only for a limited period of time. On the dispensability of the element of continuance: Mechem in one case states that the “the most important characteristic” in characterizing a position as a public office is the DELEGATION to the individual of some of the sovereign functions of government.  Here, the court held that Laurel, as chair of the National Centennial Commission (NCC), is a public officer. The public office of NCC was delegated and is performing executive functions: it enforces the conservation and promotion of the nation’s historical and cultural heritage.  Such delegated function is a policy embodied in the Constitution. It is inconsequential that Laurel was not compensated during his tenure. A salary is a usual (but not necessary) criterion for determining the nature of a position. Also, the element of continuance is not indispensable. [Laurel v. Desierto (2002)]



3. Nature Philippine Constitution Art. XI Sec. 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.



Public office is a responsibility, not a right. [Morfe v. Mutuc (1968)]

4. Elements i.

Created by law or by authority of law  Public office must be created by:  Constitution  National Legislation  Municipal or other body’s legislation, via authority conferred by the Legislature



The first element defines the mode of creation of a public office while the other elements illustrate its characteristics.

ii.

Possess a delegation of a portion of the sovereign powers of government, to be exercised for the benefit of the public



There are certain GOCCs which, though created by law, are not delegated with a portion of the sovereign powers of the government (those that are purely proprietary in nature), and thus may not be considered as a Public Office.

-

5. Public Office v. Public Employment 

Public employment is broader than public office. All public office is public employment, but not all public employment is a public office.



Public employment as a position lacks either one or more of the foregoing elements of a public office. (Bernard v. Humble [182 S.W. 2d. 24. 1 Cited by De Leon, page 8-9])

iii. Powers conferred and duties imposed must be defined, directly or impliedly iv. Duties must be performed independently and without the control of a superior power other than the law, UNLESS for duties of an

as in the case of Ad Hoc Bodies or commissions

1

created by contract rather than by force of law

ALL DE LEON CITATIONS BASED ON: De Leon, Hector. THE LAW ON PUBLIC OFFICERS AND ELECTION LAW. Rex Bookstore (2000).

235 LAW ON PUBLIC OFFICERS

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2) enduring at the pleasure of the appointing power an individual is invested with some portion of the sovereign functions of the government (purpose) to be exercised by him for the benefit of the public.

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POLITICAL LAW REVIEWER

the most important characteristic which distinguishes an office from an employment is that:  the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public, and  that the same portion of the sovereignty of the country, either legislative, executive or judicial, attached, for the time being, to be exercised for the public benefit. Unless the powers so conferred are of this nature, the individual is not a public officer. [Laurel v. Desierto (2002)]

sense, a right to his office. If that right is to be taken away by statute, the terms should be clear. [Segovia v. Noel (1925)]

8. Public Office is not Property. 

6. Public Office v. Public Contract How Created

Object

Subject Matter

Scope

Where duties are defined

Public Office Incident of sovereignty. Sovereignty is omnipresent. To carry out the sovereign as well as governmental functions affecting even persons not bound by the contract. A public office embraces the idea of tenure, duration, continuity, and the duties connected therewith are generally continuing and permanent.

Duties that are generally continuing and permanent. The law

Public Contract Originates from will of contracting parties.



Obligations imposed only upon the persons who entered into the contract.

Limited duration and specific in its object. Its terms define and limit the rights and obligations of the parties, and neither may depart therefrom without the consent of the other. Duties are very specific to the contract. Contract

7. No vested right to public office.



Exceptions:  In quo warranto proceedings relating to the question as to which of 2 persons is entitled to a public office  In an action for recovery of compensation accruing by virtue of the public office



Modes of Creation of Public Office  by the Constitution  by statute / law  by a tribunal or body to which the power to create the office has been delegated



How Public Office is Created  GENERAL RULE: The creation of a public office is PRIMARILY a Legislative Function.  EXCEPTIONS:  where the offices are created by the Constitution;  where the Legislature validly delegates such power.



Legislature should Validly Delegate the Power to Create a Public Office

EXCEPTION: When the law is vague, the person’s holding of the office is protected and he should not be easily deprived of his office. A public office is neither property nor a public contract. Yet the incumbent has, in a

It is personal. Public office being personal, the death of a public officer terminates his right to occupy the contested office and extinguishes his counterclaim for damages. His widow and/or heirs cannot be substituted in the counterclaim suit. [Abeja v. Tañada (1994)]

9. Creation of Public Office

GENERAL RULE: A public office, being a mere privilege given by the State, does not vest any right in the holder of the office. This rule applies when the law is clear.



A public office is not the property of the public officer within the meaning of the due process clause of the non-impairment of the obligation of contract clause of the Constitution.  It is a public trust/agency. Due process is violated only if an office is considered property. However, a public office is not property within the constitutional guaranties of due process. It is a public trust or agency. As public officers are mere agents and not rulers of the people, no man has a proprietary or contractual right to an office. [Cornejo v. Gabriel (1920)]

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Or else, the office is inexistent. The President’s authority to "reorganize within one year the different executive departments, bureaus and other instrumentalities of the Government" in order to promote efficiency in the public service is limited in scope and cannot be extended to other matters not embraced therein. [UST v. Board of Tax Appeals (1953)] Therefore, an executive order depriving the Courts of First Instance of jurisdiction over cases involving recovery of taxes illegally collected is null and void, as Congress alone has the "power to define, prescribe and apportion the jurisdiction of the various courts." [Art. VIII sec. 2, 1987 Constitution] But note: No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence. [Art. VI, sec. 30, 1987 Constitution]

10. Methods of Organizing Public Offices Method Singlehead

Composition one head assisted by subordinates

Board System

collegial body for formulating polices and implementing programs

Efficiency Swifter decision and action but may sometimes be hastily made Mature studies and deliberations but may be slow in responding to issues and problems

11. Modification and Abolition of Public Office 



GENERAL RULE: The power to create an office includes the power to modify or abolish it (i.e. Legislature generally has this power) EXCEPTIONS:  Where the Constitution prohibits such modification / abolition;  Where the Constitution gives the people the power to modify or abolish the office [i.e. Recall]  Abolishing an office also abolishes unexpired term. The legislature’s abolition of an office (i.e. court) also abolishes the unexpired term. The legislative power to create a court

carries with it the power to abolish it. [Ocampo v. Sec. of Justice (1955)] 



Is Abandonment equivalent to Abolition? When a public official voluntarily accepts an appointment to an office newly created by law -- which new office is incompatible with the former -- he will be considered to have abandoned his former office. Except when the public official is constrained to accept because the nonacceptance of the new appointment would affect public interest. (no abandonment) [Zandueta v. De La Costa (1938)]

12. Estoppel Office 

in

Denying

Existence

of

A person is estopped from denying that he has occupied a public office when he has acted as a public officer; more so when he has received public monies by virtue of such office. [Mendenilla v. Onandia (1962)]

B. Public Officer 1. Definition 

(What he is) He performs governmental public functions / duties which involve the exercise of discretion ( not clerical or manual)



(How he became Public Officer) by virtue of direct provision of law, popular election, or appointment by competent authority.



(Who ARE Public Officers) Administrative Code Sec. 2. (14) The term “officer” includes any government employee, agent, or body authorized to exercise governmental power in performing particular acts or functions Revised Penal Code Art 203. Who are public officers—for the purpose of applying the provisions of this and the preceding titles of this book, any person who, by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate official of any rank or class, shall be deemed to be a public officer



Persons in authority and their agents. Article 152, Revised Penal Code.

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A PERSON IN AUTHORITY is any person, either an individual or a member of a governmental body, who is directly vested with jurisdiction. o The barrio captains and barangay chairpersons are included. o For RPC Articles 148 [Direct Assaults] and 151 [Resistance and Disobedience], teachers, professors, and persons charged with the supervision of public or duly recognized private schools, colleges and universities are included. An AGENT of a person in authority is charged with the maintenance of public order and the protection and security of life and property. o They become such either by direct provision of law, by election or by a competent authority’s appointment. o Examples are barrio captain, barrio councilman, barrio policeman, barangay leader, and any person who comes to the aid of persons in authority.

According to the Court, the law is comprehensive: “who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Philippine Government, or shall perform in said government or any of its branches, public duties as an employee, agent or subordinate official or any rank or class [Maniego v. People (1951)] Money order-sorter and –filer. A person sorting and filing money orders in the Auditor's Office of the Bureau of Posts is obviously doing a public function or duty. Such person here was convicted for infidelity in the custody of documents. [People v. Paloma (1997)]

(Who are NOT Public Officers)  Special policemen salaried by a private entity and patrolling only the premises of such private entity [Manila Terminal Co. v. CIR (1952)]  Concession forest guards [Martha Lumber Mill v. Lagradante (1956)]  Company cashier of a private corporation owned by the government [Tanchoco v. GSIS (1962)]

2. A Person Cannot be Compelled to Accept a Public Office. 

Temporary performer of public functions. A person performing public functions - even temporarily – is a public official. Here, a laborer temporarily in charge of issuing summons and subpoenas for traffic violations in a judge's sala was convicted for bribery under RPC 203.





EXCEPTIONS:  When citizens are required, under conditions provided by law, to render personal military or civil service (see Sec. 4, Art. II, 1987 Const.);  When a person who, having been elected by popular election to a public office, refuses without legal motive to be sworn in or to discharge the duties of said office. This is a felony.  Art 234, RPC: Refusal to discharge elective office- the penalty of arresto mayor or a fine not exceeding 1,000 pesos, or both, shall be imposed upon any person who, having been elected by popular election to a public office, shall refuse without legal motive to be sworn in or to discharge the duties of said office.

3. Public Officer’s Power is Delegated (not Presumed) 

A public official exercises power, not rights. The government itself is merely an agency through which the will of the state is expressed and enforced. Its officers therefore are likewise agents entrusted with the responsibility of discharging its functions. As such, there is no presumption that they are empowered to act. There must be a DELEGATION of such authority, either express or implied. In the absence of a valid grant, they are devoid of power. [Villegas v. Subido (1971)]

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Chapter I. PUBLIC OFFICE and OFFICERS

Chapter I. PUBLIC OFFICE and OFFICERS

C. Classification of Public Offices and Public Officers Creation Public Body Served Department of government to which their functions pertain Nature of functions Exercise of Judgment Discretion Legality of Title to office

or

Compensation

Constitutional Statutory National Local Legislative Executive Judicial Civil Military Quasi-judicial Ministerial De Jure De Facto Lucrative Honorary

D. De Facto Officers 1. De Facto Doctrine 

It is the doctrine that a person who is admitted and sworn into office by the proper authority is deemed to be rightfully in such office until: (a) he is ousted by judicial declaration in a proper proceeding; or (b) his admission thereto is declared void.



Doctrine’s Purpose: to ensure the orderly functioning of government. The public cannot afford to check the validity of the officer's title each time they transact with him.

2. De Facto Officer Defined 

One who has the reputation of being the officer that he assumes to be, and yet is not a good officer in point of law. [Torres v. Ribo (1948)]



He must have:  acted as an officer for such length of time,  under color of title and under such circumstances of reputation or acquiescence by the public and public authorities,  as to afford a presumption of election or appointment, and  induce people, without inquiry, and relying on the supposition that he is the officer he assumes to be, to submit to or invoke his action.



A person is a de facto officer when the duties of his office are exercised under ANY of the following circumstances: 1. There is no known appointment or election, but people are induced by circumstances of reputation or acquiescence to suppose that he is the officer he assumes to be. Consequently, people do not to inquire into his authority, and they submit to him or invoke his action; 2. He possessed public office under color of a known and valid appointment or election, but he failed to conform to some precedent requirement or condition (e.g., taking an oath or giving a bond); 3. He possessed public office under color of a known election or appointment, but such is VOID because:  He’s ineligible;  The electing or appointing body is not empowered to do such;  His exercise of his function was defective or irregular;  (Important) The public does NOT KNOW of such ineligibility, want of power, or defect being.  He possessed public office under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such.  What is unconstitutional is the officer’s appointment to an office not legally existing, (not creation of an unconstitutional office). [Norton v. County of Shelby (1886)]

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Chapter I. PUBLIC OFFICE and OFFICERS

a. Officer De Jure v. Officer De Facto (Asked in 2000, 2004) Requisites

De Jure A de jure office exists;

De Facto De jure office;

He is legally qualified for the office;

He assumed office under color of right or general acquiescence by the public;

He is lawfully chosen to such office;

of

How ousted

Cannot be ousted.

Validity of official acts Rule on Compensation

Valid, subject to exceptions (e.g., acting beyond his scope of authority, etc.) Rightfully entitled to compensation; The principle "No work, no pay" is inapplicable to him.

He actually and physically possessed the office in good faith.

Reputation: He possesses office and performs its duties under color of right, but he is not technically qualified to act in all points of law In a direct proceeding (quo warranto); (≠ collaterally) Valid as to the public until his title to the office is adjudged insufficient. Conditionally entitled to receive compensation: only when no de jure officer is declared; He is paid only for actual services rendered.

b. Officer De Facto v. Intruder

Basis of authority

De Facto He becomes officer under any of the 4 circumstances discussed under Part II (above). Color of right or title to office

Validity "official" acts

of

Valid as to the public until his title to the office is adjudged insufficient

Rule on compensation

Entitled to receive compensation only when no de jure officer is declared and only for actual services rendered.

Nature



An intruder / usurper may be presumed a de facto officer with the passage of time, when the public presumes in their minds IN GOOD FAITH that the intruder is rightfully acting as a public officer.

3. Elements of a De Facto Officership i. ii.

A validly existing public office; Actual physical possession of the office in good faith; iii. Color of title to the office: a. Reputation or acquiescence;

Intruder He possesses office and performs official acts without actual or apparent authority. None. Neither lawful title nor color of right to office. Absolutely void; His acts can be impeached at any time in any proceeding (unless and until he continues to act for a long time, creating a presumption of his right to act) (De Leon, 119) Not entitled to compensation at all.

b. Known and valid appointment or election but the officer failed to conform to a legal requirement c. Known appointment or election but void because of ineligibility of the officer, or want of authority of the appointing or electing authority, or because of an irregularity in his appointment or election, such ineligibility, want of authority or irregularity being unknown to the public

240 LAW ON PUBLIC OFFICERS

Basis Authority

He undertakes to perform the duties of such office according to law’s prescribed mode. Right: He has the lawful right / title to the office

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Chapter I. PUBLIC OFFICE and OFFICERS

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d. Known appointment or election pursuant to an unconstitutional law before declaration of unconstitutionality Who are NOT considered De Facto Officers?  A judge who has accepted an appointment as finance secretary and yet renders a decision after his acceptance: if he has ceased to be judge by actually accepting and entering into some other office and has actually entered upon the performance of the duties of the other office, it is difficult to understand how he can still be considered as actually occupying and performing the duties of the office which he had abandoned and vacated. An abandonment and a vacation of an office is inconsistent and repugnant to the idea of actually continuing to perform the duties of such office; [Luna v. Rodriguez (1917)]  A judge whose position has already been lawfully abolished, and yet promulgates a decision in a criminal case after the abolition and over the fiscal’s objection [People v. So (1995)]

4. Office created under unconstitutional statute 

6. Liabilities of De Facto Officers (De Leon, 130-131)  



an

The prevalent view is that a person appointed or elected in accordance with a law later declared to be unconstitutional may be considered de facto at least before the declaration of unconstitutionality.

7. Right to Compensation of De Facto Officer 

5. Legal Effect of Acts of De Facto

Officers [Monroy v. CA (1967)] 





As regards the officers themselves: A party suing or defending in his own right as a public officer must show that he is an officer de jure. It is not sufficient that he be merely a de facto officer. As regards the public and third persons: The acts of a de facto officer are valid as to third persons and the public until his title to office is adjudged insufficient.  RATIONALE: The doctrine is intended not for the protection of the public officer, but for the protection of the public and individuals who get involved in the official acts of persons discharging the duties of a public office. De Facto Officer’s Official Acts are not subject to collateral attack

A de facto officer generally has the same degree of liability in accountability for official acts like a de jure officer. The de facto officer may be liable for all imposable penalties for ANY of the following acts:  usurping or unlawfully holding office;  exercising the functions of public office without lawful right;  ineligibility for the public office as required by law The de facto officer cannot excuse responsibility for crimes committed in his official capacity by asserting his de facto status.

GENERAL RULE: None. A de facto officer cannot sue for the recovery of salary, fees or other emoluments attached to the office, for the duties he has performed. His acts, as far as he himself is concerned, are void. (63A Am. Jur. 2d 1094-1095) the rightful incumbent may recover from the de facto officer the salary received by the latter during his wrongful tenure, even though he entered into the office in good faith and under color of title.[ Monroy v CA (1967)]



EXCEPTIONS  Where there is no de jure public officer, the officer de facto who in good faith has had possession of the office and has discharged the duties pertaining thereto is legally entitled to the emoluments of the office. [Monroy v. CA [1967])  In Civil Liberties Union v. Executive Secretary (1991), even as EO No. 284 was declared unconstitutional because it allowed Cabinet members to hold multiple offices in direct contravention of the

241 LAW ON PUBLIC OFFICERS



RULE: A de facto officer’s and his acts’ validity cannot be collaterally questioned (in proceedings where he is not a party, or were not instituted to determine the very question).  REMEDY: Quo warranto proceedings filed by:  The person claiming entitlement to the office;  The Republic of the Philippines (represented by the SolicitorGeneral or a public prosecutor).

Constitution, it was held that during their tenure in the questioned positions, the respondents may be considered de facto officers and as such entitled to the emoluments of the office/s for actual service rendered.  A de facto officer, not having good title, takes the salaries at his risk and must account to the de jure officer (when there is one) for whatever salary he received during the period of his wrongful tenure, even if he occupied the office in good faith.  BUT when the de jure officer assumed another position under protest, for which she received compensation: while her assumption to the said position and her acceptance of the corresponding emoluments do not constitute abandonment of her rightful office, she cannot recover full back wages for such. She is only entitled to back pay differentials between the salary rates for the lower position she assumed and the position she is rightfully entitled to. [Gen. Manager, Philippine Ports Authority v. Monserate (2002)]

Chapter I. PUBLIC OFFICE and OFFICERS

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Chapter II. Eligibility and Qualifications A. B. C. D. E. F.

DEFINITIONS POWER TO PRESCRIBE QUALIFICATIONS TIME OF POSSESSION OF QUALIFICATIONS PRESUMPTION OF ELEGIBILITY QUALIFICATIONS USUALLY PRESCRIBED RELIGIOUS TEST/QUALIFICATION IS NOT REQUIRED G. DISQUALIFICATIONS TO HOLD PUBLIC OFFICE

A. Definition 

Eligibility: endowment / requirement / accomplishment that fits one for a public office.



Qualification: endowment / act which a person must do before he can occupy a public office.



Note: Failure to perform an act required by law could affect the officer’s title to the given office. Under BP 881, the office of any elected official who fails or refuses to take his oath of office within six months from his proclamation shall be considered vacant unless said failure is for cause or causes beyond his control.  An oath of office is a qualifying requirement for a public office. Only when the public officer has satisfied this prerequisite can his right to enter into the position be considered plenary and complete. Until then, he has none at all, and for as long as he has not qualified, the holdover officer is the rightful occupant. [Lecaroz v. Sandiganbayan (1999)]  Once proclaimed and duly sworn in office, a public officer is entitled to assume office and to exercise the functions thereof. The pendency of an election protest is not sufficient basis to enjoin him from assuming office or from discharging his functions. [Mendoza v. Laxina (2003)]

B. Power to Prescribe Qualifications 

GENERAL RULE: Congress is empowered to prescribe the qualifications for holding public office.



In the absence of constitutional inhibition, Congress has the same right to provide disqualifications that it has to provide qualifications for office. (De Leon, 23)

Chapter II. ELIGIBILITY and QUALIFICATIONS



RESTRICTIONS on the Power of Congress to Prescribe Qualifications:  Congress cannot exceed its constitutional powers;  Congress cannot impose conditions of eligibility inconsistent with constitutional provisions;  The qualification must be germane to the position ("reasonable relation" rule);  Where the Constitution establishes specific eligibility requirements for a particular constitutional office, the constitutional criteria are exclusive, and Congress cannot add to them except if the Constitution expressly or impliedly gives the power to set qualifications.  Congress cannot prescribe qualifications so detailed as to practically amount to making a legislative appointment: it is unconstitutional and therefore void for being a usurpation of executive power – examples:  Extensions of the terms of office of the incumbents;  A proviso which limits the choices of the appointing authority to only one eligible, e.g. the incumbent Mayor of Olongapo City; [Flores v. Drilon (1993)]  Designating an unqualified person. The People's Court Act, which provided that the President could designate Judges of First Instance, Judges-at-large of First Instance or Cadastral Judges to sit as substitute Justices of the Supreme Court in treason cases without them necessarily having to possess the required constitutional qualifications of a regular Supreme Court Justice.; [Vargas v. Rilloraza (1948)]  Automatic transfer to a new office. A legislative enactment abolishing a particular office and providing for the automatic transfer of the incumbent officer to a new office created; [Manalang v. Quitorano (1954)]  Requiring inclusion in a list. A provision that impliedly prescribes inclusion in a list submitted by the Executive Council of the Phil. Medical Association as one of the qualifications for appointment; and which confines the selection of the members of the Board of Medical Examiners to the 12 persons included in the list; [Cuyegkeng v. Cruz (1960)]

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Chapter II. ELIGIBILITY and QUALIFICATIONS

C. Time of Possession of Qualifications 

At the time specified by the Constitution or law.



If time is unspecified, 2 views: a. qualification during commencement of term or induction into office; b. qualification / eligibility during election or appointment (De Leon, 26-27)



Eligibility is a continuing nature, and must exist throughout the holding of the public office. Once the qualifications are lost, the public officer forfeits the office.  No estoppel in ineligibility. Knowledge of ineligibility of a candidate and failure to question such ineligibility before or during the election is not a bar to questioning such eligibility after such ineligible candidate has won and been proclaimed. Estoppel will not apply in such a case. [Castaneda v. Yap (1952)]  Citizenship requirement should be possessed on start of term (i.e. ≠ on filing candidacy). The Local Government Code does not specify any particular date or time when the candidate must possess the required citizenship, unlike for residence and age. The requirement is to ensure that no alien shall govern our people and country or a unit of territory thereof. An official begins to govern or discharge his functions only upon proclamation and on start of his term. This liberal interpretation gives spirit, life and meaning to our law on qualifications consistent with its purpose. [Frivaldo v. COMELEC (1996)]

D. Eligibility is Presumed  

IN FAVOR of one who has been elected or appointed to public office. The right to public office should be strictly construed against ineligibility. (De Leon, 26)

E. Qualifications Constitution

Prescribed

By

1. For President (Sec. 2, Art. VI, Constitution) and Vice President (Sec. 3, Art. VII, Constitution)  Natural-born citizen  40 years old on election day  Philippine resident for at least 10 years immediately preceding election day

2. For Senator (Sec. 3, Art. VI, Constitution)  Natural-born citizen  35 years old on election day  able to read and write  registered voter  resident of the Philippines for not less than two years immediately preceding election day 3. For Congressmen (Sec. 6, Art. VI, Constitution)  Natural-born citizen  25 years old on election day  able to read and write  registered voter in district in which he shall be elected  resident thereof for not less than one year immediately preceding election day 4. Supreme Court Justice  Natural born citizen  at least 40 years old  15 years or more as a judge or engaged in law practice  of proven competence, integrity, probity and independence (C.I.P.I.) 5. Civil Service Commissioners (Sec. 1 [1], Art. IXB. Constitution)  Natural-born citizen  35 years old at time of appointment  proven capacity for public administration  not a candidate for any elective position in election immediately preceding appointment 6. COMELEC Commissioners (Sec. 1[1], Art. IXC)  Natural-born citizen  35 years old at time of appointment  college degree holder  not a candidate for elective position in election immediately preceding appointment  chairman and majority should be members of the bar who have been engaged in the practice of law for at least 10 years 7. COA Commissioners  Natural-born citizen  35 years old at time of appointment  CPA with >10 year of auditing experience or  Bar member engaged in practice of law for at least 10 years

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Not candidates for any elective position in election immediately preceding appointment.

“Practice of Law” defined. Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. Generally, to practice law is to give notice or render any kind of service which requires the use in any degree of legal knowledge or skill. [Cayetano v. Monsod (1991)] In the dissenting opinion of Justice Padilla in the case of Cayetano v. Monsod, citing Agpalo, he stated that engaging in the practice of law presupposes the existence of lawyer-client relationship. Hence, where a lawyer undertakes an activity which requires knowledge of law but involves no attorneyclient relationship, such as teaching law or writing law books or articles, he cannot be said to be engaged in the practice of his profession or a lawyer “Residency” defined. In election law, residence refers to domicile, i.e. the place where a party actually or constructively has his permanent home, where he intends to return. To successfully effect a change of domicile, the candidate must prove an actual removal or an actual change of domicile. [Aquino v. COMELEC (1995)] Presumption in favor of domicile of origin. Domicile requires the twin elements of actual habitual residence and animus manendi (intent to permanently remain). Domicile of origin is not easily lost; it is deemed to continue absent a clear and positive proof of a successful change of domicile. [Marcos v. COMELEC (1995)]

F. Religious Test or Qualification is not Required Philippine Constitution Art. III Sec. 5. … No religious test shall be required for the exercise of civil or political rights.

G. Disqualifications Office 

to

Hold

Public

IN GENERAL: Individuals who lack ANY of the qualifications prescribed by the Constitution or by law for a public office are

ineligible (i.e. disqualified from holding such office). 

Authority: The legislature has the right to prescribe disqualifications in the same manner that it can prescribe qualifications, provided that the prescribed disqualifications do not violate the Constitution.



General Constitutional Disqualifications 1. Losing candidates cannot be appointed to any governmental office within one year after such election. (Art. IX-B Sec. 6) 2. Elective officials during their tenure are ineligible for appointment or designation in ANY capacity to ANY public office or position (Art. IX-B Sec. 7(1)) 3. Appointive officials shall not hold any other governmental position.  Unless otherwise allowed by law or his position’s primary functions (Art. IX-B Sec 7 (2)) 

Note: There is no violation when another office is held by a public officer in an ex officio capacity (where one can’t receive compensation or other honoraria anyway), as provided by law and as required by the primary functions of his office. [ National Amnesty Commission v. COA (2004)]

Specific Constitutional Disqualifications Public Officer The President, Vice President, the Members of the Cabinet and their deputies or assistants

Senator or Member of the House of Representatives

Disqualifications shall not hold any other office or employment during their tenure, UNLESS otherwise provided in the Constitution, (Art. VII, Sec. 13) may not hold during his term any other office or employment in the Government, or any subdivision, agency or instrumentality thereof, including government owned or -controlled corporations or their subsidiaries effect: or else he forfeits his seat shall also not be appointed to any office when such was created or its emoluments were increased during his term. (Art. VI, Sec 13)

245 LAW ON PUBLIC OFFICERS

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Chapter II. ELIGIBILITY and QUALIFICATIONS

POLITICAL LAW REVIEWER

Members of Constitutional Commission

the

Ombudsman and Deputies Members Constitutional Commissions, Ombudsman and Deputies

his of the his

Members of Constitutional Commissions, the Ombudsman and his Deputies The President’s spouse and relatives by consanguinity or affinity within the fourth civil degree



shall not be designated to any agency performing quasi-judicial or administrative functions. (Art. VIII, Sec. 12) shall not hold any other office or employment [during their tenure]. (Art. IX-A, Sec. 2) (Art. XI, Sec. 8) must not have been candidates for any elective position in the elections immediately preceding their appointment (Art IX-B, Sec. 1; Art. IX-C, Sec. 1; Art. IX-D, Sec. 1; Art XI, Sec. 8) are appointed to 7-year term, without reappointment (Sec. 1(2) of Arts. IX-B, C, D; Art. XI, Sec. 11) shall not be appointed during President’s tenure as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including governmentowned-or -controlled corporations. (Art. VIII, Sec. 13)

iii. Representative = 3 consecutive terms iv. Elective local officials = 3 consecutive terms (Sec. 8, Art. X, Constitution) 

7. Holding more than one office: to prevent offices of public trust from accumulating in a single person, and to prevent individuals from deriving, directly or indirectly, any pecuniary benefit by virtue of their holding of dual positions. Civil Liberties Union v. Executive Secretary (1991):  Section 7, Article IX-B of the Constitution generally prohibits elective and appointive public officials from holding multiple offices or employment in the government unless they are otherwise allowed by law or by the primary functions of their position. This provision does NOT cover the President, Vice-President and cabinet members – they are subject to a stricter prohibition under Section 13 of Article VII. 

To apply the exceptions found in Section 7, Article IX-B to Section 13, Article VII would obliterate the distinction set by the framers of the Constitution as to the highranking officials of the Executive branch.



However, public officials holding positions without additional compensation in ex-officio capacities as provided by law and as required by their office’s primary functions are not covered by the Section 13, Article VII prohibition.

Other Disqualifications 1. Mental or physical incapacity 2. Misconduct or crime: persons convicted of crimes involving moral turpitude are USUALLY disqualified from holding public office. 3. Impeachment 4. Removal or suspension from office: not presumed  non-imposable when such ineligibility is not constitutional or statutory declared. 5. Previous tenure of office: for example, an appointed Ombudsman is absolutely disqualified for reappointment (Article XI, Constitution). 6. Consecutive terms limit: i. Vice-President = 2 consecutive terms ii. Senator = 2 consecutive terms

Public officer’s voluntary renunciation of office for any length of time ≠ an interruption in the continuity of his service for the full term for which he was elected.

8. Holding of office in the private sector: 

Section 7 (b)(1)of RA 6713 considers unlawful for public officials and employees during their incumbency to own, control, manage, or accept employment as officer employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or

246 LAW ON PUBLIC OFFICERS

Members of the Supreme Court and other courts established by law

Chapter II. ELIGIBILITY and QUALIFICATIONS

POLITICAL LAW REVIEWER

Chapter II. ELIGIBILITY and QUALIFICATIONS

licensed by their office unless expressly allowed by law. Section 7 of RA 6713 also generally provides for the prohibited acts and transactions of public officials and employees. Subsection (b)(2) prohibits them from engaging in the private practice of their profession during their incumbency. As an exception, a public official or employee can engage in the practice of his or her profession under the following conditions: first, the private practice is authorized by the Constitution or by the law; and second, the practice will not conflict, or tend to conflict, with his or her official functions.

9. Relationship with the appointing power  General Rule on Nepotism: The Civil Service Decree (PD 807) prohibits all appointments in the national and local governments or any branch or instrumentality thereof made in favor of the relative of: i. appointing authority; ii. recommending authority; iii. chief of the bureau office; or iv. person exercising immediate supervision over the appointee  Relative: related within the third degree of either consanguinity or of affinity.  Exceptions to rule on nepotism:  persons employed in a confidential capacity  teachers  physicians  members of the Armed Forces of the Philippines 10. Under the Local Government Code (sec. 40) i. Sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by 1 year or more of imprisonment, within 2 years after serving sentence; ii. Removed from office as a result of an administrative case; iii. Convicted by final judgment for violating the oath of allegiance to the Republic; iv. Dual citizenship; Mercado v. Manzano (1999):  Dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the



Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual’s volition.



[I]n including §5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization.



v.

Hence, the phrase “dual citizenship” in R.A. No. 7160, §40(d) and in R.A. No. 7854, §20 must be understood as referring to “dual allegiance.”

Fugitive from justice in criminal or non-political cases here or abroad; vi. Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of the Local Government Code; vii. Insane or feeble-minded.

247 LAW ON PUBLIC OFFICERS

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different laws of two or more states, a person is simultaneously considered a national by the said states.

POLITICAL LAW REVIEWER

Chapter III. FORMATION of OFFICIAL RELATION

A.

MODES OF COMMENCING OFFICIAL RELATION B. ELECTION C. APPOINTMENT 1. DEFINITION 2. NATURE OF POWER TO APPOINT 3. CLASSIFICATION OF APPOINTMENTS 4. STEPS IN APPOINTING PROCESS 5. PRESIDENTIAL APPOINTEES D. QUALIFICATION STANDARDS AND REQUIREMENTS UNDER THE CIVIL SERVICE LAW 1. QUALIFICATION STANDARDS 2. POLITICAL QUALIFICATIONS FOR AN OFFICE (I.E. MEMBERSHIP IN A POLITICAL PARTY) 3. NO PROPERTY QUALIFICATIONS 4. CITIZENSHIP 5. EFFECT OF REMOVAL OF QUALIFICATIONS DURING THE TERM 6. EFFECT OF PARDON UPON THE DISQUALIFICATION TO HOLD PUBLIC OFFICE E. DISCRETION OF APPOINTING OFFICIAL F. EFFECTIVITY OF APPOINTMENT G. EFFECTS OF A COMPLETE, FINAL AND IRREVOCABLE APPOINTMENT H. CIVIL SERVICE COMMISSION’S (CSC’S) JURISDICTION I. APPOINTMENTS TO THE CIVIL SERVICE

A. Modes of Relation

Commencing

Security of tenure? Is prior/1st office abandoned when…

Selection or designation by popular vote

Vacancy for Validity. For the appointment to be valid, the position must be vacant [Castin v. Quimbo (1983)]

2. Nature of Power to Appoint 

The power to appoint is intrinsically an executive act involving the exercise of discretion. [Concepcion v. Paredes (1921)]



Must be unhindered and unlimited by Congress. Congress cannot either appoint a public officer or impose upon the President the duty to appoint any particular person to an office. The appointing power is the exclusive prerogative of the President, upon which no limitations may be imposed by Congress, EXCEPT those:  requiring the concurrence of the Commission on Appointments; and  resulting from the exercise of the limited legislative power to prescribe the qualifications to a given appointive office. [Manalang v. Quitoriano (1954)]



The President’s power to appoint under the Constitution should necessarily have a reasonable measure of freedom, latitude, or discretion in choosing appointees. [Cuyegkeng v. Cruz (1960)]



Where only one can qualify for the posts in question, the President is precluded from exercising his discretion to choose whom to appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all and goes against the very nature of appointment itself. [Flores v. Drilon (1993)]

1. Definition Designation Imposition of additional duties upon existing office

Extent Powers

of

Limited

Appointment Appointing authority selects an individual who will occupy a certain public office Comprehensive

…a 2nd appointive position is assumed? Usually YES



C. Appointment

Definition

…a 2nd designated position is assumed? NO

Political. Appointment is generally a political question so long as the appointee fulfills the minimum qualification requirements prescribed by law.

B. Election 

Yes.



Official

1. Election 2. Appointment 3. Others: i. Succession by operation of law; ii. Direct provision of law, e.g. ex-officio officers

No.

3. Classification of Appointments 

Permanent:  the permanent appointee:  must be qualified  must be eligible

248 LAW ON PUBLIC OFFICERS

Chapter III. Formation of Official Relation

POLITICAL LAW REVIEWER

  

is constitutionally guaranteed security of tenure (Duration) until lawful termination. Note: Conditional appointments are not permanent.

Temporary:  an acting appointment;  the temporary appointee NEED NOT be qualified or eligible;  (No Security of Tenure) revocable at will: just cause or valid investigation UNNECESSARY;  an “acting” appointment is a temporary appointment and revocable in character. [Marohombsar v. Alonto (1991)]  A temporary appointee is like a designated officer – they: o occupy a position in an acting capacity and o do not enjoy security of tenure. [Sevilla v. CA (1992)]  Even a Career Service Officer unqualified for the position is deemed temporarily-appointed. Thus he does not enjoy security of tenure – he is terminable at will.  A public officer who later accepts a temporary appointment terminates his relationship with his former office. [Romualdez III v. CSC (1991)]  EXCEPT Fixed-Period Temporary Appointments: may be revoked ONLY at the period’s expiration. Revocation before expiration must be for a valid cause.  (Duration) until a permanent appointment is issued.

4. Steps in Appointing Process 

For Appointments requiring confirmation: 

Regular Appointments (NCIA) 1. President nominates. 2. Commission on Appointments confirms. 3. Commission issues appointment. 4. Appointee accepts.



Ad-Interim Appointments (NIAC) 1. President nominates. 2. Commission issues appointment. 3. Appointee accepts. 4. Commission on Appointments confirms.



For Appointments Not Requiring Confirmation (AIA) 1. Appointing authority appoints. 2. Commission issues appointment. 3. Appointee accepts.



Note: If a person is appointed to the career service of the Civil Service, the Civil Service Commission must bestow attestation.

5. Presidential Appointees 

Who can be nominated and appointed only WITH the Commission on Appointments’ consent? (Art. VII, Sec. 16, 1987 Const.)  Heads of the executive departments;  Ambassadors;  Other public ministers and consuls;  Officers of the armed forces from the rank of colonel or naval captain;  Other officers whose appointments are vested in him by the Constitution, including Constitutional Commissioners (Art. IX-B, Sec. 1 (2) for CSC; Art. IXC, Sec. 1 (2) for COMELEC; Art. IX-D, Sec. 1 (2) for COA).



Who can the President appoint WITHOUT CA’s approval?  All other officers of the government whose appointments are not otherwise provided for by law;  Those whom he may be authorized by law to appoint;  Members of the Supreme Court;  Judges of lower courts;  Ombudsman and his deputies



Kinds of Presidential Appointments  Regular: made by the President while Congress is in session after the nomination is confirmed by the Commission of Appointments, and continues until the end of the term.  Ad interim: made while Congress is not in session, before confirmation by the Commission on Appointments; immediately effective and ceases to be valid if disapproved or bypassed by the Commission on Appointments. This is a permanent appointment and it being subject to confirmation does not alter its permanent character.  Efficient. Recess appointment power keeps in continuous operation the business of government when Congress is not in session. The individual chosen

249 LAW ON PUBLIC OFFICERS

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Chapter III. FORMATION of OFFICIAL RELATION

POLITICAL LAW REVIEWER

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Duration. The appointment shall cease to be effective upon rejection by the Commission on Appointments, or if not acted upon, at the adjournment of the next session, regular or special, of Congress. Permanent. It takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. [Matibay v. Benipayo (2002)] Not Acting. An ad interim appointment is distinguishable from an “acting” appointment which is merely temporary, good until another permanent appointment is issued.



Applicable to COMELEC Commissionsers, being permanent appointments, do not violate the Constitutional prohibition on temporary or acting appointments of COMELEC Commissioners.



By-passed Appointee may be Reappointed. Commission on Appointments’ failure to confirm an ad interim appointment is NOT disapproval. An ad interim appointee disapproved by the COA cannot be reappointed. But a bypassed appointee, or one whose appointment was not acted upon the merits by the COA, may be appointed again by the President.

D. Qualification Standards and Requirements under the Civil Service Law 1. Qualification Standards 







It enumerates the minimum requirements for a class of positions in terms of education, training and experience, civil service eligibility, physical fitness, and other qualities required for successful performance. (Sec. 22, Book V, Administrative Code) The Departments and Agencies are responsible for continuously establishing, administering and maintaining the qualification standards as an incentive to career advancement. (Sec. 7, Rule IV, Omnibus Rules) Such establishment, administration, and maintenance shall be assisted and approved by the CSC and shall be in consultation with the Wage and Position Classification Office (ibid) It shall be established for all positions in the 1st and 2nd levels (Sec. 1, Rule IV, Omnibus Rules)

2. Political Qualifications for an Office (i.e. membership in a political party)  

GENERAL RULE: Political qualifications are NOT Required for public office. EXCEPTIONS:  Membership in the electoral tribunals of either the House of Representatives or Senate (Art. VI, Sec. 17, 1987 Const.);  Party-list representation;  Commission on Appointments;  Vacancies in the Sanggunian (Sec. 45, Local Government Code)

3. No Property Qualifications 

Since sovereignty resides in the people, it is necessarily implied that the right to vote and to be voted should not be dependent upon a candidate’s wealth. Poor people should also be allowed to be elected to public office because social justice presupposes equal opportunity for both rich and poor. [Maguera v. Borra and Aurea v. COMELEC (1965)]

4. Citizenship 

Aliens not eligible for public office.



The purpose of the citizenship requirement is to ensure that no alien, i.e., no person

250 LAW ON PUBLIC OFFICERS

may thus qualify and perform his function without loss of time.

Chapter III. FORMATION of OFFICIAL RELATION

POLITICAL LAW REVIEWER



To hold that the Civil Service Law requires filling up any vacancy by promotion, transfer, reinstatement, reemployment, or certification IN THAT ORDER would be tantamount to legislative appointment which is repugnant to the Constitution. What it does purport to say is that as far as practicable the person next in rank should be promoted, otherwise the vacancy may be filled by transfer, reinstatement, reemployment or certification, as the appointing power sees fit, provided the appointee is certified to be qualified and eligible. [Pineda v. Claudio (1969)]

5. Effect of Removal of Qualifications During the Term 

Termination from office.

6. Effect of Pardon upon the Disqualification to Hold Public Office (Asked in 1999)  

GENERAL RULE: Pardon will not restore the right to hold public office. (Art. 36, Revised Penal Code) EXCEPTIONS:  When the pardon’s terms expressly restores such (Art. 36, RPC);  When the reason for granting pardon is non-commission of the imputed crime. [Garcia v. Chairman, COA (1993)]



Promotion of “next-in-rank” career officer is not Mandatory. The appointing authority should be allowed the choice of men of his confidence, provided they are qualified and eligible.



When Abused, use Mandamus. Where the palpable excess of authority or abuse of discretion in refusing to issue promotional appointment would lead to manifest injustice, mandamus will lie to compel the appointing authority to issue said appointments. [Gesolgon v. Lacson (1961)]



“Upon recommendation” Advisory.

E. Discretion of Appointing Official 

Presumed. Administrators of public officers, primarily the department heads should be entrusted with plenary, or at least sufficient, discretion. Their position most favorably determines who can best fulfill the functions of a vacated office. There should always be full recognition of the wide scope of a discretionary authority, UNLESS the law speaks in the most mandatory and peremptory tone, considering all the circumstances. [Reyes v. Abeleda (1968)]



Discretionary Act. Appointment is an essentially discretionary power. It must be performed by the officer in whom it is vested, the only condition being that the appointee should possess the qualifications required by law. [Lapinid v. CSC (1991)]



Scope. The discretion of the appointing authority is not only in the choice of the person who is to be appointed but also in the nature and character of the appointment intended (i.e., whether the appointment is permanent or temporary).



Inclusive Power. The appointing authority holds the power and prerogative to fulfill a vacant position in the civil service.

The exercise of the power to transfer, reinstate, reemploy or certify is widely used (need not state reason)

is

not

Merely

Sec. 9. Provincial/City Prosecution Offices. [par. 3] All provincial and city prosecutors and their assistants shall be appointed by the President upon the recommendation of the Secretary.



The phrase “upon recommendation of the Sec. of Justice” should be interpreted to be a mere advice. It is persuasive in character, BUT is not binding or obligatory upon the person to whom it is made.

F. Effectivity of Appointment 

Immediately upon appointing authority’s issuance. (Rule V, Sec. 10, Omnibus Rules).

251 LAW ON PUBLIC OFFICERS

owing allegiance to another nation, shall govern our people and country or a unit of territory thereof. [Frivaldo v. COMELEC (1996)]

Chapter III. FORMATION of OFFICIAL RELATION

G. Effects of a Complete, Final and Irrevocable Appointment 



GENERAL RULE: An appointment, once made, is irrevocable and not subject to reconsideration.  It vests a legal right. It cannot be taken away EXCEPT for cause, and with previous notice and hearing (due process).  It may be issued and deemed complete before acquiring the needed assent, confirmation, or approval of some other officer or body. EXCEPTIONS:  Appointment is an absolute nullity [Mitra v. Subido (1967)];  Appointee commits fraud [Mitra v. Subido, supra];  Midnight appointments  General Rule: A President or Acting President shall not appoint 2 months immediately before the next presidential elections until his term ends. (Art. VII, Sec. 15, 1987 Const.)  Exception: Temporary appointments to executive positions when continued vacancies will prejudice public service or will endanger public safety.

H. Civil Service Commission’s (CSC’s) Jurisdiction 





Chapter III. FORMATION of OFFICIAL RELATION

-

Recall is a mode of removal of a public official by the people before the end of his term of office. [Garcia v. COMELEC, (1993)]



Review Appointee’s Qualifications. The only function of the CSC is to review the appointment in the light of the requirements of the Civil Service Law, and when it finds the appointee to be qualified and all other legal requirements have been otherwise satisfied, it has no choice but to attest to the appointment. [Lapinid v. CSC (1991)]



What it cannot do.  It cannot order the replacement of the appointee simply because it considers another employee to be better qualified. [Lapinid v. CSC (1991)]  The CSC cannot co-manage or be a surrogate administrator of government offices and agencies.  It cannot change the nature of the appointment extended by the appointing officer. [ Luego v. CSC (1986)]

I.

Appointments to the Civil Service



SCOPE: Embraces all branches, subdivisions, instrumentalities and agencies of the Government, including GOCCs with original charters (Art. IX-B Sec. 2(1), Constitution)



Classes of Service 1. Career Service – Entrance based on merit and fitness determined by competitive examinations, or based on highly technical qualifications, opportunity for advancement to higher career positions and security of tenure.

Exclusive Jurisdiction  Disciplinary cases  Cases involving “personnel action” affecting the Civil Service employees  Appointment through certification  Promotion  Transfer  Reinstatement  Reemployment  Detail, reassignment  Demotion  Separation  Employment status  Qualification standards Recall of appointment. Includes the authority to recall an appointment which has been initially approved when it is shown that the same was issued in disregard of pertinent CSC laws, rules and regulations. as opposed to Recall under Sec 69-75 of the Local Government Code:

2. Non-career Service – Entrance on bases other than those of the usual tests. Tenure limited to a period specified by law or which is coterminous with the appointing authority or the duration of a particular project. (i.e. elective officials, Department Heads and Members of Cabinet) 

Requisites:  Appoint only according to merit and fitness, to be determined as far as practicable.  Require a competitive examination.  Exceptions: (Positions where Appointees are exempt from

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Chapter III. FORMATION of OFFICIAL RELATION

Competitive Examination Requirements) o Policy determining - in which the officer lays down principal or fundamental guidelines or rules; or formulates a method of action for government or any of its subsidiaries o Primarily Confidential – denoting not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayals on confidential matters of the state (“Proximity Rule” as enunciated in De los Santos v Mallare [1950]) o Highly Technical – requires possession of technical skill or training in a superior degree. (i.e. City Legal Officer) o



NOTE: It is the nature of the position which determines whether a position is policy determining, primarily confidential or highly technical

Other Personnel Actions  Promotion is a movement from one position to another with increase in duties and responsibilities as authorized by law and is usually accompanied by an increase in pay. 



Next-in-rank Rule. o The person next in rank shall be given PREFERENCE in promotion when the position immediately above his is vacated. o BUT the appointing authority still exercises discretion and is not bound by this rule, although he is required to specify the “special reason or reasons” for not appointing the officer nextin-rank. Automatic Reversion Rule. o All appointments involved in a chain of promotions must be submitted simultaneously for approval by the Commission. o The disapproval of the appointment of a person proposed to a higher position

o

o

invalidates the promotion of those in the lower positions and automatically restores them to their former positions. However, the affected persons are entitled to payment of salaries for services actually rendered at a rate fixed in their promotional appointments. (Sec. 13 of the Omnibus Rules Implementing Administrative Code) Requisites: 1. series of promotions 2. all promotional appointments are simultaneously submitted to the Commission for approval 3. the Commission disapproves the appointment of a person to a higher position.



Appointment through Certification is issued to a person who is:  selected from a list of qualified persons certified by the Civil Service Commission from an appropriate register of eligibles  qualified



Transfer is a movement from one position to another which is of equivalent rank, level or salary without break in service.  This may be imposed as an administrative remedy.  If UNconsented = violates security of tenure.  EXCEPTIONS: o Temporary Appointee o Career Executive Service Personnel whose status and salaries are based on ranks (≠ positions) Reinstatement. It is technically the issuance of a new appointment and is discretionary on the part of the appointing power.  It cannot be the subject of an application for a writ of mandamus.  Who may be reinstated to a position in the same level for which he is qualified: o Any permanent appointee of a career service position



253 LAW ON PUBLIC OFFICERS

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POLITICAL LAW REVIEWER

Chapter III. FORMATION of OFFICIAL RELATION

No commission of delinquency or misconduct, and is not separated. Same effect as Executive Clemency, which completely obliterates the adverse effects of the administrative decision which found him guilty of dishonesty. He is restored ipso facto upon grant of such. Application for reinstatement = unnecessary. o



Detail is the movement of an employee from one agency to another without the issuance of an appointment.  Only for a limited period.  Only for employees occupying professional, technical and scientific positions.  Temporary in nature.



Reassignment. An employee may be reassigned from one organizational unit to another in the SAME agency.  It is a management prerogative of the CSC and any dept or agency embraced in the Civil Service.  It does not constitute removal without cause.  Requirements: o NO reduction in rank, status or salary. o Should have a definite date or duration (c.f. Detail). Otherwise, a floating assignment = a diminution in status or rank.



Reemployment. Names of persons who have been appointed permanently to positions in the career service and who have been separated as a result of reduction in force and/or reorganization, shall be entered in a list from which selection for reemployment shall be made.

- end of Law on Public Officers -

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POLITICAL LAW REVIEWER

TABLE of CONTENTS

LOCAL GOVERNMENT LAW Table of Contents

Chapter II. Creation and Dissolution of LGUs .......................................................................261 I. Creation.............................................261 A. General Provisions .......................261 B. Specific Requirements..................261 C. Authority to Create Local Government Units 262 D. Creation and Conversion of LGUs 263 E. Plebiscite.......................................264 F. Beginning of Corporate Existence 264 II. Division and Merger; Abolition ..........266 A. Division and Merger ......................266 B. Abolition ........................................266 III. Settlement of Boundary Disputes .267 A. Jurisdictional Responsibility for Settlement of Boundary Dispute............267 B. Appeal...........................................267 C. Maintenance of the Status Quo ....267 Chapter III. General Powers and Attributes of LGUs .......................................268 I. Powers in General ...............................268 A. Sources of Powers of LGUs..............268 B. Classification of Powers of LGUs......268 C. Execution of Powers .........................268 II. Political and Corporate Nature of LGUs 268 III. Governmental Powers ....................269 A. General Welfare ................................269 1. Police Power .................................269 2. Limitations.....................................270 3. Abatement of Nuisance ................271 4. Closure of Roads ..........................271 B. Power to Generate Revenue ............272 C. Eminent Domain................................273 D. Basic Services and Facilities ............275 E. Reclassification of Lands ..................276 F. Corporate Powers .............................277 G. Local Legislative Power ....................278

Chapter IV. Local Initiative and Referendum ....................................................................... 283 A. Definition ........................................... 283 B. Requirements.................................... 283 C. Procedure ......................................... 283 D. Effectivity of Local Propositions ........ 283 E. Limitations on Initiatives.................... 283 F. Limitations Upon Local Legislative Bodies ........................................................ 284 Chapter V. Municipal Liability..................... 285 A. Specific Provisions making LGUs Liable 285 B. Liability for Torts, Violation of the Law and Contracts ............................................ 285 C. Personal Liability of Public Official.... 286 Chapter VI. Intergovernmental Relations – National Government and LGUs................. 287 I. Executive Supervision....................... 287 A. 1987 Constitution, Art. X, Sec. 2 and 4 287 B. Administrative Code of 1987, Title XII Chapter I................................................ 287 II. Consultations .................................... 288 LGC Sec. 2(c), 26, 27 ........................... 288 A. Declaration of Policy..................... 288 B. Maintenance of Ecological Balance 288 C. Prior Consultation ......................... 288 III. Relations with Philippine National Police 289 LGC, Sec. 28 ........................................ 289 IV. Other Relations............................. 290 A. Inter-local Relations ...................... 290 B. Relations with Non-Governmental organizations ......................................... 290 Chapter VII. Local Officials ......................... 291 I. Elective Local Officials ....................... 291 A. Qualifications .................................... 291 B. Disqualifications ...............................292` C. Manner of Election ............................ 294 D. Term of Office ................................... 294 E. Rules on Succession ........................ 296 F. Recall ................................................ 299 G. Discipline........................................... 300 1. Administrative Action .................... 300 2. Penalties ....................................... 302 3. Power of Tribunals........................ 303 II. Appointive Officials............................. 304 A. Appointments .................................... 304 B. Discipline........................................... 306 C. Removal ............................................ 306

256 LOCAL GOVERNMENT LAW

Chapter I. Basic Principles..........................258 I. Nature and Status .............................258 A. Definition .......................................258 B. Dual Nature...................................258 II. Principles of Local Government Law 259 A. State Policy, Principles of Decentralization.....................................259 B. Local Autonomy ............................259 C. Decentralization ............................259 C. Devolution .....................................260 III. The Local Government Code ............260 A. Effectivity.......................................260 B. Scope............................................260 C. Rules of Interpretation ..................260

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TABLE of CONTENTS

D. Officials Common to All Municipalities, Cities and Provinces ..................................306 III. Provisions Applicable to Elective and Appointive Officials .....................................307 A. Prohibited Interests ...........................307 LGC Sec. 89 ..............................................307 B. Practice of Profession .......................307 C. Prohibition against Appointment .......308 IV. Local Boards and Councils ................308 A. Local School Board ...........................308 B. Local Health Board............................309 C. Local Development Council ..............309 D. Local Peace and Order Council ........309

Chapter IX. Miscellaneous and Final Provisions .....................................................314 A. Posting and Publication of Ordinances with Penal Sanctions .................................314 B. Penalties for Violation of Tax Ordinances.................................................314 C. Provisions for Implementation...........314 Chapter X. Application of LGC to Autonomous Regions and Other Entities..315 I. The Autonomous Region in Muslim Mindanao ...................................................315 II. Cordillera Administrative Region.......315 III. The Metropolitan Manila Development Authority.....................................................316

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Chapter VIII. Local Government Units .......310 A. The Barangay....................................310 1. Katarungang Pambarangay..........310 2. Sangguniang Kabataan ................311 B. The Municipality ................................311 C. The City .............................................312 D. The Province .....................................313

Prof. Gisella Dizon-Reyes Faculty Editor

Sherwin Ebalo Lead Writer Paulyne Caspillan Karlo Noche Writers

POLITICAL LAW Jennifer Go Subject Editor

ACADEMICS COMMITTEE Kristine Bongcaron Michelle Dy Patrich Leccio Editors-in-Chief

PRINTING & DISTRIBUTION Kae Guerrero

DESIGN & LAYOUT Pat Hernandez Viktor Fontanilla Rusell Aragones Romualdo Menzon Jr. Rania Joya

LECTURES COMMITTEE Michelle Arias Camille Maranan Angela Sandalo Heads Katz Manzano Mary Rose Beley Sam Nuñez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers

MOCK BAR COMMITTEE Lilibeth Perez

BAR CANDIDATES WELFARE Dahlia Salamat

LOGISTICS Charisse Mendoza

SECRETARIAT COMMITTEE Jill Hernandez Head Loraine Mendoza Faye Celso Mary Mendoza Joie Bajo Members

Chapter I. Basic Principles I.

NATURE AND STATUS A. Definition B. Dual Nature II. PRINCIPLES OF LOCAL GOVERNMENT LAW A. State Policy, Principles of Decentralization B. Decentralization C. Devolution III. THE LOCAL GOVERNMENT CODE A. Effectivity B. Scope C. Rules of Interpretation

I.

Nature and Status

A. Definition A Local Government Unit (LGU) is a political subdivision of the State which is constituted by law and possessed of substantial control over its own affairs. Remaining to be an intra sovereign subdivision of a sovereign nation, but not intended to be an imperium in imperio, the LGU is autonomous in the sense that it is given more powers, authority, responsibilities and resources. [ Alvarez vs Guingona (1996)] “Local government” is interchangeable with “municipal corporation.  The City of Manila, being a mere municipal corporation, has no right to impose taxes. [Basco vs PAGCOR (1991)] Municipal Corporation vs Quasi-municipal corporation  A municipal corporation exists by virtue of, and is governed by, its charter. A quasimunicipal corporation operates directly as an agency of the state to help in the administration of public functions. [Singco, (1955)]

B. Dual Nature Sec. 15, LGC. Every LGU created or recognized under this Code is a body politic and corporate endowed with powers to be exercised by it in conformity with law. As such, it shall exercise powers as a political subdivision of the national government and as a corporate entity representing the inhabitants of its territory. 

The obligations of the old City of Manila survives the cession of the Phil. to the U.S. because of the corporate nature of the city. [Villas vs Manila (1921)]



As a body politic with governmental functions, the LGU has the duty to ensure

258 LOCAL GOVERNMENT LAW

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Chapter I. BASIC PRINCIPLES

LOCAL GOVERNMENT LAW

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Chapter I. BASIC PRINCIPLES

II. Principles of Local Government Law A. State Policy, Decentralization

Principles

of

Art. X, 1987 Constitution Sec. 2. The territorial and political subdivisions shall enjoy local autonomy. Sec. 3. The Congress shall enact a local government code which shall o provide for a more responsive and accountable local government structure  instituted through a system of decentralization  with effective mechanisms of recall, initiative, and referendum, o allocate among the different local government units their powers, responsibilities, and resources, o and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, o and all other matters relating to the organization and operation of the local units.

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 within the scope of their prescribed powers and functions. Sec. 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees and charges,  subject to such guidelines and limitations as the Congress may provide,  consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments.

Local Government Code (RA 7160) Sec. 2 (c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with:  appropriate local government units,  nongovernmental and people's organizations,  and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions.

B. Local Autonomy 

The principle of local autonomy under the 1987 Constitution simply means decentralization (discussed below). [Basco vs PAGCOR (1991)]

Illustrations  The CSC cannot declare the provision “upon recommendation of the local chief executive concerned” as merely directory. Such provision is in consonance with local autonomy. [San Juan vs CSC (1991)]  An A.O. may not compel LGUs to reduce their total expenditures. Supervising officials may not lay down or modify the rules. These rules were made in furtherance of local autonomy. [Pimentel vs Aguirre (2000)]  HOWEVER, the Constitution did not intend, for the sake of local autonomy, deprive the legislature of all authority over LGUs, in particular, concerning discipline. [Ganzon vs CA (1991)]

C. Decentralization NOTE: Decentralization is a means to achieve local autonomy. Autonomy is either (1) decentralization of administration or (2) 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. 



Purpose: to relieve the central government of the burden of managing local affairs and enable it to concentrate on national concerns. The President exercises "general supervision" over them, but only to "ensure that local affairs are administered according to law." He has no control over their acts in the sense that he can substitute their judgments with his own. [Limbona v. Mangelin (1989)]

Cf. Decentralization of power is the abdication of political power in favor of LGUs declared to be autonomous. There is self-immolation where autonomous government is accountable, not to the central government, but to its constituents. (Note: not allowed by our Constitution.) 

Sec. 1 of AO 372 (Adoption of Economy Measures in Government for FY 1998), insofar as it “directs” LGUs to reduce expenditures by at least 25%, is a valid exercise of the President’s power of general

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the quality of the environment (S16, LGC). It cannot claim exemption from PD 158 which imposes the same duty. [Republic vs Davao (2002)]

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C. Devolution (asked in 1999) 

Refers to the act by which the national government confers power and authority upon the various local government units to perform specific functions and responsibilities (Sec. 17, LGC); the transfer of power and authority from the National Government to LGUs to enable them to perform specific functions and responsibilities (Art. 24, IRR of the LGC).

III. The Local Government Code A. Effectivity LGC, Sec. 536  January 1, 1992, unless otherwise provided;  After complete publication in at least one (1) newspaper of general circulation.

B. Scope RA 7160 (LGC), Sec. 4 The LGC shall apply to:  provinces  cities  municipalities  barangays  other political subdivisions as may be created by law; and  to the extent herein provided, to officials, offices, or agencies of the national government.

C. Rules of Interpretation LGC, Sec. 5 Sec. 5. Rules of Interpretation. - In the interpretation of the provisions of this Code, the following rules shall apply: 1. In case of doubt on any provision on a power of an LGU:  Liberal interpretation  in favor of devolution of powers  in favor of existence of power 2. In case of doubt on any tax ordinance or revenue measure:  Construed strictly against LGU

 

Construed liberally in favor of taxpayer Tax exemption, incentive or relief is construed strictly against person claiming it 3. General welfare provisions  Liberally interpreted to give more powers to LGU in accelerating economic development and upgrading quality of life for the people of the community 4. Rights and obligations existing on effectivity of LGC:  Arising from contracts or other source  Shall be governed by  original terms and conditions of contract, OR  law in force at the time the rights were vested 5. Resolution of controversies under the LGC:  Where no legal provision or jurisprudence applies  Resort to customs and traditions in the place where the controversies take place

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supervision over LGUs as it is advisory only. Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body. [Pimentel v. Aguirre, supra]

Chapter I. BASIC PRINCIPLES

Chapter II. Creation and Dissolution of LGUs I.

CREATION A. GENERAL PROVISIONS B. SPECIFIC REQUIREMENTS 1. METROPOLITAN POLITICAL SUBDIVISIONS 2. HIGHLY URBANIZED CITIES AND INDEPENDENT COMPONENT CITIES 3. AUTONOMOUS REGIONS C. AUTHORITY TO CREATE LGUS D. CREATION AND CONVERSION OF LGUS E. PLEBISCITE F. BEGINNING OF CORPORATE EXISTENCE II. DIVISION AND MERGER; ABOLITION A. DIVISION AND MERGER B. ABOLITION III. SETTLEMENT OF BOUNDARY DISPUTES A. JURISDICTIONAL RESPONSIBILITY FOR SETTLEMENT OF BOUNDARY DISPUTE B. APPEAL C. MAINTENANCE OF THE STATUS QUO

I.

Creation (Art. X, 1987 Consti.)

A. General Provisions 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 in the Local Government Code and  subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. 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. Sec. 14. The President shall provide for regional development councils or other 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  to strengthen the autonomy of the units therein and  to accelerate the economic and social growth and development of the units in the region.

Chapter II. CREATION and DISSOLUTION of LGUs

B. Specific Requirements 1) Metropolitan Political Subdivisions 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 executive and legislative assemblies. The jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services requiring coordination.

2) Highly Urbanized Cities and Independent Component Cities 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.

3) Autonomous Regions Sec. 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics  within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. 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. 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 multi-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 this Constitution and national laws.

261 LOCAL GOVERNMENT LAW

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LGC, Sec. 6 A local government unit may be o created, divided, merged, abolished, or its boundaries substantially altered  either by law enacted by Congress in the case of a province, city, municipality, or any other political subdivision, OR  by ordinance passed by the sangguniang panlalawigan or sangguniang panlungsod concerned in the case of a barangay located within its territorial jurisdiction, o subject to such limitations and requirements prescribed in this Code.







The authority to create municipal corporations is essentially legislative in nature [Pelaez v. Auditor General (1965)]

Requisites: (LACA) (a) valid law authorizing incorporation; (b) attempt in good faith to organize it; (c) colorable compliance with law; and (d) assumption of corporate powers. 

There can be no color of authority in an unconstitutional statute. An unconstitutional act confers no rights, imposes no duties, affords no protection, and creates no office. However, even if the EO was invalid, it does not mean that the acts done by the municipality of Balabagan in the exercise of its corporate powers are a nullity. This is because the existence of the EO is ‘an operative fact which cannot justly be ignored.’ [Malabanan v Benito (1969)]



The Municipality of Sinacban1 possesses legal personality. Where a municipality created as such by executive order is later impliedly recognized and its acts are accorded legal validity, its creation can no longer be questioned.

The enactment of a LGC is not a condition sine qua non for the creation of a municipality, and before the enactment of such code, the power remains plenary except that the creation should be approved by the people concerned in a plebiscite called for the purpose. [Torralba v. Sibagat (1987)]

Sinacban has attained de jure status2 by virtue of the Ordinance appended to the 1987 Constitution, apportioning legislative districts throughout the country, which considered Sinacban part of the Second District of Misamis Occidental. Above all, Sec. 442(d) of the LGC of 1991 must be deemed to have cured any defect in the creation of Sinacban.

The SC held that sec. 19 of RA 9054 insofar as it grants ARMM Regional Assembly the power to create provinces and cities is void. (Constitution allows delegation of creating municipalities and barangays only.) [Bai Sema v. COMELEC (2008)]

Since Sinacban had attained de facto status at the time the 1987 Constitution took effect on February 2, 1987, it is not subject to the plebiscite requirement. This requirement applies only to new municipalities created for the first time under the Constitution.

Creations under Sec. 68, Admin Code  The alleged power of the President to create municipalities under Sec. 68 of the Admin Code amounts to an undue delegation of legislative power. The authority to create municipal corporations is essentially legislative in nature. The power of control of the President over executive departments, bureaus or offices implies no more than the authority to assume directly the functions thereof or to interfere in the exercise of discretion by its officials. It does not include the authority either to abolish or create such. [Pelaez v. Auditor General (1965)]  Effect if created under Sec 68, Admin Code: The municipality is non-existent. It cannot be a party to any civil action [Mun. of Kapalong v. Moya (1988)]

Attack Against Validity of Incorporation  When the inquiry is focused on the legal existence of a body politic, the action is reversed to the state in a proceeding for quo

De Facto Corporations De facto municipal corporation: There is defect in creation; legal existence has been recognized and acquiesced publicly and officially.

Sec. 442(d), LGC: Municipalities existing as of the date of the effectivity of this Code shall continue to exist and operate as such. Existing municipal districts organized pursuant to presidential issuances or executive orders and which have their respective set of elective municipal officials holding office at the time of the effectivity of this Code shall henceforth be considered as regular municipalities.

1

Sinacban was created by EO 258 of then President Elpidio Quirino, pursuant to Sec. 68 of the Revised Administrative Code of 1917. 2

De jure: by virtue of the ordinance appended to the 1987 Constitution; Sec. 442 (d), LGC curative.

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C. Authority to Create Local Government Units

Chapter II. CREATION and DISSOLUTION of LGUs

POLITICAL LAW REVIEWER



The municipality can still be considered to have attained at least a status closely approximating that of a de facto corporation despite the invalidity of the EO creating it. This is because the State itself recognized the continued existence of San Andres when th it classified it as a 5 class municipality. And, more importantly, Sec.442(d) of the LGC cured whatever defect there was in its creation. [Municipality of San Narciso v. Mendez]

Municipal Corporation by Prescription Existence is presumed where the community has claimed and exercised corporate functions with the knowledge and acquiescence of the legislature, and without interruption or objection for a period long enough to afford title by prescription. [Martin, Public Corporations (1977)]  The municipality was created under a void law (S68, AC). But it should be considered a de jure personality because it existed 1 year before the Pelaez case, and various governmental acts indicate the State’s recognition of its existence. [Mun. of Candijay v. CA (1995)]

D. Creation and Conversion of LGUs Requirements 1. In accordance with the criteria established in the LGC 2. Majority of the votes cast in a plebiscite in the political units directly affected. 

Purpose of plebiscite: to prevent gerrymandering (i.e. the practice of creating legislative districts to favor a particular candidate or party) and creation or abolition of units for purely political purposes.

Criteria LGC, Sec. 7 As a general rule, the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators of viability and projected capacity to provide services, to wit: (IPL) 1. Income. - must be sufficient, based on

acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population. 2. Population. - total number of inhabitants within the territorial jurisdiction of the local government unit cozncerned. 3. Land Area. - must be:  Contiguous o unless it comprises two or more islands or is separated by a LGU independent of the others;  Properly identified by metes and bounds with technical descriptions; and  Sufficient to provide for such basic services and facilities to meet the requirements of its populace. 

Compliance attested to by:  Department of Finance (DOF)  National Statistics Office (NSO)  Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR).

Illustrations  The requirement on metes and bounds was meant merely as a tool in the establishment of LGUs. So long as the territorial jurisdiction of a city may be reasonably ascertained, the intent behind the law (i.e., the determination of the territorial jurisdiction over which governmental powers may be exercised) has been sufficiently served. A cadastral type description is not necessary. [Mariano v. COMELEC (1995)] NOTE: The ruling in Mariano is an exception to the general rule of proper identification because of its peculiar facts: (1) the legislature deliberately omitted the description in metes and bounds because of the pending litigation between Makati and Taguig over Fort Bonifacio; (2) RA 7854 provided that the territory of the City of Makati will be the same as that of the Municipality of Makati, thus making the territorial jurisdiction of Makati ascertainable (subject, of course, to the result of the unsettled boundary dispute). 

Compliance with population OR land area, in addition to income, is sufficient to satisfy the requirements in the creation of a city. [Samson v. Aguirre (1999)]



Internal Revenue Allocations (IRAs) form part of the income of LGUs. The funds generated from local taxes, IRAs and national wealth utilization proceeds accrue

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warranto or any other direct proceeding. Collateral attacks shall not lie.  Proceeding must be: (RST) 1. Brought in the name of the Republic of the Philippines 2. Commenced by the Sol Gen or the fiscal when directed by the president 3. Timely raised [Municipality of San Narciso v Mendez (1994)]

Chapter II. CREATION and DISSOLUTION of LGUs

POLITICAL LAW REVIEWER

Chapter II. CREATION and DISSOLUTION of LGUs

economically dislocated by the separation of a portion thereof have the right to vote in said plebiscite. What is contemplated by the phrase “political units directly affected” is the plurality of political units which would participate in the plebiscite. [Padilla v. COMELEC (1992)]



As such, for purposes of budget preparation, which budget should reflect the estimates of the income of the LGU, among others, the IRAs and the share in the national wealth utilization proceeds are considered items of income. [Alvarez v. Guingona (1996)]



NOTES:  For provinces and cities, the income requirement must be satisfied; and EITHER population OR territory. 

In the creation of barangays, there is no minimum requirement for area and income.



As to the income requirement, average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income.

Effects of downgrading: (ART) (a) the city mayor will be placed under the Administrative supervision of the governor; (b) resolutions and ordinances will have to be Reviewed by the provincial board; (c) Taxes will have to be shared with the province. [Miranda v. Aguirre (1999)]

E. Plebiscite LGC, Sec. 10  No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless there is:  Law or ordinance  Approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected.  Said plebiscite shall be conducted by the commission on elections (COMELEC) - Within one hundred twenty (120) days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date. Illustrations  When the law states that the plebiscite shall be conducted “in the political units directly affected”, it means that the residents of the political entity who would be

The downgrading of Santiago City from an ICC to a component city falls within the meaning of creation, division, merger, abolition, or substantial alteration of boundaries; hence, ratification in a plebiscite is necessary. There is material change in the political and economic rights of the LGUs directly affected as well as the budget preparation, which budget should reflect the estimates of people therein. It is therefore but reasonable to require the consent of the people to be affected.



The creation of a separate congressional district of Mandaluyong is not a subject separate and distinct from the subject of its conversion into a highly-urbanized city but is a natural and logical consequence of its conversion…The Court found no need for the people of San Juan to participate in the plebiscite. They had nothing to do with the change of status of neighboring Madaluyong. [Tobias v. Abalos (1994)]

F. Beginning of Corporate Existence LGC, Sec. 14 Sec. 14. When a new local government unit is created,  its corporate existence o shall commence upon the election and qualification of its chief executive and a majority of the members of its sanggunian, o unless some other time is fixed therefor by the law or ordinance creating it.

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to the general fund of the LGU and are used to finance its operations subject to specified modes of spending the same as provided for in the LGC and its implementing rules and regulations.

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Chapter II. CREATION and DISSOLUTION of LGUs

Summary: Creation of Specific LGUs3

Income

Population

Territory

Manner of Creation

3

Province LGC 460-461 Average annual income, as certified by the Department of Finance, of not less than P20,000,000 based on 1991 constant prices

City RA 9009 (2001) Average annual income, as certified by the Department of Finance, of at least P100,000,000 for the last 2 consecutive years based on 2000 constant prices

Municipality LGC 441-442 Average annual income, as certified by the provincial treasurer, of at least P2,500,000.00 for the last two consecutive years based on 1991 constant prices

Barangay LGC 385-386 No minimum requirement for income

250,000 inhabitants

150,000 inhabitants

25,000 inhabitants

2,000 inhabitants 5,000 inhabitants, in cities and municipalities within MM and other metropolitan political subdivisions or in highly urbanized cities No minimum requirement for area

contiguous territory of at least 2 2,000 km

contiguous territory 2 of at least 100 km

contiguous territory 2 of at least 50 km

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

requirement on land area shall not apply where the city proposed to be created is composed of 1 or more islands; the territory need not be contiguous if it comprises 2 or more islands

By an Act Congress

By an Act Congress

requirement on land area shall not apply where the municipality proposed to be created is composed of 1 or more islands; territory need not be contiguous if it comprises 2 or more islands By an Act of Congress

of

of

For creation of specific LGUs, please check LGC 385-386, 441-442, 449-450, 460-461

Territory need not be contiguous if it comprises 2 or more islands

By law or by an ordinance of the sangguniang panlalawigan or panlungsod; In case of the creation of barangays by the sangguniang panlalawigan, the recommendation of the sangguniang bayan concerned shall be necessary

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Requirements

Chapter II. CREATION and DISSOLUTION of LGUs

Requirements

Province LGC 460-461

City RA 9009 (2001)

Municipality LGC 441-442

Plebiscite (in LGUs directly affected)

Approval must be by majority of the votes cast; except otherwise provided in the Act of Congress, the plebiscite shall be held within 120 days from effectivity of the law or ordinance effecting such action

Approval must be by majority of the votes cast; except otherwise provided in the Act of Congress, the plebiscite shall be held within 120 days from effectivity of the law or ordinance effecting such action

Approval must be by majority of the votes cast; except otherwise provided in the Act of Congress, the plebiscite shall be held within 120 days from effectivity of the law or ordinance effecting such action

II. Division and Merger; Abolition A. Division and Merger LGC, Sec. 8.  Division and merger of existing local government units shall comply with the same requirements herein prescribed for their creation:  Provided, however, That such division shall not reduce the income, population, or land area of the local government unit or units concerned to less than the minimum requirements prescribed in this Code:  Provided, further, That the income classification of the original local government unit or units shall not fall below its current classification prior to such division.  The income classification of local government units shall be updated within six (6) months from the effectivity of this Code to reflect the changes in their financial position resulting from the increased revenues as provided herein. Effects of Merger 1. 2. 3. 4. 5.

Legal existence of LGU to be annexed is dissolved Laws and ordinance of the annexing LGU prevails The right of office in the annexed LGU is terminated Title to property is acquired by the annexing LGU Debts are assumed by the annexing LGU [Martin, supra]

Barangay LGC 385-386 By an Act of Congress, to enhance the delivery of basic services in the indigenous cultural communities Approval must be by majority of the votes cast; plebiscite shall be held within such period of time as may be determined by the law or ordinance creating said barangay.

Effects of division 1. The legal existence of the original municipality is extinguished 2. Property, rights and powers are acquired by the dividing LGUs [Martin, supra]

B. Abolition LGC, Sec. 9  A local government unit may be abolished:  when its income, population, or land area has been irreversibly reduced to less than the minimum standards prescribed for its creation under Book III of this Code, as certified by the national agencies mentioned in Section 7 hereof to Congress or to the sangguniang concerned, as the case may be.  The law or ordinance abolishing a local government unit shall specify the province, city, municipality, or barangay with which the local government unit sought to be abolished will be incorporated or merged. When there is no dissolution 1. Non-user or surrender of charter 2. Failure to elect municipal officers 3. Change of sovereignty 4. Change of name

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Chapter II. CREATION and DISSOLUTION of LGUs

appeal within one (1) year from the filing thereof. Pending final resolution of the disputed area prior to the dispute shall be maintained and continued for all legal purposes.

III. Settlement of Boundary Disputes (asked in 2005)

A. Jurisdictional Responsibility Settlement of Boundary Dispute LGC, Sec. 118 If the LGUs involved are:

for

two (2) or more municipalities within the same province municipalities component cities different provinces

jointly referred to the sanggunians of the provinces concerned.

or of

a component city or municipality on the one hand and a highly urbanized city on the other; or two (2) or more highly urbanized cities,

jointly referred settlement to respective sanggunians of parties.

IRR of LGC, Sec. 18 Pending final resolution of the dispute: status of the affected area prior to the dispute shall be maintained and continued for all purposes. 

Boundary disputes shall be referred for settlement to: sangguniang panlungsod or sangguniang bayan concerned. sangguniang panlalawigan concerned.

two (2) or more barangays in the same city or municipality

C. Maintenance of the Status Quo

for the the



In the event the sanggunian fails to effect an amicable settlement within sixty (60) days from the date the dispute was referred thereto, it shall issue a certification to that effect.



Thereafter, the dispute shall be formally tried by the sanggunian concerned which shall decide the issue within sixty (60) days from the date of the certification referred to above.

B. Appeal LGC, Sec. 119.  Within the time and manner prescribed by the Rules of Court, any party may elevate the decision of the sanggunian concerned to the proper Regional Trial Court having jurisdiction over the area in dispute.  The Regional Trial Court shall decide the



The power of provincial boards to settle boundary disputes is limited to implementing the law creating a municipality. Thus, provincial boards do not have the authority to approve agreements which in effect amend the boundary stated in the creating statute [Municipality of Jimenez v. Baz (1996)] The conduct of plebiscites, to determine whether or not a barangay is to be created, should be suspended or cancelled in view of a pending boundary dispute between two local governments. Precisely because territorial jurisdiction is an issue raised in the pending boundary dispute, until and unless such issue is resolved with finality, to define the territorial jurisdiction of the proposed barangays would only be an exercise in futility. [City of Pasig v. COMELEC(1999)]

267 LOCAL GOVERNMENT LAW

LGC, Sec. 118-119  Boundary dispute—when a portion or the whole of the territorial area of an LGU is claimed by two or more LGUs.  Policy: Boundary disputes between or among LGUs shall, as much as possible, be settled amicably.

Chapter III. General Attributes of LGUs

Chapter III. GENERAL POWERS and ATTRIBUTES of LGUs

Powers

and



I.

POWERS IN GENERAL A. SOURCES B. CLASSIFICATION C. EXECUTION OF POWERS II. POLITICAL AND CORPORATE NATURE OF LGUs III. GOVERNMENTAL POWERS A. GENERAL WELFARE (POLICE POWERS) B. POWER TO GENERATE REVENUE (POWER TO TAX) C. EMINENT DOMAIN D. BASIC SERVICES AND FACILITIES E. RECLASSIFICATION OF LANDS F. CORPORATE POWERS G. LOCAL LEGISLATIVE POWER

I.

Powers in General

A. Sources of Powers of LGUs    

1987 Consti., Sec. 25, Art. II ; Sec. 5-7, Art. X Statutes, e.g. LGC Charter (particularly of cities) Doctrine of the right of self-government, but applies only in States which adhere to the doctrine

B. Classification of Powers of LGUs    

Express, Implied, Inherent Public or Governmental, Private Proprietary Intramural, Extramural Mandatory, Directory; Ministerial, Discretionary

Municipal Corporations or

LGC Sec. 14. Beginning of Corporate Existence





C. Execution of Powers  

Where statute prescribes the manner of exercise, the procedure must be followed Where statute is silent, LGUs have discretion to select reasonable means and methods of exercise

LGC Sec. 15. Political and Corporate Nature of Local Government Units



LGC Sec.18



Local government units shall have the power and authority to generate and apply resources Establish an organization responsible for implementation of development plans, program objectives, and priorities.

The election and qualification of  chief executive AND  majority of the members of the Sanggunian unless some other time is fixed therefore by the law or ordinance creating it.

Note: Art.14 applies when the law creating it is SILENT as to the beginning of its corporate existence.

II. Political and Corporate Nature of LGUs 

Own sources of revenues (Sec.5, Art.X, Constitution; Sec.18 LGC) which include:  Power to create own sources  Levy taxes, fees and charges o Shall accrue exclusively for their own use and disposition o Limitation: guidelines Congress may provide  Just share in national taxes (Sec.6, Art.X, Constitution; Sec.18 LGC) o Determined by law o Automatically and directly released  Equitable share in utilization and development of national wealth (Sec.7, Art.X Constitution; Sec.18 LGC) o Within respective territorial jurisdictions o In the manner provided by law o Sharing with inhabitants by way of direct benefits  Acquire, develop, lease, encumber, alienate, or otherwise dispose of property (Sec.18 LGC) o Real or personal property o Made in a proprietary capacity  Apply resources and assets (Sec.18 LGC) o Purpose: productive, development, or welfare purposes o In the exercise of their governmental or proprietary powers and functions



Local government unit created or recognized under this Code is a  Body politic AND  Corporate endowed with powers to be exercised by it in conformity with law Exercise of power (as a):  Political subdivision of the national government AND  Corporate entity representing the inhabitants of its territory

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Implications  A municipal corporation performs twin functions. Firstly, it serves as an instrumentality of the State in carrying out the functions of a government. Secondly, it acts as an agency of the community in the administration of local affairs. It is in the latter character that it is a separate entity acting for its own purposes and not a subdivision of the state. [Lidasan v COMELEC (1967)]  The holding of a town fiesta is a proprietary function, though not for profit, for which a rd municipality is liable for damages to 3 persons ex contractu or ex delicto. [Torio v Fontanilla (1978)]

 

Difference Between the Political Nature and Corporate Nature of LGUs Political/ Governmental Political subdivision of national government Includes the legislative, judicial, public and political LGU cannot be held liable except: o If statute provides otherwise Art.2189, Civil Code Examples:  Regulations against fire, disease  Preservation of public peace  Maintenance of municipal plaza  Establishment of schools, post offices, etc.

Corporate/ Municipal Corporate entity representing inhabitants of its territory Includes those which are ministerial, private and corporate Can be held liable ex contractu or ex delicto

Examples:  Municipal waterworks  Slaughterhouses  Markets  Stables  Bathing establishments  Wharves  Fisheries  Maintenance of parks, golf courses, cemeteries, airports

III. Governmental Powers A. General Welfare LGC Sec.16 This includes: Police Power, Abatement of Nuisance and Closure of Roads

1. Police Power 

Preservation of peace and order within respective regions (Sec.21, Art. X, Constitution) 1. Responsibilities of local police agencies

2. Local police shall be organized, maintained, supervised and utilized in accordance with applicable laws. Defense and security of regions (Sec.21, Art.X, Constitution) o Responsibility of National Government General Welfare Clause (Sec.16 LGC) 1. Powers expressly granted 2. Powers necessarily implied 3. Powers necessary, appropriate or incidental for efficient and effective governance 4. Powers essential to the promotion of general welfare 5. Shall ensure and support:  Preservation and enrichment of culture  Promotion of health and safety  Enhancement of the right of the people to a balance ecology  Development of self reliant scientific and technological capabilities  Improvement of public morals  Economic prosperity and social justice  Promotion of full employment among residents  Maintenance of peace and order  Preservation of the comfort and convenience of inhabitants

Nature  The police power of a municipal corporation extends to all the great public needs, and, in a broad sense includes all legislation and almost every function of the municipal government. Public purpose is not unconstitutional merely because it incidentally benefits a limited number of persons. The drift is towards social welfare legislation geared towards state policies to provide adequate social services, the promotion of general welfare and social justice [Binay v Domingo (1991)] 

To constitute “public use”:  The public in general should have equal or common rights to use the land or facility involved on the same terms  The number of users is not the yardstick in determining whether property is properly reserved for public use or public benefit [Republic v. Gonzales]

2 Branches of the GWC  The General Welfare Clause has 2 branches: (1) the general legislative power which authorizes municipal councils to enact

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

ordinances and make regulations not repugnant to law as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law; (2) the police power, which authorizes the municipality to enact ordinances as may be proper and necessary for the health and safety, prosperity, morals, peace, good order, comfort and convenience of the municipality and its inhabitants, and for the protection of their property. Here, the ordinances imposing the licenses and permits for any business establishments, for purposes of regulation enacted by the municipal council of Makati, st falls under the 1 branch. [Rural Bank of Makati, Inc v Municipality of Makati (2004)]

2. Limitations 1. The General Welfare Clause cannot be used to justify an act that is not specifically authorized by law. 2. Powers of the LGUs under the general welfare clause (LGC Sec.16)  Powers expressly granted to the LGU  Power necessarily implied therefrom  Powers necessary, appropriate, or incidental for its efficient and effective governance 3. For ordinance to be valid exercise of police power [Tatel v. Mun. of Virac (1992)]: 1. Not contrary to the Constitution and/or statute 2. Not unfair or oppressive 3. Must not be partial or discriminatory 4. Not prohibit but may regulate trade 5. General and consistent with public policy 6. Not unreasonable Illustrations: Police Power Applies  A municipal ordinance prescribing the zonification and classification of merchandise and foodstuff sold in the public market [Eboňa v Municipality of Daet (1950)] 



A proclamation reserving parcels of the public domain for street widening and parking space purposes [Republic v Gonzales] Condemnation and demolition of buildings found to be in a dangerous or ruinous condition within the authority provided for by municipal ordinances [Chua Huat vs CA (1991)]

Chapter III. GENERAL POWERS and ATTRIBUTES of LGUs



Regulation and operation of tricycles-for-hire and to grant franchises for the operation thereof. However, this power is still subject to the guidelines prescribed by the DOTC. Moreover, the newly delegated powers pertain to the franchising and regulatory powers therefore exercised by the LTFRB. [LTO vs City of Butuan (2000)]



The declaration of an area as a commercial zone through a municipal ordinance. Corollary thereto, the state may interfere with personal liberty with property, business, and occupations. [Patalinhug vs CA (1994)]



Demolition of stalls causing traffic and deteriorated sanitation [Villanueva vs Castaneda (1987)]



Deny an application for permit or avoid the injury to the health of residents. [Technology Developers vs CA (1991)]



Provide for burial assistance to the poor. [Binay vs Domingo, supra]



Abatement of a public nuisance because stored inflammable materials created a danger to the people within the neighbourhood [Tatel vs Mun. of Virac (1992)]



Rescind contracts [Tamin vs CA (1994)]



Enforcement of fishery laws in municipal waters including the conservation of mangroves. [Tano vs Socrates (1997)]

Illustrations: Police Power Does Not Apply  The LGU has no power to prohibit the operation of night clubs, a lawful trade or pursuit of occupation. It may only regulate. [De La Cruz vs Paras (1983)] 

“Anxiety, uncertainty and among stallholders and traders ground to revoke the mayor’s General Welfare claim is too [Greater Balanga vs Mun. (1994)]



Butuan city board passes an ordinance requiring that the sale of tickets to movies, exhibitions or other performances to children between 7-12 years of age should be at half price. The said ordinance was declared void. The theater operators are merely conducting their legitimate business.

restiveness” cannot be a permit. The amorphous. of Balanga

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There is nothing immoral or injurious in charging the same price for both children and adults. In fact, no person is under compulsion to purchase a ticket. [Balacuit v CFI (1988)] 



Permanently close or open  Ordinance: Vote of at least 2/3 of all members of the Sanggunian  When necessary, an adequate substitute for the public facility should be provided  Make provision for public safety  If permanently withdrawn from public use  May be used or conveyed for any purpose for which other real property belonging in LGU may be lawfully used or conveyed  Freedom park: must have provision for relocation to new site



Temporary close or open  Ordinance  May be done:  During actual emergency  Fiesta celebrations  Public rallies  Agricultural or industrial fairs  Undertaking of public works and highways, telecommunications, and waterworks projects  Duration specified in written order by local chief executive  If for athletic, cultural, or civic activities: must be officially sponsored, recognized, or approved by LGU.

The power of the municipal government to issue fishing privileges is only for revenue purposes. BUT the power of the LLDA to grant permits is for the purpose of effectively regulating and monitoring activities in the lake region and is in the nature of police power. [Laguna Lake Development Authority v. CA (1995)]

3. Abatement of Nuisance LGC sec.447 and 458 Sangguniang Bayan and Sangguniang Panlungsod have:  Power to regulate activities relative to the use of land, buildings and structures within their jurisdiction  To promote the general welfare and  For said purpose declare, prevent or abate any nuisance Coverage  Respondents cannot seek cover under the General Welfare Clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity [Monteverde v Generoso (1928)]. NOTES: The provisions of the Code DO NOT make a distinction between nuisance per se and nuisance per acccidens, thus creating a presumption that LGUs can abate all kinds of nuisances without need of a judicial order. However, the jurisprudence holds that LGUs can abate extrajudicially only nuisances per se.

4. Closure of Roads LGC Sec.21 

What roads are jurisdiction of LGU  Local road  Alley  Park  Square

subject,

those

within



Temporary closure and regulation of any local street, road, thoroughfare, or any other public place  By any city, municipality, or barangay  Where shopping malls, Sunday, flea or night markets, or shopping areas may be established  Where goods, merchandise, foodstuffs, commodities, or articles of commerce may be sold

Illustrations  A public street is property for public use hence, outside the commerce of man. It may not be the subject of lease or other contract. Such leases are null and void for being contrary to law. The right of the public to use the city street may not be bargained away through contract. The authorization given for the use of the city street as a vending area for stallholders who were granted licenses by the City Government contravenes the general law that reserves city streets and roads for public use. It may not infringe upon the vested right of the public to use city streets for the purpose they were intended to serve. [Dacanay vs Asistio (1992)]

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



 



The provincial council has the authority to determine whether or not a certain property (in this case a provincial road) is still necessary for public use [Cabrera vs CA (1991)] The power of the LGU to enact zoning ordinances for the general welfare prevails over the deed of restrictions. [Sangalang vs IAC(1989)] The closure of roads under police power is not eminent domain. No grant of damages are awarded. [Cabrera vs CA (1991)] Effect: The determination of the location of the camino vecinal through an ordinance will defeat the testimonies of witnesses as to the location of said passageway. [Pilapil vs CA (1992)] The MMDA does not have police power, but the LGUs do. There should have been an ordinance by the LGU to effect an opening of roads. [MMDA vs Bel Air (2000)]

B. Power to Generate Revenue LGC Sec.18 Sources of LGU funds: (O-TIU) 1. Own sources of revenues 2. Taxes, fees and charges: which shall accrue exclusively for their use and disposition and which shall be retained by them 3. Just share in national taxes which shall be automatically and directly released to them without need for any further action (Internal Revenue Allotments) 4. Equitable share in the proceeds from the utilization and development of the national wealth and resources within their respective territorial jurisdictions including sharing the same with the inhabitants by way of direct benefits Fundamental principles governing the exercise of the taxing and other revenue-raising powers of LGUs LGC Sec 130 (PE-PUB) 1. Taxation shall be uniform in each LGU; 2. Taxes, fees, charges and other impositions shall be equitable and based as far as practicable on the taxpayer’s ability to pay; levied and collected only for public purposes; not unjust, excessive, oppressive, or confiscatory; not contrary to law, public policy, national economic policy, or in restraint of trade; 3. The collection of local taxes, fees, charges and other imposition shall in no case be left to any private person;

Chapter III. GENERAL POWERS and ATTRIBUTES of LGUs

4. The revenue shall inure solely to the benefit of, and be subject to disposition by, the LGU, unless otherwise specifically provided herein; and 5. Each LGU shall, as far as practicable, evolve a progressive system of taxation. Common Limitations on the Taxing Powers of LGUs Sec 133. LGC 1. Income tax (except when levied on banks and financial institutions) 2. Documentary stamp tax 3. Estate tax 4. Customs duties, registration fees of vessels and all other kinds of customs fees and charges 5. Taxes, fees and charges and other impositions upon goods carried in or out of, or passing through, the territorial jurisdiction of local government units in the guise of charges for wharfage, tolls for bridges or otherwise, or other taxes, fees or charges in any form whatsoever upon such goods or merchandise 6. Taxes, fees or charges on agricultural and aquatic products when sold by marginal farmers or fishermen 7. Taxes on business enterprises certified by the BOI as pioneer or non-pioneer for a period of 6 and 4 years, respectively, from date of registration 8. Excise taxes 9. Percentage taxes or VAT 10. Taxes on the gross receipts of transportation contractors and persons engaged in the transportation of passengers or freight, and common carriers 11. Taxes on premiums paid by way of reinsurance or retrocession 12. Taxes, fees, charges for the registration of motor vehicles and for the issuance of all kinds of licenses or permits for the driving thereof, except tricycles 13. Taxes, fees, or other charges in Phil. products actually exported, except as otherwise provided therein 14. Taxes, fees or charges, on Countryside and Barangay Enterprises and cooperatives duly registered under RA 6810 and the Cooperative Code 15. Taxes, fees, or charges of any kind on the National Government, its agencies and instrumentalities

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Fundamental principles governing the financial affairs, transactions and operations of LGUs LGC sec 305 1. No money shall be paid out of the local treasury except in pursuance of an appropriations ordinance or law; 2. Local government funds and monies shall be spent solely for public purposes; 3. Local revenue is generated only from sources expressly authorized by law or ordinance, and collection thereof shall at all times be acknowledged properly; 4. All monies officially received by a local government officer in any capacity or on any occasion shall be accounted for as local funds, unless otherwise provided by law; 5. Trust funds in the local treasury shall not be paid out except in fulfillment of the purpose for which the trust was created or the funds received; 6. Every officer of the LGU whose duties permit or require the possession or custody of local funds shall be properly bonded, and such officer shall be accountable and responsible for said funds and for the safekeeping thereof in conformity with the provisions of law; 7. Local governments shall formulate sound financial plans, and the local budgets shall be based on functions, activities, and projects, in terms of expected results; 8. Local budgets shall operationalize approved local development plans; 9. LGUs shall ensure that their respective budgets incorporate the requirements of their component units and provide for equitable allocation of resources among these component units; 10. National planning shall be based on local planning to ensure that the needs and aspirations of the people as articulated by the local government units in their respective local development plans are considered in the formulation of budgets of national line agencies or offices; 11. Fiscal responsibility shall be shared by all those exercising authority over the financial affairs, transactions, and operations of the local government units; and 12. The LGU shall endeavor to have a balanced budget in each fiscal year of operation Cases  Sec 234 withdrew all exemptions from real property taxes, even GOCCs when the beneficial use of the property has been granted to a taxable person for consideration or otherwise. MCIAA is a GOCC and an instrumentality, therefore,

Chapter III. GENERAL POWERS and ATTRIBUTES of LGUs





RPT exemption granted under its charter is withdrawn [MCIAA vs Marcos (1997)] Tax exemption of property owned by the Republic refers to properties owned by the Government and by its agencies which do not have separate and distinct personalities (unincorporated entities). The properties of NDC belong to the Government. [NDC vs Cebu, (1992)] LGUs, in addition to administrative autonomy, also enjoy fiscal autonomy. LGUs have the power to create their own sources and revenue, in addition to their equitable share in the national taxes as well as the power to allocate resources in accordance with their own priorities. A basic feature of local fiscal autonomy is the automatic release of the shares of the LGUs in the national internal revenue. This is mandated by no less than the constitution. Any retention is prohibited. [Pimentel v Aguirre (2000)]

C. Eminent Domain LGC Sec.19 Eminent Domain -- It is the ultimate right of the sovereign power to appropriate not only public but private property of citizens within the territorial sovereignty to public purpose [Charles River Bridge vs. Warren Bridge, (1837)] Requisites for a Valid Exercise of Eminent Domain (COP-JO) a. Through the Chief Executive of LGU b. Acting pursuant to an ordinance c. For the purposes of:  Public use or welfare  For the benefit or the poor and the landless d. Payment of just compensation  Amount determined by proper court  Based on fair market value at the time of the taking e. Valid and definite offer made Right by the State to immediately take possession:  Upon filing of expropriation proceedings  Upon deposit with proper court of at least 15% of the fair market value of the property Article 35 IRR of LGC  Offer to buy private property for public use or purpose shall be in WRITING. It shall specify the property sought to be acquired, the reasons for the acquisition, and the price offered.

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 



If the owner’s accept the offer in its entirety, a contract of sale shall be executed and payment made If the owner/s are willing to sell their property but at a price higher than that offered to them, the local chief executive shall call them to a conference for the purpose of reaching an agreement on the selling price. The chairman of the appropriation or finance committee of the Sanggunian, or in his absence, any member of the Sanggunian duly chosen as its representative, shall participate in the conference. When an agreement is reached by the parties, a contract of sale shall be drawn and executed. The contract of sale shall be supported by the following documents:  Resolution of the Sanggunian authorizing the local chief executive to enter into a contract of sale. The resolution shall specify the terms and conditions to be embodied in the contract.  Ordinance appropriating the amount specified in the contract, and  Certification of the local treasurer as to availability of funds together with a statement that such fund shall not be disturbed or spent for any purpose other than to pay for the purchase of the property involved.

Illustrations of Eminent Domain  There is no need to get DAR approval before expropriation [Camarines Sur vs CA (1993)]  There must be genuine necessity of a public character. There is no genuine necessity if another road more ideal is available. [Meycauyan vs IAC (1988)]  The ordinance which requires cemeteries to set aside a portion of their lots to paupers is not an exercise of police power, but a taking without compensation. [QC vs Ericta (1983)]  Eminent domain may be exercised over easements (property rights), not just lands or personal property. [NPC vs Jocson (1992)]  Necessity does not contemplate the economic relief of a few families devoid of any other public advantage [Manila vs Arellano (1950)]  Eminent domain requires an ordinance, not just a resolution. Res judicata does not apply to expropriation cases [Paranaque vs VM Realty (1998)]  Just compensation shall be determined at the time of taking, NOT at the time of filing

Chapter III. GENERAL POWERS and ATTRIBUTES of LGUs



complaint Although the general rule in determining just compensation in eminent domain is the value of the property as of the date of filing of the complaint, the rule admits of an exception: where the SC fixed the value of the property as of the date it was taken and not at the date of the commencement of the expropriation proceedings. Finally, while sec.4, Rule 67 of the Rules of Court provides that just compensation shall be determined at the time of the filing of the complaint for expropriation, such law cannot prevail over the Local Government Code, which is substantive law. [Cebu vs Apolonio (2002)] It is possible that the purpose for expropriation is changed after such is granted. [Republic vs CA (2002)]

Immediate Entry by the LGU Requisites for immediate entry of LGU: 1. Filing of complaint for expropriation sufficient in form and substance 2. The deposit of the amount equivalent to 15% of the fair market value of the property to be expropriated based on the current tax declaration [Bardilion v Masili (2003)]  Upon compliance with the requirements for immediate entry, the issuance of a writ of possession becomes ministerial. No hearing is required for the issuance of the writ. The LGC did not put a time limit as to when a LGU may immediately take possession of the property. As long as the expropriation proceedings have been commenced and the deposit made, the LGU cannot be barred from praying for the issuance of writ of possession. [City of Iloilo v Legaspi (2004)] Socialized Housing  The UDHA and the Expropriation by the LGUs i.e. Sec.9 of the Urban Land and Housing Act, which speaks of PRIORITIES in acquisition) should be read in connection with Sec.10 (MODES of acquisition).  If the land sought to be expropriated is located in urban areas and fall under the UDHA, the LGU must allege compliance with Secs.9 and 10 for their suit to prosper. Otherwise, it would be premature. Cases  Under the Urban Land and Housing Act, there is a priority in expropriation of which the properties of the government or any of its subdivision rank number one and

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Chapter III. GENERAL POWERS and ATTRIBUTES of LGUs

privately owned properties ranked last. Also, the said act provides that expropriation should be the last alternative, giving way to other modes of acquisition like community mortgage and swapping. Otherwise it would be deprivation of property. [Filstream International Inc v CA (1998)] 

socialized housing. It exempted “small property owners”. The elements of small property owners are: 1. Those owners of real property which consists of residential lands with an area of not more than 300 sq.meters in highly urbanized cities (800 in other urban cities); 2. They do not own real property other than the same. [City of Manadaluyong v Aguilar (2001)]

The UDHA introduced a limitation on the size of the land sought to be expropriated for

D. Basic Services and Facilities LGC Sec . 17 support

Municipality Agriculture and fishery extension and on-site research services and facilities

Health services

Same; health centers and clinics

Social welfare services

Same

General hygiene and sanitation Solid waste collection

Same

Katarungang Pambarangay Maintenance of roads, bridges and water supply systems Infrastructure facilities (e.g. plaza, multipurpose hall) Information and reading center

Satellite market

or

public

Solid waste disposal system or environmental management system N/A Road, bridges, communal irrigation, artesian wells, drainage, flood control Municipal buildings, cultural centers, public parks Information services, tax and marketing information systems and public library Public markets, slaughterhouses Implementation of community-based forestry projects

Province Agricultural extension and on-site research services and facilities; organization of farmers and fishermen’s cooperatives Same, including hospitals and tertiary health services Same, including rebel returnees and evacuees,relief operations population development services

N/A Similar to those municipality

City See municipality province

and

275 See municipality province

and

See municipality province

and

See municipality province

and

N/A for

Upgrading and modernization of tax information and collection services

Enforcement of forestry laws, limited to community-based forestry projects, pollution control law, small-scale mining law, mini-hydroelectric

See municipality province

and

See municipality province

and

See municipality province

and

See municipality province See municipality province

and and

LOCAL GOVERNMENT LAW

Barangay Agricultural services

Barangay

Chapter III. GENERAL POWERS and ATTRIBUTES of LGUs

Municipality

Province projects purposes

City for

local

School Buildings Public cemetery Tourism facilities

Police, fire station, jail

E. Reclassification of Lands

Tourism development and promotion programs Same Industrial research and development services Low cost housing and other mass dwellings Investment support services Inter-municipal telecommunication services

By a City or Municipality  Through an ordinance passed by Sanggunian  After conducting public hearings  Provide manner of disposition  Land ceases to be economically feasible and sound for agricultural purposes as determined by the Department of Agriculture  Land shall have substantially greater economic value for residential, commercial, or industrial purposes, as determined by the Sanggunian  Limited to the following percentage of the total agricultural land area at the time of passage of the ordinance  For highly urbanized and independent component cities: 15%  For component cities and first to the third class of municipalities: 10%  For fourth to sixth class municipalities: 5%  Limited by RA 6657 or the “Comprehensive Agrarian Reform Law”  Agricultural lands distributed to agrarian reform beneficiaries shall not be affected  Conversion into other purposes governed by sec.56 RA6657  Nothing repealing, amending or modifying RA6657

and and and

Same Same Same Same Adequate communication and transportation facilities.



By the President  When public interest so requires  Upon recommendation of the NEDA  May authorize a city or municipality to reclassify lands in excess of the limits



Approval of national agency  When required, shall not be unreasonably withheld  Failure to act: deemed approval  Within 3 mos. from receipt  Proper and complete application for reclassification  Comprehensive Land Use Plans  Enacted through zoning ordinances  Shall be the primary and dominant bases for the future use of land resources  Factors to consider-requirements for o Food production o Human settlements o Industrial expansion

LGC Sec. 20 

See municipality province See municipality province See municipality province

NOTES:  Land use conversion: the act or process of changing the current use of a piece of agricultural land into some other use as approved by the DAR  Reclassification: designation of intended use of land within the territory. The land is not currently used as agricultural, although it is classified as such Requisites for Reclassification of Land: (PAO) 1. Ordinance passed by Sanguniang Bayan or Panglungsod after public hearings conducted for the purpose

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2. Agricultural land must either: a. cease to be economically feasible and sound for agricultural purposes as determined by the Department of Agriculture, OR b. have substantially greater economic value for residential, commercial, or industrial purposes, as determined by the Sanggunian concerned 3. Reclassification shall be limited to the percentages of the total agricultural land area at the time of the passage of the ordinance as prescribed by the LGC

Chapter III. GENERAL POWERS and ATTRIBUTES of LGUs

Cases  The authority of a municipality to fix and collect rents for water supplied by its waterwork system is expressly granted by law. However, even without these provisions the authority of the municipality to fix and collect fees from its waterworks would be justified from its inherent power to administer what it owns privately. [NAWASA v Dator (1967)] 

Take note however, of: o LGU need not obtain approval of DAR to convert or reclassify land from agri to nonagri [Fortich v Corona (1998)] o DAR is mandated to approve or disapprove applications for conversion [Roxas v CA (1999)]

F. Corporate Powers LGC Sec 22 





Every LGU, as a corporation has the following powers: (SC-PCSO) a. To have continuous succession in its corporate name b. To sue and be sued c. To have and use a corporate seal d. To acquire and convey real or personal property e. To enter into contracts f. To exercise such other powers as are granted to corporations  Limitations: as provided in LGC and other laws Corporate Seal  LGUs may continue using, modify, or change their existing corporate seals  Newly established LGUs or those without corporate seals  May create own corporate seals  Registered with the DILG  Change of corporate seal shall be registered with the DILG Contract entered into by local chief executive un behalf of LGU  Prior authorization by Sanggunian  Legible copy of contract posted at a conspicuous place in the  Provincial capitol or  City, municipal or barangay hall

If the property is owned by the municipality in its public and governmental capacity, the property is public and Congress has absolute control over it; if the property is owned in its private or proprietary capacity, then it is patrimonial and Congress has no absolute control. In which case, the municipality cannot be deprived of it without due process and payment of just compensation. [Province of Zamboanga v City of Zamboanga (1968)]

Authority to Negotiate and Secure Grants

LGC Sec.23  





Who may negotiate:  Local Chief Executive (upon authority of Sanggunian) What are negotiated  Financial grants or donations in kind in support of basic services or facilities  From local and foreign assistance agencies Approval by national agency concerned  No necessity of securing clearance from national agency  IF with national security implications  Shall be approved by national agency concerned  Failure to act on request for approval within 30 days from receipt: deemed approved Reporting duty: local chief executive shall report to both Houses of Congress and the President  Nature  Amount  Terms  Within 30 days upon signing of grant agreement or deed of donation

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

G. Local Legislative Power LGC Sec.48-59 





Presided by (Sec.49):  Vice-governor or vice-mayor or punong barangay will vote only in case of a tie because he is not a member of the Sanggunian. [Perez vs Dela Cruz (1969)] 





Exercised by (Sec.48)  Sangguniang panlalawigan for the province  Sangguniang panglungsod for the city  Sangguniang bayan for the municipality  Sangguniang barangay for the barangay

The incumbent local chief executive acting as the chief executive may not preside over the sessions of the Sanggunian. Why? To ensure better delivery of public services and provide a system of checks and balances between the executive and legislative. [Gamboa vs Aguirre]



Inability of the above: members present and constituting a quorum shall elect from among themselves a temporary presiding officer



Who shall certify within 10 days from the passage of the ordinances enacted and resolutions adopted by the sanggunian in the session over which he temporarily presided

Internal Rules of Procedure (Sec.50): st  Adopted/update on the 1 regular session following election of its members- within 90 days  Provides for:  Organization of the Sanggunian and the election of its officers  Standing Committees o Creation (Including the committees on appropriations, women and family, human rights, youth and sports development, environmental protection, and cooperatives; the general jurisdiction of each committee o Election of the chairman and members of each committee  Order and calendar of business for each session  Legislative process

Parliamentary procedures (including the conduct of members during sessions) Discipline of members for disorderly behavior and absences (without justifiable cause for 4 consecutive sessions) Penalty: censure, reprimand, or exclusion from the session, suspension for not more than 60 days or expulsion o Suspension or expulsion: requires concurrence of at least 2/3 vote of all Sanggunian members o A member convicted by final judgment to imprisonment of at least 1 year for any crime involving moral turpitude shall be automatically expelled from the Sanggunian  Other rules as the Sanggunian may adopt



Quorum (Sec.53)  Quorum. Majority of all members of the Sanggunian who have been elected and qualified  Questions of quorum is raised: the presiding officer shall immediately proceed to call the roll of the members and announce the results  No quorum: the presiding officer may declare a recess until such time as a quorum is constituted  OR a majority of the members present may adjourn from day to day and may compel the immediate attendance of any member absent without justifiable cause by arresting the absent member and present him at the session  No business shall be transacted



Sessions (Sec.52)  Regular sessions: fixed by resolution on st 1 day of the session immediately following the election of its members  Minimum numbers of regular sessions: once a week (panlalawigan, panlungsod, bayan) and twice a month for the Sangguniang Barangay  Special session: may be called by the local chief executive or by a majority of the members of the Sanggunian-cause: when public interest demands  Written notice: served personally at the member’s usual place of

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 

Chapter III. GENERAL POWERS and ATTRIBUTES of LGUs



residence at least 24 hours before the session  Unless otherwise concurred in by 2/3 vote of the Sangguniang members present, there being a quorum, no other matters may be considered except those stated in the notice  Open to the public  UNLESS a closed-door session is ordered by an affirmative vote of a majority of the members present (there being a quorum)  In the public interest or for reasons of secrecy, decency or morality No 2 sessions may be held in a single day Journal and record of its proceedings which may be published upon resolution of the Sanggunian concerned

How many votes required  General Rule: Majority of the members constituting a quorum  When the enactment itself specifies the number of votes required, such requirement will govern over the general rule specified in the charter or the LGC, when such enactment is to be amended. Why? Because the municipal authorities are in a better position to determine the votes required. [Casino vs CA (1991)] 

Approval, Veto and Review of Ordinances  Every ordinance shall be presented to the governor or mayor, as the case may be  Approves: affix his signature on each and every page  Disapproves: veto it and return the same with his objections to the Sanggunian o Override: 2/3 vote of all its members making the ordinance effective even without the approval of the local chief executive concerned o Veto communicated to the Sanggunian within 15 days in the case of a province, and 10 days in the case of a city or a municipality; otherwise, the ordinance shall be deemed approved  Veto (Sec.55): local chief executive may veto any ordinance on the ground that it is ultravires or prejudicial to the public welfare, stating his reasons for writing



Veto an ordinance or resolution only once  Local chief executive (except the punong barangay) power to veto any particular item or items o An appropriations ordinance o Ordinance or resolution adopting a local development plan and public investment program o Ordinance directing the payment of money or creating liability o (where the veto shall not affect the item or items which are not subjected to)  Review of (component) City or Municipal Ordinances o Within 3 days after approval, the secretary shall forward to the Sangguniang Panlalawigan for review, copies of approved ordinances and the resolutions approving the local development plans and public investment programs formulated by the local development councils o Within 30 days after the receipt of copies, the Sangguniang Panlalawigan shall examine the documents or transmit them to the provincial attorney, or if there be none, to the provincial prosecutor for examination. Provincial attorney or prosecutor shall: within 10 days from receipt, inform the Sanggunian in writing of his comments or recommendations  Finding: beyond the power conferred, it shall declare such ordinance or resolution invalid in whole or in part--action entered in the minutes and shall advise the corresponding city or municipal authorities of the action—(sec 58). Any attempt to enforce any ordinance or any resolution approving the local development plan and public investment program, after the disapproval, shall be sufficient ground for the suspension or dismissal of the official or employee o No action within 30 days after submission: presumed consistent with the law and valid Ordinance enacted by the Sangguniang barangay shall upon approval by the

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

Chapter III. GENERAL POWERS and ATTRIBUTES of LGUs

majority of all its members, be signed by the punong barangay Review by Sangguniang Panglungsod or Bayan o Within 10 days after its enactment, the sangguniang barangay shall furnish copies to o The sangguniang panglungsod or sangguniang bayan concerned for review as to whether the ordinance is consistent with law and city or municipal ordinances

No action for 30 days from receipt: ordinance shall be deemed approved o Finding: inconsistent with law or city or municipal ordinances—the sanggunian shall, within 30 days from receipt, return the same with its comments and recommendations to the sangguniang barangay for adjustment, amendment, or modification Effectivity: suspended until such time as the revision called for is effected o



Summary of Review of Ordinances

Reviewed by Furnish copies of ordinances or resolution within

3 days after approval of ordinance or resolution approving the local development plans and public investment programs formulated by the local development councils

Period to documents

30 days after receipt of copies, after which the ordinance or resolution is presumed valid if no action is taken. Within 30 days, it may also be transmitted to the provincial attorney or prosecutor for examination; said atty. or prosecutor shall give his written recommendations within 10 days from receipt of document Ordinance or resolution is beyond the power conferred upon the Sanggunian concerned

examine

Ground to invalidate ordinance or resolution

Barangay Ordinances Sangguniang panglungsod or sangguniang bayan 10 days after enactment of ALL ordinances

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Component City or Municipality Ordinances and Resolutions Sangguniang panlalawigan

30 days after receipt of copies, after which ordinance is presumed valid if no action is taken

Ordinance is inconsistent with law and city or municipal ordinances In such case, the sangguniang barangay may adjust, amend or modify the ordinance within 30 days from receipt from the sangguniang panglungsod or sangguninang bayan

 



Effectivity of Ordinances or Resolutions Sec 59 General rule: the same shall take effect after 10 days from the date a copy is posted  Exception: unless otherwise stated in the ordinance or the resolution approving the local development and public investment program  Ordinances with penal sanctions: gist shall be published in a newspaper of general circulation within the province where the local legislative body concerned belongs  Absence of any newspaper: posting shall be made in all municipalities and cities of the province where the sanggunian of origin is situated.  Highly urbanized and independent component cities: the main features of the ordinance or resolution in addition to being posted, shall be published in a local newspaper of general circulation within the city  Absence of local newspaper: any newspaper of general circulation

Chapter III. GENERAL POWERS and ATTRIBUTES of LGUs

Cases The LGC does not mandate that no other business may be transacted on the first regular session except to take up the matter of adopting or updating rules. All that the law requires is that “on the 1” regular session…the sanggunian concerned shall adopt or update its existing rules or procedures”. Until the completion of the adopted or updated rules, the rules of the previous year may be used. [Malonzo v Zamora (1999)]  

Full disclosure of Financial and Business Interests of Sanggunian Members

* Conflict of interest Sec 50  Upon assumption of office, make a full disclosure of:  His business and financial interests  Professional relationship or any relation by affinity or consanguinity within the fourth civil degree  Which he may have with any person, firm, or entity affected by any ordinance or resolution which relationship may result in conflict of interest including:  Ownership of stock or capital, or investment, in the entity or firm to which the ordinance or resolution may apply  Contracts or agreements with any person or entity which the ordinance or resolution under consideration may affect conflict of interest. TEST: One where it may be reasonably deduced that a member of a sanggunian may not act in the public interest due to some private, pecuniary, or other personal considerations that may tend to affect his judgment to the prejudice of the service or the public



Disclosure shall be made in writing and submitted to the secretary of the sanggunian Form part of the record of the proceedings and shall be made in the following manner:  Made before the member participates in the deliberations on the ordinance or resolution under consideration o If the member did not participate during the deliberations, the disclosure shall be made before voting on the ordinance or resolution on second and third readings o Made when a member takes a position or makes a privilege speech on a matter that may affect the business interest, financial connections, or professional relationship Updated rules, the rules of the previous year may be used. 

The signature of the mayor is not a mere ministerial act, but involves the exercise of discretion on the part of the local chief executive. [Delos Reyes v Sandiganbayan (1997)]

Incidents of Law-Making (Legislative) Power: 

Posting and Publication of:  Tax ordinances and Revenue measures Sec188  Within 10 days after approval  Certified true copies of all provincial, city, or municipal tax ordinances or revenue measures  Published in full for 3 consecutive days  In a newspaper of local circulation  Where no such newspaper: posted in at least 2 conspicuous and publicly accessible places  Ordinance with penal sanctions Sec 511  At prominent places in the provincial capitol, city, municipal or barangay hall

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     





Minimum period: 3 consecutive weeks Publication In a newspaper of a general circulation Within territorial jurisdiction Except: barangay ordinances Effectivity: unless otherwise provided on the day following its publication or at the end of period of posting, whichever is later Violation by public officer or employee o May be meted administrative disciplinary action o Without prejudice to filing of appropriate civil or criminal action Duty of Secretary of Sanggunian: o Shall transmit official copies to the chief executive of Official Gazette o Within 7 days following approval of ordinance o Purpose for publication o If with penal sanction: for archival and reference purposes

Judicial Intervention Rules of Court, Rule 63, Sec.4 

Actions involving the validity of a local government ordinance:  Prosecutor or attorney of the LGU involved shall be notified and entitled to be heard;  Alleged to be unconstitutional: Solicitor General shall also be notified and entitled to be heard.

The failure of the SolGen to appear in the lower court to defend the constitutionality of an ordinance is not fatal to the case. The determination of the question of WON the SolGen should be required to appear “in any action involving the validity of any treaty, law, executive order, rule or regulation” is a matter left to the discretion of the Court. Inasmuch as the said requirement is not mandatory, but discretionary, noncompliance therewith affected neither the jurisdiction of the trial court nor the validity of the proceedings. [Homeowner’s Association of the Phil. Inc. v Municipal Board of Manila (1968)]

Chapter III. GENERAL POWERS and ATTRIBUTES of LGUs

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

Local

Initiative

and

DEFINITION REQUIREMENTS PROCEDURE EFFECTIVITY OF LOCAL PROPOSITIONS LIMITATIONS ON INITIATIVES LIMITATIONS UPON LOCAL LEGISLATIVE BODIES

A. Definition NOTE: Garcia v COMELEC (1994): Both a resolution and an ordinance may be the proper subjects of an initiative or a referendum (Based on LGC Sec. 120-127 and RA 6735: AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND REFERENDUM) 

Initiative: legal process whereby the registered voters of a LGU may directly propose, enact, or amend any ordinance



Referendum: legal process whereby the registered voters of the LGUs may approve, amend or reject any ordinance enacted by the sanggunian.



Who may exercise — all registered voters of the provinces, cities, municipalities and barangays

B. Requirements a. Referendum or initiative affecting a resolution or ordinance passed by the legislative assembly of a province or city: o petition must be signed by at least 10% of the registered voters in the province or city, o of which every legislative district must be represented by at least 3% of the registered voters therein; o Provided, however, that if the province or city is composed only of 1 legislative district, then at least each municipality in a province or each barangay in a city should be represented by at least 3% of the registered voters therein. b. Referendum or initiative on an ordinance passed in a municipality: petition must be signed by at least 10% of the registered voters in the municipality, of which every barangay is represented by at least 3% of the registered voters therein

c.

Referendum or initiative on a barangay resolution or ordinance: must be signed by at least 10% of the registered voters in said barangay

C. Procedure a. Not less than 1,000 registered voters in case of provinces and cities, 100 in case of municipalities, and 50 in case of barangays, may file a petition with the local legislative body, respectively, proposing the adoption, enactment, repeal, or amendment, of any law, ordinance or resolution b. If no favorable action thereon is made by local legislative body within 30 days from its presentation, the proponents through their duly authorized and registered representative may invoke their power of initiative, giving notice thereof to the local legislative body concerned c. 2 or more propositions may be submitted in an initiative d. Proponents shall have 90 days in case of provinces and cities, 60 days in case of municipalities, and 30 days in case of barangays, from notice mentioned in subsection (b) hereof to collect the required number of signatures e. The petition shall be signed before the Election Registrar, or his designated representative, in the presence of a representative of the proponent, and a representative of the regional assemblies and local legislative bodies concerned in a public place in the LGU f. If the required number of signatures are obtained, the COMELEC shall then set a date for the initiative for approval of the proposition within 60 days from the date of certification by the COMELEC in case of provinces and cities, 45 days in case of municipalities, and 30 days in case of barangays

D. Effectivity of Local Propositions If the proposition is approved by a majority of the votes cast, it shall take effect 15 days after certification by the COMELEC

E. Limitations on Initiatives a. The power of local initiative shall not be exercised more than once a year.

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Chapter IV. Referendum

Chapter IV. LOCAL INITIATIVE and REFERENDUM

b. Initiative shall extend only to subjects or matters which are within the legal powers of the local legislative bodies to enact. c. If at any time before the initiative is held, the local legislative body shall adopt in toto the proposition presented, the initiative shall be cancelled. However, those against such action may, if they so desire, apply for initiative in the manner herein provided.

F. Limitations Upon Local Legislative Bodies Any proposition or ordinance or resolution approved through the system of initiative and referendum as herein provided shall: a. not be repealed, modified or amended, by the local legislative body concerned within 6 months from the date therefrom, and b. may be amended, modified or repealed by the local legislative body within 3 years by a vote of 3/4 of all its members: c. Provided, however, that in case of barangays, the period shall be 18 months after the approval. 

Local Referendum — Any local legislative body may submit to the registered voters of autonomous region, provinces, cities, municipalities and barangays for the approval or rejection, any ordinance or resolution duly enacted or approved.



Courts are not precluded from declaring null and void any proposition approved for violation of the Constitution or want of capacity of the local legislative body to enact the said measure.

Chapter IV. LOCAL INITIATIVE and REFERENDUM

Cases  A resolution may be the subject of an initiative or referendum. [Garcia vs COMELEC (1994)]  Initiative: power of the people to propose bills and laws, and to enact or reject them at the polls independent of the legislative assembly.  Referendum is the right reserved to the people to adopt or reject any act or measure which has been passed by a legislative body and which in most cases would without action on the part of electors become law.  These law-making powers belong to the people and the COMELEC only exercises administration and supervision of the process. Hence, COMELEC cannot control or change the substance or the content of the legislation.  COMELEC should have prepared for an initiative, not a referendum. [SBMA v. COMELEC (1996)]

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Chapter V. MUNICIPAL LIABILITY

Chapter V. Municipal Liability (asked in 1994) A. B. C.

SPECIFIC PROVISIONS MAKING LGUS LIABLE LIABILITY FOR TORTS, VIOLATION OF THE LAW AND CONTRACTS PERSONAL LIABILITY OF PUBLIC OFFICIAL

A. Specific Provisions making LGUs Liable LGC, Sec. 24 LGUs and their officials are not exempt from liability for death or injury to persons or damage to property. Civil Code, Art. 34 When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. Civil Code, Art. 2180, par. 6 The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible. X X X The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable. Civil Code, Art. 2189 Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision.

B. Liability for Torts, Violation of the Law and Contracts WHEN LGU IS LIABLE CASE (1) If the LGU fails to perform a governmental function (e.g., maintenance of roads under CC Art. 2189, rendering aid and protection under CC Art. 34) (2) If engaged in proprietary functions,

DEFENSE Exercise of due diligence in the selection and supervision is not a defense.

Defense of due diligence in the selection and supervision available only

if the function involved is a corporate function. RATIO: because this defense is available only to private employers. WHEN LGU IS NOT LIABLE If damage resulted from an act of LGU in the performance of governmental functions

Illustrations 1. On Contract RULE: The LGU is liable only for contracts that are intra vires.  The Doctrine of Implied Municipal Liability provides that an LGU may become obligated upon an implied contract to pay reasonable value of the benefits accepted by it as to which it has the general power to contract [Cebu vs IAC (147 S 447)]  BUT the LGU may not be estopped in order to validate a contract which the LGU is not authorized to make EVEN IF it has accepted the benefits thereunder [San Diego vs Mun. Of Naujan (107 P 112)]  A private individual who deals with a LGU is imputed with constructive knowledge of the extent of the power or authority of the LGU to enter into contracts. Thus, ordinarily, the doctrine of estoppel does not lie against the LGU. 2. On Tort  If in the performance of a governmental function, the LGU is NOT liable o The prosecution of crimes, even if injury occurs [Palafox vs Ilocos Norte (1958)]  If in the performance of a proprietary function, the LGU is liable o The improper grant of a ferry service franchise [Mendoza vs de Leon (1916)] o NOTE: Municipal corporations’ liability to private persons for the wrongful exercise of the corporate powers is the same as that of a private corporation or individual [Mendoza vs de Leon (1916)] o Deaths caused by a collapsed stage in a town fiesta [Torio vs Fontanilla (1978)] o Back pay or wages of employees illegally dismissed, including those involving primary governmental functions (eg policemen) [Guillergan v Ganzon (1966)] 3. By Express Provision of Law  Article 2189, CC o When a person falls in an open manhole in the city streets [Manila vs Teotico (198)]

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When a person steps on a rusted nail in a flooded public market [Jimenez vs Manila (150 S 510)] o When accidents are caused by defective roads even if the road does not belong to the LGU as long as it exercises control or supervision over said road [Guilatco vs Dagupan (171 S 382)] o Damages suffered through accidents in national roads under the control and supervision of an LGU (cause is unsafe road conditions, especially when there is gross negligence [Municipality of San Juan v. CA (2005)] o Also exemplary damages may be granted when public officials acted with gross negligence [Quezon City v Dacana (2005)] Article 2180, CC o When the State acts through a special agent [Merritt vs Government (34 P 311)]

Chapter V. MUNICIPAL LIABILITY

o



4. On Violation of Law  When the Mayor refused to abide by a TRO issued by the court, he may be held in contempt [Moday v CA (1997)]  When the LGU does not pay the statutory minimum wage (mandated by law) even if there is lack of funds [Racho vs Ilagan, Isabela (198)]

C. Personal Liability of Public Official RULE: The public official is personally liable if he acts beyond the scope of his powers OR if he acts with bad faith Illustrations  Mayor exceeding authority in vetoing a resolution passed by the Sanggunian [Pilar v Sangguniang Bayan ng Dasol (1984)] o [Note that under CC27, a public servant is personally liable for damages for his refusal or neglect to perform his official duty] 

When the officials incorrectly ordered the construction of a drug rehabilitation center [Angeles vs CA (21 S 90)]



When officials illegally dismiss an employee [Rama vs CA (148 S 49)]



When the official defies an order of reinstatement of an illegally dismissed employee [Correa vs CFI (92 S 312)]

o

o

The Mayor pays for the back salaries of an illegally dismissed employee [Nemenzo vs Sabillano (25 S 1)] The Governor pays for moral damages for refusing the reinstatement of an employee [San Luis vs CA (1989]



A public officer, whether judicial, quasijudicial or executive, is not personally liable to one injured in consequence of an act performed within the scope of his official authority, and in line of his official duty. [Tuzon v. CA (1992)]



The holding of a town fiesta is a proprietary function, though not for profit, for which a municipality is liable for damages to 3rd persons ex contractu or ex delicto.; o that under the principle of respondeat superior the principal is liable for the negligence of its agents acting within the scope of their assigned tasks; and o that the municipal councilors have a personality distinct and separate from the municipality, [ Torio v. Fontanilla (1978)]

Hence, as a rule they are not co-responsible in an action for damages for tort or negligence unless they acted in bad faith or have directly participated in the commission of the wrongful act.

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I. II. III. IV.

EXECUTIVE SUPERVISION CONSULTATIONS RELATIONS WITH PNP OTHER RELATIONS

I.

Executive Supervision

A. 1987 Constitution, Art. X, Sec. 2 and 4 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 within the scope of their prescribed powers and functions.

GENERAL RULE: The President has control of all executive departments, bureaus and offices. 

Doctrine of Qualified Political Agency. All executive and administrative departments are adjuncts of the Executive. The acts of the secretaries of departments, performed and promulgated in the regular course of business are presumptively acts of the Chief Executive.

EXCEPTION: Local Government Units  The President has no power of control over local governments, unlike in executive offices, departments and bureaus. [Torre vs Bayot (1974)] Illustrations  The constitutional provision limiting the authority of the President over LGUs to general Supervision is unqualified. Hence, it applies to all powers of LGUs, corporate and political alike [Hebron vs Reyes (1958)] 

The Sec. of Justice cannot entertain any protest involving the election of the Federation of Barangays. Otherwise, he will have control over LG officials. Worse, ordering a new election is contrary to supervision [Taule vs Santos (1997)]



The Pres.’ power of general supervision extends to the Liga ng mga Barangay. Hence, the DILG Sec, as an alter ego of the Pres., may not amend the guidelines promulgated by the National Liga Board [Bito-Onon vs Fernandez (2001)]



The DILG Sec may not be appointed as interim caretaker to manage and administer the affairs of the Liga. Such is tantamount to control [National Liga ng mga Barangay vs Paredes (2004)]

B. Administrative Code of 1987, Title XII Chapter I (as amended by RA 6975) The Department of the Interior and Local Government  DILG has primary role of preserving internal security (including suppression of insurgency)  AFP has primary role in preserving external security  Supportive role of PNP  Upon call of President  upon recommendation of peace and order council  In areas where there are serious threats to national security and public order  insurgents have gained considerable foothold in the community thereby necessitating the employment of bigger tactical forces and the utilization of higher caliber armaments and better armored vehicles  National Supervision over LGU  Supervision is exercised: 1. To ensure that acts of local governments and their component units are within the scope of their prescribed powers and functions. (Sec. 4, Art. X, Constitution; Sec. 25(a) LGC) 2. To ensure that laws are faithfully executed in autonomous regions. (Sec. 16, Art. X, Constitution) General Supervision  President of the Philippines shall exercise general supervision over:  Local governments (Sec.4, Art. X, Constitution; Sec. 25(a) LGC)  Autonomous regions (Sec.16, Art. X, Constitution) o Direct supervision over  Provinces  Highly urbanized cities  Independent component cities o Through the province, with respect to

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Chapter VI. Intergovernmental Relations – National Government and LGUs

Chapter VI. INTERGOVERNMENTAL RELATIONS

POLITICAL LAW REVIEWER

National Agencies  National Agencies (Sec. 25 (b),(c),(d) LGC)  With project implementation functions: ensure participation of LGUs in planning and implementation of national projects;  With field units or branches in an LGU: furnish the local chief executive of the LGU concerned with monthly reports including duly certified budgetary allocations and expenditures;  Upon request of LGU, the President may direct the appropriate national agency to provide financial, technical or other forms of assistance at no extra cost to the LGU concerned. The petitioners are under the impression that the 1987 Constitution has left the President mere supervisory powers, which supposedly excludes disciplinary authority and the power of investigation. It is a mistaken impression because supervision is not incompatible with disciplinary authority, and “investigating” is not inconsistent with “overseeing” in supervision, although it is a lesser power than “altering” in control. The Constitution did not, for the sake of local autonomy, intend to deprive the legislature or the President of all authority over municipal corporations, in particular, concerning discipline. [Ganzon v. CA (supra)] Sec. 187 of the LGC authorizes the Secretary of Justice to review only the Constitutionality or legality of the tax ordinance and, if warranted, to revoke it on either or both of these grounds. He is not permitted to substitute his own judgment for the judgment of the local government that enacted the measure. An officer in control may order the act undone, or redone, or may even decide to do it himself. Thus, the act of the DOJ Secretary in declaring the Manila Revenue Code null and void for noncompliance with the requirements of the law was not an act of control but of mere supervision. [Drilon v. Lim (1994)]

II. Consultations LGC Sec. 2(c), 26, 27

A. Declaration of Policy 

Policy of the State: require all national agencies and offices to conduct periodic consultations (before implementation of any project or program) with  appropriate local government units  nongovernmental and people's organizations  other concerned sectors of the community

B. Maintenance of Ecological Balance Sec. 26, LGC 



Duty of national agency or governmentowned or controlled corporation  Involved in planning and implementation of any project  That may cause pollution, climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant species Consultation with LGUs, nongovernmental organizations, and other sectors concerned

C. Prior Consultation Sec. 27, LGC No project or program shall be implemented: 1. Without prior consultation  with LGUs, non-governmental and people's organizations, and other concerned sectors of the community, conducted by all national agencies and offices (Sec. 2(c) LGC)  with LGUs, nongovernmental organizations, and other sectors concerned (Sec. 26 LGC) o conducted by the national agency or government-owned or -controlled corporation o authorized or involved in the planning and implementation of any project or program that may cause - pollution - climatic change - depletion of non-renewable resources - loss of crop land, rangeland, or forest cover - extinction of animal or plant

288 LOCAL GOVERNMENT LAW

o

 Component cities  Municipalities Through the city and municipality, with respect to barangays

Chapter VI. INTERGOVERNMENTAL RELATIONS

POLITICAL LAW REVIEWER

o o

o

Chapter VI. INTERGOVERNMENTAL RELATIONS

species Explain the goals and objectives Explain its impact upon the people and the community in terms of environmental or ecological balance Measures that will be undertaken to prevent or minimize the adverse effects

2. Without prior approval concerned





of sanggunian

No project or program shall be implemented by government authorities unless: 1. the consultations mentioned above are complied with; and 2. sanggunian concerned gave prior approval LGC, Sec. 27 Occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the Const.

3. Without provision for appropriate relocation sites for occupants who will be evicted

The provisions on consultation apply only to national programs and/or projects which are to be implemented in a particular local community. Moreover, Sec. 27 of the LGC should be read in conjunction with Sec. 26 thus, the projects and programs mentioned in Sec. 27 should be interpreted to mean projects and programs that may: o cause pollution o bring about climactic change o cause the depletion of non-renewable resources o result in the loss of crop land, range-land or forest cover o eradicate certain animal or plant species from the face of the planet; and o call for the eviction of a particular group of people residing in the locality where the said project/program will be implemented [Lina v. Paňo (2001)] NOTES:  It shall be the duty of every national agency or GOCC authorized or involved in the planning and implementation of any project or program that may cause pollution, climactic change, depletion of nonrenewable resources, loss of crop land, rangeland or forest cover, extinction of animal of plant species: 1. To consult with the LGUs, NGOs and other sectors concerned; and 2. To explain: (a) the goals and objectives of the project or program (b) its impact upon the people and the community in terms of environmental or ecological balance; (c) the measures that will be undertaken to prevent or minimize the adverse effects thereof LGC, Sec. 26

III. Relations with Philippine National Police LGC, Sec. 28 

Powers of Local Chief Executives over the Units of the PNP  Extent of operational supervision and control of local chief executives shall be governed by RA6975 (DILG Act-‘ of 1991) and other rules and regulations  over the following: o police force o fire protection unit o jail management personnel assigned in their respective jurisdictions

Participation of Local Government Executives in the Administration of the PNP RA 8551, Sec. 62-65 

Operational supervision and control: power to direct, superintend, and oversee the dayto-day functions of police investigation of crime, crime prevention activities, and traffic control  includes the power to direct the employment and deployment of units or elements of the PNP, through the station commander, to ensure public safety and effective maintenance of peace and order within the locality



City and municipal mayors shall have the following authority over the PNP units in their respective jurisdictions: 1) Authority to choose the chief of police from a list of 5 eligibles recommended by the provincial police director, preferably from the same province, city or municipality 2) Authority to recommend to the provincial director the transfer, reassignment or detail of PNP members outside of their respective city or town residences 3) Authority to recommend from a list of eligibles previously screened by the

289 LOCAL GOVERNMENT LAW

MEMORANDUM CIRCULAR NO. 521993  All officers and employees of National Government agencies and offices, including GOCCs, to strictly comply with the provisions of the LGC (and its IRR) on consultation

peace and order council the appointment of new members of the PNP to be assigned to their respective cities or municipalities without which no such appointments shall be attested Control and supervision of anti-gambling operations shall be within the jurisdiction of local government executives



Governors and mayors, upon having been elected and qualified as such, are automatically deputized as representatives of the National Police Commission in their respective jurisdiction  As deputized agents of the Commission, local government executives can inspect police forces and units, conduct audit, and exercise other functions as may be duly authorized by the Commission



 Grounds for suspension or withdrawal of deputation: 1. frequent unauthorized absences 2. abuse of authority 3. providing material support to criminal elements 4. engaging in acts inimical to national security or which negate the effectiveness of the peace and order campaign

Cases  Local executives are only acting as representatives of NAPOLCOM. Unless countermanded by NAPOLCOM, their acts are valid. [Carpio vs Exec Sec (1992)] 

 





Chapter VI. INTERGOVERNMENTAL RELATIONS

The authority of the mayor to choose the chief of police is very limited. In reality, he has no power of appointment; he has only the limited power of selecting one from among the list of recommendees. In effect, the power to appoint the chief of police is vested in the Regional Director. [Andaya v. RTC (1999)]

IV. Other Relations A. Inter-local Relations Sec 23-33  The province, through the governor, shall ensure that every component city and municipality within its territorial jurisdiction acts within the scope of its prescribed powers and functions. Highly urbanized

cities and independent cities shall be independent of the province. The city or municipality, through the city or municipal mayor, shall exercise general supervision over component barangays Review of Executive Orders: o Governor—for E.O.s of component cities and municipal mayors o City or Municipal Mayor—for E.O.s of punong barangays. o Task of reviewing executive: ensure that the E.O.s are within the powers granted by law and in conformity with provincial, city or municipal ordinances The LGU may secure the opinion of the ff (in proper order): 1. municipal legal officer, 2. provincial legal officer, 3. provincial prosecutor LGUs may consolidate their efforts, services and resources for their common benefit 1. Requisite: proper ordinance, through a public hearing for the said purpose

B. Relations

with organizations

Non-Governmental

Sec 34-36  LGUs shall promote the establishment of people’s and nongovernmental organizations  They may form joint ventures to engage in the delivery of certain basic services, capacity building and livelihood projects, etc.  The LGU may provide assistance (financial or otherwise) for economic, sociallyoriented, environmental or cultural projects o Requisites: Action by local chief executive and concurrence of the sanggunian; The project is to be implemented within the territorial jurisdiction of the LGU

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POLITICAL LAW REVIEWER

Chapter VII. LOCAL OFFICIALS

Chapter VII. Local Officials I.

ELECTIVE LOCAL OFFICIALS A. QUALIFICATIONS B. DISQUALIFICATIONS C. MANNER OF ELECTION D. TERM OF OFFICE E. RULES ON SUCCESSION F. RECALL G. DISCIPLINE 1. ADMINISTRATIVE ACTION 2. PENALTIES i) SUSPENSION ii) REMOVAL 3. POWER OF TRIBUNALS 4. ADMINISTRATIVE APPEALS 5. EFFECT OF RE-ELECTION II. APPOINTIVE LOCAL OFFICIALS A. APPOINTMENTS B. DISCIPLINE C. REMOVAL D. OFFICIALS COMMON TO ALL MUNICIPALITIES, CITIES AND PROVINCES III. PROVISIONS APPLICABLE TO ELECTIVE AND APPOINTIVE OFFICIALS A. PROHIBITED INTERESTS B. PRACTICE OF PROFESSION C. PROHIBITION AGAINST APPOINTMENT IV. LOCAL BOARDS AND COUNCILS A. LOCAL SCHOOL BOARD B. LOCAL HEALTH BOARD C. LOCAL DEVELOPMENT COUNCIL D. LOCAL PEACE AND ORDER COUNCIL

I.

of Highly Urbanized Cities - Mayor or - Vice-mayor of independent component cities, component cities, or municipalities - Member of the Sangguniang Panlungsod or Sangguniang Bayan - Punong barangay or member of the Sangguniang Barangay - Sangguniang Kabataan





A. Qualifications

1. 2. 3.

4. 5.

Candidate for - Governor - Vice-governor - Member of the Sangguniang Panlalawigan - Mayor - Vice-mayor - Member of the Sangguniang Panlungsod

Minimum Age at Election Day

23

18

18 at least 15 years of age but not more than 18 years of age on election day (as amended under RA 9164)

The COMELEC may not deny due course or cancel a certificate without proper proceedings. To receive and acknowledge receipt of the certificates of candidacy is a ministerial duty of the COMELEC. The COMELEC does not have discretion to give or not to give due course to the certificate. It may not look into matters not appearing on their face. [Cipriano v. COMELEC (2004)]

Citizenship (Asked in 1992)

Elective Local Officials

LGC Sec. 39 (Asked in 1992, 2003, 2005) (ACRRA) Citizen of the Philippines Registered voter in the place where s/he seeks to be elected Residency, in place where s/he seeks to be elected, for at least 1 year immediately preceding the day of the election Able to read and write Filipino or any other local language or dialect Age requirement:

21





The LGC does not specify any particular date or time when the candidate must possess citizenship, unlike the requirements for residence and age. An official begins to discharge his functions only upon his proclamation and on the day the law mandates his term of office to begin. Since Frivaldo reassumed his citizenship on the very day the term of office began, he was therefore already qualified to be proclaimed, to hold office and to discharge the functions and responsibilities thereof. Nevertheless, qualifications for public office are continuing requirements which must be possessed at the time of appointment and during the entire tenure. [Frivaldo v. COMELEC (1996)] A mere application for repatriation does not amount to automatic reacquisition of Phil. Citizenship. Official action by the proper authorities is required. [Labo vs Comelec (1992)]

Residency 

The residence requirement is rooted in the desire that officials of districts or localities be acquainted with the needs, difficulties, and other matters vital to the common welfare of

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POLITICAL LAW REVIEWER



The term “residence” is to be understood as referring to “domicile” or legal residence, i.e., “the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi).”  Unlike citizenship, which may be complied with even on the day the candidate assumes office, residency requires that the candidate must have been a resident of the municipality “for at least 1 year immediately preceding the day of the election.” [Coquilla v. COMELEC (2002)]

Age  The SK official must not have turned 21 before his election. The petitioner, being 21 years and 11 mos. old when she assumed office, was over the age limit. [Garvida vs Sales (1997)]

B. Disqualifications (Asked in 1986, 1993, 1994, 1999, 2001)

LGC, Sec. 40 

The following persons are disqualified from running for any elective local position: FR-ACIDS 1. Sentenced by final judgment for  an offense involving moral turpitude or for an offense punishable by 1 year or more of imprisonment, within 2 years after serving sentence 2. Removed from office as a result of an Administrative case 3. Convicted by final judgment for violating the oath of allegiance to the Republic 4. With Dual citizenship 5. Fugitives from justice in criminal or nonpolitical cases here or abroad 6. Permanent Residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this LGC

7. Insane or feeble-minded Second-Placer Rule (asked in 2003) 





The ineligibility of a candidate receiving the majority of votes does not entitle the eligible candidate receiving the next highest number of votes to be declared winner. The rule would be different if the electorate, fully aware of a candidate’s disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast the votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously applying their franchises or throwing away their votes in which case, the eligible candidate obtaining the next highest number of votes may be deemed elected. [Labo v. COMELEC (1992)]

RA 8295: An Act Providing for the Proclamation of a Lone Candidate for any Elective Office in a Special Election, and for other purposes Sec. 4. Disqualification  In addition to the disqualifications in Sec. 12 and 68 of the Omnibus Election Code and LGC Sec. 40  whenever the evidence of guilt is strong, the following persons are disqualified to run in a special election  Any elective official who has resigned from his office by accepting an appointive office or for whatever reason which he previously occupied but has caused to become vacant due to his resignation  Any person who, directly or indirectly, coerces, bribes, threatens, harasses, intimidates or actually causes, inflicts or produces any violence, injury, punishment, torture, damage, loss or disadvantage to any person or persons aspiring to become a candidate or that of the immediate member of his family, his honor or property that is meant to eliminate all other potential candidate [also constitutes an election offense under Sec.5 RA8295 and punishable under Sec. 264 of the Omnibus Election Code]

292 LOCAL GOVERNMENT LAW

the constituents. The actual, physical and personal presence is substantial enough to show his intention to fulfill the duties of mayor and for the voters to evaluate his qualifications for the mayorship. A very legalistic, academic and technical approach to the residence requirement does not satisfy the rationale for the said requirement. [Torayno v. COMELEC (2000)]

Chapter VII. LOCAL OFFICIALS

POLITICAL LAW REVIEWER

Retention

and

Re-

Sec 5. Civil and Political Rights and Liabilities: (1) Those seeking elective public office in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer and oath. (2) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to assumption of office. Provided, that they renounce their oath of allegiance to the country where they took that oath; (3) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who are:  candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or  in active service as commissioned officers in the armed forces of the country which they are naturalized citizens. Grounds for Disqualification Sec. 40, LGC 

Moral Turpitude:  Fencing (Dela Torre v. COMELEC [1996])  Direct bribery (Magno v. COMELEC [2002])



Dual Citizenship:  Not an automatic disqualification; filing of certificate of candidacy is sufficient to renounce foreign citizenship (declaration under oath of maintenance of true faith and allegiance to the Constitution of the Philippines) [Valles v. COMELEC (2000)] 

Dual citizenship is not equivalent to dual allegiance (a person simultaneously owes, by some positive act, loyalty to 2 or more states). What is prohibited is the latter. [Mercado v. Manzano (1999)] Dual citizenship is the result of the concurrent application of different laws of two or more states, wherein a person

is simultaneously considered a national by the said states. 

Fugitive from justice:  Intent to evade must be the compelling factor which animates one’s flight from a particular jurisdiction. There is intent if there is knowledge by the fleeing subject of an already instituted indictment or of a promulgated judgment of conviction. [Rodriguez v. COMELEC (1996)]



“Green Card” holder: (asked in 1993, 1994)  As provided in Caasi v. Court of Appeals, a Filipino citizen’s acquisition of a permanent resident status abroad constitutes an abandonment of his domicile and residence in the Philippines. Ugdoracion’s acquisition of a lawful permanent resident status in the United States amounted to an abandonment and renunciation of his status as a resident of the Philippines; it constituted a change from his domicile of origin, which was Albuquerque, Bohol, to a new domicile of choice, which is the USA. [Ugdoracion v. COMELEC (2008)]



Other grounds:  Vote-buying (upon determination in a summary administrative proceeding) [Nolasco v. COMELEC (1997)]  Removal by administrative proceedings: (perpetual disqualification) [Lingating v. COMELEC (2002)])  Removal of a candidate prior to LGC cannot be used as a ground for disqualification [Grego v. COMELEC (1997)]  Should be a final determination [Lingating v. COMELEC (2002)]  Subsequent re-election cannot be deemed a condonation if there was already a final determination of his guilt before the re-election [Reyes v. COMELEC (1996)]  When re-election considered a condonation: if the proceedings are abated due to elections. In this case, there is no final determination of misconduct [Malinao v. Reyes (1996)]  Effect of probation:  Probation has no effect to applicability of Sec. 40(a) as it only suspends the execution of the sentence [dela Torre v COMELEC (1996)]

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RA 9225: Citizenship acquisition Act of 2003

Chapter VII. LOCAL OFFICIALS

POLITICAL LAW REVIEWER

Chapter VII. LOCAL OFFICIALS

C. Manner of Election

Regular Members of Sangguniang Panlalawigan, Sangguniang Panlungsod and Sangguniang Bayan

(Asked in 1995, 2001, 2005, 2006, 2008) Elected at large by qualified voters in respective units



Elected by registered voters of the Katipunan ng Kabataan Elected by district:

All elective local officials, except barangay officials (Sec. 8, Art. X, Constitution; Sec. 43 LGC)  Term of office: 3 years from noon of June 30, 1992 or the date provided by law



All local officials first elected during the local elections immediately following the ratification of the 1987 Constitution shall serve until noon of June 30, 1992;  No official shall serve for more than 3 consecutive terms for the same position;  Voluntary renunciation of the office for any length of time is not an interruption in the continuity of his service for the full term for which he was elected



Barangay officials and members of the Sangguniang Kabataan (Sec. 43 LGC)  Term of office: 3 years  After the regular election of barangay officials on the second Monday of May 1994



Existing sub-provinces converted into regular provinces (Sec. 462 LGC)  New legislative districts continue to be represented in Congress by the dulyelected representatives of the original districts out of which the new provinces or districts were created until their own representatives are elected in the next regular congressional elections and qualified

st

nd

 1 and 2 -class provinces= 10 regular members rd

 3 and 4th-class = 8  5th and 6th-class =6

Sangguniang Barangay Members 







Provided: If province has more than 5 districts, each district shall have 2 sangguniang panlalawigan members. Elected at large

Presidents of Leagues of Sanggunian Members of component cities & municipalities shall serve as ex officio members of the sangguniang panlalawigan concerned. Presidents of Liga ng mga Barangay and Pederasyon ng SK elected by their respective chapters shall serve as ex officio members of the sangguniang panlalawigan, panlungsod and bayan There shall be one (1) sectoral representative from the following sectors: o Women; o Workers; and o 1 from any of the following:  urban poor;  indigenous cultural communities;  disabled persons; or  any other sector determined by the sanggunian within 90 days prior to holding of next local election COMELEC shall promulgate rules for election of such sectoral representatives.



Vacancy in the offices occupied by incumbent elected officials or resulting from expiration of their terms of office in case of a negative vote in the plebiscite results:  by appointment of the President;  appointees shall hold office until their successors are elected in the regular local elections following the plebiscite



After conversion of the newly-created province, President shall appoint:  Governor  Vice-governor  Members of the sangguniang panlalawigan …who shall hold office until their successors are elected in the next regular local elections and qualified.

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Sec. 41, LGC Governor Vice-governor, Mayor Vice-mayor (city/municipal) Punong Barangay SK Chairman

D. Term of Office

POLITICAL LAW REVIEWER

reelection or election for another elective position. On the other hand, Section 66 has been retained; thus, the limitation on appointive officials remains - they are still considered ipso facto resigned from their offices upon the filing of their certificates of candidacy.

Qualified appointive officials and employees in the career service of the subprovinces at the time of their conversion into regular provinces shall continue in office in accordance with civil service law, rules and regulations.

RA 9164: Synchronized Barangay Sangguniang Kabataan Elections (2002)

and

 Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.

Sec. 2 Term of Office  Term of office of barangay and sangguniang kabataan officials: 3 years  No barangay elective official shall serve for more than 3 consecutive terms in the same position  Reckoned from the 1994 barangay elections  Voluntary renunciation of office for any length of time shall not be considered as an interruption RA 9006 Fair Election Act (2001) Sec. 14  An elective official running for any office other than the one which he is holding in a permanent capacity, is no longer considered ipso facto resigned from his office upon the filing of his certificate of candidacy. 



Note: Sec. 14 of RA 9006 expressly repealed Sec. 67 of BP 881 or the Omnibus Election Code which states that “any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.” Section 14 of RA 9006 did not repeal Section 66 of the Omnibus election Code, leaving intact Section 66 thereof which imposes a limitation to appointive officials and considers them ipso facto resigned from office upon filing of their certificate of candidacy

 Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities.  By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. 

Fariňas v. Executive Secretary (2003): 

By the repeal of Section 67, an elective official who runs for office other than the one which he is holding is no longer considered ipso facto resigned therefrom upon filing his certificate of candidacy. Elective officials continue in public office even as they campaign for

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.

What constitutes term of office? 

The Constitution contemplates service by local officials for three consecutive terms as

295 LOCAL GOVERNMENT LAW



Chapter VII. LOCAL OFFICIALS

POLITICAL LAW REVIEWER



Effect of judicial declaration that the official’s proclamation is void:  His assumption of office in 1995 cannot be deemed to have been by reason of a valid election. Also, he did not fully serve the 1995-98 mayoral term by reason of involuntary relinquishment of office as he was ordered to vacate his post before the expiration of the term. Although he served the greater portion of the said term, he should not be considered disqualified because he did not serve three full consecutive terms. [Lonzanida v. COMELEC (1999)] Effect of Recall Elections:  An official has served for three consecutive terms. He was elected in the recall election for the term of his predecessor. There was no violation of the 3-term rule.  The Constitution does not require that the interruption be a full term of 3 years. The clear intent of the framers of the law is that interruption for any length of time is sufficient to break an elective local official’s continuity of service. [Socrates v. COMELEC (2002)] Effect of Conversion of the LGU:  The mayor of a municipality held his post for three terms. During his last term, the municipality became a city and he was declared hold-over mayor by the charter. The said mayor should not be allowed to run again. If he were allowed to do so, he would have served the same people for a term more than what is allowed by law [Latasa v. COMELEC (2003)]

E. Rules on Succession 1. Successors in permanent vacancies in office of local chief executive. Sec. 44, LGC: (Asked in 1995, 1996, 2002, 2008)  Permanent vacancy entails that an elective local official: DR VaReReQI  fills a higher vacant office;  refuses to assume office;  fails to qualify;  dies;  is removed from office;  voluntarily resigns; or  is otherwise permanently incapacitated to discharge the functions of his office. Office where Permanent Vacancy Occurs Governor Mayor

Who Succeeds into Office Vice-governor Vice-mayor

Office of the governor or [and] vice-governor, mayor or [and] vicemayor

 Highest ranking sanggunian member;  In case of his permanent inability, the 2nd highest ranking sanggunian member;  Subsequent vacancies are filled automatically by the other sanggunian members according to their ranking.

Office of the Punong Barangay

 Highest ranking sanggunian barangay member;  In case of his permanent inability, the 2nd highest ranking sanggunian member.



A tie between/ among the highest ranking sanggunian members is resolved by drawing of lots.



Successors under S44, LGC serve only for the unexpired terms of their predecessors.



The ranking in the sanggunian is based on the immediately preceding local election: Votes obtained by the winning candidate -------------------------------------------Total number of registered voters in each district

296 LOCAL GOVERNMENT LAW



a result of an election. The term limits for elective local officials must be taken to refer to: 1) the right to be elected and 2) the right to serve in the same elective position. Consequently, it is not enough that an individual has fully served three consecutive terms in an elective local office. He must also have been elected to the same position for the same number of times before the disqualification can apply. [Borja v. COMELEC (1998)]

Chapter VII. LOCAL OFFICIALS

POLITICAL LAW REVIEWER

Chapter VII. LOCAL OFFICIALS



If automatic succession as provided in S44 does not apply, vacancy is to be filled in by appointment made as follows:

Office where Permanent Vacancy Occurs Member of Sanggunian Panlalawigan or Sangguniang Panlungsod of highly urbanized cities and independent component cities Member of Sangguniang Panlungsod of component cities and the Sangguniang Bayan Member of the Sangguniang Barangay

Representation of the youth and the barangay in the sanggunian







 

3. Temporary vacancy in the office of the local chief executive. Sec. 46, LGC. (Asked in 2002) 

Examples of local chief executive’s temporary incapacity to perform duties for physical/legal reasons:  leave of absence;  travel abroad;  suspension from office.



General rule: Vice-governor, city/ municipal vice-mayor, or the highest ranking sangguniang barangay member shall automatically exercise the powers and perform the duties and functions of the local chief executive.  Exception: The power to appoint/suspend/dismiss employees can be exercised only if the period of temporary incapacity exceeds 30 working days.

Who Succeeds into Office Person appointed by the President, through the Executive Secretary

Person appointed by the governor

Person appointed by the mayor, upon recommendation of the Sangguniang Barangay concerned Official next in rank of the organization concerned

General Rule: The appointee under Sec. 45 must be a nominee of the political party under which the sanggunian member (whose elevation to the position next higher in rank created the vacancy) had been elected. Conditions sine qua non: There must be a nomination and certificate of membership from the highest official of the political party or else the appointment is:  null and void ab initio; and  a ground for administrative action against the responsible official. If sanggunian member who caused vacancy does not belong to any political party, the local chief executive shall appoint a qualified person, upon recommendation of the sanggunian. The appointee under S45 serves the unexpired term of the vacant office.  Exception: Sangguniang barangay. If the vacancy pertains to barangay or youth representation in the sanggunian, the vacancy is automatically filled by the official next in rank of the organization concerned.



If the local chief executive is traveling within the country but outside his territorial jurisdiction for a period not exceeding 3 consecutive days, he may designate in writing the officer-in-charge.



General rule: The local chief executive cannot authorize any local official to assume the powers/duties/functions of his office, other than the vice-governor, city/municipal vice-mayor, or highest ranking sangguniang barangay member.



The authorization shall specify the powers and functions that the officer-in-charge shall exercise.  Exception: The power to appoint, suspend and dismiss employees.



If the local chief executive fails/refuses to issue the authorization, the vice-governor, city/municipal vice-mayor, or highest ranking sangguniang barangay member has right to assume the powers, duties, and functions of the office on the 4th day of absence.  Exception: The power to appoint/suspend/dismiss employees.

Office where Temporary Vacancy Occurs Governor Mayor Punong barangay

Who Temporarily Succeeds into Office Vice-governor (automatically) Vice-mayor (automatically) Highest ranking sanggunian member (automatically)

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2. Permanent vacancies in the sanggunian. Sec. 45, LGC (Asked in 1996, 2002)

POLITICAL LAW REVIEWER

1) Person designated in writing by the said local chief executive  Authorization shall specify the powers and functions that the designate will exercise, except the power to appoint, suspend, or dismiss employees 2) Vice-governor, vicemayor or highest Sangguniang Barangay member, if the local chief executive fails or refuses to designate  In this case, assumption into office th shall be on the 4 day of absence of the local chief executive (automatically)

Cases  The LGC is silent on the mode of succession when there is a temporary vacancy in the office of the vice-governor. In this case, there was a vacancy when the vice-governor automatically assumed the governorship pending the determination of who is the local chief executive. Because of such circumstances, the President, through the Secretary of Local Government, may make the temporary appointment. [Menzon v. Petilla (1991)] 



A vice-governor who is concurrently an acting governor is actually a quasi-governor. Being the acting governor, the vice-governor can no longer continue to simultaneously exercise the duties of the latter office, since the nature of the duties of the governor hinders him from discharging his duties for such office. Hence, there is an “inability” on the part of the regular presiding officer, the vice-governor, to preside during the sanggunian sessions, which calls for the election of a temporary presiding officer. [Gamboa v. Aguirre (1999)] The governor has the power to fill a vacancy in the Sangguniang Bayan caused by a member not belonging to any political party. It is the same manner as where the member belonged to a political party. Where there is no political party to make the nomination, the Sanggunian where the vacancy occurs must be considered authority for making the

recommendation. The appointing authority is limited to the appointment of those recommended to his office. The recommendation is a condition sine qua non for the validity of the appointment. [Fariñas v. Barba (1996)] 4. Termination of the Temporary Incapacity: 

Upon submission to the sanggunian of a written declaration that he has reported back to office.  If the temporary incapacity is due to legal causes, he must also submit the necessary documents showing that the legal causes no longer exist.

5. Approval of Leaves of Absence. Sec. 47, LGC. LOCAL OFFICIAL  for governors;  mayors of 1)highly urbanized cities or 2)independent component cities  for vice-governors;  for city/municipal vice-mayors  for city/municipal mayors of component cities/municipalities  for the sanggunian panlalawigan, panlungsod and pambayan members;  its employees  for punong barangays  for sangguniang barangay members 

LOA APPROVED BY: The President or his duly authorized representative

The local executive

chief

The governor

The Vice-governor or city/municipal vicemayor

The mayor

city/municipal

The punong barangay

If the application for LOA is not acted upon within 5 working days after receipt, the application is deemed approved.

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Local chief executive traveling within the country but outside his territorial jurisdiction for a period not exceeding three (3) consecutive days

Chapter VII. LOCAL OFFICIALS

POLITICAL LAW REVIEWER

Petition must also be posted for 10 to 20 days at conspicuous places. PROTEST SHOULD BE FILED AT THIS POINT and ruled with finality 15 days after filing.

Sec. 69-75, LGC (Asked in 2002) 

Recall is a mode of removal of a public official by the people before the end of his term of office. [Garcia v. COMELEC, (1993)]



Who has the power of recall: Power of recall for loss of confidence is exercised by the registered voters of the LGU. [S69, LGC] Effectivity: Upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall. Thus, if the official sought to be recalled receives the highest number of votes, confidence in him is affirmed and he shall continue in office. [S72, LGC]



Prohibition on resignation: An Elective local official sought to be recalled is not allowed to resign while the recall process is in progress. [S73, LGC]



Expenses: The Annual General Appropriations Act contains a provision for a contingency fund at the disposal of the COMELEC. [S75, LGC]



RA 9244: An Act Eliminating the Preparatory Recall Assembly as a Mode of Instituting Recall of Elective Local Government Officials, Amending for the Purpose sec. 70-71 of the LGC of 1991.

Sec. 70. Initiation of the Recall Process (PCPVA) Petition of a registered voter in the LGU concerned, supported by a percentage of registered voters during the election in which the local official sought to be recalled was elected. (Percentage decreases as population of people in area increases. Also, the supporting voters must all sign the petition)  Within 15 days after filing, the COMELEC must certify the sufficiency of the required number of signatures. Failure to obtain the required number automatically nullifies the petition.  Within 3 days from certification of sufficiency, COMELEC provides the official with a copy of the petition and causes its publication for 3 weeks (once a week) in a national newspaper and a local newspaper of general circulation.

 COMELEC verifies and authenticates the signatures.  COMELEC candidates

announces

acceptance

of

Sec. 71. Election on Recall 



COMELEC sets election within 30 days upon completion of previous section in barangay/city/municipality proceedings (45 days in case of provinces) Officials sought to be recalled are automatically candidates

Cases  A petition for recall that is signed only by the petitioner but does not bear the names of the citizens who have allegedly lost confidence in the official should be dismissed. [Angobung vs Comelec (1997)]  Whether or not the electorate of the municipality has lost confidence in their incumbent mayor is a political question. Loss of confidence is the formal withdrawal by the electorate of their trust in a person’s ability to discharge his office previously bestowed on him by the same electorate. [Evardone v. COMELEC (1991)]  Recall is a mode of removal of a public official by the people before the end of his term of office. The people’s prerogative to remove a public official is an incident of their sovereign power and in the absence of constitutional restraint, the power is implied in all governmental operations. Such power has been held to be indispensable for the proper administration of public affairs. [Garcia v. COMELEC (1993)]  The Liga ng mga Barangay and the Preparatory Recall Assembly are entirely different entities even if they may have the same members. [Malonzo vs Comelec (1997)] NOTE: Under RA9244, the Congress removed the Preparatory Recall Assembly as a mode of recall. A Regular local election is necessary in order to replace the local elective official who is sought to

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F. Recall



Chapter VII. LOCAL OFFICIALS

POLITICAL LAW REVIEWER

Chapter VII. LOCAL OFFICIALS

Limitations on the Holding of Recalls Sec. 74. a. Any elective official may be the subject of a recall election only once during his term of office for loss of confidence. b. No recall shall take place: 1. Within 1 year from the date of assumption of office of the official concerned  Rationale: to provide a reasonable basis for judging the performance of an elective local official 2. Within 1 year immediately preceding a regular local election  Rationale: a recall election is potentially disruptive of the normal working of the LGU necessitating additional expenses 





“Recall”, as used in par. b, sec. 74 prescribing the 1-year limitation, refers to the “election” itself (not the process of initiating the recall proceedings). The purpose of the 1-year limitation from assumption is to prevent premature action without having sufficient time to evaluate the official’s performance. As long as the election is held outside the 1year period, the preliminary proceedings to initiate recall can be held even before the end of 1 year from assumption. The 1-year period before regular local election does not include the campaign period. [Claudio v. COMELEC (2000)]

bayan of cities or municipalities in Metropolitan Manila 

Disciplining Authority — The President, who may act through the Executive Secretary  May still constitute a Special Investigating Committee in lieu of the DILG Secretary;  Nothing shall prevent the President from assuming jurisdiction at any stage of the proceedings over cases to be preliminarily investigated by the DILG; in such an event, the same shall immediately be forwarded to the Special Investigating Committee after it may have been constituted by the Disciplining Authority.



Investigating Authority — DILG Secretary o may constitute an Investigating Committee in the DILG for the conduct of investigation



Grounds for administrative action (discipline, suspension, removal): MAD-VAD-CO 1. Disloyalty to the Republic of the Philippines; 2. Culpable violation of the Constitution; 3. Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty; 4. Commission of any offense involving moral turpitude or any offense punishable by at least prision mayor, which is from 6 years and 1 day to 12 years imprisonment; 5. Abuse of authority; 6. Unauthorized absence for 15 consecutive working days in case of local chief executives and 4 consecutive sessions in the case of members of the sanggunian; 7. Application for, or acquisition of, foreign citizenship or residence of the status of an immigrant of another country; and 8. Such other grounds as may be provided by the Local Government Code of 1991; Republic Act No. 6713; Republic Act No. 3019; Administrative Code of 1987; Revised Penal Code; and all other applicable general and special laws.



How Initiated 1. by any private individual or any government officer or employee by filing a sworn written complaint (verified) 2. by the Office of the President or any government agency duly authorized by

G. Discipline 1. Administrative Action AO 23, as amended by AO 159 (1994) and AO 66 (1999): Prescribing the Rules and Procedures on the Investigation of Administrative Disciplinary Cases 

Coverage: administrative disciplinary charges against –  the governors, and members of the sangguniang panlalawigan;  the mayors, vice mayors, and members of the sangguniang panlungsod of highly urbanized cities, independent component cities, and component cities; and  the mayors, vice mayors, and members of the sangguniang panlungsod or

300 LOCAL GOVERNMENT LAW

be recalled. This does not include SK elections. [Paras v. COMELEC (1996)]

POLITICAL LAW REVIEWER

Chapter VII. LOCAL OFFICIALS

Elective Official against whom Administrative Complaint is Filed Provincial or city official Municipal official Barangay official

Where Complaint

to

File

Office of the President Sangguniang Panlalawigan Sangguniang Panlungsod or Sangguniang Bayan

Cases  Supervision and discipline. The President is not devoid of disciplinary powers because he merely has supervisory powers under the Constitution. Supervision is not incompatible with disciplining authority. [Ganzon vs CA (1991)]  Valid delegation. Under AO 23, the delegation of the power to investigate to the Sec of Interior is valid. What cannot be delegated is the power to discipline. [Joson vs Torres (290 S 279)]  Prejudicial question? The administrative investigation can proceed even during the pendency of an appeal of audit findings to the Commission on Audit [Salalima vs Guingona (257 S 55)] 

Preventive Suspension Sec. 63, LGC (Asked in 1990, 1996) 1. Sole Objective: to prevent the accused official from hampering the investigation with his influence and authority over possible witnesses and keep him off the records and other evidence. [Ganzon v. CA, (1991)] [cf. suspension as a penalty]

4. May be imposed at any time after the issues are joined (after respondent has answered the complaint) 5. No preventive suspension shall be imposed within 90 days immediately prior to any local election. If the preventive suspension has been imposed prior to the 90-day period immediately preceding a local election, it shall be deemed automatically lifted upon the start of the period 



     



Expiration: the suspended elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him [which shall be terminated within 120 days from formal notice of the case]. However, if the delay in the proceeding of the case is due to his fault, or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case. (sec. 63 (c))



Compensation: officer shall receive no salary or compensation during such suspension; but, upon subsequent exoneration and reinstatement, he shall be paid his full salary or compensation, including such emoluments accruing during such suspension. (sec. 64)

Who may impose: President, through the DILG Secretary

Provincial Governor Mayor

3. The governor shall, upon the direct order of the Disciplining Authority, preventively suspend an elective official of a component city, who is under formal administrative investigation by the Office of the President.

Period: Any single preventive suspension of local elective officials shall not extend beyond 60 days; Provided that, in the event that several administrative cases are filed against an elective official:  he cannot be preventively suspended for more than 90 days within a single year  on the same ground or grounds existing and known at the time of the first suspension.

2. It may be imposed by the Disciplining Authority in cases where the respondent is an elective official: Local Elective Official of: provinces highly urbanized cities independent component cities municipalities component city barangay

Grounds for Preventive Suspension:  when the evidence of guilt is strong and,  given the gravity of the offense, there is a great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence

The provincial governor is authorized to preventively suspend the municipal mayor any

301 LOCAL GOVERNMENT LAW

law to ensure that LGUs act within their prescribed powers and functions

time after the issues have been joined and any of the following grounds were shown to exist: o When there is reasonable ground to believe that the respondent has committed the act or acts complained of o When the evidence of culpability is strong o When the gravity of the offense so warrants o When the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. There is nothing improper in suspending an officer before the charges are heard and before he is given an opportunity to prove his innocence. Preventive suspension is allowed so that respondent may not hamper the normal course of the investigation through the use of his influence and authority over possible witnesses. When a local government official believes that he has been wrongfully suspended, the proper procedure is to exhaust administrative remedies, i.e. seek relief from the DILG Secretary, and not to file a case in court. [Espiritu v. Melgar (1992)] Piecemeal suspensions should not be issued. If there are several administrative cases against a public official, these cases should be consolidated for the purpose of ordering preventive suspension, instead of issuing an order of suspension for each case. Elective local officials should be given the benefit of simultaneous service of suspension. [Ganzon v. CA (1991)] NOTE: The ruling in this case as to simultaneous service of suspension is more of an exception than the rule, because of the following circumstances: o Three separate orders of 60-day preventive suspension were issued against Ganzon o Another order of preventive suspension was issued before the SC promulgated the decision ruling that suspension should not be issued piecemeal o The simultaneous service of suspension will lessen the harsh effects of whatever ill motive may be behind the successive suspension orders issued 

Rights of the Respondent Official— Full opportunity to: o Appear and defend himself in person or by counsel o Confront and cross-examine the witnesses against him o Require attendance of witnesses and the production of documentary evidence in his favor through subpoena or subpoena duces tecum. (sec. 65)

Chapter VII. LOCAL OFFICIALS



Due process. The petitioner has the right to a formal investigation under AO 23. Where the Sec denied the motion for a formal investigation and decided the case on the basis of position papers, the right of the petitioner was violated. [Joson vs Torres (290 S 279)]



Form and Notice of Decision  Shall be terminated within 90 days from start thereof.  Office of the President or Sanggunian concerned to render decision  Within 30 days from end of investigation  In writing  Stating clearly facts and reasons  Furnish copies to respondent and interested parties. (sec. 66 a)

NOTE: Any abuse of the exercise of the power of preventive suspension shall be penalized as abuse of authority (Nachura).

2. Penalties a. Suspension  Limitations: The penalty of suspension:  shall not exceed the unexpired term of the respondent  shall not exceed a period of 6 months for every administrative offense  shall not be a bar to the candidacy of the respondent so suspended as long as he meets the qualifications required for the office. (Sec. 66, LGC) 

When the respondent has been meted 2 or more penalties of suspension for 2 or more administrative offenses, such penalties shall be served successively (AO No. 159, Amending AO 23, Prescribing the Rules and Procedures on the Investigation of Administrative Disciplinary Cases Against Elective Local Officials, 1994)

b. Removal 

An elective local official may be removed by order of the proper court. (sec. 60)



The penalty of removal from office as a result of administrative investigation shall be considered a bar to the candidacy of the respondent for any elective position. (sec. 66 c) [cf. effect of penalty of suspension]

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Proper court order 



 









Local legislative bodies and/or the Office of the President cannot validly impose the penalty of dismissal or removal from service on erring local elective officials. It is clear from Sec. 60 of LGC that an elective local official may be removed from office on the grounds enumerated above only by order of the proper court. Art. 124 (b), Rule XIX of the Rules and Regulations Implementing the LGC, which states that “an elective local official may be removed from office by order of the proper court or the Disciplining Authority whichever first acquires jurisdiction to the exclusion of the other” is void for being repugnant to Sec. 60, LGC. But remember if it’s appointive, OP may remove. [Pablico v. Villapando (2002)] Petitioners contest the administrative action as being violative of Sec. 60, which mandates that an elective local official may be removed from office only by order of the court, since the duration of the suspension being 12-20 months exceeded their remaining terms. The suspension was allegedly tantamount to a removal. Held: An administrative offense means every act or conduct or omission which amounts to, or constitutes, any of the grounds for disciplinary action. The offenses for which suspension may be imposed are enumerated in Section 60. Assuming for the moment that the Office of the President is correct in its decisions in each of the subject four administrative cases: It committed no grave abuse of discretion in imposing the penalty of suspension, although the aggregate thereof exceeded six months and the unexpired portion of the petitioners’ term of office. What is important is that the suspension imposed for each administrative offense did not exceed six months. [Salalima v. Guingona (1996)]

3. Power of Tribunals 

The Ombudsman (Asked in 1999, 2003)

The Ombudsman and the Office of the President have concurrent jurisdiction to conduct administrative investigations over local elective officials. The LGC did not withdraw the power of the Ombudsman under RA 6770. [Hagad v. Gozo-Dadole (1993)]

Chapter VII. LOCAL OFFICIALS Preventive Suspension under RA 6770 Requirements:

Preventive Suspension under the LGC Requirements:

1. the evidence of guilt is 1. there is reasonable strong; AND ground to believe that 2. that any of the the respondent has following committed the act or circumstances are acts complained of present: 2. the evidence of o the charge against culpability is strong the officer or 3. the gravity of the employee should offense so warrants; involve or dishonesty, 4. the continuance in oppression or office of the grave misconduct respondent could or neglect in the influence the performance of witnesses or pose a duty; threat to the safety o the charges and integrity of the should warrant records and other removal from evidence office; or o the respondent’s continued stay in office would prejudice the case filed against him Maximum period: Maximum period: 6 months 60 days

It is not only the Ombudsman, but also his Deputy, who may sign an order preventively suspending officials. Also, the length of the period of suspension within the limits provided by law and the evaluation of the strength of the evidence both lie in the discretion of the Ombudsman. It is immaterial that no evidence has been adduced to prove that the official may influence possible witnesses or may tamper with the public records. It is sufficient that there exists such a possibility. [Castillo-Co v. Barbers (1998)] 

The Courts

RA 3019 The term “office” in Sec. 13 of RA 3019 (pertaining to mandatory preventive suspension) applies to any office which the officer might currently be holding and not necessarily the particular office in relation to which the official is charged. The imposition of the suspension, though mandatory, is not automatic or selfoperative. A pre-condition is the existence of a valid Information, determined at a presuspension hearing. [Segovia v. Sandiganbayan (1999)]

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Chapter VII. LOCAL OFFICIALS



Sandiganbayan PD 1606, as amended by RA 8249



It is the official’s grade that determines his or her salary, and not the other way around. An official’s grade is not a matter of proof but a matter of law which the court must take judicial notice. Under Sec. 444(d) of the LGC, the municipal mayor shall receive a minimum monthly compensation corresponding to SG 27. Thus, the cases filed against the petitioner are within the exclusive jurisdiction of the Sandiganbayan. [Llorente v. Sandiganbayan (2000)] If the law states that a certain officer is within the jurisdiction of the Sandiganbayan, the fact that the officer's SG is below 27 does not divest jurisdiction. [Inding v. Sandiganbayan (2004)] RA 8249 provides that as long as one of the accused is an official of the executive branch occupying the position otherwise classified as SG 27 and higher, the Sandiganbayan exercises exclusive original jurisdiction. To vest Sandiganbayan with jurisdiction, public office must be an element of the crime OR that without the public office, the crime could not have been committed. [Rodriguez v. Sandiganbayan (2004)]





4.



An appeal shall not prevent a decision from becoming final or executory.  If respondent wins the appeal: o He shall be considered as having been placed under preventive suspension during the pendency of the appeal. o If condoned, he shall be paid his salary and other emoluments during the pendency of appeal. (sec. 68)



Sec. 68 of the LGC merely provides that an “appeal shall not prevent a decision from becoming final or executory.” As worded, there is room to construe the provision as giving discretion to the reviewing officials to stay the execution of the appealed decision. [Berces v. Guingona (1995)]



The phrase “final or executory” in Secs. 67 and 68 simply means that administrative appeal will not prevent the enforcement of the decision. [Mendoza vs Lacsina (2003)]

5. Effect of Re-election 

Administrative Appeals

Sec. 67  Within 30 days from receipt of decisions: Decisions of:  Sangguniang Panglungsod of component cities  Sangguniang Bayan  Sangguniang Panlalawigan  Sangguniang Panglungsod of:  highly urbanized cities  independent component cities  Office of the President

May be appealed before:

Re-election renders the administrative complaint against the local official moot and academic. A public official cannot be removed for administrative misconduct committed during a prior term, since the reelection to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefore. But this rule is applicable only to administrative cases, not to criminal cases. (Asked in 2000) [Aguinaldo v. Santos (1992)]

Sangguniang Panlalawigan

II. Appointive Officials Office of the President

[final and executory; may not be appealed]

A. Appointments Under the LGC and RAC, the provincial governor is not authorized to appoint or even designate a person in cases of temporary absence or disability. Power resides in the President or the Secretary of Finance. [Dimaandal v. COA (1998)] NOTE: Difference between designation and appointment – In designation, additional tasks are assigned, but there is no corresponding salary increase. 

The Bases Conversion Act provides that the mayor of Olongapo shall be appointed SBMA chairman for the first year of operations. This violates the constitutional prohibition against appointment or

304 LOCAL GOVERNMENT LAW

POLITICAL LAW REVIEWER

designation of elective officials to other government posts. Appointive officials may be allowed by law or by the primary functions of his position to hold multiple offices whereas elective officials are not allowed, except as otherwise recognized in the Constitution. The provision also encroaches on executive power to appoint. (Asked in 1995, 2003) [Flores v. Drilon (1993)]

Chapter VII. LOCAL OFFICIALS



The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule that every part of the statute must be interpreted with reference to the context, i.e. that every part must be considered together with the other parts, and kept subservient to the general intent of the whole enactment. It is absurd to assume that the framers deliberately situated Section 15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds of presidential appointments. [De Castro v. JBC (2010)]



Once an appointment has been made and accepted, the appointee acquires a legal right to the position--the appointing authority cannot unilaterally revoke it without cause, notice and hearing. But the CSC may do so if it decides that the requirements were not met. [De Rama v. CA (2001)]

CSC’s Role in Appointments It cannot appoint but it can say if a person is qualified or unqualified. If unqualified, it can remove the person from office (basis is the Omnibus Implementing Rules of RAC). Grounds for RECALL of appointment (NO-VP) 1. Non-compliance with procedure or criteria provided in the agency’s merit promotion plan 2. Failure to pass through the agency’s selection/promotion board 3. Violation of existing collective agreement between management and employees relative to promotion 4. Violation of other existing civil service law rules and regulations 







In disapproving or approving appointments, CSC only examines  the conformity of the appointment with applicable provisions of law  WON appointee possesses the minimum qualifications and none of the disqualifications [Mathay v. CSC (1999)] CSC has no authority to direct that an appointment of a specific individual be made. It can only attest to WON the person chosen may fill the position. According to BP 337, the power to appoint rests exclusively with the local chief executive and can’t be usurped by anyone else. [Mathay v. CA (1999)] The Constitutional prohibition on midnight appointments applies only to presidential appointments. They do not apply to LGUs. For LGUs, appointments of such nature are valid as long as these meet all the requisites of a valid appointment. The Constitutional prohibition on midnight appointments is confined to appointments made in the Executive Department and does not refer to the Members of the Supreme Court.

Nepotism (asked in 2008)  Mayor is not allowed to appoint wife as head of Office of General Services even if she’s qualified because of the prohibition against nepotic appointments. This is based on Sec. 59 Book 5 of RAC. This prohibition covers all appointments and original and personnel actions (promotion, transfer, reinstatement, re-employment). [Debulgado v. CSC (1994)] 

The mayor’s appointment was considered nepotic and therefore prohibited when he made permanent the appointment of his daughter’s husband, who was appointed a mere temporary post prior to the latter’s marriage. [CSC v. Tinaya (2005)]



The appointment of Montuerlo was void because the matter was never submitted to the Sangguniang Bayan for its concurrence or, even if so submitted, no such concurrence was obtained. Even if there was a verbal concurrence by the Sanggunian, such is not the concurrence required and envisioned under the law.



The Sanggunian, as a body, acts through a resolution or an ordinance. Absent such resolution of concurrence, Montuerlo’s appointment failed to comply with the mandatory requirement of Section 443(a) and (d) of R.A. No. 7160.

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POLITICAL LAW REVIEWER

POLITICAL LAW REVIEWER

Without a valid appointment, Montuerlo acquired no legal title to the Office of Municipal Budget Officer, even if she had served as such for ten years. [Montuerlo v. Ty (2008)]

B. Discipline 

The appointing authority is generally the disciplining authority.



Disciplinary Jurisdiction (sec. 87) [Except as otherwise provided by law], the local chief executive may impose:  Removal from service (cf. elective officials)  Demotion in rank  Suspension for not more than 1 year w/o pay - If not more than 30 days—not appealable - If more than 30 days—appealable to the CSC  Fine not exceeding 6 months’ salary  Reprimand  Or otherwise discipline subordinate officials and employees under his jurisdiction.





No remedy of appeal if the decision of the administrative case exonerated the officer or employee. “Party adversely affected” in PD 807 or “The Philippine Civil Service Law” only refers to the government employee against which the case is filed. [Mendez v. CSC (1991)] The City Treasurer has discipline his subordinates.

authority

to

The power to discipline is specifically granted by the Revised Administrative Code to heads of departments, agencies and instrumentalities, provinces, and cities. The power to commence administrative proceedings against subordinate officers is granted by the Omnibus Rules to the secretary of department, head of office, head of LGU, chief of agency, regional director, or person with sworn written complaint. The City treasurer may also motu proprio institute disciplinary proceedings against subordinates. These rules must be reconciled with the LGC, which gives the mayor the authority to institute administrative and judicial proceedings against any official or employee of the city. In cases involving the employees of the city treasurer’s office, the mayor must file his

complaint with the treasurer’s office or with the DOF. [Garcia v. Pajaro (2002)] [Sangguniang Bayan of San Andres v. CA (1998)]: Requisites to constitute resignation: 1.Intention to relinquish a part of the term 2.Act of relinquishment 3.Acceptance by the proper authority (Asked in 2000)

Essential elements of abandonment: 1. Intent to abandon 2. Overt act by which the intention is to be carried into effect

C. Removal In interpreting its own rules as it did, the CSC was acting within its constitutionally delegated power to interpret its own rules. The CSC, by ruling that the employee took an automatic leave of absence, was merely interpreting its own rule on requirement of approved leave. [City Government of Makati City v. CSC (2002)]

D. Officials Common to All Municipalities, Cities and Provinces a. b. c. d. e. f. g. h. i. j. k. l. m. n. o. p. q. r. s. t.

Secretary to the Sanggunian Treasurer Assessor Accountant Budget Officer Planning and Development Coordinator Engineer Health Officer Civil Registrar Administrator Legal Officer Agriculturist Social Welfare and Development Officer Environment and Natural Resources Officer Architect Information Officer Cooperatives Officer Population Officer Veterinarian General Services Officer



Exceptions as to appointments by local chief executive  secretary (appointed by vice-governor or vice-mayor)  treasurer (appointed by secretary of Finance)

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

Chapter VII. LOCAL OFFICIALS

POLITICAL LAW REVIEWER

In the barangay, the mandated appointive officials are the Barangay Secretary and the Barangay Treasurer, although other officials of the barangay may be appointed by the punong barangay.

III. Provisions Applicable to Elective and Appointive Officials A. Prohibited Interests LGC Sec. 89 Prohibited business and pecuniary interest.  Unlawful for any local government official/employee to directly or indirectly:  Engage in any business transaction with LGU local government unit:  in which he is an official/employee;  over which he has the power of supervision;  with any of its authorized boards, officials, agents, or attorneys,  if money/property or any thing of value is to be indirectly transferred out of the resources of the LGU to such person or firm;  Hold interests in any cockpit or other games licensed by an LGU;  Purchase any realty/property forfeited in favor of the LGU  for unpaid taxes/assessment; or  by virtue of a legal process at the instance of the LGU.  Be a surety for any person contracting or doing business with the LGU which a surety is required;  Possess/use any public property of the LGU for private purposes.  Other prohibitions governing the conduct of national public officers relating to prohibited business and pecuniary interest:  RA 6713 (Code of Conduct and Ethical Standards for Public Officials/EEs);  Other laws. 

The variance doctrine applies here. As applied in this case, the Variance Doctrine holds that if the crimes charged include the crimes proved, then there can be a conviction for the crimes proved. Also, if crimes proved include the crimes charged, then there can be a conviction for the crimes charged. [Teves v. Sandiganbayan (2004)]

Elements of unlawful intervention Accused is public officer Accused has direct or indirect financial or pecuniary interest in any business, contract, or transaction, WON prohibited by law He intervenes or takes part in his official capacity in connection with such interest

Elements of prohibited interest Public Officer He has direct or indirect financial or pecuniary interest in any business, contract, transaction

He is prohibited from having such interest by the Const. or law

B. Practice of Profession LGC, Sec. 90  All governors and mayors are prohibited from: o practicing their profession o engaging in any occupation other than the exercise of their functions as local chief executives. 

Sanggunian Members may o Practice their profession o Engage in any occupation o Teach in schools  except during session hours  Provided, a member of the Bar shall not: (1) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party; (2) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office. (3) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and (4) Use property and personnel of the government except when the sanggunian member concerned is defending the interest of the government.

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Doctors of Medicine may practice their profession even during official hours of work o only on occasions of emergency  Provided, that the officials concerned do not derive monetary compensation therefrom.

in place of the provincial fiscal who has declined to handle and prosecute its case in court. [Pillilla v. CA (1994)] 

Private Counsel/Lawyers for Elective Local Officials 

General Rule: A Legal Officer, one of the appointive local officals common to LGUs, is tasked to represent the LGU in all civil actions and special proceedings wherein the LGU or any official thereof, in his official capacity, is a party. (sec. 481)

By appearing as counsel for dismissed employees, the city counsellor violated the prohibition against engaging in practice if such practice represents interests adverse to the government. [Javellana vs DILG (212 S 475)] A municipality cannot hire private counsel to file a suit in its behalf. The RAC provides that only the provincial fiscal and the municipal attorney can represent a municipality or its official in its lawsuits, except in cases where: 1) original jurisdiction is vested in the SC 2) where the municipality is a party adverse to the provincial government or the case is between two municipalities 3) He or his wife/child is pecuniarily involved as heir, legatee, creditor, etc. While a private prosecutor is allowed in criminal cases, private counsel cannot represent LGU even if in collaboration with an authorized government lawyer except that in the interest of substantial justice, the municipality may adopt work already performed in good faith by the private attorney which was beneficial to it provided. 1) no injustice is heaped on adverse party 2) no compensation of any guise is paid. [Ramos v. CA (1981)] 

The municipality’s authority to employ a private lawyer is expressly limited only to situations where the provincial fiscal is disqualified to represent it. For the exception to apply, the fact that the provincial fiscal was disqualified to handle the municipality’s case must appear on record. The refusal of the provincial fiscal to represent the municipality is not a legal justification for employing the services of private counsel. Instead of engaging the services of a special attorney, the municipal council should request the Secretary of Justice to appoint an acting provincial fiscal

In resolving whether a local government official may secure the services of a private counsel in an action filed against him in his official capacity, the nature of the action and the relief sought are to be considered. In view of the damages sought, which if granted, could result in personal liability, respondents could not be deemed to have been improperly represented by a private counsel. [Mancenido v. CA (2000)]

NOTES:  Instances when a private lawyer can represent a LGU  When the municipality is an adverse party in a case involving the provincial government or another municipality or city within the province  Where original jurisdiction is vested with the SC  Test as to when a local government official can secure the services of private counsel: Nature of the action and the relief that is sought

C. Prohibition against Appointment 



No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure [Flores v Drilon (1993)] Except for losing candidates in barangay elections, no candidate who lost in any election shall, within one year after such election, be appointed to any office in the government or any GOCC or their subsidiaries.

IV. Local Boards and Councils Sec. 98-116

A. Local School Board    

Determines the annual supplementary budgetary needs for the operation and maintenance of public schools Authorizes the disbursal of funds from the Special Education Fund Serves as an advisory committee to the Sanggunian concerned on educational matters Recommend changes in the names of public schools.

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Chapter VII. LOCAL OFFICIALS

Cases  The Special Education Fund covers the salary and benefits of extension classes teachers but not college scholarship funds. [COA Cebu Province v. Province of Cebu (2001)]  The requirement that DECS shall consult the local school board in Sec 99, LGC applies to appointments made by DECS, not to appointments made by the Pres. [Osea vs Malaya (2002)]

B. Local Health Board

 

Proposes annual budgetary allocations for the operation and maintenance of health facilities and services Serves as an advisory committee to the sanggunian concerned on health matters Creates committees which shall advice local health agencies on personnel and budgetary matters

C. Local Development Council 

Primary duty: to initiate a comprehensive multisectoral development plan for the LGU which is submitted to the sanggunian for approval and assist the corresponding sanggunian in setting the direction of economic and social development, and coordinating development efforts within its territorial jurisdiction.

D. Local Peace and Order Council   

Formulate and recommend such measures to improve or enhance peace and order and public safety Monitor the implementation Make periodic assessments of the prevailing peace and order situation

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Chapter VIII. LOCAL GOVERNMENT UNITS the mediation, conciliation or arbitration process

Chapter VIII. Local Government Units

B. C. D.

THE BARANGAY 1. KATARUNGANG PAMBARANGAY 2. SANGGUNIANG KABATAAN THE MUNICIPALITY THE CITY THE PROVINCE

Quick Facts about Katarungang Pambarangay - nature of proceedings is contractual 1)

A. The Barangay LGC Sec. 384-439 The barangay is the basic political unit. Its roles are: 1. Primary planning and implementing unit of government policies, plans, programs, projects and activities in the community; 2. Forum wherein the collective views may be expressed, crystallized and considered; and 3. Where disputes may be amicably settled. (Sec 384, LGC) 

A barangay captain is a person in authority and an attack on him would amount to direct assault. On the other hand, an attack on a barangay chief tanod who was a mere bystander (not in the performance of his duties) at the time the crime was committed, is not direct assault as he is merely an agent of a person in authority. [People v. Recto (2001)]

Other EXCLUSIONS: Cases under Sec 412 (b): 1) where the accused is under detention 2) where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings 3) where actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and support pendente lite 4) where the action may otherwise be barred by the statute of limitations

1. Katarungang Pambarangay LGC Sec. 399-422 The previous law on Katarungang Pambarangay has already been revised by the LGC and it has three significant features:[Uy v. Contreras (1994)] PD 1508 Authority over criminal offenses limited to those punishable by imprisonment not exceeding 30 days or a fine not exceeding P200 No similar provision

No similar provision

Local Government Code Authority over criminal offenses limited to those punishable by imprisonment not exceeding 1 year or a fine not exceeding P5,000 Disputes arising from the workplace where the contending parties are employed or at the institution where such parties are enrolled for study, shall be brought in the brgy where such workplace or institution is located Prescriptive periods of offenses suspended during the pendency of

Subject Matter for Amicable Settlement: All cases EXCEPT those listed under Sec. 408: EXCLUSIONS: a. One party is the government or any subdivision or instrumentality thereof b. One party is a public officer or employee, and the dispute relates to the performance of his official functions c. Offenses punishable by imprisonment exceeding 1 yr or a fine exceeding P5,000. d. Offenses where there is no private offended party e. Dispute involves real properties located in different cities or municipalities (UNLESS they submit their dispute to KP) f. Dispute where parties who actually reside in barangays of different cities or municipalities (UNLESS they submit their dispute to KP) g. Cases as determined by the President.

2)

Conciliation is a precondition to filing of complaint in court.  Initiatory pleadings, if filed without compliance with the precondition MAY be dismissed on motion of any interested party on the ground that it fails to state a cause of action. [Wingarts vsMejia (1995)]  How should the averments be made? Failure to specifically allege the fact that there was no compliance with the barangay conciliation procedure constitutes a waiver of that defense. General averments are not enough. [Corpuz vs CA (1997)]  An undated certification that merely states that the case was set for hearing before the barangay but the parties failed to reach an amicable settlement is not the

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3)



In all KP proceedings, the parties must appear IN PERSON without the assistance of counsel or representative.

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EXCEPTION: Minors and incompetents may be assisted by their next-of-kin who are NOT lawyers.



The Certification to file was improperly and prematurely issued. No personal confrontation before a duly constituted Pangkat took place. [Bonifacio Law Office vs Belosillo (2002)]

Officers Involved 1. Lupong Tagapamayapa. i. It is composed of the punong barangay as chairman and 10 to 20 members. It is constituted every 3 years. ii. Powers: 1. Administrative supervision over the conciliation panels 2. Meet monthly to provide a forum for exchange of ideas among its members and the public of matters relevant to the amicable settlement of disputes, and to enable various conciliation panel members to share with one another their observations in effecting speedy resolutions of disputes 3. Other powers and duties as may be prescribed by law or ordinance 2. Pangkat ng Tagapagkasundo.  There shall be constituted for each dispute brought before the lupon a conciliation panel  Consisting of 3 members who shall be chosen by the parties to the dispute from the members of the lupon.  If the parties cannot agree on the pangkat membership, the same shall be determined by lots drawn by the lupon chairmen

REPUDIATION of the settlement agreement may be made by any party to the dispute within 10 days from the date of settlement

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file with the lupon Chairman a statement to that effect sworn to before him may be made when consent is vitiated by: a) fraud b) violence c) intimidation it shall be sufficient basis for issuance of the certification for filing a complaint

2. Sangguniang Kabataan LGC Sec. 423-439 Creation and Composition There shall be in every barangay a sangguniang kabataan to be composed of a chairman, seven members, a secretary and a treasurer. An official who, during his term of office, shall have passed the age of 21 shall be allowed to serve the remaining portion of the term for which he was elected. 

RA 9164 (2002) amended Sec. 424 and 428 of the LGC by lowering the maximum age of the members of the Katipunan ng Kabataan and elective officials of the Sangguniang Kabataan from 21 to 18 years of age.



An elective official of the Sangguniang Kabataan should not be more than 21 years (now 18 years) of age on the day of his election. “Not more than 21 years old” is not equivalent to “less than 22 years old.” [Garvida v. Sales (1997)]



SK membership is not a property right protected by the Constitution. It is only a statutory right conferred by law. Congress may amend at any time the law to change or even withdraw the statutory right. [Montesclaros vs Comelec (2002)]

B. The Municipality Effect of the settlement agreement and arbitration award  The amicable settlement and arbitration award shall have the force and effect of a final judgment unless repudiation of the settlement has been made or a petition to nullify the award has been filed before the proper city or municipal court (Section 416)

LGC Sec. 440-447 Quick Facts about the Municipality May be created, divided, merged, abolished only by Congress subject to the approval by a majority of he votes cast in a plebiscite in the LGU directly affected.

Requisites for creation: a. Ave. Annual income: 2.5M for the last 2 years; b. Population: At least 25K c. Territory: 50 square kilometers

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contemplated Barangay Certification to File Action. [Mendova vs Afable(2002)]

Chapter VIII. LOCAL GOVERNMENT UNITS

d.







Creation must not reduce land area, population or income of original municipality at the time of said creation to less than minimum requirements prescribed therein.

The municipal mayor has the authority to issue permits and licenses for the holding of activities for any charitable or welfare purpose [LGC444(b)(3)]. [Olivarez v. Sandiganbayan (1995)] The municipal mayor does not have the power to issue warrants of arrest. The power vested by the previous LGC was repealed by the Consti. [Munez vs Arino (1995)] The Sangguniang Bayan has the power to provide for the establishment and maintenance of public markets in the municipality. Here, the SB merely mentioned the plan to acquire the lot for expansion of the public market adjacent thereto. Until there is proper expropriation, the landowner cannot be deprived of his right over the land. [Greater Balanga vs Mun of Balanga (1994)]

C. The City LGC Sec. 448-458 Quick Facts about the City May be created, divided, merged, abolished only by Congress subject to the approval by a majority of he votes cast in a plebiscite in the LGU directly affected.

Requisites for creation: (i) Ave. Annual income: at least 100M for the last 2 consecutive years (Section 450 of LGC was amended by RA 9009) and either one of the following requisites: (ii) Population: Not less than 150K (iii) Territory: 100 square kilometers * Creation must not reduce land area, population or income of original municipality at the time of said creation to less than minimum requirements prescribed therein.

Authority over Officers  The Sangguniang Panlungsod has no authority to issue subpoenas and punish nonmembers for legislative contempt. The contempt power of the legislature is sui generis and local legislative bodies cannot correctly claim to possess it for the same reasons that the national legislature does. The power to subpoena witnesses and punish nonmembers for contempt may not also be implied in the delegation of legislative power as such partake of a judicial nature. [Negros Oriental II Electric Cooperative v. Sangguniang Panlungsod (1987)]

Chapter VIII. LOCAL GOVERNMENT UNITS



DBM cannot control amount a city wants to give its judges as allowance, as long as city has money to do so. [Dadole v. COA (2002)]

Licenses and Permits  A permit issued by the mayor to a drugstore not previously cleared with and licensed by the FDA will be a nullity. However, the issuance of a mayor’s permit is not mandatory once it is shown that the FDA has licensed the operation of the applicant. The city mayor may only revoke the permits issued for violation of the local requirements imposed, not with the requirements of general laws and implementing administrative rules. [Gordon v. Veridiano II (1988)]  Distinction must be made between the grant of a license or permit to do business and the issuance of a license to engage in the practice of a particular profession. A business permit cannot, by the imposition of conditions, be used to regulate the practice of a profession. [Acebedo Optical v. CA (2000)] License/permit to do business Granted by the local authorities Authorizes the person to engage in business or some form of commercial activity

License to engage in a profession Board or Commission tasked to regulate the particular profession Authorizes a natural person to engage in the practice or exercise of his or her profession

NOTE: The power to issue licenses and permits necessarily includes the power to revoke, withdraw or restrict through the imposition of certain conditions. However, the conditions must be reasonable and cannot amount to an arbitrary interference with the business.







The power to suspend or revoke licenses and permits is expressly premised on the violation of the conditions of these permits. The mayor has the power to inspect and investigate private commercial establishments for any violation of the conditions of their licenses and permits, but he cannot order a police raid in the guise of inspecting the establishments. [Lim vs Garaybas (2002)] Only the Sanggunian, not the mayor of the city, has the power to allow cockpits, stadiums, etc. Without an ordinance, he cannot compel mayor to issue him a business license. [Canet v. Dacena (2004)]

Cityhood laws  RA 9009 increased the income threshold in the creation of a city to P100 million, and in effect amending Sec 450 of the LGC.  A number of municipalities had pending cityhood bills (stating that they will be

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

 

exempt from the increase in income requirement) before the passage of RA 9009. The Court held that RA 9009 will not apply to said municipalities. It states that the intention of the law was to exempt municipalities: (1) that had pending cityhood bills before the passage of RA 9009, and (2) that were compliant with the old income threshold. There is a valid classification as between the municipalities with and without the cityhood bills. DISSENT: (1) The new income threshold should be applied prospectively, (2) the Constitution requires that Congress shall prescribe all the criteria for the creation of a city in the LGC and NOT in any other law, including Cityhood laws, (3) RA 9009 is clear and unambiguous (no need to look at th intent of 11 Congress), (4) the Cityhood laws violate the equal protection clause. [League of Cities vs Comelec (2009)]

D. The Province LGC Sec. 459-469 Quick Facts about the Province May be created, divided, merged, abolished only by Congress subject to the approval by a majority of he votes cast in a plebiscite in the LGU directly affected.

Requisites for creation: (i) Ave. Annual income: 20M (ii) Population: Not less than 250K (iii) Territory: 2K square kilometers (iv) Creation must not reduce land area, population or income of original municipality at the time of said creation to less than minimum requirements prescribed therein

Chapter VIII. LOCAL GOVERNMENT UNITS

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Chapter IX. MISCELLANEOUS and FINAL PROVISIONS

Chapter IX. Miscellaneous and Final Provisions A. B. C.

POSTING AND PUBLICATION OF ORDINANCES WITH PENAL SANCTIONS PENALTIES FOR VIOLATION OF TAX ORDINANCES PROVISIONS FOR IMPLEMENTATION

A. Posting and Publication Ordinances with Penal Sanctions

of

C. Provisions for Implementation Mandatory review every 5 years. S521, LGC  Congress shall review LGC at least once every 5 years and as often as it may deem necessary;  Primary purpose: Providing a more responsive and accountable local government structure. Transitory Provisions

Exception: Barangay ordinances. 

For publication, the secretary to the sanggunian shall transmit official copies of ordinances to the Official Gazette chief executive office, within 7 days following the approval of the ordinance. OG may publish ordinances with penal sanctions for archival and reference purposes.



Effectivity of ordinances with penal sanctions: On the day following its publication, or at the end of the period of posting, whichever occurs later. Exception: Ordinance provides otherwise.



Effect of public officer/EE violating an ordinance: Administrative disciplinary action, without prejudice to civil/criminal action.

B. Penalties for Ordinances

Violation

of

Tax

Sec. 516, LGC  LGU sanggunian is authorized to prescribe penalties for violation of tax ordinances: (1) Fines should be at least P1,000 but not more than P5,000;  Exception: Sangguniang barangay may prescribe a fine of at least P100 but not more than P1,000. (2) Imprisonment should be at least 1 month but not more than 6 months.  Penalties are imposed at the discretion of the court.

LGC Sec. 538 Deconcentration of Requisite Authority and Power  6 months after the effectivity of LGC, the national government shall effect the deconcentration of requisite authority and power o to appropriate regional offices or field offices of national agencies or offices (major functions are not devolved to LGUs) LGC Sec. 539 Tax Ordinances or Revenue Measures  All existing tax ordinances or revenue measures of LGUs shall continue to be in force and effect after the effectivity of this Code UNLESS o amended by the sanggunian concerned o or inconsistent with, or in violation of, the provisions of LGC

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Sec. 511, LGC  General rule: Ordinances with penal sanctions shall be: (1) posted at prominent places in the provincial capitol or city/municipal/barangay hall for at least 3 consecutive weeks; & (2) published in a newspaper of general circulation (if available) within the territorial jurisdiction of the LGU;

Chapter X. APPLICATION of LGC to Autonomous Regions and Other Entities

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Chapter X. Application of LGC to Autonomous Regions and Other Entities I.

AUTONOMOUS REGION IN MUSLIM MINDANAO II. CORDILLERA ADMINISTRATIVE REGION III. THE METROPOLITAN MANILA DEVELOPMENT AUTHORITY

LGC Sec. 526 Application of this Code to Local Government Units in the Autonomous Regions  LGC applies to all provinces, cities, municipalities and barangays in the autonomous regions until such time as the regional government has enacted its own LGC.

I.

NOTE: Under Sec. 16, Art. X of the Const., “The President shall exercise general supervision over autonomous regions to ensure that the laws are faithfully executed.” Effect 

The Autonomous Region in Muslim Mindanao

Article X Section 15 1987 Constitution: There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines

The autonomous governments of Mindanao involved in this case were created by PD 1618, even before the 1987 Const. They were never meant to exercise the kind of autonomy wherein the central government commits an act of self-immolation. In fact, PD 1618 mandates that the “President shall have the power of general supervision and control over Autonomous Regions. [Limbona v. Mangelin (1989)]



The idea behind the Consti provisions for autonomous regions is to allow the separate development of peoples with distinct cultures and traditions. [Discomangcop vs Datumanong (2004)]  The creation of autonomous regions does not signify the establishment of a sovereignty distinct from the Republic, as it can only be installed within the framework of the Consti and national sovereignty. [supra]

Through the passage of the Organic Act of 2001 (RA 9054), the devolved powers and functions under the LGC could now be applied to the ARMM. This means that the powers and functions of a Provincial Governor under the LGC are now enjoyed, as a minimum, by a Provincial Governor in the ARMM. [Pandi v. CA (2002)]

315 II. Cordillera Administrative Region EO. 220: Act Creating the Cordillera Administrative Region RA 6766: Organic Act of Cordillera Autonomous Region 

In the plebiscite held pursuant to RA 6766, the creation of the Cordillera Autonomous Region was rejected by all the provinces and city of the Cordillera region except Ifugao province. Hence, the Cordillera Autonomous region did not come to be. [Ordillo vs Comelec (1990)]



The Cordillera Administrative Region is not a public corporation or a territorial and political subdivision. It does not have a separate juridical personality, unlike provinces, cities and municipalities. Neither is it vested with the powers that are normally granted to public corporations, e.g. the power to sue and be sued, the power to own and dispose of property, the power to create its own sources of revenue, etc.

Nature 

Regional autonomy refers to the granting of basic internal government powers to the people of a particular area or region with LEAST control and supervision from the central government. [supra]

The CAR was created primarily to coordinate the planning and implementation of programs and services in the covered areas. The creation of administrative regions for the purpose of expediting the delivery of services. [Cordillera Broad Coalition v. COA (1990)]

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Chapter X. APPLICATION of LGC to Autonomous Regions and Other Entities

III. The Metropolitan Development Authority

Manila

RA 7924 (1995): An act creating the MMDA, defining its powers and functions, providing funds therefor and for other purposes

3.



4.









Metro Manila is constituted into a special development and administrative region subject to direct supervision of the President.

5. 6.

Cities covered:  Caloocan  Manila  Mandaluyong  Makati  Pasay  Pasig  Quezon, and  Muntinlupa (marikina? Taguig?) Municipalities covered:  Las Piñas  Malabon  Marikina  Navotas  Parañaque  Pateros  San Juan  Taguig  Valenzuela The MMDA shall:  perform planning, monitoring and coordinative functions, and  exercise regulatory and supervisory authority over the delivery of metro-wide services within Metro Manila  without diminution of the autonomy of the LGUs concerning purely local matters.

7.



The MMDA is not a political unit of the government. It has no police power. There is no grant of authority to enact ordinances and regulations for the general welfare of the metropolis.



The MMDA is not even a "special metropolitan political subdivision" as contemplated in Section 11, Article X of the Constitution. The creation of a "special metropolitan political subdivision" requires the approval by a majority of the votes cast in a plebiscite in the political units directly affected. R. A. No. 7924 was not submitted to the inhabitants of Metro Manila in a plebiscite. The Chairman of the MMDA is not an official elected by the people, but appointed by the President with the rank and privileges of a cabinet member. In fact, part of his function is to perform such other duties as may be assigned to him by the President, whereas in LGUs, the President merely exercises supervisory authority. This emphasizes the administrative character of the MMDA. [MMDA v. Bel Air Village Association (2000).]



Sec. 5(f) of RA 7924 grants the MMDA the duty to enforce existing traffic rules and regulation. Thus, where there is a traffic law

Scope of MMDA Services Services which  have 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 LGUs comprising MM including: 1. Development planning, investments programming, and coordination and monitoring of plan, program and project implementation 2. Transport and traffic management, provision for the mass transport system and the institution of a

system to regulate road users, traffic engineering services and traffic education programs, including the institution of a single ticketing system in MM Solid waste disposal and management Flood control and sewerage management Urban renewal, zoning, and land use planning, and shelter services Health and sanitation, urban protection and pollution control Public safety which include:  the formulation and implementation of programs and policies to achieve public safety, especially preparedness for preventive or rescue operations during times of calamities and disasters,  coordination and mobilization of resources and the implementation of contingency plans for the rehabilitation and relief operations in coordination with national agencies concerned.

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or regulation validly enacted by the legislature or those agencies to whom legislative powers have been delegated, MMDA is not precluded—and is in fact dutybound—to confiscate and suspend or revoke driver’s license in the exercise of its mandate of transport and traffic management, as well as administration and implementation of all traffic enforcement operations, traffic engineering services and traffic education programs. This is consistent with the ruling in Bel Air that the MMDA is a development authority for the purpose of laying down policies and coordinating with the various national government agencies, people’s organizations, NGOs and the private sector, which may enforce, but not enact, ordinances. [MMDA v. Garin]

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Chapter X. APPLICATION of LGC to Autonomous Regions and Other Entities

- end of Local Government Law – - end of Political Law –