THE JUDICIARY - In Remedial Law, referred to loosely as “special courts”- Doctrine of Primary Jurisdiction. ART. VIII Sec. 1 Par. 1- “The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law” - Part of the executive.
*The Supreme Court is the only constitutional court. Ex. CSC, SEC, COA, COMELEC
Q. SB? *Since quasi-judicial bodies are not strictly courts, their jurisdiction is strictly construed against them. A. No. It is not a constitutional court, although mentioned in the Constitution. It is only a constitutionally mandated court. JUDICIAL POWER AND POLITICAL QUESTION DOCTRINE
*Judicial power is not vested in the Supreme Court alone. Q. What is JUDICIAL POWER?
*It is vested as well in such lower courts as may be established by law. A. JUDICIAL POWER includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and “Such lower courts as may be established by law” (BP 129 Judiciary enforceable, and to determine whether or not there has been a grave abuse Reorganization Act of 1980) 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) *Court of Appeals- referred to as lower collegiate courts - Definition of Judicial Power. *Regional Trial Courts- courts of general jurisdiction - Not found in the 1935 and 1973 Constitution. *Courts of limited jurisdiction- (1) Metropolitan Trial Courts (2) MTCC [chartered cities] (3) Municipal Trial Courts/ Municipal Circuit Trial Courts - Represents a broadening of judicial power to enable the courts of justice to review what was before forbidden territory. *Sandiganbayan- special court having jurisdiction over public officers; co- equal with the Court of Appeals. “DUTY”
*Court of Tax Appeals- special court having jurisdiction over tax appeals -The provision uses the word DUTY cases. -The settlement of controversies and the determination of whether or not *SHARIAH COURTS- pursuant to Muslim Code; 2 levels: there has been grave abuse of discretion is not merely a power- it is a duty of the courts as well. (1) Shariah District Court- equivalent to RTC -in power, the power holder has discretion to exercise. (2) Shariah Circuit Court- equivalent to MTC -if it was only a power, then the courts has the discretion to exercise it or not. *QUASI JUDICIAL BODIES- strictly speaking, they are not courts- do not form part of the judicial system. -Since it is a duty, there is no such discretion- the exercise of the power is obligatory and mandatory upon the courts. - They are administrative bodies performing quasi-judicial functions. TWO PARTS OF THE DEFINITION
Political Law Review Notes (Atty. Edwin Sandoval) 1 Prepared by: Atty Joan P. Gamboa 1. To settle actual controversies involving rights which are legally -The legislative and the executive are called POLITICAL BRANCHES of the demandable and enforceable. (TRADITIONAL) government, where policies are formulated, enacted and implemented.
-Very limited definition. -Questions of policy that are formulated by the political branches and thus cannot be the subject of judicial review. This includes questions involving the -Maybe defeated by the political question doctrine. wisdom, propriety, efficacy or morality of an act.
2. To determine whether or not there has been grave abuse of discretion TAÑADA VS. CUENCO amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (EXPANDED) -Classic definition of political question.
-Expanded Power of Judicial Review or the Extraordinary Power to -POLITICAL QUESTIONS refer to those questions which under the Determine Grave Abuse of Discretion as referred to by the Supreme Court. Constitution are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the -Political question doctrine has been greatly diminished. legislative or executive branch of the government.
Q. How does the definition of judicial power under the present Constitution TWO TYPES OF POLITICAL QUESTIONS affected the political question doctrine? 1. Those questions which under the Constitution are to be A. The 1987 Constitution expands the concept of judicial review. Under the decided by the people in their sovereign capacity. expanded definition, the Court cannot agree xxx that the issues involved is a political question beyond the jurisdiction of the court to review. When the Ex. Recall under the LGC grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the -A mode of removing a local elective official even before the 3 year term on limitations respected is justiciable – the problem being one of legality or the ground of loss of trust/confidence. validity, not its wisdom. Moreover, the jurisdiction to delimit constitutional boundaries has been given to this court. When political questions are -There is only one ground for recall-loss of confidence. involved, the Constitution limits the delimitation as to whether or not there has been a grave abuse of discretion amounting to lack or excess of EVARDONE VS. COMELEC jurisdiction on the part of the official whose action is being questioned. *Loss of confidence as a ground for recall is a political question. Q. What are political questions? *After all, the initiation of the recall process is not the recall itself. A.-Origin: The principle of separation of powers. *In the recall election, the people will decide whether or not they have lost -In turn, this principle is the result of our Presidential System of Government. their confidence in the official concerned.
(In a Parliamentary government, the executive and the legislative branches *Hence, it is a question which has to be decided by the people in their are welded together) sovereign capacity.
-Thus, legislative power is given to Congress; executive power is given to *When? In the recall election itself. the President and judicial power is given to the Supreme Court- 3 great powers distributed among 3 branches of government. *Not subject to judicial review.
ESTRADA VS. DESIERTO-EDSA 1
Political Law Review Notes (Atty. Edwin Sandoval) 2 Prepared by: Atty Joan P. Gamboa *Lawyers League for a Better Philippines vs. Aquino the Office of the President.
*Oliver Lozano filed a petition before the Supreme Court questioning the -Extra-constitutional and the legitimacy of the new -Intra-constitutional and the resignation of the sitting legitimacy of the Cory government. government that resulted from it cannot be the subject of President that it caused and the succession of the Vice judicial review. President as president are subject to judicial review. *According to the petition, most of the people who went to EDSA are not really serious in overthrowing the Marcos government. (Most were vendors) -Involves legal questions.
SC: dismissed the petition. -Presented a political question.
*No matter, We will no longer inquire into the motives of the people in going to EDSA. The facts were: because of the magnitude of the people who were in EDSA, Marcos fled to Hawaii, so that the Cory government was able to take effective control of the machinery of the State without resistance from the people. Furthermore, the international community has recognized the 2. Those in regard to which full discretionary authority has been Cory Government. Hence, there can be no more question as to the de jure delegated by the Constitution to the executive or legislative status of the said government. branch of the government.
*The Aquino government was the result of a successful revolution by the Ex. Calling out power of the President under Article VII, Sec. 18 sovereign people-it was installed through a direct exercise of the power of the Filipino people, in defiance of the provisions of the 1973 Constitution. IBP VS. ZAMORA The legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny; such government automatically orbits out *During the time of President Estrada, he issued a LOI ordering the of the constitutional loop. deployment of Marines in the metropolis to conduct joint visibility patrols with members of the PNP in various shopping malls. Estrada vs. Desierto *IBP asks that the exercise of such power be subjected to judicial review. *Desierto argues that the legitimacy of Arroyo’s assumption to the presidency is a political question, and invokes the ruling in the Lawyers SC: No. League case. *When the President calls the armed forces to prevent or suppress lawless SC: No. (Justice Reynato S. Puno) violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the *Arroyo’s government is not revolutionary in character. The oath she took is framers and from the text of the Constitution. Thus, the Court cannot be the oath under the 1987 Constitution. Indeed, she has stressed that she is compelled upon to overrule the President’s wisdom or substitute its own. discharging the powers of the presidency under the authority of the 1987 However this does not prevent an examination of whether such power was Constitution. exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. LEGAL DISTINCTIONS BETWEEN EDSA 1 AND EDSA 2 3 powers under Art. VII, Sec. 18 EDSA 1 1. Calling out power as commander-in-chief of AFP -Involves the exercise of the people power of revolution -Involves the exercise of the people power of freedom of which overthrows the whole government. speech and freedom to assemble,2. Declare to Martial petition Law the government for redress of grievances which only affected
Political Law Review Notes (Atty. Edwin Sandoval) 3 Prepared by: Atty Joan P. Gamboa 3. Suspend the privilege of the writ of habeas corpus thereby necessitating safeguards of Congress and judicial review of the Court. (IBP VS. ZAMORA) *Unlike in the past, the power to declare martial law and to suspend the privilege of the writ of habeas corpus were expressly made subject of judicial DAVID VS. GMA review. *PGMA exercised the calling out power when she issued GO 5 and PP *Article VII, Sec. 18, Par 3- “The Supreme Court may review in an 1017, not the martial law power. The acts taken purportedly to carry out the appropriate proceeding filed by any citizen, the sufficiency of the factual issuances were ultra vires, hence, unconstitutional. The exercise of the basis of the proclamation of martial law or the suspension of the privilege of calling out power does not involve the direct curtailment and suppression of the writ or the extension thereof, and must promulgate its decision within civil liberties and individual freedoms. However GO 5 and PP1017 are thirty days from its filing.” constitutional. Petitioners failed to counteract the factual bases therefore as alleged by the Solgen. CALLING OUT POWER Q. Why not the martial law powers? -It is a political question. A. There was no case of invasion or rebellion. President will be required to -A question in regard to which full discretionary authority has been delegated submit report to (kulang page ko, sorry...) by the Constitution to the President. Q. What are the THREE IMPORTANT FUNCTIONS OF THE COURT? SC: It is the unclouded intent of the Court to grant to the President full discretionary authority. The hands of the President should not be tied; A. 1. Checking otherwise, this could be a veritable proscription for disaster. Unless grave abuse of discretion is shown, the President’s exercise of the power should 2. Legitimizing not be questioned. Mere abuse of discretion will not suffice. To doubt is to sustain. 3. Symbolic
Q. What is the effect of the EXPANDED CONCEPT OF JUDICIAL POWER SYMBOLIC FUNCTION OF THE COURT on the political question doctrine? - It is the duty of the Court to formulate guiding and controlling A. It has lessened the political question doctrine. Thus, even if it is a political principles, precepts, doctrines or rules. It has the symbolic function question, if there appears to be abuse of discretion, the Court may review it. of educating the bench and the bar on the extent of protection given by Constitutional guaranties. *The burden is upon petitioners- the ones assailing the act. Q. What are the requisites for a proper exercise of the power of JUDICIAL *It must be grave abuse of discretion to warrant judicial intervention. REVIEW?
*Mere abuse of discretion is not enough. A. The time-tested standards for the exercise of judicial review are:
*To doubt is to sustain the act of the person. 1. The existence of an appropriate case;
Q. Why the difference in treatment? 2. An interest personal and substantial by the party raising the constitutional question; A. Calling out power is the lesser and more benign power while the power to declare martial law and to suspend the privilege of the writ of habeas corpus 3. The plea that the function be exercised at the earliest are the greater powers which involve direct curtailment of civil liberties opportunity; and
Political Law Review Notes (Atty. Edwin Sandoval) 4 Prepared by: Atty Joan P. Gamboa 4. The necessity that the constitutional question be passed upon in - A moot and academic case is one that ceases to present a order to decide the case. justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. THE MEANING OF ACTUAL CASE OR CONTROVERSY Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness. (David vs. GMA) -It means an existing case or controversy which is both ripe for resolution and susceptible of judicial determination and that which is not conjectural or clarificatory, or that which seeks to resolve hypothetical or feigned constitutional problems. (IBP VS. ZAMORA) *The moot and academic principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide *There must also be a conflict of rights-opposing views or contentions-if not, cases, otherwise moot and academic, if: the Court would be resolving issues that remain unfocused because they lack concreteness.
*The controversy must also be justiciable-meaning susceptible of judicial 1. There is a grave violation of the Constitution; determination. 2. The exceptional character of the situation and the paramount public interest involved; Q. May courts render advisory opinions? 3. When constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and A. No, courts can only decide actual controversies, not hypothetical 4. The case is capable of repetition yet evading review. (David vs. questions or cases. GMA)
-There must be an actual case or controversy to be resolved.
-The definition of judicial power under Art. VIII is clear. The evil sought to be PROPER PARTY REQUIREMENT avoided is the possible violation of due process. It is also repugnant to the Principle of Separation of Powers. If a case is bought involving the same Q. What is the meaning of locus standi? issue, the court might be forced to follow. A. LEGAL STANDING or LOCUS STANDI has been defined as a personal *On the other hand, INTERNATIONAL COURT OF JUSTICE can render and substantial interest in the case, such that a party has sustained or will advisory opinions. sustain direct injury as a result of the governmental act that is being challenged. Q. Basis? The term INTEREST means a material interest, an interest in issue A. 1. Statute of ICJ itself affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. 2. UN Charter *The gist of the question of standing is whether a party alleges such 2 MAIN FUNCTIONS OF THE ICJ: personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the 1. To resolve contentious cases court depends for illumination of difficult constitutional questions. (IBP vs. Zamora) 2. To render advisory opinions to UN organs IBP VS. ZAMORA MOOT AND ACADEMIC CASES
Political Law Review Notes (Atty. Edwin Sandoval) 5 Prepared by: Atty Joan P. Gamboa *IBP has no locus standi. The mere invocation of its duty to preserve the rule April 2001. Thus, it is argued that the constitutional question was not raised of law is a too general interest. It has not shown any injury it has suffered nor on the earliest possible opportunity. will suffer by virtue of the act complained of. The presumed injury is not personal, too vague, highly speculative and uncertain to confer locus standi. SC: No. It is not the date of the filing that determines whether the However, IBP has advanced constitutional issues which deserve attention of constitutional question was raised at the earliest possible opportunity. The this court, in view of their seriousness, novelty and weight as precedents. earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve it, such that if not raised TAXPAYER’S SUIT in the pleadings, it cannot be raised on appeal. Here, Matibag questioned the legality of said appointments when she filed her petition before the To constitute a taxpayer’s suit, two requisites must be met, namely: Supreme Court, which is the earliest opportunity for pleading the constitutional issue before a competent body. 1. That public funds are disbursed by a political subdivision or instrumentality and in doing so, a law is violated or some irregularity THE CONSTITUTIONAL QUESTION MUST BE THE VERY LIS MOTA OF is committed; and THE ENTIRE CONTROVERSY
2. That the petitioner is directly affected by the alleged ultra vires act. *The constitutional question must be the main issue of the controversy.
KILOSBAYAN VS. MORATO *There is no way that the Court may resolve the entire case, unless it first resolves the constitutional question raised. *Kilosbayan filed 2 petitions as a taxpayer. AMENDMENTS OR REVISIONS (ARTICLE XVII) SC: Taxpayer suit does not lie because the issue does not involve the disbursement of public funds. Rather, what is involved was the interpretation 3 ESSENTIAL ELEMENTS OF A GOOD WRITTEN CONSTITUTION: of the charter of the PCSO. 1. Constitution of Government: Articles VI, VII, VIII, IX, X THE CONSTITUTIONAL QUESTION MUST BE RAISED AT THE EARLIEST OPPORTUNE TIME 2. Constitution of Liberty: Article III (Bill of Rights)
- It is not the date of the filing of the petition that determines whether 3. Constitution of Sovereignty: Article XVII (Amendatory Process) the constitutional issue was raised at the earliest opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the AMENDMENT REVISION pleadings before a competent court that can resolve the same, such that, “if it is not raised in the pleadings, it cannot be -refers to a change that adds, reduces or deletes without -implies a change that alters a basic principle in the considered at the trial, and if not considered at the trial, it cannot be altering the basic principle involved. Constitution. considered on appeal. (Matibag vs. Benipayo) -if the change alters the substantial entirety of the - However in criminal cases, the accused may raise the constitutional constitution, as when the changes affect substantial question even for the first time on appeal. This is because criminal provisions of the constitution. cases involve the basic rights of the accused to life and liberty. -affects only the specific provision being amended. -affects several provisions in the constitution. MATIBAG VS. BENIPAYO -isolated or piecemeal changes in the Constitution. -overhaul of the whole Constitution. *Matibag questioned the legality of the appointments of Benipayo, Borra and Tuason on 03 August 2001, when their first appointments were issued on 22 Ex. Lowering of the voting age. Ex. Altering the principle of separation of powers or the
Political Law Review Notes (Atty. Edwin Sandoval) 6 Prepared by: Atty Joan P. Gamboa system of checks and balances.-One of the non-legislative powers of Congress
-Congress meets in order to directly propose amendments or revisions
TWO PART TEST -Requires ¾ vote of all its members
1. QUANTITATIVE TEST: asks whether the proposed change is so 2. Constitutional convention extensive in its provisions as to change directly the substantial entirety of the Constitution by the deletion or alteration of numerous -a separate body the members of which are elected existing provisions. The court examines only the number of provisions affected and does not consider the degree of change. Article XVII Sec. 3- “The Congress may, by a vote of 2/3 of all its Members, call a constitutional convention, or by a majority vote of all its 2. QUALITATIVE TEST: inquires into the qualitative effects of the Members, submit to the electorate the calling of such convention” proposed change in the Constitution. The main inquiry is whether the change will accomplish such far reaching changes in the nature 2 ways: of our basic governmental plan as to amount to a revision. Whether there is an alteration in the structure of government is a proper a. Congress directly calls a CONCON by 2/3 vote of all its members. subject of inquiry. b. The issue of calling a CONCON may be submitted to the people in *A change in the nature of the basic governmental plan includes a plebiscite by majority vote of all members of Congress. changes in its fundamental framework or the fundamental powers of its branches. A change in the nature of the basic governmental plan also 3. People’s initiative on the Constitution (RA 6735) includes changes that “jeopardize the traditional form of government and the system of checks and balances”. (Lambino vs. COMELEC) Article XVII, Sec. 2- “Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at *LAMBINO VS. COMELEC least 12 percentum of the total number of registered voters, of which every legislative district must be represented by at least 3 percentum of -Under both the quantitative and qualitative tests, the Lambino group’s the registered voters therein. No amendment under this section shall be initiative is a revision, not merely an amendment. QUANTITATIVELY, the authorized within 5 years, following the ratification of this Constitution or Lambino group’s proposed changes overhaul two Articles-Article VI of the oftener than every 5 years thereafter. Legislature and Article VII on the Executive-affecting a total of 105 provisions in the entire Constitution. QUALITATIVELY, the proposed changes alter The Congress shall provide for the substantially the basic plan of government from presidential to parliamentary implementation of the exercise of this right”. and from a bicameral to unilateral legislature. *This applies only to amendments not revisions. STAGES IN THE AMENDATORY PROCESS *REQ: A petition signed by at least 12% of the total number of registered 1. Proposal voters therein of which every legislative district must be represented by at least 3% of registered voters therein. 2. Ratification Q. Is the provision on people’s initiative (Art XVII, Sec. 2) self MODES OF PROPOSING AMENDMENTS OR REVISIONS executing?
1. Congress acting as constituent assembly
Political Law Review Notes (Atty. Edwin Sandoval) 7 Prepared by: Atty Joan P. Gamboa A. No. Note the second sentence says- “The Congress shall provide *Any proposed change must be submitted to the people in a plebiscite not a for the implementation of the exercise of this right.” Thus Congress referendum. should enact a law implementing this provision. *Article XVII, Sec. 4- “Any amendment to or revision of this Constitution Q. Has Congress enacted such law? under Sec. 1 hereof (Con Ass) shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days not A. Yes. Congress enacted a law RA 6735: Initiative and Referendum later than 90 days after the approval of such amendment or revision. Act. “Any amendment under Sec. 2 hereof (Con Com) 3 SYSTEMS OF INITIATIVE: shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days nor later than 90 days after the 1. Initiative on the Constitution certification by the Comelec of the sufficiency of the petition”.
2. Initiative on Statutes CHA-CHA NOT ALLOWED
3. Initiative on Local Legislation *Article XVII, Sec. 2 remains to be non self executing. The implementing law was declared unconstitutional. (Santiago vs. Comelec) SANTIAGO VS. COMELEC (re: Initiative on the Constitution) *People’s initiative is limited only to amendments. *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 DOCTRINE OF STATE IMMUNITY FROM SUIT the Constitution until Congress provides for its implementation. Article XVI, Sec. 3- “The State may not be sued without its consent.” *RA 6735 miserably failed to satisfy the requirements in subordinate legislation in so far as initiative to propose amendments to the Constitution is Q. What if the Constitution does not provide for state immunity? concerned. A. Through the DOCTRINE OF INCORPORATION (Article II, Sec. 2), the *If Congress intended to fully provide for the implementation of the initiative Philippines have adopted the generally accepted principles of international on amendments to the Constitution, it could have provided for a subtitle law as part of the law of the land. State immunity from suit is a generally therefore, considering that in the order of things, the primacy of interest, or accepted principle of international law. Hence we are bound by it. hierarchy of values, the right of the people to directly propose amendments to the Constitution is far more important than the initiative on national and Q. Ethical basis? local laws. A. “There can be no legal right against the authority which makes the law on *SC declared RA 6735 inadequate to cover the system of initiative on which the right depends”. (Justice Holmes) amendments to the Constitution and have failed to provide a sufficient standard for subordinate legislation (there is undue delegation of power to Q. Does the Doctrine of State Immunity form Suit apply also to foreign Comelec). To this extent, RA 6735 is unconstitutional. agreements?
*Article XVII, Sec. 2 remains non self executing. A. Yes. We are bound by the DOCTRINE OF SOVEREIGN EQUALITY. All states are sovereign equals. An equal may not assume jurisdiction over *People’s Initiative on the Constitution is limited only to proposing another equal. Otherwise it will unduly vex the peace of nations. This is amendments not revisions. another generally accepted principle of international law as expressed in the Latin maxim par in parem non habet imperium. RATIFICATION
Political Law Review Notes (Atty. Edwin Sandoval) 8 Prepared by: Atty Joan P. Gamboa Q. Can you sue the State? Ex. Article 2180, NCC- “The State is responsible xxx when it acts though a special agent xxx.” A. A State may not be sued without its consent. Hence, you can actually sue the State, for as long as the State gives its consent. Ex. Article 2189, NCC- “Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by any person by reason of the Q. How does a State waive its immunity from suit? defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision. A. Either EXPRESSLY or IMPLIEDLY. TEOTICO VS. CITY OF MANILA EXPRESSLY: Through the enactment by Congress of a general law or special law. *City of Manila contends that it cannot be held liable under its charter.
Q. May the Solgen validly waive immunity from suit? *SC held that the provision in the charter is a general provision in a special law. On the other hand, Article 2189 is a special provision found in a general A. No. A mere lawyer of the government cannot validly waive immunity from law. A special provision found in a general law prevails over the general suit. Only the Congress can. (Republic vs. Purisima) provision found in the charter of the City of Manila. City of Manila is liable.
*Waiver of immunity constitutes a derogation of sovereignty. Hence, it is KILATKO VS. CITY OF DAGUPAN always construed strictly or strictissimi juris. *City of Dagupan contended that the manhole is found in the national road. 1. GENERAL LAW *SC held that the ownership of the road is immaterial. Even if it is a national Ex. Act No. 3083- applies to any money claims arising from contracts with road, the LGU is liable. Article 2189 merely requires supervision over the the government whether express or implied. maintenance of the national road. City of Dagupan has supervision. Hence, liable. -must be correlated with COMMONWEALTH ACT 387 as amended by PD 1445 or the GENERAL AUDITING LAW- any money claim arising from Ex. Sec. 24, Local Government Code- “Liability for Damages- Local contract with the government whether expressed or implied must first be government units and their officials are not exempt from liability for death or presented to COA and only when COA refuses payment that a party can injury to persons or damage to property.” sue. Ex. Charters of GOCC- GSIS, DBP, LBP Q. Where? *Charter-special law creating GOCC A. SC. Decisions of COA are reviewable by SC via petition for certiorari. (DAR vs. NLRC, J. Vitug) *The provision in the charter on whether it may sue or be sued is an express waiver by special law. Q. A contract was entered into with DPWH for the construction of roads. When the roads were finished, the contractor was not paid. Contractor sued IMPLIEDLY-2 ways: the government before the RTC. Will the suit prosper? 1. When the State itself commences litigation, thereby opening itself A. No. It will be dismissed for lack of cause of action. He failed to exhaust all to counterclaim. administrative remedies provided for by law under CA 327 as amended by PD 1445. Ex. Government sued A and A filed an answer with a counterclaim. The government cannot ask for the dismissal of the counterclaim on the 2. SPECIAL LAWS
Political Law Review Notes (Atty. Edwin Sandoval) 9 Prepared by: Atty Joan P. Gamboa ground of state immunity from suit. Otherwise, it would be the height of *Case was dismissed because there was no waiver. injustice. *Not all contracts are deemed to be a waiver of state immunity; must 2. When the State enters into a contract with private party. distinguish between:
*Here, the government is deemed to have gone down into the level of a ACTA JURE IMPERII: contracts entered into by the government in its private entity; there is parity now with the contracting parties; therefore, sovereign capacity; no waiver of state immunity from suit. it is deemed to have waived its immunity from suit. ACTA JURE GESTIONIS: contracts entered into by the government in *This rule used to be absolute. (US vs. Lyons) its commercial and proprietary capacity; there is waiver of state immunity from suit. (Restrictive Doctrine of State Immunity from Suit) *However, this rule is no longer absolute- Q. In the Ruiz case, can the contractor invoke Act No. 3083? US VS. RUIZ A. No. Because Act No. 3083 waives the immunity of the Philippine *This involved the construction of wharves in Subic Bay at the time government only; not of other governments. Subic was still under the US pursuant to a treaty. Q. What is the remedy of the contractor? *Contractor was not paid so he sued the Subic Naval Authorities. A. Under international law, he will have to convince his state through the *Subic Naval Authorities moved to dismiss invoking State Immunity from assistance of the Department of Foreign Affairs to take his case up with the Suit. other state.
*On the other hand, the contractor contends that the State entered into Q. Raintree contracted with the Armed Forces of the Philippines for the a contract (relying on the old rule). supply of ponchos to be used by the soldiers. Raintree was not paid. Can Raintree sue? SC: The traditional rule of immunity exempts a state from being sued in courts of another state without its consent or waiver. This rule is a A. Yes, under Act No. 3083. This is a money claim arising from contract. necessary consequence of the principle of independence and equality There is no need to invoke implied waiver, since there is already an express of states. However, rules of international law are not petrified; they are waiver. constantly developing and evolving. And because the activities of the states have multiplied, it has been necessary to distinguish them US VS. GUINTO between sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that state *A Filipino cook in a restaurant inside Camp John Hay poured urine into the immunity now extends only to acts jure imperii. The restrictive soup stock used in cooking the vegetables served to the customers. application of state immunity is now the rule in the US, UK and other states in Western Europe. *He was dismissed.
*A state may be said to have descended to the level of an individual and *He filed a complaint for damages against the US Air Force Recreation thus deemed to have tacitly given its consent to be sued only when it Center at Camp John Hay who operates the restaurant. enters into business contracts. *The latter invoked the Doctrine of Immunity from Suit and moved to dismiss. *The purpose of the wharves is the defense of US troops and of the Philippines. Defense of the state is of the highest order and hence, is SC: The restaurant services offered partake of the nature of a business jure imperii. enterprise undertaken by the US government in its proprietary capacity.
Political Law Review Notes (Atty. Edwin Sandoval) 10 Prepared by: Atty Joan P. Gamboa Such services are not extended to the American servicemen for free as a A. The operation of a public market is a proprietary function. It is classified perquisite of membership in the Armed Forces of the US. Neither does it as a business enterprise of the local government. Hence, the municipal appear that they are exclusively offered to these servicemen; on the government would then be in the performance of a proprietary function. As contrary, it is well known that they are available to the general public as well, such, it would not be a valid defense to liability. including the tourists in Baguio City, many of whom make it a point to visit John Hay for this reason. All persons availing themselves of this facility pay TORIO VS. FONTANILLA for the privilege like all other customers in ordinary restaurants. Although the prices are concededly reasonable and relatively low, such services are *The holding of a town fiesta even if the purpose is to commemorate a undoubtedly operated for profit as a commercial and not a governmental religious or historical event of the town is in essence an act for the special activity. benefit of the community and not for the general welfare of the public performed in pursuance of a policy of the state. xxx It is a proprietary activity. *The case was remanded to the Labor arbiter. There is waiver of immunity. Thus, the municipality may be held liable.
*SUABILITY VS. LIABILITY EXECUTION OF JUDGEMENT
*The circumstance that a state is suable does not necessarily mean that it is Q. Assume that you are allowed by the State to sue. After trial, judgement liable. A state can never be held liable if it does not first consent to be sued. was rendered in your favor, holding the State liable. Judgement thereafter SUABILITY is just a matter of a state giving its consent to be sued. attained finality. Can you garnish or levy government funds to execute the judgement? *LIABILITY is a matter of applicable law and circumstance of the case. Liability is not conceded by the mere fact that the state has allowed itself to A. No. It will paralyze the operations of the government. Waiver extends only be sued. When the state does waive its sovereign immunity, it is only giving up to the rendition of judgement. Execution requires another waiver. The the plaintiff the chance to prove, if it can, that the defendant is liable. disbursement of public funds requires an appropriate appropriation law.
*Waiver merely gives the claimant the opportunity to prove that the state is Q. Remedy? liable. A. To make representation with the proper legislative authority for the MUNICIPALITY OF SAN FERNANDO LA UNION VS. JUDGE FIRME enactment of an appropriation law necessary to satisfy the judgement.
*San Fernando owned a dump truck being driven by its official driver, while Q. What if the legislative authority refuses to enact the law? hauling gravel, it collided with a jeep, killing the latter’s passenger. The heirs sued the municipality for damages. The municipality moved to dismiss on A. Go to the courts and ask for MANDAMUS to compel the legislative the ground of immunity of state from suit. Without resolving the motion, authority to enact the required law. True, the duty to appropriate is Judge Firme proceeded to resolve the case and held the municipality liable discretionary. The exception however, as in this case, is when there is since its charter expressly provides that it may sue and be sued. already a money judgement against the government, the discretionary duty becomes ministerial. The state must be the first to respect and obey the SC: Suability is not the same as liability. Municipality can invoke defenses- decisions of the Courts. (Municipality of Makati vs. IAC) that at the time the accident happened, it was engaged in the performance of governmental function (repair of municipal roads). This is a case of SUITS AGAINST GOVERNMENT AGENCIES AND INSTRUMENTALITIES DAMNUM ABSQUE INJURIA (Damage without injury). Distinguish: Q. What if the dump truck was then hauling lumber for the repair of a public market instead of gravel for the repair of municipal road? 1. INCORPORATED AGENCIES: These are agencies with separate charters creating them.
Political Law Review Notes (Atty. Edwin Sandoval) 11 Prepared by: Atty Joan P. Gamboa -They have personality separate and distinct from the Philippine commission findings, there was lack of justification by the government forces government. in the use of firearms. Moreover, the members of the police and military crowd dispersal units committed a prohibited act under BP 180 as there was -The test of suability will depend whether or not its charter allows it to unnecessary firing by them in dispersing the marchers. sue and be sued. EXCEPTIONAL CASES: The doctrine of State Immunity from Suit cannot Ex. SSS, GSIS, PCSO, Phil. Postal Corporation serve as an instance to perpetuate injustice on a citizen.
2. UNINCORPORATED AGENCIES: These agencies have no charter. *However, this should not be invoked indiscriminately because the circumstances obtaining in the following cases are peculiar. -They do not have separate personality. AMIGABLE VS. CUENCA -A suit against them is really a suit against the government. *Amigable owned a lot in Cebu City. There is no annotation in favor of the -Test of suability depends upon whether or not it is performing a government in the TCT. Then without prior appropriation or negotiated sale, governmental or proprietary function. the government used a portion of the said lot for the construction of roads. Amigable then filed a complaint against the Republic, and Cuenca, in the SUIT AGAINST PUBLIC OFFICIALS latter’s capacity as Commissioner of Public Highways.
Q. When do you consider a suit against public officials as a suit against the SC: Where the government takes away property from a private landowner state itself? for public use without going through the legal process of expropriation or negotiated sale. The aggrieved party may properly maintain a suit against A. The suit must be regarded as one against the State where the satisfaction the government without thereby violating the doctrine of governmental of judgement against the public official concerned will require the State itself immunity from suit without its consent. to perform a positive act such as appropriation of the amount necessary to pay the damages awarded to the plaintiff. (LANSANG VS. GARCIA) REASON-MINISTERIO VS. CFI OF CEBU
*The official was charged in his official capacity in the performance of official *The doctrine of governmental immunity from suit cannot serve as an duties. instrument of perpetration of injustice on a citizen. Had the government followed the procedure indicated by the governing law (Rule 87) at the time, *In this case, the official was acting only as an agent of the State. a complaint would not have been filed by it and only upon payment of compensation fixed by the judgement or after tender of the party entitled to *However, this rule does not apply if: such payment of the amount fixed. May it “have the right to enter in and upon the land so condemned, to appropriate the same to the public use -Acts were unlawful or illegal defined in the judgement.”
-Acts were done in a personal capacity *Actually, in Amigable and Ministerio cases there is an implied waiver. This implied waiver lies in the failure to commence the proper action. The action REPUBLIC VS. SANDOVAL filed by the petitioners amount to a counterclaim, had the government fled the proper action. It only became a petition because the government did not *This case does not qualify as a suit against the State. xxx While the follow the legal procedure. Republic in this case is sued by name, the ultimate liability does not pertain to the government. Although the military officers and personnel were CITIZENSHIP discharging their official functions when the incident occurred, their functions ceased to be official the moment they exceeded their authority. Based on the (ARTICLE IV, 1987 CONSTITUTION)
Political Law Review Notes (Atty. Edwin Sandoval) 12 Prepared by: Atty Joan P. Gamboa The following are the citizens of the Philippines (Sec. 1) her Philippine citizenship. Even if Australia follows jus soli, it only results to her possessing dual citizenship. 1. Those who are citizens of the Philippines at the time of the adoption of the 1987 Constitution. (3) Effect of holding an Australian passport- mere holding of an Australian passport does not mean renunciation of Philippine citizenship. In order to Q. When was the 1987 Constitution adopted? lose Philippine citizenship by renunciation, such renunciation must be express—the person renouncing must perform a positive act. (See Mercado A. 02 Feb. 1987- at the time of the plebiscite vs. Manzano and Aznar vs. Comelec)
*Not 11 Feb. 1987=When Pres. Aquino declared its ratification. 3. Those born before 17 January 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority 2. Those whose fathers or mothers are citizens of the Philippines. 3 Requisites for the application of this provision: *Note that the provision says “OR”- not “and” (1) They were born before 17 Jan. 1973. *This means that as long as 1 of your parents is a Filipino, you are a Filipino. (2) Their mother is a Filipino.
*This is in accordance with our adherence to the principle of jus (3) They elect Philippine citizenship upon reaching the age of sanguinis. majority.
*This results in complications when the country where you are born *History of the provision: applies the principle of jus soli. -Under the 1935 Constitution, legitimate minor children follow the *Complications arise with respect to the matter of dual allegiance. citizenship of their father. (See Sec. 5) -Thus one with an alien father and a Filipina, mother, VALLES VS. COMELEC (337 SCRA 543, 09 Aug. 2000) would, during minority, be an alien.
*Rosalind Lopez was born in 1934, in Australia to a Filipino-father, who was -Hence, he is given, upon reaching the age of majority, the born in 1879, and an Australian-mother. When she came to the Philippines, option to elect. she was holding an Australian passport and was registered as an alien in the BID. Then, Rosalind ran for governor. -Note that this is the reason why the provision applies only to those born of “Filipino mothers”. SC: Rosalind is a Filipino citizen. (1) Her father is a Filipino- Her father is a Spanish subject. In 1898, when the Spanish ceded the Philippines to the US, -One with a Filipino-father and an alien mother would still under the Jones Law and the Philippine Bill of 01 July 1902, all inhabitants of be a Filipino, since he follows his father’s citizenship. the Philippines who were Spanish subjects are deemed to be Philippine citizens. [This is the first time that there came to be Filipino citizens. It was *These are Natural-Born Citizens (See Sec. 2) an “en masse citizenship” because of a change of sovereignty]. *When Should Election Be Made- “Reasonable Time from Reaching Age of (2) Rosalind is a Filipino- Philippine law on citizenship adheres to the Majority”—RE: Application for Admission to the Philippine Bar, Vicente D. principle of jus sanguinis, where a child follows the nationality of the parents Ching (Bar Matter No. 914, 01 Oct.1999) regardless of the place of his/her birth. Hence, Rosalind’s father is a Filipino, she is a Filipina. Her being born in Australia is not tantamount to her losing
Political Law Review Notes (Atty. Edwin Sandoval) 13 Prepared by: Atty Joan P. Gamboa *Ching was born in 1964, of Chinese father and Filipina mother. Ching now -Thus, this constitutes an exception to the 1st kind of seeks to elect Philippine citizenship so he can be admitted to the Philippine Natural-Born Citizens. Bar. BENGSON III VS. HRET (GR 142840, 07 May 2001) SC: The 1935 Constitution only states that Philippine citizenship should be chosen upon age of majority. CA 625 states the child should be given a *Cruz lost his Philippine citizenship when he rendered service in the US reasonable time to elect Philippine citizenship. This reasonable time has Armed Forces, but re-acquired it through repatriation under RA 2630. He been construed to be 3 years upon reaching the age of majority. then ran, and won, as Congressman. His qualification was questioned on the ground that he is not a natural-born citizen. Here, Ching seeks to elect only 14 years after reaching the age majority. This is way beyond the contemplated period for electing Philippine SC: He is a natural-born citizen. (1) Effect of Repatriation—Repatriation citizenship. One who is privileged to elect Philippine citizenship has only an results in the recovery of the original nationality. Thus, a naturalized Filipino inchoate right to such citizenship—as such, he should avail of the right with who lost his citizenship will be restored to his prior status as a naturalized fervor, enthusiasm and promptitude. Filipino. On the other hand, if he was originally a natural-born citizen before he lost his citizenship, he will be restored to this former status as a natural- 4. Those who are naturalized in accordance with law born Filipino.
TECSON VS. COMELEC (2) Kinds of Citizens under the Constitution—There are only 2 classes of citizens under the Constitution—(a) natural-born and (b) naturalized in *FPJ was born in 1939, of a Filipino father and an American mother. His accordance with law. A citizen who is not a naturalized Filipino—one who did parents got married only in 1940. not undergo the process of naturalization—is a natural-born Filipino. Noteworthy is the absence in the enumeration of a separate category for SC: FPJ is an illegitimate child because his parents got married only after his persons who, after losing Philippine citizenship, subsequently reacquires it. birth. However, the 1935 Constitution states that “those whose fathers are This is because such whether such persons are natural-born or naturalized citizens of the Philippines” acquire Philippine citizenship. Thus, it did not depends on the reasons for the loss of their citizenship and the mode distinguish whether the child is legitimate or illegitimate. prescribed by the applicable law for the reacquisition thereof.
The rule is different when it is the mother who is a Filipino. Here, if Marriage to foreigners—Art. IV, Sec. 4 the child is legitimate—he can elect Philippine citizenship upon reaching the age of majority. If he is illegitimate, he will follow the mother’s citizenship. *”Citizens of the Philippines who marry aliens shall retain their citizenship, The reason for this rule is to ensure Filipino nationality of the child so as not unless by their act or omission they are deemed, under the law, to have to prejudice. Normally, since he is illegitimate, the mother would have renounced it.” custody and have parental authority. *History of the provision: *Natural-Born Citizens (Sec. 2) -This provision was carried over from the 1973 Constitution. 2 Kinds of Natural-Born Citizens: -In the 1935 Constitution, there is no similar provision. 1. Those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. -Thus, women were prejudiced—when they marry a foreigner, they lose their Filipino citizenship. 2. Those who elect Philippine citizenship in accordance with par (3), Sec. 1 Ex. Biel vs. Director of Public Schools -In this case, the person has to perform an act to perfect his Philippine citizenship.
Political Law Review Notes (Atty. Edwin Sandoval) 14 Prepared by: Atty Joan P. Gamboa -A public School teacher was removed from her position because she Loss and Re-Acquisition of Philippine Citizenship married her Chinese lover. -Art. IV, Sec. 3—“Philippine citizenship may be lost or reacquired in the -However, if the woman just maintains a live-in relationship with a foreigner, manner provided by law”. she does not lose her Philippine citizenship—there is no marriage. Ways by which Philippine Citizenship may be Re-Acquired: -Thus, they are better situated than those who contracted marriage with foreigners. 1. Naturalization
-Absurd! 2. Repatriation
*In relation to Sec. 1 (3) Naturalization vs. Repatriation
-Under the 1935 Constitution, the children of a Filipina-mother and an alien- Naturalization Repatriation father who had a common law relationship are Philippine citizens. 1. As to Nature -A mode of acquisition and -A mode of re-acquisition of Philippine -No need to elect. reacquisition of Philippine citizenship. citizenship.
Q. Why? *As a mode of acquisition- CA 473 governs A. Being illegitimate children, they follow the citizenship of their mothers, who remain to be Filipinos since they are not married to aliens. *As a mode of re-acquisition- CA 63 governs. -This is another absurdity. -Very cumbersome and tedious. Thus: 2. As to process -Simpler process 1. In 1970, Filipina married a foreigner
-Filipina loses Philippine citizenship. *Process is simple—requires only: -The 1935 Constitution had no provision similar to Art. IV, Sec. 4 1. Take oath of allegiance 2. In 1975, Filipina married a foreigner 2. Registration with the Civil Registry -Filipina retains Philippine citizenship. *Available when the loss of citizenship is due to: -The 1973 Constitution had a provision similar to Art. IV, Sec. 4. (1.) Desertion of the Armed Forces (CA 63) Modes to Acquire Philippine Citizenship: (2.) Service in the Armed Forces of Allied Forces during WW 2 (RA 965) 1. Birth (3.) Service in the US Armed Forces (RA 2630) 2. Naturalization *See Bengzon III vs. HRET
Political Law Review Notes (Atty. Edwin Sandoval) 15 Prepared by: Atty Joan P. Gamboa (4.) Marriage of Filipino woman to an alien, political or economic necessity a. Those born of Filipino fathers and/or mothers in foreign countries which (RA 8171) follow the principle of jus soli.
3. Direct Act of Congress b. Those born in the Philippines of Filipino mothers and alien fathers, if by the laws of their father’s country, such children are citizens of that country. *Dual Allegiance—Art. IV, Sec. 5 c. Those who marry aliens if by the laws of the latter’s country the former are *”Dual allegiance of citizens is inimical to the national interest and shall be considered citizens, unless by their act or omission they are deemed to have dealt with in accordance with law.” renounced their Philippine citizenship.
Q. Is this provision self executing? Dual Allegiance vs. Dual Citizenship
A. No. It says “shall be dealt with by law”. It means a future law. Dual Allegiance Dual Citizenship
Q. Is there now a law that prohibits dual allegiance? 1. As to how it results -A situation where a person -Arises when, due to the concurrent simultaneously owes, by some application of the different laws of 2 A. Yes. RA 7160, Sec. 40 (d) (Local Government Code) positive act, loyalty to 2 or more or more states, a person is states. simultaneously considered a national “The following are disqualified from running for any elective local position: by said states. xxx Involuntary. (d) Those with dual citizenship” (See Mercado vs. Manzano) -Voluntary. 2. As to voluntariness MERCADO VS. MANZANO (307 SCRA 630, 26 May 1999)
*Edu Manzano was born in the US, of Filipino parents. In 1998 he ran for vice-mayor of Makati. His qualification was challenged. Note that RA 7160, *RA 9225—Dual Citizenship Law (Citizenship Retention and Re-Acquisition Sec. 40 (d) disqualifies those with dual citizenship from running for local Act of 2003) elective office. RULE: Natural-born Filipinos who lost their Philippine citizenship by SC: He is qualified to run. (1) Manzano has dual citizenship—since his naturalization as citizens of a foreign country shall re-acquire/retain their parents are Filipinos, he is a Filipino; since he was born in the US, he is also Philippine citizenship upon taking the Oath of Allegiance. (Sec. 3, RA 9225) a US citizen. Thus, he has dual citizenship. Effect of Re-Acquisition on Civil and Political Rights- the following rights can (2) Dual Allegiance is Prohibited, Not Dual Citizenship—what is prohibited by be exercised, subject to certain conditions: the Constitution is dual allegiance, not dual citizenship. The concern of the Constitutional Commission was not with dual citizens per se, but with 1. Right to vote- RA 9225 Sec. 5 (1) - must meet requirements of Sec. 1, Art. naturalized citizens who maintain their allegiance to their countries of origin V and of RA 9189 (Overseas Absentee Voting Act of 2003) even after their naturalization. Hence, the phrase “dual citizenship” in RA 7160, Sec. 40 (d) must be understood as referring to “dual allegiance”. 2. Elective Public Office – RA 9225 Sec. 5 (2) – must renounce foreign Hence, persons with mere dual citizenship do not fall under the citizenship before any public officer authorized to administer oath. disqualification. -Done at the time of the filing of the certificate of candidacy. Situations Where Dual Citizenship Arises: -Thus, he will lose his dual citizenship- will have just 1 citizenship.
Political Law Review Notes (Atty. Edwin Sandoval) 16 Prepared by: Atty Joan P. Gamboa 3. Appointive Public Office – RA 9225 Sec. 5 (3) – must also renounce. Ex: Article XVIII – “Amendments or Revisions”
4. Practice of Profession – subject to guidelines of proper regulatory agency.
-Art. 12, Sec. 14, 2nd par., 1987 Constitution- “The practice of all (2) Constitution of Liberty – the series of prescriptions setting forth the professions in the Philippines shall be limited to Filipino citizens, save in fundamental civil and political rights of the citizens and imposing limitations cases prescribed by law.” on the power of the government as a means of securing the enjoyment of those rights. Q. X was born in the USA on Jan. 10, 1973, of a Filipino mother and American father. He studied and worked in the Philippines. Can he run for Ex: Article III – Bill or Rights Mayor?
A. (1) Under the 1935 Constitution, which was governing at the time of X’s birth, he should elect Philippine citizenship upon reaching the age of (3) Constitution of Government – provides for a structure and system of majority. government; refers to the provisions outlining the organization of the Government, enumerating its powers, laying down certain rules relative to its (2) Under RA 9225, he is also a dual citizen—hence, he should first administration and defining the electorate. renounce his American citizenship. Ex: Article VI – Legislative Department *Res Judicata in Citizenship Cases Article VII – Executive Department GR: No res judicata in cases of citizenship. Article VIII – Judicial Department EXCEPTION: Burca vs. Republic (51 SCRA 248, 1973) Article IX – Constitutional Commissions When the following requisites concur:
1. When the person’s citizenship is raised as a material issue in a controversy where said person is a party; Doctrine of Separation of Powers in a presidential type of government
2. When the Solicitor General or his authorized representative took active The 3 great powers are distributed among the 3 great branches of part in the resolution thereof; and government:
3. When the finding on citizenship is affirmed by the SC. Legislative power – Legislative branch / Congress
Structure of Government Article VI, Sec 1 – “The legislative power shall be vested in the congress of the Philippines…”
This is also called the POWER OF THE PURSE. 3 Parts of a Written Constitution:
(1) Constitution of sovereignty – This refers to thee provisions pointing out the modes or procedure in accordance with which Formal changes in the Executive power – Executive branch / President constitution may be made.
Political Law Review Notes (Atty. Edwin Sandoval) 17 Prepared by: Atty Joan P. Gamboa Article VII, Sec 1 – “The executive power shall be vested in the President of Delegation to the People under the systems of initiative and referendum the Philippines…” (plebiscite, Art. VI, Sec 1)
This also called the POWER OF THE SWORD Delegation to the President of Emergency powers (Art VI, Sec 23)
Delegation to the President of Tariff powers (Art VI, Sec 28[2])
Judicial power – Judiciary / Supreme Court Delegation to Administrative Bodies
Article VIII, Sec 1 – “The judicial power shall be vested in one Supreme Delegation to Local governments (Art. X) Court and in such lower courts as may be established by law.”
This is also called the POWER OF JUDICIAL REVIEW There must always be an EXPRESS delegation! (by Law/Constitution)
The legislative and the executive branches are called the POLITICAL BRANCHES. Q. What are the requisites before emergency powers may be delegated to the President? Corollary to the principle of separation of powers: A. Under Article VI. Section 23. there are four:
There must be a war or other national emergency. Principles of checks and balances The delegation shall be for a limited period only Each branch of the government is a check of the others so that power will not be concentrated which might lead to abuse and irreparable damage. The delegation must be pursuant to a declared national policy
This allows 1 department to resist encroachments upon its prerogatives or to The delegation is subject to such restrictions and limitations as Congress rectify mistakes or excesses committed by the other departments. may prescribe.
Ex: veto power of the President.
Principle of non-delegation of Powers The power is delegated from the Congress to the President (David vs Arroyo)
GR – “Potesta delegata non potest delegari” – Power delegated may no longer be delegated. Q. What is meant by delegation to administrative bodies?
A. It is the delegation of quasi-legislative powers to administrative agencies. XPNs: Instances of permissible delegation – PETAL
Political Law Review Notes (Atty. Edwin Sandoval) 18 Prepared by: Atty Joan P. Gamboa refers to the rule making power or power of subordinate legislation or power A. It is one that defines legislative policy, marks its limits, maps out its to promulgate rules and regulations to implement a given law/legislative boundaries and specifies the public agency to apply it. policy. Ex: (1) Power to organize agencies was delegated to the President Operative word, “or” meant equivalent terms Standard: to streamline the bureaucracy for economy and sufficiency. The power to ENACT laws still belongs to Congress. (2) Power to issue franchises delegated to LTFRB
Standard: For public convenience and security Tests of valid delegation vs. abdication of power
Undue delegation to the delegate The standards need not be found in the law delegating the power. Instead, standards may be found in other laws – what is important is that the Completeness Test standards are determinate or at least determinable (Chong Bian vs Ci-Bos)
The law delegating the power must be complete in itself in the sense that the If the delegation meets the tests, it is valid. body on whom the power is delegated must have no discretion to exercise the power but to enforce it. What is prohibited is undue delegation or a delegation running riot.
The law must be complete in all its terms and conditions, such that there is If there is undue delegation, it is no longer delegation of power but nothing more to be done by the body but to enforce it. abdication of power in favor of the delegate, which violates the doctrine of separation of powers. The law must set forth the policy to be executed, carried out or implemented by the delegate. Ratio: You cannot expect the Congress to anticipate all.
The delegate must not be authorized to fill in the gaps.
Article VI – LEGISLATIVE DEPARTMENT
Legislative Power
Sufficiency of Standards Test
The law must provide for standards that are determinate or at least Article VI, Sec 1: “The legislative power shall be vested in the congress of determinate, which will define the limits of a delegate’s authority. the Philippines, which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the The standard will guide the delegate in the exercise of the delegated power provisions on initiative and referendum.” which standards must be determinate/determinable.
Q. What power is vested in Congress? Q. What is a sufficient standard? A. Legislative Power under Article VI, Sec. 1 (The Power of the Purse).
Political Law Review Notes (Atty. Edwin Sandoval) 19 Prepared by: Atty Joan P. Gamboa Q. Is legislative power exclusively vested in Congress? 3 kinds of Initiative under RA 6735:
A. NO. Unlike in the 1935 constitution where the legislative power is exclusively vested in Congress, under the 1987 constitution, there is a reservation made to the people (initiative and referendum). (Art VI, Sec1). Initiative on the Constitution
declared unconstitutional (Santiago vs. COMELEC)
The legislative power is not exclusively vested in Congress! It is vested in:
Congress – made up of 2 houses: Initiative on Statutes
Senate Implemented Article VI. Sec 1
House of Representatives Refers to petitions proposing to enact a national legislation
We have a Bicameral Congress Valid
The houses are co-equal bodies; hence the terms “upper house” and “lower house” are inaccurate! Initiative on Local Legislation Bicameral Conference Committee refers to petitions proposing to enact, amend, or repeal local ordinances. See Phil. Judges Association vs. Hon. Prado, and Valid. Tolentino vs. Secretary of Finance. Bar Q: What is initiative? What is Referendum?
A: Initiative is the power of the people to propose amendments to the “…to the extent reserved to the People by initiative and referendum” Constitution on to propose and enact legislations through an election for the purpose (Sec 3(a), RA6735). Article VI, Sec. 32 – The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions there from. Referendum is the power of the electorate to approve or reject a legislation through an election called for the purpose (Sec. 3©, RA6735). This is no self-executing. Q: May the President enact laws?
A: NO. Legislative power is vested in Congress. Legislative power includes Q. Has the Congress enacted a Law? the power to ENACT, AMEND, or REPEAL. The power vested on the President is the EXECTIVE POWER or the power to IMPLEMENT laws. A. YES. R.A. 6735 (Initiative and Referendum Law) is the implementing provision of Sec 1 Art VI, 1987 Constitution. PRESIDENT’S PARTICIPATION IN THE LAW-MAKING PROCESS
Political Law Review Notes (Atty. Edwin Sandoval) 20 Prepared by: Atty Joan P. Gamboa Q: Does the President have any participation in the Law-making When the president prepares a budget which is the basis of the GENERAL process? APPROPRIATIONS ACT.
Yes, in the following instances: [SBUVS] Art VII, Sec 22 – “The president shall submit to the congress x x x as basis of the general appropriations bill a budget for expenditures and sources of When he exercises his veto power financing, including receipts from existing and proposed revenue measures.” Article VI, Sec 27. – “Every bill passed by Congress shall before it becomes a law, be presented to the president. If he approves the same, he shall sign it; otherwise, he shall veto it…” NON-LEGISLATIVE POWERS OF CONGRESS (9): [IBAWI PA CE] When the president vetoes a bill, that bill doesn’t become a law. Investigative power / power to conduct investigation (inquiries in aid of legislation)
When he calls for a special session Art VI, Sec 21 – “The senate or the house of representatives or any of its respective committees may conduct inquiries in aid of legislation or in Art VI. Sec 15 – “The president may call a special session at any time” accordance with its duly published rules of procedure…”
In effect, he will initiate the process Power to declare the existence of a state of War
When the president certifies as the urgency of the bill to meet a public Art VI, Sec 23 – “The congress by a vote of 2/3 of both houses in joint calamity or emergency. session assembled, voting separately, shall have the sole power to declare the existence of a state of war.” [*then based on such declaration, delegate Art VI, sec 26 (2) “No bill passed by either house shall become a law unless emergency powers to the President] it has passed three (3) readings on separate days x x x except when the president certifies as to the necessity of its immediate enactment to meet a public calamity or emergency.” Power to confirm a presidential appointments [through commission on The president hastens the process by dispensing with 3 separate readings Appointments] on 3 separate days rule. Art VII, Sec 16 – “The president shall nominate and with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls or officers of When the president signs a bill that becomes a law the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this constitution.” Art VI, sec 27 – “Every bill passed by Congress shall before it becomes a law, be presented to the president. If he approves the same, he shall sign it…” Power to punish for contempt The president performs the last operative act for a bill to become a law. - Incidental to the power to conduct inquiries in aid of legislations.
Political Law Review Notes (Atty. Edwin Sandoval) 21 Prepared by: Atty Joan P. Gamboa Power to impeach and to try cases of impeachment and due execution thereof in the manner provided by law, canvass the votes.” As a prosecutorial body: Art XI, Sec 3(1) – “The House of Representatives shall have the exclusive power to initiate all cases of impeachment.
As an impeachment Court: Art XI, Sec 3(6) – “The senate shall have the Composition of CONGRESS sole power to try and decide all cases of impeachment x x x “ Senate – 24 senators elected at large; Power to judge election contests involving their members through the Electoral tribunal Term: 6 years
Art VI, Sec 17 – “The senate and House of Representatives shall each have Term limit: 2 Consecutive terms electoral tribunals which is the sole judge of all contests relating to the election returns and qualifications of their respective members x x x” House of Representatives
Power to concur in Amnesty Proclamation Term: 3 years
Art VIII, Sec 19(2) – “He shall have the power to grant amnesty with the Term limit: 3 consecutive terms concurrence of a majority of all the members of the Congress” Art VI, Sec 5(1) – “The HOR shall be composed of not more than 250 members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Power to propose amendments to, or revisions of the constitution, when metropolitan manila area x x x” acting as constituent assembly This provision is already Functus Officio! Art XVII, Sec 1(2) – “Any amendment to, or revision of, this constitution may be done by: (1) The congress, upon a vote of ¾ of all its members; x x x” Congress has the power to reapportion legislative district every census, under - Art VI, Sec 5(4) –
Within 3 years following the term of every census, the congress shall make a Power to act as board of canvassers in presidential and vice-presidential re-apportionment of legislative districts based on the standards provided in elections. this section.”
Art VII, Sec 4(4) – “Upon receipt Senator Representative SEMA v COMELEC of the certificates of canvass, the president of the Philippines shall, (1) Citizenship Natural born Creation of Shariff Kabunsuan not later than 30 days after the was declared unconstitutional. day of the election, open al (2) LIteracy Able to read and write Power to create legislative district certificates in the presence of the is legislative in character. Only Congress can make legislative Senate of the House of (3) Voter Registered voter Representatives in joint and public district not ARMM Assembly. An inferior legislative body like session, and the Congress, upon (4) Age 35 years of age on 25 years of age on the day of election ARMM created by a superior determination of the authenticity the day of election
(5) Residence 2 years residence 1 year in the district he is representing.
(6) Term 6 years, 2 3 years; 3 consecutive term-limit. Political Law Review Notes (Atty. Edwin Sandoval) consecutive term- 22 Prepared by: Atty Joan P. Gamboa limit legislative body cannot change the composition of the superior legislative Implemented by RA7941 (Party-list law) body. Adopted the German model of the party list system
1998 elections: first time we had party list election Qualifications: Borrowed concept from parliamentary system Marcos vs. COMELEC (248 SCRA 300 [1995]) See: Ang bagong-bayani-OFW labor party vs. COMELEC (June 26, ‘01 In her application for candidacy, Imelda wrote “7 months En Banc) requirement”, then amended it and wrote, “Since birth”. The SC decided in favor of Imelda.
Q: What is the nature of the party-list system?
Supreme court held that in political law, “residence” is considered as A: The party-list system is a social justice tool designed not only to “domicile”. give more in life to the great masses of our people who have less in life, but Kinds of Congressmen: also
Art VI, Sec 5(1) – “The HOR shall be composed of not more than 250 to enable them to become veritable (genuine/real) law makers themselves. It members, unless otherwise fixed by law, who shall be elected from legislative districts x x x and those who, as provided by law, shall be elected intends to make the marginalized and underrepresented active participants through a party-list system of registered national, regional, and sectoral in the mainstream of representative democracy. parties or organizations.”
District representatives The party list system is one such tool intended to benefit those who hae less Party-list representatives in life. It gives the great masses of our people the genuine hope and genuine power. It is a message to the destitute and the prejudiced, and even to those this absorbed the sectoral representatives in the underground (e.g. rebels), that change is possible. It is an invitation for them to come our of their limbo and seize the opportunity. Art VI, Sec 5(2) – “x x x for 3 consecutive terms after the ratifications of this constitution, ½ of the seats allocated to the party-list representatives shall be filled as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other Q: Is it open to all? sectors as may be provided by law, except the religious sector.” A: No. It is not open to all but only to the marginalized and the [other sectors: fisher folks, elderly, handicapped (Sec 5, RA7941)]. underrepresented.
PUF – LICE – HWY – O
Xpn: Religious sector Allowing all individuals and groups, including those which now dominate district elections, to have the same opportunity to participate in the party-list Party list system elections would desecrate this lofty. Objective and mongrelize the social
Political Law Review Notes (Atty. Edwin Sandoval) 23 Prepared by: Atty Joan P. Gamboa justice mechanism into an atrocious veneer for traditional politics (nose belonging to the marginalized and underrepresented sectors x x x to be bleed!) enelcted to the HOR.
They must show that they represent the interests of the marginalized and the underrepresented. To make it open to all, without qualifications would not only weaken the electoral chances of the marginalized and the underrepresented – it also Sec 5, RA 7941 – “Any organized group of persons may regilster as a party, prejudices them. To allow the non-marginalized and the overrepresented to organization, or coalition for purposes of the party-list system x x x” vie under the party list system would not only dilute, but also prejudice the chance of the marginalized and underrepresented – contrary to the law’s Sec 7, Art IX-C, 1987 Const. – “No votes cast in favor of a political party, intention to enhance it. It would gut the substance of the party-list system. organization, or coalition shall be valid, except for those registered under the Instead of generating hope, it would create a mirage. Instead of enabling the party-list system as provided in this constitution. marginalized, it would further weaken them and aggravate their marginalization. Sec 8, Art IX-C, 1987 Const. – “Political parties or organizations or coalitions registered under the party list system shall not be represented in the voter’s registration boards x x x”
Uphold Social Justice principle – to give those who have less life, more in Sec 5(1), Art VI, 1987 Const. – “The HOR shall be composed of x x x and law. those who x x x shall be elected through a party list system of registered national, regional, and sectoral parties or organizations.
Underground group – Rebels (p.27 3A notes) The religious sector may not be represented in the party-list system or registered as a political party.
Guidelines for screening party list participants (8) Art IX-C Sec 2(5) – “The COMELEC shall exercise the following powers and functions x x x (5) Register x x x political parties, organizations x x x religious The political party, sector, organization, or coalition must represent the denomination shall not be registered. marginalized and underrepresented sectors identified in Sec 5, RA7941. Art VI, Sec 5(2) – “x x x from the labor, peasant urban poor x x x and such Sec 5, RA7941 – “x x x the sectors shall include labor, peasant, fisherfolk, other sectors as may be provided by law, except religious sector” urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.” Sec 6(1), RA7941 – “The COMELEC may x x x refuse or cancel x x x the registration of any national regional or sectoral party, organization or This enumeration is NOT exlusive coalition on any of the following grounds: (1) If it is a religious sect or denomination, organization or association organized for religious purposes. However, it demonstrates the clear intent of the law that NOT all sectors can be represented under the party-list system. Ex: El Shaddai cannot register and participate in the party-list system
The prohibition is on any religious organization registering as a political party. No prohibition against a priest running as a candidate. What is While political parties may participate in the party-list system, then must prohibited is the registration of a religious sect as a political party. comply with the declared statutory policy of enabling “Filipino citizens
Political Law Review Notes (Atty. Edwin Sandoval) 24 Prepared by: Atty Joan P. Gamboa The party or organization must not be an adjunct of, or a project organized The party must not only comply with the requirements of the law; its by, or an entity funded or assisted by the government. nominees must likewise do so x x x
It must be independent of the government The nominee must also be qualified.
By the very nature of the party-list system, the party or organization must be Sec 9, RA 7941 – Qualifications for party list nominees a group of citizens, organized and operated by citizens. Natural-born citizen of the Philippines The participation of the government or its officials in the affairs of a party-list candidate is not only illegal and unfair to others, but also deleterious to the Registered voter objective of the law. Resident of the Philippines for a perioud of not less than 1 year immediately Ex: MAD – Mamamayan Ayaw sa Droga preceding the day of the electon.
Able to read and write
The party or organization must not be disqualified under sec 6, RA 7941: Bona fide member of the party or organization which he seeks to represent for at least 90 days preceding the day of the election. Sec 6, RA 7941 – Ground for refusal and/or cancellation of registration:
It is a religious sector denomination, organization or association, organized for religious purposes; Not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees. It advocates violence or unlawful means to seek its goal; The nominee must also represent the marginalized and underrepresented It is a foreign party or organization; Surely, the interests of the youth cannot be fully represented by a retiree; It is receiving support from any foreign gov’t, foreigh political party, neither can those of the urban poor or the working class by an individualist. foundation, organization, whether directly or through any of its officers or members or indirectly through 3rd parties for partisan election purposes.
It violates or fails to comply with laws, rules or regulations relating to While lacking a well-defined political constituency, the nominee must elections; likewise be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nature of the whole. It declares untruthful statements in its petition;
It has ceased to exist for at least 1 year; 4 Inviolable Parameters to determine the winners in a Party-list election It fails to participate in the last 2 preceding elections, or fails to obtain at least 2% of the votes cast under the party list system in the 2 preceding (As mandated by the Constitution and RA7941) Bar elections for the constituency in which it has registered. Question!
See VETERANS FEDERATION PARTY vs. COMELEC (October 6, 2000 En Banc)
Political Law Review Notes (Atty. Edwin Sandoval) 25 Prepared by: Atty Joan P. Gamboa In the case of Labo vs. COMELEC, reaffirmed in the case of Grego vs. COMELEC, the court declred that the votes case for an ineligible or The twenty (20%) percent allocation disqualified candidate cannot be considered stray, because this would disenfranchise the voters/majority; valid votes. The combined member of all party list congressmen shall not exceed 20% of the total memb ership of the HOR, including those elected under the party- However, votes cast for a notoriously disqualified candidate may be list. considered stray and excluded from the canvass.
Art VI, Sec 5(2) – “The party-list representatives shall constitute 20% of the This does not apply to the party-list elections! total number of representatives including those under the party-list. Because of the express rule in Sec 10, RA 7941 – “x x x that a vote cast for The two (2%) percent threshold a party, sectoral organization or coalition not entitled to be voted for shall not be counted x x x” Only those garnering a minimum of 2% of the total valid votes cast for the party list system are qualified to have a seat in the HOR. The LABO doctrine applies only to SINGLE ELECTIVE POST/ELECTIONS (e.g. Mayor); In the party-list system, even the 2nd, 3rd, etc... candidate may The base is the total votes cast for the party-list and not the total number of get seats. registered voters.
See RA 7941. Concept and Bases of Congressional Oversight Functions The three (3) seat limit See MAKALINTAL vs. COMELEC Each qualified part, regardless of the number of votes actually obtained, is entitled to a maximum of 3 seats – 1 qualifying and 2 additional seats.
Rationale: To avoid domination/monopoly – will go against the purpose of Q: What is the power of oversight? the party-list system. A: Broadly defined, the power of oversight embraces all activities undertaken Proportional Representation by Congress to enhance its understanding of and influence over the implementation of legislation it has enacted. Clearly, oversight concerns The additional seats to which a qualified party is entitled to shall be post-enactment measures undertaken by Congress: computed in proportion to their total number of votes. to monitor bureaucratic compliance with program objectives;
to determine whether agencies are properly administered; Q: To determine the total votes cast for the party-list system, should the votes tallied to the disqualified candidates be deducted/excluded in to eliminate executive waste and dishonesty; computing the 2% threshold? to prevent executive usurpation of legislative authority; and A: Yes. The votes for the disqualified parties should be excluded. to assess executive conformity with the congressional perception of public (Ang Bagong Bayani OFW vs. COMELEC [June 25, 2003 En Banc]) interest
Political Law Review Notes (Atty. Edwin Sandoval) 26 Prepared by: Atty Joan P. Gamboa Q: What is/are the basis of oversight power of Congress? “Supervision” connotes a continuing and informed awareness on the part of A: The power of oversight has been held to be (1) intrinsic in the grant of congressional committee regarding executive operations in a given legislative power itself and (2) integral to the checks and balances (3) administrative area. inherent in a democratic system of government.
Allows congress to the exercise of delegated law-making authority and Q: what are the categories of congressional oversight functions? [SIS] permits congress to retain that part of delegated authority.
A: Three categories: Ex: veto power of Congress.
Scrutiny – primary purpose is to determine economy and efficiency of the operation of government activities. Power to create public office / administrative agency – congress has an Based primarily on the power of appropriation of congress as under the additional power to supervise - properly implemented congress has review constitution, the “power of the purse” belongs to the congress powers over these public offices / administrative agencies.
Ex: Budget hearings – usual means of renewing policy and auditing the use Ex: GSIS. of previous appropriation to ascertain whether they have been disbursed for purposes authorized in an appropriation act. Q: What is legislative veto?
Power of confirmation – [through COA,] provides congress an opportunity to A: It is the power of the congress to disapprove a subordinate law, rules and find out whether the nominee possesses the necessary qualifications, regulations promulgated/enacted by the executive branch pursuant to a integrity and probity required for all public servants. delegation of authority by Congress.
(part 7) Immunities and privileges of members of Congress
Congress may request information and report from the other branches of Sec 11, Article VI – “A senator of member of the HOR shall, in all offenses government. It can give recommendations / pass resolutions for punishable by not more than 6 years imprisonment, be privileged from arrest consideration of the agency involved. while the congress is in session. No member shall be questioned nor be held liable in any other place for any speech or debate in Congress or in any committee thereof.”
Congressional Investigation – a more intense digging of facts. 3 Privileges:
This is an essential and appropriate auxiliary to the legislative functions, (1) Privilege from Arrest even in the absence of an express provision in the Constitution. (2) Freedom of speech and debate Sec 21 Art VI (in aid of legislation) (3) Freedom from search (see Article 145, RPC) Sec 22 Art VI (Question hour) Privilege from Arrest Legislative Supervision – third and most encompassing form of oversight power. Not absolute!
Political Law Review Notes (Atty. Edwin Sandoval) 27 Prepared by: Atty Joan P. Gamboa Limitations: (1) Congress must be in session
(2) The offense must be one punishable by imprisonment not more than 6 the opening of the session is also the time the President delivers his STATE years. OF THE NATION ADDRESS (SONA) – part of the informing power of the President (Art VII, Sec 23) “In session” does NOT refer to the day to day session Art VII, Sec 23 – “The president shall address the Congress at the opening -refers to the entire duration of the session from the opening to the of its regular session x x x” final/formal adjournment of Congress. This is a deviation from the 1935 constitution, under which the opening of People v Jalosjos the regular session is every 4th Monday of January and the duration of the session is for a fixed period of 100 days. It was patterned after the American The immunity from arrest of senators and other members of house Constitution. of Reps arises from provision of constitution. Privilege has always been granted in a restrictive sense and not liberally. Freedom of Speech and Debate
In this case, he was able to appeal. Can he be allowed to post bail? Section 11, Art. VI
Cf: section 13, Ar. III 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. No more because of the fact that he was convicted in RTC indicates that his guilt is strong. Bail is even not a matter of discretion. Note: In actions for Libel, slander or Defamation, privilege communication is a defense. Presumption of actual malice does not apply. In relation to Doctrine of Condonation (Aguinaldo v Santos) Requisites: Note: Doctrine of Condonation is no longer available as defense. It has been overturned by SC in a recent case. The speech or debate must be made in Congress or in any committee thereof.
The congress must be in session. Art VI, Sec 15 – “the Congress shall convene once every year on the Fourth Monday of July for its regular session, unless a different date is fixed by Law, and shall continue to be in session for such number of days as it may determine until thirty days before the opening of its next Q: In a TV interview, a congressman maligns someone. Can he invoke his regular session, exclusive of Saturdays, Sundays, and legal holidays x freedom of speech? x x “ A. NO. It was not made in congress or any of its committee.
Q: After 15 days of continuous session, congress adjourned. Can this be done? Q: In his privileged speech, a congressman made remarks against A. Can A sue him for defamation? A: YES. Congress has the discretion under Art VI, Sec 15. It is allowed to remain in session provided only that 30 days before the opening of the next A: NO. It is covered by the immunity. session, it shall adjourn (compulsory adjournment).
Political Law Review Notes (Atty. Edwin Sandoval) 28 Prepared by: Atty Joan P. Gamboa Q: What is A’s remedy?
A: Ask the house to punish the congressman. Immunity of Members of the Congress
arises from a constitutional provision
“In any other place” granted in a restrictive sense
This includes the courts! cannot be extended by Intendment
Statement made in Congress is a form of privileged communication. Implication
This is a valid defense of Slander or Libel! Equitable considerations
Borjal vs. CA: There are 2 kinds of Privileged communication: Q: During pendency of his appeal from conviction of RTC, should he be allowed to post bail? Absolutely privileged A. NO. Evidence of guild is strong; should wait for decision on appeal inside absolutely not actionable even if the author is in bad faith the penitentiary.
Ex: Freedom of speech and debate of members of Congress. Therefore not 1987 Constitution says… actionable even if author acted in bad faith. (sec.11, Art.VI) Art III, Sec 13 “All persons, except those charged with offenses punishable Qualifiedly privileged by reclusion perpetua, when the evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance Not actionable unless the author acted in bad faith or it can be show that he as may be provided by law. x x x” had no justifiable motive or reason. Rules of Court says… Ex. Article 354 of RPC Rule 114 Sec 4 – Bail, a matter of right; exception:
All persons in custody shall be admitted to bail as a matter of right, with This does NOT include Congress Itself! sufficient sureties, or released on recognizance as prescribed by law or this rule. Osmeňa vs. Pendatun: The Senate expelled Senator Osmeňa from the Senate when he maligned the President in his speech. He was sanctioned before / after conviction by the MTC; and for disorderly behavior. before conviction by RTC of an offense not punishable by death, R.P, or life SC: The Senate’s act is valid. Congress can punish their members [Art VI, imprisonment. Secc 16(3)]. The freedom of speech and debate cannot be invoked in Congress itself. The constitution says, “in any other place”. Rule 114 Sec 5 – Bail, when discretionary
People vs. Jalosjos: To allow Jalosjos to attend congressional session will Upon conviction by the RTC of an offense NOT punishable by death, RP, or virtually make him a free man; this would be a mockery of the correctional LI, admission to bail is discretionary. x x x system.
Political Law Review Notes (Atty. Edwin Sandoval) 29 Prepared by: Atty Joan P. Gamboa It must be in aid of legislation.
Therefore: It must be made in accordance with duly published rules of procedures
Matter or Right – before conviction, punishable by penalty lower than The rights of persons appearing in, or affected by such inquiries shall be reclusion perpetua respected.
Exception: charged with offense punishable by RP or death. The right against self incrimination (Art III sec 17) may be invoked.
“In aid of legislation”
Matter of Discretion – before conviction punishable by penalty of reclusion Bengzon Jr vs. Senate Blue Ribbon Committee perpetua or higher when the evidence of guilt is strong, there will be a hearing to determine whether evidence of guilt is strong. Senator Enrile made a privileged speech on the alleged takeover of the SOLOIL Inc. by Ricardo Lopa, a relative of President Auino, and asked the After conviction, go to Rule 114 sections 4 and 5. Senate to “look into the possible violation of the law, particularly with regard to RA3019, the “Anti-Graft and Corrupt Practices Act”. The matter was Power to Conduct Investigations and Inquiries referred to the Senate Blue Ribbon Committee.
Sec 21, Art VI – “The senate or the House of Representatives or any of its Not an inquiry for inquiry’s sake. respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.” SC: This cannot be allowed. Enrile’s speech had no suggestion of contemplated legislation. The purpose of inquiry was to find out whether Ricardo Copa violated the law. Thus, there is not intended legislation Nature of the power to conduct investigations and inquiries involved. non-legislative but integral in the grant of Legislative power Q: Is this subject to Judicial Review?
It is investigative. A: General Rule: NO! It is a political question. Exception: When it is tainted with grave abuse of discretion amounting to lack or excess or jurisdiction. In view of the expanded power of Arnault vs. Nazareno: In the 1935 Constitution, there is no express the Courts, the SC can inquire whether the inquiry is in accordance with the provision regarding inquiries in aid of legislation. However, it is intrinsic – to limitations under the constitution. conduct inquiries in aid of legislation. Therefore, even without such provision, this power is present. Q: What is the executive privilege?
Q: Is the power absolute? A: It is the power of the government (the President or Executive Secretary acting in behalf of the president) to withhold information from the public, the A: NO! Section 21 provides for the following limitations: couts and the Congress.
Political Law Review Notes (Atty. Edwin Sandoval) 30 Prepared by: Atty Joan P. Gamboa unless the question is asked, you cannot invoke this privilege
It must be invoked (not implied) expressly; must not be a blanket invocation. Q: What is Question Hour?
It is attached to information, and not the person asked. A: It is a period of confrontation initiated by the parliament to hold the prime minister and other ministers accountable for their acts and the operation of IF what is involved in Question hour, members of cabinet and other top level the government. (definition borrowed from a parliamentary government). officers, may validly refused to appear invoking EO 464. After all, QH is not really a regular feature of presidential form of government. Appearance Senate of the Philippines vs Ermita therein is not really mandatory. But in not in INQUIRY IN AID OF LEGISLATION. Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress.
Q: What are the varieties of Executive privilege?
A: (1) State Secrets Privilege – Information is of such nature that its Section 21 Section 22 disclosure would subvert crucial military or diplomatic objective. - relates to the power to conduct inquiries in aid of - pertains to the power to conduct a questions hour; Informer’s Privilege – the privilege of the Government not to disclose the legislation; the aim of which is to elicit information the aim of which is to obtain information in the identity of persons who furnish information of violations of law to officers that may be used for legislation. pursuit of the congress’ oversight function charged with the enforcement of that law. - co-extensive with the power to legislate - in pursuit of Congress’ oversight function Generic privilege for internal deliberations – attached to intra-governmental documents reflecting advisory opinions, recommendations, and deliberations - attendance is meant to be compulsory* - attendance is meant to be discretionary comprising part of a process by which governmental decisions and policies are formulated. - grounded on the necessity of information in the - congress merely seeks to be informed on how legislative process (the power of inquiry being co- department heads are implementing the statutes extensive with the power to legislate) which it has issued. Power to Conduct a Question Hour *non-appearance will impair the work of Congress and violate Section 7 of the Bill of Rights (right to information in matters of public concern – through Art VI, Sec 22 – “The heads of departments may upon their own initiative, their duly elected representatives in Congress) 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 x x x” Q: May members of Cabinet and other top executive officials validly refuse to appear before congressional inquiries without the consent of the President by invoking EO 464 (prohibiting members of the cabinet and other Executive 2 ways to initiate a question hour: officials from appearing in Congressional Inquiries) promulgated by the President? Own initiative, with the consent of the President A: If the requirement then to secure presidential consent under EO 464 is Upon request of either house. limited only to appearances in the Question hour, then it is VALID. For under Section 22, Article VI of the Constitution, the appearance of department
Political Law Review Notes (Atty. Edwin Sandoval) 31 Prepared by: Atty Joan P. Gamboa heads in question hour is discretionary on their part. However, this cannot be Commission on Appointments- this is one way of Congress in checking applied to department heads in inquiries in aid of legislation. Congress is not the appointing powers of the President bound in such instances to respect the refusal of the department heads to appear in such inquiry, unless a valid claim of privilege is subsequently Note: COA has no judicial component unlike in electoral tribunals which made, either by the President himself, or by the Executive secretary (Senate include 3 justices each. of the Philippines vs. Ermita). Section 18, Art VI – “There shall be a commission on Appointments consisting of the President of the Senate as ex officio chairman, twelve senators and twelve members of the House of Representatives, elected by A claim of privilege, being a claim of exemption from an obligation to each House on the basis of proportional representation from the political disclose information must be clearly asserted. Absent a statement of the parties and parties and parties or organizations registered under the party- specific basis of a claim of executive privilege, there is no way of list system represented therein. The chairman of the Commission shall not determining whether it falls under one of the traditional privileges, whether vote, except in case of a tie. The commission shall act on all appointments given the circumstances in which it is made. It should be respected. submitted to it within thirty session days of the Congress from their submission. The commission shall rule by a majority vote of all the Legislative Contempt – The power to punish for Contempt members.”
Nature of the power to punish for contempt
General Rule: The power is Judicial in nature. It is an inherent power of the Organization court. Q: How many members? Exeption: When exercised by the Congress or any of its committees A: 25 Senate President – ex officio chairman when conducting inquiries in aid of legislation (legislative contempt), one can be held in detention/sent to prision. 12 Senators
Q: How long can one be held in detention for legislative contempt? 12 Representatives (from the House of Representatives)
A: For as long as he refuses to cooperate, it is not limited to the duration of Q: How are the 24 members chosen? the session of Congress. Thus, a person holds the key to his own freedom. (Arnault vs. Nazareno) A: based on proportional representation from political parties (including party list) having membership in the senate or House of representatives. Q: Does the pardoning power of the president apply to cases of Legislative Contempt?
A: NO. It is a limitation on the president’s power to pardon by virtue of the Example: doctrine of separation of powers. Senate composition: Bodies Attached To Congress: K4 = 10 Commission on Appointments (Art. VI, Sec 18) KNP = 8 Electoral Tribunals (Art VI, Sec 17) LOP = 4
Political Law Review Notes (Atty. Edwin Sandoval) 32 Prepared by: Atty Joan P. Gamboa LAKAS = 2 - Thus, ad interim appointments are allowed (see Section 16, 2nd par. Art VII)
Formula to determine seats per party in the Commission on Electoral Tribunals Appointments: Section 17, Art VI – “The Senate and the House of Representatives shall # of senators of party each have an Electoral Tribunal which shall be the sole judge of all contests x 12 relating to the election, returns, and qualifications of their respective Total # of senators members. Each Electoral Tribunal shall be composed of nine members. Three of whom shall be Justices of the Supreme Court to be designated by 12 is the # of CoA seats the Chief Justice, and the remaining six shall be members of the Senate or the House of Representatives, as the case may be, who shall be chosen on Simply put, it is the # of senators of a Party DIVIDED by 2 the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented Follow the same formula for HOR component – just use the # of therein. The senior Justice in the Electoral Tribunal shall be its chairman.” congressmen. Two Electoral Tribunals Therefore: Senate Electoral Tribunal (SET) K4 = 5 House of Representatives Electoral Tribunal (HRET) KNP = 4 Membership – 9 members LOP = 2 Judicial Component – 3 Supreme Court Justices; the most senior is the LAKAS = 1 chairman (designated by the CJ)
Q: What if there are decimal places? Legislative Component – 6 senators / congressmen chosen on the basis of proportional representation A: Disregard (drop) the fraction. Otherwise, rounding off would violate the rule on proportional representation! Although some seats would not be filled, Bondoc vs. Pineda it is not mandatory that all seats be filled up. What is necessary is that there be a quorum (Guingona vs. Gonzales) FACTS: Congressman Camasura was a member of the HRET. There was an electoral contest involving his party-mate and Bondoc. The party instructed Camasura to vote for his party-mate. However, Camasura cast a conscience vote in Bondoc’s favor. Thus, the party expelled Camasura from Q: What is main function of the Commission on Appointments? HRET on the grounds of “disloyalty to the party” and “breach of party discipline”. A: To act on Presidential Appointments (checks-and-balances)
Q: When can CoA meet? HELD: The expulsion is VOID. SET/HRET members are entitled to security nd A: Only when the congress is in Session. (Art VI, Sec 19. 2 sentence) – of tenure to ensure their impartiality and independence. As judge-members “The commission on Appointments shall meet only while the Congress is in of the tribunal, they must be non-partisan; they must discharge their session at the call of its chairman and a majority of all its members, to functions with complete detachment; Independence and impartiality, even discharge such powers and functions as are herein conferred upon it” from the party to which they belong. Thus, “disloyalty to party” and “breach
Political Law Review Notes (Atty. Edwin Sandoval) 33 Prepared by: Atty Joan P. Gamboa of party discipline” are not valid grounds for expelling a tribunal’s member. Thus, COMELEC retains jurisdiction. (see RA6646, Sec 6, Electoral Reform The members are not supposed to vote along party lines – once appointed, Law of 1987) the house/senate leadership should not interfere with the tribunal. Although they are attached to congress, yet they are independent of Congress. Guerrero vs. COMELEC
Q: Can they meet when Congress is not in session? FACTS: Rudy Fariñas of Ilocos Norte ran for Congressman. A disqualification case was filed against him, which was not resolved before A: YES. Unlike the Commission on Appointments, they shall meet in the elections. He won and was proclaimed. COMELEC dismissed the accordance with their rules, regardless of whether congress is in session! pending disqualification case against Fariñas. This was questioned by Guerrero on the ground that HRET has jurisdiction only if there is a valid proclamation of the winning candidate. Thus, if a candidate does not ratify the statutory requirements, his subsequent proclamation is void and thus, Q: From the decision of SET or HRET, is there an appeal? COMELEC still has jurisdiction.
A: NONE. Sec 17 of Article VI provides that the SET/HRET is the “sole HELD: The dismissal (of the case) is incorrect. This is a recognition of the judge of all contests x x x”. Hence, from its decision, there is no appeal. jurisdictional boundaries between COMELEC and HRET. In an electoral Appeal is not a constitutional but merely a statutory right. Also, it is not found contest where the validity of the proclamation of a winning candidate who in the Constitution. has taken his oath of office and assumed his post as congressman is raised, the issue is best addressed to the HRET. This avoids duplicity of Q: Is there any remedy from its decision? proceedings and a dash of jurisdiction between constitutional bodies.
A: YES. A special civil action (an original action – not a mode of appeal) for [Thus, once a winning candidate has been proclaimed, taken his oath of certiorari under Rule 65 may be filed. This is based on grave abuse of office and assumed office as a member of the HOR, the COMELEC’s discretion amounting to lack or excess of jurisdiction. This will be filed before jurisdiction over election contests relating to his election returns and the SC. qualifications ends, and the HRET’s own jurisdiction begins.]
[The other form of Certiorari is Rule 45, which is a mode of appeal on pure questions of law. This is a mode of appeal unlike the Special Civil action for Certiorari under Rule 65] Sec. 21, Art.VI Inquiry in aid of legislation
SET/HRET’s jurisdiction is limited to “contests relating to the -Investigative power of Congress. election x x x of their respective members” Arnault v Nazareno: SC recognizes the intrinsic power of congress to Romualdez-Marcos vs. COMELEC inquire.
FACTS: In the 1995 elections, Imelda ran for HOR. A disqualification case BENGZON v SENATE BLUE RIBBON COMMITTEE was filed against her on account of her residence. The case was not resolved before the election. Imelda won the election. However, she was not Q: Is this power absolute? proclaimed. Imelda now questions the COMELEC’s jurisdiction over the case. A: No. Limitations to the power of inquiry:
HELD: The COMELEC still has jurisdiction. HRET’s jurisdiction as the sole a. Inquiry must always be IN AID of legislation; judge of all contests relating to the elections, etc..of members of congress begins only after a candidate has become a member of the HOR. Since b. It must be in accordance with duly published rules of procedure Imelda has not yet been proclaimed, she is not yet a member of the HOR. by house of congress conducting that inquiry; and
Political Law Review Notes (Atty. Edwin Sandoval) 34 Prepared by: Atty Joan P. Gamboa c. The rights of persons appearing in or affected in that inquiry General Rule: A bill may be introduced and may originate either from the shall be respected. Senate or the HOR.
STANDARD CHARTER BANK vs SENATE COMMITTEE Exceptions: Bills that must originate exclusively with the HOR [APRIL]
SCB is a foreign bank allowed to engage business in Phil. Apparently, some local investors were defrauded by these SCB banks. Enrile now urge senate committee to conduct inquiry in aid of legislation on the matter of foreign Appropriations bill …but senate may propose & banks allowed to do business in Phil. concur with amendments. Private bills SCB questions this inquiry. Amendment by substitution is Revenue or Tariff bills allowed. RULING: SC disagrees. In this case, it is obvious that the inquiry is in aid of legislation. The purpose of the inquiry here is for the Senate committee to Bills Increasing the Public Debt determine whether there are loopholes in our laws to prevent local investors to be defrauded. So that remedial measures will be enacted. Bills of Local Application
Source:
Q: Is this subject to Judicial Review? Article VI, section 24 – “All appropriate, revenue or tariff bills, bills authorizing increase of public debt, bills of local application, and private bills A: SC said this is subject to judicial review. This is not a political question. shall originate exclusively in the House of Representatives, but the senate Especially in the expanded jurisdiction of the court to determine whether or may propose or concur with amendments.” not there has been grave abuse of discretion amounting to lack or excessive jurisdiction. Given that there are limitations here, hence courts can Tolentino vs. Secretary of Finance EVAT is a revenue bill. take cognizance. It intends to raise income for the gov’t.
The courts may validly inquire into whether the inquiry were conducted in FACTS: There were 2 versions of the EVAT – the HOR and the Senate accordance with the duly published rules. Finally, the courts may vaidly version. The HOR bill was first filed and the Senate suspended its own inquire into whether the rights of the persons appearing therein or affected deliberations until the HOR version was sent to the Senate. Then, the senate by the inquiry are protected. passed its own version. Both versions were sent to the Bicameral Conference Committee. What eventually became the EVAL law was the Legislative contempt is applicable during Inquiry- when a person is senate’s version. summoned and failed to submit or appear. Senate is not powerless to compel attendance. Here, pardoning power of president does not apply in HELD: It is not the law, but the revenue bill that is required to originate view of the doctrine of separation of powers. exclusively in the HOR. What the constitution simply means is that the INITIATIVE for filing revenue, tariff bills, etc…must come from the HOR on the theory that since the HOR members are elected from the districts, they can be expected to be more sensitive to the local needs and problems. What is nature of power of contempt? It is judicial. A bill originating in the HOR may undergo such extensive changes in the The Legislative Process Senate. The result may be a rewriting of the whole. To insist that the revenue statute must be substantially the same as the house bill would deny the Filing of the Bill senate’s power to concur and propose amendments. This would violate the co-equality of the legislative power between the HOR and the Senate. Thus,
Political Law Review Notes (Atty. Edwin Sandoval) 35 Prepared by: Atty Joan P. Gamboa the power of the senate to propose amendments includes the power to of the act, and is not calculated to mislead the legislature or the people, propose its own version. Amendments may be amendments by substitution. there is sufficient compliance with the constitutional requirement.
2 rules:
1) One-subject-one-title rule [Here, when a statute repeals a former law, such repeal is the effect – not the subject of the law and it is the subject and not the effect that is required Sec 26(1), Art VI – “Every bill passed by the Congress shall embrace only 1 to be briefly expressed in the title.] subject, which shall be expressed in the title thereof.”
Objectives (De Guzman Jr. vs. COMELEC) Tobias vs. Abalos 1. To prevent hodge-podge or log-rolling legislation; 2. To prevent surprise or fraud upon the legislature by means of FACTS: San Juan and Mandaluyong used to be municipalities belonging to provisions in bills of which the title gives no information and which one (1) legislative district, with one congressman. RA7675 was enacted might thus be overlooked and carelessly and unintentionally entitled, “converting Mandaluyong into a highly urbanized city”. Section 49 of adopted; and said law creates a separate legislative district for Mandaluyong. The people 3. To fairly appraise the people, through such publication of legislative approved the law in a plebiscite. Tobias now questions the legality of the law proceedings as usually made, of the subjects of legislation that are on the ground that it has 2 unrelated subjects: (1) conversion of being considered, in order that they may have the opportunity of Mandaluyong into a highly urbanized city, and (2) creation of a separate being heard thereon by petition or otherwise, if they shall so desire. legislative district for Mandaluyong.
In general, the rule seeks to prevent riders – provision which is totally unrelated to the subject matter of the legislation being considered and may be the subject of a separate legislation. HELD: The creation of a separate legislative district for Mandaluyong is NOT a subject separate from its conversion into a highly urbanized city. Instead, it Liberal Interpretation Rule: is a natural and logical consequence of such conversion. This is because of Article VI, Section 5(3), which provides that “each city with a population of at Title need not be the index or catalog of the contents thereof, as long as the least 250,000 or each province shall have at least one (1) representative.” various provisions are germane to the main subject matter which is the one required to be expressed in the title of the Bill. e.g.”The NEW CIVIL CODE of Philippines” This, for as long as various provisions are germane to the subject matter – which is expressed in the title – the rule is complied with. Philippine Judges Association vs. Prado
FACTS: RA7354 is entitled, “law creating the Philippine Postal Corporation”. In section 35 (Repealing clause), the Judiciary’s franking privilege was 2) Three readings on three separate days rule withdrawn. Philippine Judges Association argues that Section 35 is not expressed in the title of the law, and also the title does not reflect the Sec 26(2), Art VI – “No bill passed by either House shall become a law purpose of withdrawing said franking privilege. unless it has passed three readings on separate days, and printed copied thereof in its final form have been distributed to its members three days HELD: The bill’s title is not required to be an index to the body of the act, or before its passage, except when the President certifies to the necessity of its to be comprehensive as to cover every single detail in the act. If the title immediate enactment to meet a public calamity or emergency. Upon the last fairly indicates the general subject and reasonable covers all the provisions reading of a bill, no amendment thereto shall be allowed, and the vote
Political Law Review Notes (Atty. Edwin Sandoval) 36 Prepared by: Atty Joan P. Gamboa thereon shall be taken immediately thereafter, and the yeas and nays When the president certifies as to the necessity of the Bill’s immediate entered in the Journal.” enactment, it need not undergo 3 readings on 3 separate days and printed copies of the Bill need not be distributed to the members 3 days before the 3rd reading.
General Rule: Each bill must undergo 3 separate readings on 3 separate What constitutes a public calamity or emergency is a political question days. into which the courts cannot interfere.
(one in Senate, one in HOR = 6 days/readings all-in-all) While the sufficiency of the factual basis of the suspension of the writ of Habeas Corpus or declaration of martial law is subject to Judicial review First Reading because basic rights of individuals may be at hazard, the factual basis of presidential certification of bills, which involves doing away with procedural the bill’s title is read; it is assigned a number, and then referred to the requirements designed to insure that bill are duly considered by member of appropriate committee congress, certainly should elicit a different standard of review. no deliberations yet
In the committee to which the bill was referred to, it may die a natural death After 3 readings, the bill will be sent to the other house where it will if said committee sits on it. undergo the same cumbersome process.
If the members of the committee endorse the bill to the plenary, it will be If both houses have different versions of the Bill, said versions will be sent calendared for 2nd reading. to the Bicameral Conference Committee for reconciliation.
Second Reading
The bill is sent back to the plenary. BICAMERAL CONFERENCE COMMITTEE (Sec 1, Art VI – Bicameral Congress) In the plenary, it will be discussed in its entirety; there will be sponsorship speech, interpellations, deliberations; amendments may also be introduced. Q: Is this mentioned in the Constitution?
Third Reading A: NO! But it can be inferred from:
Requirement: 3 days before the scheduled 3rd reading. Printed copies of the Power of each house of Congress to have rules of proceedings under Art VI, bill will have to be distributed to each member of the house. Section 16(3) – “Each house may determine the rules of its proceedings x x x”; and Here, there are no more deliberations, discussions, or amendments. The fact that we have a bicameral Congress – Art VI, Sec 1 – “The There is only voting; the yeas and nays must be entered in the journal. legislative power shall be vested in the Congress x x x which shall consist of a senate and a HoR.”
Nature and Functions of the Bicameral Conference Committee Exception: When the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Source: Philippine Wages Association vs. Prado
Tolentino vs. Secretary of Finance
Political Law Review Notes (Atty. Edwin Sandoval) 37 Prepared by: Atty Joan P. Gamboa Primarily, it is a mechanism for compromising differences between the speaker senate and the HoR; this is because we have a bicameral Congress. Senate president It is capable of producing unexpected results which can even go beyond its mandate.
Referred to as the “3rd house” of Congress – not correct under our Q: What is the reason for the doctrine? constitution, because there are only two houses. A: Separation of Powers. The courts should give due respect because the See Arroyo vs. De Venecia enrolled bill contains the signatures of the officers of the co-equal branches of Government.
Journal Keeping Requirement Referral back to the Senate and the HoR – from the bicameral conference committee, the consolidated bill will be sent back to each House. Sec 16(4), Art VI – “Each house shall keep a Journal of its proceedings and from time to time publish the same, excepting such parts as may, in its There, the consolidated bill will be subject to voting; no more readings judgment, affect national security x x x”
If the yeas prevail over the nays – the bill is passed and will be sent to the Senate Predient and the HoR speaker for signing. Q: Between the enrolled bill and the Journal, which prevails? If the nays prevail over the yeas – another bicameral conference committee will be created until an acceptable version of the bill is created; the court did A: General Rule: Enrolled bill prevails not say that the bill is killed. (Tolentino vs Secretary of Finance ***) Exception: Journal prevails as to the matters required by law to be Enrolled Bill Doctrine entered into the Journal.(Arroyo vs Devenecia)
Q: What is the enrolled bill doctrine? They are required to be entered in the journal and regarded as conclusive:
A: Once a bill has become an enrolled bill, it becomes conclusive upon the -The yeas and nays on the 3rd and final reading courts as to its enactment*, so that the courts will not inquire into whether that Bill was regularly enacted or not. Art VI. Sec 26(2) – “Upon the last reading of a bill x x x the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the * It is the enactment only and NOT its constitutionality or validity, which is Journal.” subject to judicial review. -The yeas and nays on any question at the request of 1/5 of the Q: What is an enrolled bill? members present
A: It is a bill that contains the signatures of the respective secretaries of both Art VI, Sec 16(4) – “Each house shall keep a journal of its proceedings x x x Houses of Congress, of the House Speaker and of the Senate President; and the yeas and nays on any question shall, at the request of 1/5 of the and is to be sent to the President for his signature. members present, be entered in the journal.”
In other words, the following are the signatories to the enrolled bill: -The yeas and nays upon re-passing a bill over the President’s veto.
Secretary of the senate and of the
Political Law Review Notes (Atty. Edwin Sandoval) 38 Prepared by: Atty Joan P. Gamboa Art VI Sec 27(1) – “In such cases, the votes of each house shall be From Congress, the bill will be sent to the President. determined by yeas or nays, and the names of the members voting for or against shall be entered in its journal.” Q: How many options does the president have? A: 3 options: -The president’s objection to a bill he had vetoed. (1) President approves the bill bill becomes a law Art VI Sec 27(1) – “every bill passed by Congress shall, before it becomes a law, be presented to the President x x x otherwise, he shall veto it and return (2) President vetoes the bill bill does not the same with his objections to the House where it originated, which shall become a law enter the objections at large in its journal x x x” (3) President does not do anything (inaction) automatically Astorga vs. Villegas becomes a law thirty (30) days after receipt of the bill.
FACTS: A bill of local application was filed in the and was there passed on 3rd reading without amendments. Forthwith, the bill was sent to the Senate for its concurrence. It was approved with minor amendments suggested by First option: President approves the Bill Senator Roxas, that instead of the City Engineer, it be the President Protempore of the Municipal Board who should succeed the Vice Mayor in Sec 27 (1), Art VI – “Every bill passed by Congress shall, before it becomes case of the latter’s incapacity to act as Mayor. However, on second reading, a law, be presented to the President. If he approves the same, he shall sign substantial amendments to this were introduced by Senator Tolentino. These it xxx” were approved in toto by Senate. The amendment recommended by Senator Roxas does not appear in the Journal of the Senate proceedings as Second option: President vetoes the bill having been acted upon. When the Secretary of the Senate sent a letter to the that the House Bill No. 9266 had been passed by the Senate with Sec 27 (1), Art VI – “Every bill passed by Congress shall, before it becomes amendments, he attached a certification of the amendment, which were the a law, be presented to the President x x x otherwise, he shall veto it and ones actually approved by the senate. The thereafter signified its return the same with his objections to the House where it originated.” approval of the bill and caused copies thereof to be printed. The printed copies were then certified and attested by the secretaries of the and the Requirements: senate and the speaker of the and the Senate president. When the printed copies were sent to the President, he affixed his signature thereto by Sent the bill back to Congress, was of approval. The bill became R.A. 4065. However, Senator Tolentino issued a press statement that the bill signed into law by the President was Together with his objections (veto message) the wrong version. Consequently, the Senate President withdrew his signature. Q: Can Congress overthrow the veto (“repass the law”)?
HELD: The court went beyond the enrolled bill and looked into the Journal to A: YES! With a 2/3 vote as provided under Sec 27(1) Art VI – “If after such determine whether there’s legal insertion or not. reconsideration, 2/3 of all members of such House agree to pass the bill, it shall be sent, together with the objections to the other house by which it RULE ON PRESENTMENT OF BILLS TO PRESIDENT shall likewise be considered, and if approved by 2/3 of all members of that house, it shall become a law.” Enrolled bill to the President
Last stage
Political Law Review Notes (Atty. Edwin Sandoval) 39 Prepared by: Atty Joan P. Gamboa Kinds of Veto Q: Under the LGC, can Punong-Baranggay veto an ordinance?
General Veto – Art VI, Sec 27, par 1 A: NO. He is part of the ordinance-making (or legislative process) body as the presiding officer of the sessions of Sangguniang Baranggay. Item Veto or Line Veto – Art VI, Sec 27, par 2 “The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.” Q: Do Local Chief Executives have veto power?
A: NO.
General Rule: President may not veto a provision without vetoing the entire Q: How about a Governor? bill. A: Yes. There is a vice-governor. The rule is all or nothing; selective veto is not allowed.
The president may not veto a bill without vetoing the entire bill. The executive must veto a bill in its entirety or not at all. He cannot be an editor Q: How about a Mayor? crossing our provisions which she dislikes. (Bengzon vs. Drilon) A. Yes. There is vice-mayor. Exceptions: Selective veto is allowed in 3 kinds o bill (ART) Chief Executive of Baranggay Appropriation bills Chief Executive Revenue Bills Sangguniang Baranggay, presiding officer Tariff Bills Lupong Tagapamayapa Grounds for Vetoing Ordinance by the Chief Executive Can carry firearms Sec. 55 of LGC par. A [UP]
Ultra-vires/ Q: Is the Chief executive of Baranggay an agent, or a person-in-authority? prejudicial to public welfare A: Person-in-authority (recall Crim Book II – can be subject to direct assault) Sec 55 of LGC par. B: on Item/line veto: [PAL] N.B.: Policeman – agent of person-in-authority Appropriation Ordinance Sec. 388 LGC Adopting a local development plan Punong Baranggay Ordinance Authorizing Payment of money/creating Liability Sangguniang Baranggay members Persons-in- authority
Political Law Review Notes (Atty. Edwin Sandoval) 40 Prepared by: Atty Joan P. Gamboa Lupong taga-pamayapa Item vs. Provision in an appropriation bill
An item is a specific appropriation of money, not some general provision of law that happens to be in an appropriation bill.
Doctrine of Inappropriate Provisions Third option: President does not do anything (inaction) Provisions in an appropriation bill must relate to some particular provision therein (see Art VI, Sec 25(2)). If it does not, it becomes an inappropriate Sec 27 (1), Art VI [last sentence] – “x x x The president shall communicate provision and will be treated as an item. Thus, it can be subject to the item his veto of any bill to the House where it originated within thirty days after veto (Gonzales vs. Macaraig) the ate of receipt thereof; otherwise, it shall become a law as if he had signed it.”
Gonzales vs. Macaraig Q: Is ‘pocket veto’ valid or practiced in our jurisdiction? FACTS: the General Appropriations Bill contained a provision prohibiting the President from augmenting the funds of one department from the other. A: NO. There is not such thing as ‘pocket veto’ in the Philippines. Unlike in President Aquino vetoed that provision. Congress argued that what she the US – if within 10 days, the president fails to act on the Bill and Congress vetoed was a provision, not an item. Thus, she effectively vetoed the entire adjourns, the bill does not become a law. In our jurisdiction, the bill bill since the item veto refers to items and not to provisions. automatically becomes a law if the President does not act within 30 days after receipt of the Bill.
HELD: The Court sustained the validity of the exercise by the President of her veto power, invoking the doctrine of inappropriate provision. Example of Bills which lapsed into law by the President’s inaction:
Bar Flunker’s Act – President Quirino
Section 25, par 2, Art VI – “No provision or enactment shall be embraced in Changing the name of Manila Int’l Airport to Ninoy Aquino Int’l Airport – the general appropriations bill, unless it relates specifically to some President Aquino particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates.”
Q: What if the President does not veto the inappropriate item?
Q: May the President veto a LAW? A: It becomes a law/ rider which may be a separate subject of legislation.
A: NO. What the president may validly veto is ONLY a BILL and neither the provisions of LAW 35 years before his term nor a final and executory judgment of the Supreme Court. (Bengzon vs. Drilon) Doctrine of Qualified Political Agency (Alter Ego Doctrine)
Members of the Cabinet are considered acts/decisions of the President UNLESS reprobated by the latter.
Political Law Review Notes (Atty. Edwin Sandoval) 41 Prepared by: Atty Joan P. Gamboa Members of the Cabinet are considered alter ego of he President. (5) resident of the Philippines for at least 10 years immediately preceding the election EXECUTIVE DEPARTMENT
EXECUTIVE POWER - Enumeration is exclusive! ARTICLE VII, Sec. 1: “The executive power shall be vested in the President of the Philippines.” - The Constitution specifically provided that the Congress cannot add nor subtract from the list.
Q: What power belongs to the President? TERM OF OFFICE OF THE PRESIDENT – ARTICLE VII, Sec. 4 A: Power of the Sword. (Power of the Purse belongs to the Congress.) - 6 years, to begin at noon of June 30 next following the day of the election and to end at noon of the same date 6 years thereafter.
Faithful Execution Clause - no re-election; regardless of whether or not President finished his term.
The president as chief executive, he shall ensure that the laws be faithfully - “The President shall not be eligible for any re-election.” (Sec. 4) executed.
ARTICLE VII, Sec. 17, 2nd sentence: “xxx he shall ensure that the laws be faithfully executed.” QUALIFICATIONS AND TERM OF OFFICE OF THE VICE PRESIDENT
Doctrine of Qualified Agency/Alter Ego - same as the President
-members of Cabinet and heads of the department are deemed to ARTICLE VII, Sec. 3, 1st par. – “There shall be a Vice President who shall be alter egos of the president. So their acts or decisions performed in the have the same qualifications and term of office xxx as the President." regular course of business are deemed to be acts or decisions of president unless reprobated or disapproved by him. - may be re-elected once!
ARTICLE VII, Sec. 3, 2nd par. – “No Vice President shall serve for more than two successive terms.” QUALIFICATIONS OF PRESIDENT – ARTICLE VII, Sec. 2 - no longer an idle official (1) natural-born citizen ARTICLE VII, Sec. 3, 2nd par. – “The vice President may be appointed as a (2) registered voter Member of the Cabinet. Such appointment requires no confirmation.”
(3) able to read and write
(4) at least 40 years of age on the day of the election PRESIDENTIAL SUCCESSION
Political Law Review Notes (Atty. Edwin Sandoval) 42 Prepared by: Atty Joan P. Gamboa ARTICLE VII, Sec 8 – “In case of death, permanent disability, removal from A: No! (remember, a vice president can only be removed by impeachment) office or resignation of the President, the Vice President shall become the President to serve the unexpired term.” D-D-R-R (4) Resignation
4 INSTANCES: Estrada vs. Desierto (Did Erap resign?) (1) Death - Elements of Resignation (a) there must be an intent to resign, which is coupled with: (2) permanent Disability (b) act of relinquishment
(3) Removal - Form of Resignation: the validity of a resignation is not governed (4) Resignation by any formal requirement as to form – it can be oral or written; express or implied as long as the resignation is clear, it must be given effect. -in such instances, VP shall take over as President. - TOTALITY OF CIRCUMSTANCES TEST AND CONSTRUCTIVE - The President can only be removed by means of impeachment. RESIGNATION – Estrada did not write any formal letter of resignation before Se.2, Art.XI leaving Malacanang. Thus, whether or not he resigned is to be determined from his acts and omissions before, during, and after January 20,2001 or by - ARTICLE XI, Sec. 2 : the list of impeachable officer is exclusive! the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue using this test, his (1) President resignation cannot be doubted. (2) Vice President (3) Members of the Supreme Court In his final statement, he (a) acknowledged Arroyo’s oath-taking as (4) Members of the Constitutional Commission President; (b) emphasized he was leaving Malacanang for the sake of peace (5) Ombudsman and order – not because of some inability; (c) expressed his gratitude to the - Hence, the provision in the law creating the Sandiganbayan people for the opportunity to serve them, etc. (1980) is already doubtful! (The law creating Sandiganbayan provides that SB Justices may only be removed by impeachment.)
- Grounds: Note; In the Law Public Officers, an essential element of resignation is the acceptance by the proper authority. (a) culpable violation of the Consitution (b) treason - This element cannot be applied in the instances when the President (c) bribery resigns. (d) graft and corruption (e) high crimes - The President is the highest officer of the land, hence, there is no one to (f) betrayal of public trust act on his resignation.
- Unique situation so SC applied a unique solution. (Concept of Constructive Q: Was Estrada impeached? Resignation)
A: Yes!
Q: But was he removed through impeachment? POWERS OF THE PRESIDENT
Political Law Review Notes (Atty. Edwin Sandoval) 43 Prepared by: Atty Joan P. Gamboa I. SPECIFIC POWERS FOUND IN ARTICLE VII ED= DOJ=> NBI, BID, Bureau of Prisons
(1) Appointing Power DILG=>PNP, Bureau of Fire, etc.
- Carries with it the power of removal Office- a major functional unit of department or bureau, the term office will include regional offices. - ARTICLE VII, Sec. 16 e.g. Major office of Undersecretary of finance, Regional Office of BIR
(2) Power of Control
- ARTICLE VII, Sec. 17 – “The President shall have (3) Military Powers control of all the executive departments, bureaus, and offices xxx.” - ARTICLE VII, Sec. 18 - With respect to local governments, the President merely - There are actually 3: has power of general supervision. (ARTICLE X, Sec. 4) (a) calling-out power as the commander-in-chief of all the armed General supervision- to oversee that LGUs and officials perform their forces: functions in accordance with law. Instances: lawless violence, invasion and rebellion
Control- means the power of superior officer to act directly (b) power to declare martial law whenever a power or function has been vested by law to a subordinate. Instances: in case of invasion or rebellion, when public safety -to direct the performance of a duty; requires it. -restrain the commission of act; Olaguer Doctrine: (superseded Aquino v Military) A state of martial does not authorize the conferment of jurisdiction on military courts over civilian when -to review, revise, modify or alter the acts of a subordinate; civil courts are functioning. (now incorporated in sec.18, Art.VII) or
- to substitute its own decision over that of a subordinate (c) power to suspend the privilege of writ of habeas corpus limitation: Right to Bail Executive Department- is any of the executive departments by (4) Pardoning Power law(EO 292). This department is headed by Cabinet Secretary. These departments are alter egos of the president. - ARTICLE VII, Sec. 19 – “Except in cases of impeachment, or as otherwise provided in this Constitution, the President e.g. Dept of Finance, DILG, DOJ, DepEd, DENR, etc. may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power Bureau- principal subdivision of a department. So bigger unit is the to grant amnesty with the concurrence of a majority of all Members of the department. Congress.”
Department of Finance=> Bureau of Customs, Bureau - 5 matters mentioned: Internal Revenue (a) reprieves (b) commutations
Political Law Review Notes (Atty. Edwin Sandoval) 44 Prepared by: Atty Joan P. Gamboa (c) pardons 1. does not apply in cases of impeachment; (d) remit fines and forfeitures 2. there must be conviction by final judgment before one may be (in these 4, conviction by final judgment is a requirement) granted pardon; (e) amnesty (par.2 of sec.19, Art. VII) 3. does not apply in legislative contempt in view of separation of - require concurrence of the majority of Congress powers; - conviction by final judgment is not a requirement 4. No pardon, amnesty or parole or suspension of sentence for - if case is still pending, may extend amnesty violation of election laws shall be granted without favorable recommendation of the COMELEC; and Pardon is a personal act whereas Amnesty is an official act which is a matter 5. President cannot grant pardon to judges, it constitutes of judicial notice and thus, does not require proof. encroachment on the powers of the SC to discipline or order their dismissal. (Art. VIII) Q: Is Pardon available to one guilty of offense or only those who commit a crime?
A: Llamas vs Orbos SC is available not only to one found guilty of a crime (5) Borrowing Power but to one who is also guilty of an administrative offense. Since Constitution did not distinguish criminal from administrative offense. Besides, if persons - ARTICLE VII, Sec. 20 – “The President may contract or convicted of serious offenses can be pardon where proof requires guilty guarantee foreign loans on behalf of the Republic of the Philippines with the beyond reasonable doubt, why shoud be denied to one guilty of prior concurrence of the Monetary Board, and subject to limitations as may administrative offense where proof is only substantial evidence. be provided by law xxx.”
Effect of grant of absolute pardon to a convict: State Limitations of the Borrowing Power of the President: Monsanto vs Factoran: Pardon may mean forgiveness but not forgetfulness. Thus, she cannot ask for backwages and reinstatement. In the 1. there must be prior concurrence of the Monetary Board; and eyes of the law, she is still a convict. Pardon does not look back, it does not 2. subject to such limitations as ma be provided by law erase the fact of one’s guilt, it looks to the future. Unlike amnesty, it erases the shames of the past. (6) Treaty-Making Power
Unless the grant expressly so provides, she is not entitled to - ARTICLE VII, Sec. 21 – “No treaty or international reinstatement. Since she is not entitled to the latter it follows that she is not agreement shall be valid and effective unless concurred in by at least 2/3 of entitled to back wages. all the Members of the Senate.”
Reprieve- postponement of execution of a death convict not the sentence! (7) Budgetary Power That is probation. - ARTICLE VII, Sec. 22 – “The President shall submit to Q: Are members of Armed Forces covered by that Amnesty Proclamation the Congress within 30 days from the opening of every regular session, as No. 347 granting amnesty to rebels, etc.? the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue A: SC ruled that Proc. 347 does not distinguish, it also covers members of measures.” Armed Forces. It extends to ALL persons who committed the rebellion, it does not exclude military rebels. Kapunan Jr. v CA, March 13, 2009 Cf: Sec.25(1), Art.VI- Congress may not increase the appropriation Commutation of Sentence- reduction of the penalty recommended by the president.
Limitations on the Pardoning power of president: The congress may only trim down or slash but not increase.
Political Law Review Notes (Atty. Edwin Sandoval) 45 Prepared by: Atty Joan P. Gamboa Q: Who ratifies a treaty? Held: TREATY. President considers it as treaty that’s why he submitted that too senate for concurrence. A: Bayan vs Zamora; Pimentel vs Office of the Secretary reiterated Bayan vs Zamora Sec.21, Art.VII deals with treaties or international agreement in general. This lays down the general rule and applies to any form of treaty. In contrast, Power to ratify is vested in the president and not as commonly Sec.25, Art.XVIII is a special provision that applies to treaties which involves believed as in the legislature. The role of the Senate is limited to giving or presence of foreign military bases, troops or facilities in the Philipines. Under withholding its consent or concurrence to the ratification. this provision, the concurrence of senate is only one of the requirements.
***What requires the ratification by the senate is a treaty or international Undoubtedly, sec.25, Art.XVIII should apply in the instant case. A special agreement. provision prevails over a general one. However, in latter provision does not provide for number of votesfor concurrence, so in that acse sec.21, Art.VII is Q: What about executive agreements? applicable.
A: It does not require concurrence by Senate. (sec. 25, Article XVIII)
Q: Is Executive agreement an equally binding international obligation? (8) Informing Power
A: Bayan v Zamora: In international law there is no difference between - State of the Nation Address treaties and executive agreements in their binding effect upon the states concerned. - ARTICLE VII, Sec. 23 – “The President shall address the Congress at the opening of its regular session. He may also appear before As long as their functionaries remained within their powers. International law it at any other time.” remains to give no distinction between treaties and executive agreements. They are equally binding obligations upon nations. Q: When is the opening of the regular session of Congress?
Q: What about exchange of notes? Will that require concurrence of senate? A: Every 4th Monday of July. That is the opening of Congress. Sec.15, Art.VI A: Abaya vs Ebdane Jr. 02/14/07 State Instances when Congress may held special session even without call -loan application in Japanese government. There was exchange of of President: notes between secretary of foreign affairs and Japanese ambassadors. Will that exchange require concurrence? 1. sec. 18, Art.VII- 2. Impeachment Cases -Exchange of notes is considered a form executive agreement 3. In matter of canvassing in the election of president and vice which do not need concurrence by the senate. president 4. Sec.10, Art.VII- Permanent Vacancies in Offices of President and Vice President
Bayan vs Zamora -discretion is with Congress how long will it conduct session.
Case involving ratification of Visiting Forces Agreement (VFA) with US. II. SPECIFIC POWERS FOUND SOMEWHERE ELSE IN THE Issue: Is VFA a treaty or executive agreement? CONSITUTION
Political Law Review Notes (Atty. Edwin Sandoval) 46 Prepared by: Atty Joan P. Gamboa (1) Power of general supervision over local governments APPOINTING POWER
- ARTICLE X, Sec. 4 – “The President of the Philippines - ARTICLE VII, Sec. 16 shall exercise general supervision over local governments xxx.” - correlate with Law on Public Officers
(2) Veto Power Nature of Appointing Power - ARTICLE VI, Sec. 27 - vested in the President; executive in nature
- subject only to well-known exceptions (3) Power to call Congress to special session - carries with it the removal power (power to hire carries with it the power to - ARTICLE VI, Sec. 15 – “The President may call a fire) special session at any time.”
III. OTHER POWERS Structure of ARTICLE VII, Sec. 16: 2 Paragraphs (1) Impoundment Power (1) list of officers who are to appointed by the President - refusal of the President, for whatever reason, to spend (2) ad interim appointments- when congress is not in session funds made available by Congress. It is the failure to spend or obligate budget authority or any type. (PHIILCONSA VS. ENRIQUEZ) FIRST SENTENCE, FIRST PARAGRAPH - 3 principal sources: Q: Will all appointments of the President require confirmation of the (a) authority to impound given by Congress Commission on Appointments? (b) executive power – president as the commander-in-chief (c) faithful execution clause A: Not all appointments require confirmation under the present Constitution. Only those officers enumerated in the 1st sentence require confirmation. (2) Unstated Residual Powers (Sarmiento vs. Mison)
- powers which are not found in the Constitution, but he may validly exercise. (Marcos vs. Manglapuz). - Under the 1935 Constitution, all appointments need confirmation. - reserved powers of the president - Under the 1973 Constitution, all appointments no longer need confirmation (because Congress was then abolished by President Marcos).
Q: How do you define executive powers? - Experience shows that when all appointments required Confirmation, it became a venue for horse-trading and similar malpractices. On the other A: Executive power is neither legislative nor judicial. (This implies that it is hand, placing absolute power to make appointments in the President with very broad.) hardly any check by the legislature, as what happened under 1973
Political Law Review Notes (Atty. Edwin Sandoval) 47 Prepared by: Atty Joan P. Gamboa Constitution, leads to abuse of such power. Thus, was perceived the need SC: Only presidential appointments belonging to the first group to establish a “middle ground” between the 1935 and 1973 Constitution. require confirmation by the Commission on Appointments. The appointments of police officers who are not within the first category need not be confirmed by the Commission on Appointments. Consequently, unconstitutional are Sections 26 and 31 of RA. 6975 which empowers the 4 INSTANCES WHERE CONFIRMATION IS REQUIRED Commission on Appointments to confirm the appointments of public officials whose appointments are not required by the Constitution to be confirmed. (1) Heads of executive departments
- appointment of cabinet secretaries requires Confirmation - The PNP is separate and distinct from the AFP. The Constitution - EXCEPTION: Vice-president may be appointed as a member of no less, sets forth the distinction. Under Sec. 4, ARTICLE XVII, “the armed the Cabinet and such appointment requires no confirmation. (ARTICLE VII, forces of the Philippines shall be composed of a citizen armed force which Sec. 3, Par. 2) shall undergo military training and service, as may be provided by law. It shall keep a regular force necessary for the security of the state.” On the other hand, Sec. 6 of the same article ordains that: “The state shall establish and maintain one police force, which shall be national in scope and (2) Ambassadors, other public ministers and consuls civilian in character to administered and controlled by a national police commission. The authority of local executives over the police units in their - those connected with the diplomatic and consular services of the jurisdiction shall be provided by law. country.
- To so distinguish the police force from the armed force, Congress (3) Officers of the armed forces from the rank of colonel or naval enacted RA. 6975. Thereunder the police force is different from and captain independent of the armed forces and the ranks int eh military are not similar to those in the PNP. Q: What about officers of PNP of equivalent ranks?
A: No. - Present PNP is no longer part of the AFP; is a civilian institution MANALO VS. SISTOZA placed under DILG. Unlike PCINP, which is a part of AFP, it is in fact armed forces. - President Aquino promoted 15 police officers by appointing them to positions in the PNP with the rank of Chief Superintendent to Director. Without their names submitted to the Commission on Appointments for confirmation, the said police officers took their oath and assumed their (4) Other officers of the government whose appointments are vested in respective positions. Manalo questioned this on the ground that both under him in this Constitution Sec. 16, ARTICLE VII of the 1987 Constitution and RA. 6975 (Local Govt Act of 1990) require their appointments to be submitted for confirmation and that EX: Chairmen and members of CSC, Comelec, COA (by express provision) PNP is akin to the AFP. Regular members of JBC (ARTICLE VII, Sec. 8, Par. 2)
EXCEPTION: Judges, Justices, Ombudsman (by the creation of the JBC, their appointments no longer require confirmation)
Political Law Review Notes (Atty. Edwin Sandoval) 48 Prepared by: Atty Joan P. Gamboa Sectoral representatives in Congress (Teresita Quintos deles et al vs. CALDERON VS. CARALE Commision on Constitutional Commission) - Calderon questions the constitutionality and legality of the permanent appointments extended by the President to respondents chairman and members of the NLRC without submitting the same to the Commission on SECOND SENTENCE Appointments for confirmation pursuant to ARTICLE 215 of the Labor Code, as amended by RA. 6715 (Herrrera-Veloso Law or the Act amending the INSTANCES WHEN CONFIRMATION IS NO LONGER REQUIRED Labor Code reorganizing the NLRC)
(1) All other officers of the government whose appointments are not SC: The NLRC Chairman and Commissioners fall within the 2nd sentence of otherwise provided by law Sec. 16, ARTICLE VII of the Constitution more specifically under the “third group” of appointees – those whom the President may be authorized by law to appoint. Undeniably, the chairman and members of the NLRC are not among the officers mentioned in the 1st sentence of Sec. 16, ARCTICLE VII (2) Those who he may be authorized by law to appoint whose appointments require confirmation by the Commission on Appointments. To the extent that RA. 6715 requires confirmation by the The Congress may, by law, vest the appointment of other officers Commission on Appointments of the appointments of respondent chairman lower in rank in the president alone, in the courts, or in the heads of and members of NLRC, it is unconstitutional. departments, agencies, commissions or boards. - SC clarified that this list is EXCLUSIVE. Congress by a mere legislative (3) Officers lower in rank whose appointment, the congress may by law act may not validly amend the constitution by adding or deducting anything vest in the president from that list
SECOND PARAGRAPH: AD INTERIM APPOINTMENTS
SARMIENTO VS. MISON Q: What are ad interim appointments?
- It is evident that the position of Commissioner of Bureau of Customs (a A: AD INTERIM literally means “in the meantime” or “for the time being”. bureau head) is not one of those within the first group of appointments where the consent of the Commission on appointments is required. - These are appointments made by the President when Congress is not in session.
- Sec. 16, ARTICLE VII, Par. 2 should be correlated to Sec. 19, MARY CONCEPCION BAUTISTA VS. SALONGA ARTICLE VI – “xxx The Commission on Appointments shall meet only while the Congress is in session xxx”. - The appointment of the chairman and members of the Commission on Human Rights is not specifically provided for in the Constitution itself. Unlike - RATIONALE: Commission on Appointments meets when Congress is the Chairmen and Members of the CSC, the Comelec and the COA, whose in session so that even if Congress is not in session, the President is not appointments are expressly vested by the Constitution in the President with precluded from making an appointment. the consent of the Commission on Appointments. The Human Rights pursuant to the second sentence in Sec. 16, ARTICLE VII, that is, without Q: What are regular appointments? the Confirmation of the Commission on Appointments because they are among the officers of the government whom he may be authorized by law to A: These are appointments made by the President when Congress is in appoint. And Sec. 2(c) EO. 135 (5 May 1987) authorizes the President to session. appoint the chairman and members of the Commission on Human Rights.
Political Law Review Notes (Atty. Edwin Sandoval) 49 Prepared by: Atty Joan P. Gamboa Q: What is the real distinction between the two? there is risk of losing both positions no risk involved (appointee cannot (upon assumption of new office), assume until appointment is A: The real distinction between ad interim and regular appointment lies in he loses his confirmed) the effectivity of the appointment. former position
AD INTERIM REGULAR actually, the President appoints, actually, the President does not subject only to the resolutory appoint; he merely nominates takes effect immediately, so does not take effect immediately; condition that it be confirmed later subject to confirmation by the appointee may assume immediately takes effect only upon confirmation on by the Commission on Commission on Appointments by the Commission on Appointments Appointments; appointee may not immediately assume office
(2) There are four situations where ARTICLE IX-C, Sec. 1, Par. 2 will apply:
MATIBAG VS. BENIPAYO READ a) where an ad interim appointee to the Comelec, after confirmation by the Commission on appointment, serves his full seven-year - Benipayo, Tuason, and Borra were appointed Chairman and term; Commissioners respectively of the COMELEC by the President when Congress was not in session. These ad interim appointments were by- b) where the appointee, after confirmation, serves a part of his passed by the Commission on Appointments. However, they were term and then resigns before his seven-year term of office ends; subsequently re-appointed by the President to the same positions. Upon assumption to office, Benipayo transferred Matibag to another department. c) where the appointee is confirmed to serve the unexpired term of Matibag now questions the validity of the appointments on the grounds that: someone who died or resigned and the appointee completes the unexpired (1) the ad interim appointments violate ARTICLE IX-C, Sec. 1, Par. 2 – “In term; no case shall any member be appointed or designated in a temporary or acting capacity (Matibag is of the impression that such ad interim d) where the appointee has previously served a term of less than appointments are temporary because they are revocable at the will of the seven years, and a vacancy arises from death or resignation. President); and (2) even assuming they are valid, their re-appointment violates ARTICLE IX-C, Sec. 1, Par. 2 – “The chairman and the commissioners shall be appointed xxx for a term of seven years without reappointment.” - 2nd issue is of first impression! (not yet asked in the bar)
SC: (1) An ad interim appointment is permanent in character (Summers vs. - In any of these four situations, it presupposes that the appointment had Ozaeta). The Consitution imposes no condition on the effectivity of an ad already been confirmed by the Commission on Appointments. It will not interim appointment and thus an ad interim takes effect immediately. apply in this case where the appointments were by-passsed.
- The Constitution itself makes ad interim permanent appointment.
- An ad interim appointment is not descriptive of the nature of the Q: What if the appointments were actually disapproved and not simply by- appointment, that is, it is not indicative of whether the appointment is passed, can they still be validly reappointed? temporary or in an acting capacity, rather it denotes the manner in which the appointment was made. (Marohombsar vs. CA) A: No. The disapproval is actually a judgment on the merits of their qualification. The principle of checks and balances will come into play.
Political Law Review Notes (Atty. Edwin Sandoval) 50 Prepared by: Atty Joan P. Gamboa Note: Mootness of the Petition – When the Congress adjourned, GMA extended ad interim appointments but this is an exception because the case PIMENTEL VS. ERMITA is capable of repetition yet evading review.
- The cabinet secretaries were appointed as acting secretaries of their LIMITATIONS ON THE APPOINTING POWER OF THE PRESIDENT respective departments while Congress is in session. Thus, the Senators filed a petition to compel the president to extend regular appointments. (1) ARTICLE VII, Sec. 13, Par. 2 – “The spouse and relative by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure be appointed as member of the Constitutional Commissions, or the Office of the Ombudsman, or as secretaries, SC: Nature of the Power to Appoint undersecrataries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.” - The power to appoint is essentially executive in nature, and the legislature (nepotic appointments) may not interfere with the exercise of this power except in those instances when the Constitution expressly allows it to interfere. - This is a prohibition against NEPOTISM on the President.
Q: To what positions?
- Appointment is discretionary. A: (1) Constitutional Commissions – COA, Comelec, CSC
- The essence of an appointment in an acting capacity is its temporary (2) Office of the Ombudsman nature. It is a stop-gap measure intended to fill an office for a limited time until the appointment of a permanent occupant to the office. In case of (3) Secretaries vacancy in a n office occupied by an alter ego of the President, such as the office of a department secretary, the President must necessarily appoint an (4) Undersecretaries alter ego of her choice as acting secretary before the permanent appointee of her choice could assume office. (5) Chairmen or heads of bureaus or offices, including GOCC’s and their subsidiaries - Hence, the President cannot be compelled especially since the positions of cabinet secretary require trust and confidence. (2) ARTICLE VII, Sec. 15 – “Two months immediately before the next presidential elections and up to the end of his term, a President or acting President shall not make appointments except temporary appointment to executive positions when continued vacancies therein will prejudice public Distinctions between Ad Interim and Acting Appointments service or endanger public safety.”
Ad Interim Acting Appointments - This applies only to a presidential election: every 6 years. extended only during a recess of extended anytime there is a vacancy Q: To what kind of appointment is this directed against? Congress A: This is directed against 2 types of appointments: (In Re: Valenzuela and permanent in nature merely temporary Vallaria) requires confirmation by the does not require such confirmation (1) those made for buying votes (to influence the outcome of Commission on Appointments Presidential elections)
Political Law Review Notes (Atty. Edwin Sandoval) 51 Prepared by: Atty Joan P. Gamboa - refers to those appointments made within the 2 months A: If the appointment was made within 2 months immediately preceding the preceding a Presidential election and are similar to those which are declared presidential election, then the purpose is for vote-buying or to influence the election offenses in the Omnibus Election Code. outcome of the elections. IF the appointment was made after the Presidential election but before the outgoing president’s term end (his term (2) those made for partisan considerations (the so-called “midnight ends noon of June 30), then it is midnight appointment. appointments”) sec.15, Art.VII DE RAMA VS. CA - refers to appointments made after election day but before the term of the next president begins (30 June). - Ma. Evelyn S. Abeja was a municipal Mayor. When her term is about to end, she filled up all the positions before she vacated her position. When - Hence, this provision contemplate not only midnight appointments her successor sit, there was no more vacancy and all the appointments were (appointments made for partisan considerations where an outgoing nullified by the latter on the ground that they were midnight appointments. President fells up all vacant positions thereby preempting an incoming president of his prerogative) but also appointments presumed made for the SC: The records reveal that when De Rama brought the matter of recalling purpose of influencing the outcome of the Presidential election. the appointments of the 14 respondents before the CSC, the only reason he cited to justify his action was that these were “midnight appointments” that AYTONA VS. CASTILLO are forbidden under ARTICLE VII, Sec. 15 of the Constitution. However, the CSC ruled and correctly so, that the said prohibition applies only to - After the proclamation of Diosdado Macapagal as duly elected President, presidential appointments. In truth and in fact, there is no law that prohibits President Carlos P. Garcia, who was defeated in his bid for reelection, local elective officials from making appointments during the last days of his became no more than a “caretaker” administrator, whose duty was to or her tenure. prepare for the orderly transfer of authority to the incoming President. (3) ARTICLE VII, Sec. 13, Par. 1 – “The President, Vice President, the IN RE: HON. MATEO VALENZUELA AND HON. PLACIDO VALLARTA Members of the Cabinet and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment - Before the 11 May 1998 elections, President Ramos appointed on 30 during their tenure. They shall not, during said tenure, directly or indirectly, March 1998 2 gentlemen as RTC judges. On 14 May 1998, already after the practice any other profession, participate in any business, or be financially elections, their appointments were transmitted to the Office of the Chief interested in any contract with, or in any franchise, or special privilege, Justice. However, the 2 were able to secure advance copies of their granted by the Government or any subdivision, agency or instrumentality appointments so they were able to take their oaths and assumed office. thereof, including government-owned and controlled corporations or their subsidiaries. They shall strictly avoid conflict in the conduct of their office.” SC: The questioned appointments are void. They were unquestionably made during the period of the ban. Consequently, they come within the - This is a prohibition against HOLDING MULTIPLE POSITIONS. prohibition relating to appointments which are considered to be for the purpose of buying votes or influencing the elections.
- The only exception is temporary appointments to executive positions when Q: Directed against whom? continued vacancies therein will prejudice public service or endanger public safety. However, this case does not even fall within the exception. Their A: (1) President appointments are not temporary and not to an executive but to the judiciary. (2) Vice President Q: How do you detect if it’s a midnight appointment or for purpose of vote- buying? (3) Member of the Cabinet and their deputies or assistants
- applies to private employment
Political Law Review Notes (Atty. Edwin Sandoval) 52 Prepared by: Atty Joan P. Gamboa - the idea is for them to focus in their functions - This was a reaction to what happened during the Marcos Regime. There was proliferation of newly created agencies, instrumentalities, and Q: What are the exceptions? government-owned or controlled corporations created by presidential decrees and other modes of presidential issuances where cabinet members, A: (1) unless otherwise provided in this Constitution their deputies and assistants were designated to head or sit as member of the board with the corresponding salary, emoluments, per diems, EX: The Vice President may be appointed as a Member of the allowances, and other perquisites of the office. This practice of holding Cabinet xxx. (ARTICLE VII, Sec. 3, Par. 2) multiple offices or positions in the government soon led to abuses by unscrupulous public officials who took advantage of this scheme for The Secretary of Justice is an ex-officio Member fo the Judicial purposes of self-enrichment. and Bar Council (ARTICLE VIII, Sec. 8, Par. 1) - EO 284 was declared null and void! (2) If they will hold that other office in an ex-officio capacity. (Civil Liberties Union vs. Exec. Sec.) PUBLIC INTEREST CENTER, INC. VS. ELMA
CIVIL LIBERTIES UNION VS. EXECUTIVE SECRETARY Magdangal B. Elma was appointed by the President as Chairman of the PCGG. At the same time, he was appointed as Chief Presidential Legal President Aquino issued EO 284 allowing member of cabinet to hold not Counsel. At that time, PCGG was placed directly under the Office of the more than 2 other positions in the government including government-owned President and PCGG Chairman has the same rank, position, and salary as and controlled corporations. EO 284 was issued when President Aquino still that of a cabinet secretary. Public Interest center questioned this on the exercises legislative powers. The idea was to have them earn more. ground that Elma, as a member of cabinet, he is prohibited from holding 2 Pursuant to EO 284, President Aquino appointed member of her Cabinet to positions under ARTICLE VII, Section 14. other positions. Civil Liberties Union questioned this on the ground that as Members of the Cabinet, they are prohibited from holding other positions SC: The prohibition in Section 13, ARTICLE VII of the 1987 Constitution under ARTICLE VII, Sec. 13. On the other hand, the Solicitor General does not apply to Elma since neither the PCGG Chairman nor the CPLC is a contends that they are covered by ARTICLE IX-B, Sec. 7, Par. 2 because cabinet secretary, undersecretary, or assistant secretary even if the former they are appointive officials. As members of cabinet, they can hold other may have the same rank as the latter positions. Even if Section 13, office if a law allows it, in this case, there is a law, EO 284. ARTICLE VII is not applicable, Elma still could not be appointed concurrently to the offices of the PCGG Chairman and CPLC because neither office was SC: The contention of Civil Liberties Union is correct. Section 7, ARTICLE occupied by him in an ex-officio capacity and the primary functions of one IX-B, Par. 2 (“Unless otherwise allowed by law or by the primary functions of office do not require an appointment to the other post. Moreover, even if the his position, no appointive official shall hold any other office or employment appointments in question are not covered by Section 13, ARTICLE VII of the in the government or any subdivision, agency or instrumentality thereof, 1987 Constitution, said appointments are still prohibited under Section 7, including government-owned or controlled corporations or their ARTICLE IX-B, which covers all appointive and elective officials, due to the subsidiaries.”) is meant to lay down the general rule applicable to all incompatibility between the primary functions of the offices of the PCGG appointive public officials and employees while Section 13, ARTICLE VII is Chairman and the CPLC. meant to be the exception applicable only to the President, Vice President, Members of the Cabinet and their deputies and assistants. - PRINCIPLE OF INCOMPATIBLE OFFICE : one which may not be held by a member during his term without forfeiting his seat. - The evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition. EX: Fiscal and PAO
- Section 13, ARTICLE VII is a new provision not found in 1935 and 1973 Treasurer and Auditor Constitution. Congressman and Cabinet Secretary
Political Law Review Notes (Atty. Edwin Sandoval) 53 Prepared by: Atty Joan P. Gamboa ARTICLE VI, Sec 13 – “No Senator or Member of the A: No! House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including - In this case, the function of CPLC is to review decisions of officers under GOCC’s or their subsidiaries, during his term without forfeiting his seat. the Office of the President and among them is the PCGG. Neither shall he be appointed to any office which may have been created or emoluments thereof increased during the term for which he was elected.”
INCOMPATIBLE OFFICE FORBIDDEN OFFICE referred to in the first sentence referred to in the second sentence one which may not be held by a one which is forbidden by law even if CONTROL POWER member during his TERM of office he is willing to forfeit his seat. without forfeiting his seat. ARTICLE VII, Sec. 17 – “The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be TERM: provided by law faithfully executed.” TENURE: actual stay in office -not necessary for him to resign before he accepts the other office; It is automatic. CONTROL GENERAL SUPERVISION
exercised over all executive exercised over local governments a member may be validly appointed he may not be validly appointed departments bureaus, and offices but he forfeits his seat. ARTICLE X, Section 4 – “The more of an inhibition more of a prohibition President of the Philippines shall exercise general supervision over Q: Congressman X was appointed Q: Congress created a new office, local governments xxx” as Secretary of DENR, can he Urban Poor Commission. It validly accept the appointment? appropriated P10B. Congressman ARTICLE II, Section 25 – “The State X resigned and applied for that shall ensure the autonomy of local A: Yes. position. Can he be validly governments.” appointed?
A: No. It was created during the term in which he was elected. Even Q: What is CONTROL? if he is willing to resign, He cannot still be appointed because it is a A: (1) to direct the performance of a duty; forbidden office. (2) to restrain the commission of acts; (3) to review, reverse, revise, alter, or modify the decisions of his subordinates; or (4) to substitute his own decision over that of his subordinates. Q: Can he still go back to his former position? Q: Does the President have CONTROL over local government units?
Political Law Review Notes (Atty. Edwin Sandoval) 54 Prepared by: Atty Joan P. Gamboa A: No. His power is limited to GENERAL SUPERVISION. The power of contravention of Section 286 of the LGC and of Section 6, Article X of the supervision means “overseeing or the authority of an officer to see that the Constitution providing for the automatic release to each of these units its subordinate officers perform their duties. If the subordinate officers fail or share in the national internal revenue. neglect to fulfill their duties, the official may take such action or step as prescribed by law to make them perform their duties. The President’s power of general supervision means no more than the power of ensuring that laws are faithfully executed or that subordinate officers act within the law. SC: Such withholding clearly contravenes the Constitution and the law. The (JOSON VS. TORRES) Constitution vests the President with the power of supervision, not control, over LGU’s. Such power enables him to see to it that LGU’s and their - Hence, the President’s power of general supervision means to oversee; to officials execute their tasks in accordance with law. While he may issue see to it that the local governments and their officials perform their functions advisories and seek their cooperation in solving economic difficulties, he in accordance with law. No more than that. cannot prevent them from performing their tasks and using available resources to achieve their goals. He may not withhold or alter any authority - Control is said to be the very heart of the power of the President. (Joson or power given them by law. Thus, the withholding of a portion of internal vs. Torres) revenue allotments legally due them cannot be directed by administrative fiat. Q: What is an EXECUTIVE DEPARTMENT, BUREAU, OR OFFICE? GANZON VS. CA A: EO 292 : ADMINISTRATIVE CODE OF 1987: There were 10 administrative charges against Mayor Ganzon of Iloilo in the DEPARTMENT: any of the executive departments created by law. Office of the President. The Office of the President investigated. DILG Ex: Depatment of Finance Secretary, as the President’s alter ego, preventively suspended Ganzon. BUREAU: a principal subdivision of a department. Ganzon questioned this contending that the Constitution has left the Ex: Bureau of Internal Revenue and Bureau of Customs President mere supervisory powers which supposedly excludes the power of OFFICE: a major functional unit of a department or bureau. investigation and denied her control which allegedly embraces disciplinary Ex: Office of the Secretary of Finance, Regional Office of BIR authority. According to him, the President may not validly investigate and much more cannot place him under preventive suspension which is an - All of these are under the control of the President. incident of the power to investigate.
DOCTRINE OF QUALIFIED POLITICAL AGENCY or ALTER EGO SC: The impression of Ganzon is mistaken. Legally, supervision is not incompatible with disciplinary authority. Investigating is not inconsistent with The acts, decisions of the members of the cabinet, heads of bureaus and overseeing although it is a lesser power than “altering”. offices, being alter ego of the President, rendered or performed in the regular course of business are deemed to the acts of the President, unless - How can you expect the President to determine that the following performs reprobated by him. their powers and functions in accordance with law if you will deny him the power to investigate. PIMENTEL VS. AGUIRRE - The power to investigate is an incident of the power of control. Allegedly, we were experiencing economic difficulties then so President Estrada issued AO 43, amending Section 4 of AO 372, by reducing to five MILITARY POWERS percent the amount of Internal revenue Allotment (IRA) to be withheld from the LGU’s. Pimentel, Jr. et al. contends that in issuing AO 43, the President ARTICLE VII, Sec 18 – was in effect exercising the power of control over LGU’s while the Constitution vests in the President, however, only the power of general 3 DISTINCT MILITARY POWERS OF THE PRESIDENT supervision over LGU’s. Also, they argued that the directive is in
Political Law Review Notes (Atty. Edwin Sandoval) 55 Prepared by: Atty Joan P. Gamboa (1) Calling out power as the Commander-in-chief of the Armed Forces of the - The Congress, if not in session, shall, within 24 hours following such Philippines proclamation or suspension, convene in accordance with its rules without need of a call. (2) Power to proclaim martial law - A state of martial law does not suspend the operation of the Constitution, (3) Power to suspend the privilege of the writ of habeas corpus nor supplant the functioning of the civil courts or legislative assemblies, NOR authorize the conferment of jurisdiction on military courts and agencies over INSTANCES WHEN THE PRESIDENT MAY CALL OUT AFP – To suppress civilians, where civil courts are able to function, (OLAGUER DOCTRINE) Nor automatically suspend the privilege of the writ. (1) lawless violence (2) invasion OLAGUER DOCTRINE (3) rebellion - Superseded AQUINO VS. COMMISSIONER
INSTANCES WHEN THE PRESIDENT MAY DECLARE MARTIAL LAW or - during martial law, military courts may assume jurisdiction over SUSPEND THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS civilians
(1) invasion } - Ninoy Aquino questioned the assumption of jurisdiction of the } when public safety requires it military tribunals (2) rebellion } - predictably, he was sentenced to death by musketry (firing squad)
Other Limitations - sentence was not carried out but he died just the same
- For a period not exceeding 60 days - Several Filipinos abroad were against the decision in Aquino vs. Commission – they were known as Olaguer group. - Expressly been made subject to judicial review under ARTICLE VII, Sec. 18, Par. 3 – “The Supreme Court may review, in an appropriate proceeding - They were out to embarrass the Marcos Government. filed by any citizen, the sufficiency of the factual basis of the proclamation of Martial Law or the suspension of the privilege of the writ of habeas corpus or - Unfortunately, the Lovely brothers, among their con-conspirators the extension thereof, and must promulgate its decision thereon within thirty accidentally detonated a bomb. days from its filing.” (LANSANG VS. GARCIA) - They did not die and the group was arrested. - Within 48 hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report - All were sentenced to die by musketry. in person or in writing to the Congress. - While the case was pending before the SC, EDSA I happened. - 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 - Justice Teehankee, the lone dissenter in the Aquino case, suspension, which revocation shall not be set aside by the President. became the Chief Justice of SC and he penned the Olaguer doctrine.
- Upon the initiative of the President, the Congress, may in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.
Political Law Review Notes (Atty. Edwin Sandoval) 56 Prepared by: Atty Joan P. Gamboa - ARTICLE VII, Sec. 18, Par. 5 – “The suspension of the privilege of the writ conviction by final judgment is may be granted even without prior shall apply only to persons judicially charged for rebellion or offenses required conviction by final judgment inherent in or directly connected with invasion.” may mean forgiveness but not erases whatever shade of guilt there - In connection with ARTICLE III, Sec. 13 – If the offense is bailable, one forgetfulness was can still post bail because under this – “The right to bail shall not be impaired even if the privilege of the writ of habeas corpus is suspended.” usually extended to individuals extended to group of individuals convicted of common crimes charged of political offenses - ARTICLE VII, sec. 18, Par. 6 – “During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged private act of the President official act of the President within 3 days, otherwise he shall be released.”
- Important to know distinction because of judicial notice PARDONING POWER - Under the law on evidence, there are 3 things which need not be proven: ARTICLE VII, Sec.19 – “Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, (1) those matters which the court must take judicial notice of commutations, and pardons and remit fines and forfeitures, after conviction (2) judicial admissions by final judgment. (3) presumptions - Under Section1, Rule 129 of the Rules of Court, one of the matters which He shall also have the power to grant amnesty with the concurrence of a the courts must take judicial notice of is the official acts of the legislative, majority of all the Members of the Congress.” executive and judicial departments of the Philippines. FIVE MATTERS COVERED - Hence, amnesty, which is an official act of the President, no longer (1) To grant reprieves requires proof. (2) To grant commutations - On the other hand, pardon, being a private act of the President, requires (3) To grant pardons proof and the convict who was granted such pardon has the burden of proof. (4) To remit fines and forfeitures (5) To grant amnesty
LIMITATIONS OF THE PARDONING POWER AMNESTY (1) does not apply in cases of impeachment (ARTICLE VII, Sec. 19) - segregated from the 4 others - concurrence of the majority of all member of congress is required (2) there must first be conviction by final judgment (ARTICLE VII, Sec. 19) - conviction by final judgment is not required unlike the 4 others (3) not applicable to legislative contempt
PARDON AMNESTY (4) not applicable to election offenses without favorable recommendation of Comelec (ARTICLE IX-C, Sec. 5) concurrence of congress is not concurrence of congress is required required
Political Law Review Notes (Atty. Edwin Sandoval) 57 Prepared by: Atty Joan P. Gamboa REPRIEVE – suspension or stay of execution of a death convict - Hence, she is excused from serving sentence; but in the eyes of the law, she is still a convict. Unless the grant expressly so provides, she cannot be Probation – suspension of penalty reinstated. And since she is not entitled to be reinstated, with more reason that she is not entitled to backwages. COMMUTATION – reduction of penalty by 1 degree from death to RP - It does not impose upon the government any obligation to make reparation Q: Is pardon available to those guilty of administrative offenses? for what has been suffered since the offense has been established by judicial proceedings, that which has been done or suffered while they were A: Yes. Pardon is available not only to those guilty of criminal offense but in force is presumed to have been rightfully done and justly suffered and no also to those guilty of administrative offense. Section 19, ARTICLE VII satisfaction for it can be required. makes no distinction between criminal offense and administrative offense except with respect to impeachment. If persons convicted of heinous crimes where evidence of guilt is beyond reasonable doubt are entitled to pardon, why do we have to deny the same to those convicted of administrative GARCIA VS. COA offenses where only substantial evidence is required? (LLAMAS VS. ORBOS) Garcia was an employee of the Bureau of Telecommunications. Several properties of BT were lost. He was summarily dismissed from the service on the ground of dishonesty. It became final subsequently. A criminal case for qualified theft was filed against Garcia based on the same facts obtaining in MONSANITO VS. FACTORAN – Not entitle to be reinstated; no backwages the administrative actions. After a full blown trial, Garcia was acquitted not based on lack of proof beyond reasonable doubt but based on an express The Assistant Municipal Treasurer was convicted of malversation through finding that he was innocent of the crime charged. Garcia sought falsification of public document. Later, he was granted absolute pardon by reinstatement to his former position in view of his acquittal in the criminal the President, when he was released, he demanded to be reinstated to his case. Bureau of Telecommunications denied his request. Hence, Garcia former position and be paid backwages. pleaded to the President for executive clemency. Acting on the favorable endorsements of the then Ministry of Transportation and Communications SC: Pardon granted after conviction frees the individual from all the and the CSC, the President granted Garcia executive clemency. Then penalties and legal disabilities and restores him to all his civil rights. But Garcia filed with COA a claim for payment of backwages. This was denied unless expressly grounded on the person’s innocence (which is rare), it by COA on the ground that executive clemency granted to him did not cannot bring back lost reputation for honesty, integrity, and fair dealing. This provide for the payment of back salaries and that he has not been reinstated must be constantly kept in mind, lest we lose track of the true character and in the service. purpose of the privilege. Pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or forfeited by reason of the SC: Garcia should not be considered to have left his office for all legal conviction although such pardon undoubtedly restores his eligibility for purposes, so that he is entitled to all the rights and privileges that accrued to appointment to that office. him by virtue of the office held, including backwages. If the pardon is based on the innocence of the individual, it affirms this innocence and makes him a - The very essence of a pardon is forgiveness or remission of guilt. Pardon new man and as innocent as if he had not been found guilty of the offense implies guilt. It does not erase the fact of the commission of the crime and charged. When a person is given pardon because he did not truly commit the conviction thereof. It does not wash out moral stain. It involves the offense, the pardon relieves the party from all punitive consequences of forgiveness not forgetfulness. his criminal act, thereby restoring him his clean name, good reputation and unstained character prior to the finding of guilt. - A pardon looks to the future. It is not retrospective. It makes no amends for the part. It affords no relief for what has been suffered by the offender. - The bestowal of executive clemency on Garcia in effect completely obliterated the adverse effects of the administrative decision which found him guilty of dishonesty and ordered his separation from the service. This
Political Law Review Notes (Atty. Edwin Sandoval) 58 Prepared by: Atty Joan P. Gamboa can be inferred from the executive clemency itself exculpating Garcia from pardonee has thereby placed himself under the supervision of the Chief the administrative charge and thereby directing his reinstatement, which is Executive or his delegate who is duty-bound to see to it that the pardonee rendered automatic by the grant of the pardon. This signifies that petitioner complies with the terms and conditions of the pardon. (In Re: Wilfredo need no longer apply to be reinstated to his former employment. He is Sumulong Torres) reinstated to his office ipso facto upon the issuance of the clemency. His automatic reinstatement entitles him to backwages. Q: Is the grant or revocation of conditional pardon by the President subject to judicial review? - He is entitled to full backwages for 8 years. Verily, law, equity, and justice dictate that Garcia be afforded compassion for the embarrassment, A: No! This exercise of presidential judgment is beyond judicial scrutiny. (In humiliation, and above all injustice caused to him and his family by his Re: Wilfredo Sumulong Torres) unfounded dismissal. This is a little measure. SC even commended him for protecting government property. BORROWING POWER
ARTICLE VII, Sec. 20 – “The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence ESTRADA VS. DESIERTO of the Monetary Board, and subject to such limitations as may be provided by law xxx.” Leo Echegaray was convicted of qualified rape. At that time, the death penalty is still in effect. On the date he is to be executed by lethal injection, the SC issued a TRO. This was criticized on the ground, among others, that it encroached on the power of the President to grant reprieve under Sec. 19, LIMITATIONS ON THE BORROWING POWER: ARTICLE VII of the 1987 Constitution. (1) There must be prior concurrence of the Monetary Board. SC: Sec. 19, ARTICLE VII of the 1987 Constitution is simply the source of power of the President to grant reprieves, commutations, and pardons and (2) Subject to such limitations as may be provided by law. remit fines and forfeiture after conviction by final judgment. This provision, however, cannot be interpreted as denying the power of the courts to control the enforcement of their decisions after the finality. In truth, an accused who has been convicted by final judgment still possesses collateral rights and TREATY-MAKING POWER these rights can be claimed in the appropriate courts. The suspension of such a death sentence is indisputably an exercise of judicial power. It is not ARTICLE VII, Sec. 21 – “No treaty or international agreement shall be valid usurpation of the presidential power of reprieve though its effect is the same and effective unless concurred in by at least 2/3 of all the Members of the – the temporary suspension of the execution of the death convict. The Senate.” powers of the Executive, Legislative, and the Judiciary to save the life of a death convict do not exclude each other for the simple reason that there is no higher right than the right to life. Q: Who has the power to ratify treaties? Q: Discuss the nature of a CONDITIONAL PARDON. A: The power to ratify is vested in the President and not in the legislature. A: A CONDITIONAL PARDON is in the nature of a contract between the The role of the Senate is limited only to giving or withholding its consent or sovereign power of the Chief Executive and the convicted criminal to the concurrence to the ratification. (Bayan vs. Zamora) effect that the former will release the latter subject to the condition that if he does not comply with the terms of the pardon, he will be recommitted to prison to serve the unexpired portion of the sentence or an additional one. By the pardonee’s consent to the terms stipulated in this contract, the
Political Law Review Notes (Atty. Edwin Sandoval) 59 Prepared by: Atty Joan P. Gamboa - What requires concurrence is a treaty or international agreement NOT an (b) the treaty must be duly concurred in by the Senate and when so executive agreement. required by Congress, ratified by a majority of the votes cast by the people in a national referendum; and
(c) recognized as a treaty by the other contracting state Q: Is an EXECUTIVE AGREEMENT equally binding as an INTERNATIONAL AGREEMENT?
A: Yes. In international law, there is no difference between treaties and BAYAN VS. ZAMORA executive agreements in their binding effect upon states concerned as long as the functionaries have remained within their powers. International law The President entered into a VFA with the US under which American troops continues to make no distinction between treaties and executive will be allowed to enter the Philippines to conduct joint military exercises with agreements. They are equally binding obligations upon nations. members of the Philippine armed forces. He subsequently transmitted said VFA to the Senate for concurrence invoking his treaty-making power under Section 21, ARTICLE VII of the 1987 Constitution. Petitioners, who are opposed to the VFA, challenged the constitutionality of said VFA contending - The distinction between TREATY and EXECUTIVE AGREEMENT is more that it was grave abuse of discretion on the part of the President to transmit of a municipal law – whether concurrence of the Senate is required or not. the same to the Senate invoking Section 21, ARTICLE VII of the Constitution as the controlling provision should have been Section 25, ARTICLE XVIII.
Q: Which Constitutional provision was upheld? Q: How to determine whether an agreement is executive or international? A: Petitioners’ contention on this point was upheld.
A: INTERNATIONAL EXECUTIVE - Section 21, ARTICLE VII deals with treaties or international agreements in general, in which case, the concurrence of at least 2/3 of all the Members of - involves major policy - involves implementation of the Senate is required to make the subject treaty or international agreement that policy valid and binding on the part of the Philippines. This provision lays down the general rule on treaties or international agreements and applies to any form - more or less permanent and of - more or less temporary longer of treaty with a wide variety of subject matter, such as, but not limited to, duration and of short duration extradition or tax treaties or those economic in nature. All treaties or international agreements, entered into by the Philippines, regardless of Q: Is VFA a treaty? subject matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be valid and effective. A: Yes. The President himself considered it as a treaty. He referred the VFA to the Senate for concurrence. - In contrast, Section 25, ARTICLE XVIII is a special provision that applies to treaties which involve the presence of foreign military bases, troops, or Q: What are the conditions before foreign military bases, troops, or facilities facilities in the Philippines. Under this provision, the concurrence of the may be allowed in the Philippines pursuant to ARTICLE XVIII, Sec. 25 of the Senate is only one of the requisites to render compliance with the 1987 Constitution? constitutional requirement and to consider the agreement binding on the Philippines. A: Sec. 25, ARTICLE XVIII disallows foreign military bases, troops or facilities in the country unless the following conditions are sufficiently met: - Undoubtedly, section 25, ARTICLE XVIII which specifically deals with treaties involving foreign military bases, troops, or facilities should apply in (a) it must be under a treaty; the instant case. It is a finely-imbedded principle in statutory construction that special provision or law prevails over a general one. To a certain extent
Political Law Review Notes (Atty. Edwin Sandoval) 60 Prepared by: Atty Joan P. Gamboa and in a limited sense, however the provisions of Section 21, ARTICLE VII will find applicability with regard to the issue and for the sole purpose of Q: Who removes them? determining the number of votes required to obtain the valid concurrence of A: Supreme Court, as an exception to the principle that appointing power the Senate. carries with it removal power.
Q: The nature of the petition filed was for certiorari and prohibition. Did it -Appointments in judiciary no longer need confirmation by Comm on constitute grave abuse of discretion on the part of the President when he Appointment. It is now the Judicial and Bar Council submitted the VFA to the Senate invoking Section 21 instead of Section 25? A: No! The President, in ratifying the VFA and in submitting the same to Composition of Judicial and Bar and Council (sec.8, VIII) Senate for concurrence, acted within the confines and limits of the powers vested in him by the Constitution. It is of no moment that the President, in the exercise of his wide latitude of discretion and in the honest belief that VFA falls within the ambit of Section 21, ARTICLE VII of the Constitution TYPES OF POLITICAL QUESTIONS referred to the Senate for concurrence. Certainly, no abuse of discretion much less a grave, patent and whimsical abuse of judgment, may be THREE IMPORTANT FUNCTIONS OF THE COURT imputed to the President in his act of ratifying the VFA and referring the REQUISITES FOR THE EXERCISE OF JUDICIAL REVIEW same to the Senate for the purpose of complying with the concurrence requirement embodied in the fundamental law. In doing so, the President COMPOSITION OF THE SUPREME COURT – Section 4, ARTICLE VIII merely performed a constitutional task and exercised a prerogative that - 15 Justices: Chief Justice and 14 associate Justices chiefly pertains to the functions of his office. - May sit en banc or, in its discretion, in divisions of 3, 5, or 7 members - In practice, sits in division of 5 BUDGETARY POWER - First division: Chief Justice = Chairman ARTICLE VII, Sec. 22 – “The President shall submit to the Congress within - Second division: 1st most senior = Chairman 30 days from the opening of every regular session, as the basis of the - Third division: 2nd most senior = Chairman general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures.” Sidenote: “Memorials” is the term use in referring to “Pleadings” in International Court - Correlate with Section 25(1), ARTICLE VI – “Congress may not increase the appropriations recommended by the President for the operation of the QUALIFICATION – Section 7, ARTICLE VIII Govt as specified in the budget. The form, content, and manner of OF MEMBERS OF SUPREME OF ANY LOWER COLLEGIATE preparation of the budget shall be prescribed by law.” COURT COURT - The most that Congress could do is to trim down or slash the budget! (1) natural born citizen of the Phils. (1) citizen of the Phils. INFORMING POWER (2) at least 40 years of age (2) member of the Bar ARTICLE VII, Sec. 23 – “The President shall address the Congress at the (3) must have been for 15 years or (3) possesses the qualifications opening of the regular session. He may also appear before it at any other more a judge of a lower court or prescribed by Congress time.” engaged in the practice of law in the Phils JUDICIAL DEPARTMENT (4) must be a person of proven (4) must be a person of proven competence, integrity, probity and competence, integrity JUDICIAL POWER independence probity and independence
ARTICLE VIII, Sec. 1 QUORUM = 8 Q: Who appoints justices? MAJORITY = 5 A: President
Political Law Review Notes (Atty. Edwin Sandoval) 61 Prepared by: Atty Joan P. Gamboa VOTING (8) Cases assigned to a division which in the opinion of at least (3) - Only the members present and who participated in the deliberations on the members thereof merit the attention of the court en banc and are acceptable issues in the case shall vote. to a majority of the actual membership of the court en banc; and - All cases xxx which shall be heard en banc xxx shall be decided with the concurrence of a majority of members who actually took part in the (9) All other cases as the court en banc by a majority of its actual deliberations on the issues in the case and voted thereon. membership may deem of sufficient importance to merit its attention. - Cases or matters heard by division shall be decided or resolved with the concurrence of a majority of Members who actually took part in the CONSTITUTIONAL PROVISIONS THAT TEND TO STRENGTHEN THE deliberations on the issues in the case and voted thereon and in no case, INDEPENDENCE OF THE JUDICIARY without the concurrence of a t least 3 such members. (1) ARTICLE VIII, Sec. 9 – “The Members of the Supreme Court and judges - When the required number is not obtained, the case shall be decided en of lower courts shall be appointed by the President from a list of at least banc. three nominees prepared by the Judicial and bar Council for every vacancy. Such appointments need no confirmation.” - No doctrine or principle of law laid down by the court in a decision rendered en banc or in a division may be modified or reversed except by the court sitting en banc. JUDICIAL AND BAR COUNCIL (Section 8, Article VIII)
Functions: Q: What cases are to be heard by the Supreme Court en banc? -principal function of recommending appointees to the judiciary A: (1) Cases in which the constitutionality or validity of any treaty, international or executive agreement, law, executive order, or presidential -may exercise such other functions and duties as the SC may decree, proclamation, order, instruction, ordinance or regulation is in assign to it question; Composition: (2) Criminal cases in which the appealed decision imposes the death penalty; (1) Chief Justice- as ex officio Chairman
(3) Cases raising novel questions of law; (2) Secretary of Justice } as ex officio members
(4) Cases affecting ambassadors, other public ministers and consuls; (3) A representative of the Congress }
(5) Cases involving decisions, resolutions, or orders of the CSC, (4) A representative of the Integrated Bar ]as regular members Comelec, and COA; (5) A professor of law ] (6) Cases where the penalty to be imposed is the dismissal of a judge, officer or employee of the judiciary, disbarment of a lawyer, or either the (6) A retired member of the SC ] suspension of any of them for a period of more than one (1) year or a fine exceeding P10,000 or both; (7) A representative of the private sector ]
(7) Cases where a doctrine or principle laid down by the court en banc - Term: or in division may be modified or reversed;
Political Law Review Notes (Atty. Edwin Sandoval) 62 Prepared by: Atty Joan P. Gamboa The regular members of the Council shall be appointed by The 1st sections are entitled “Principles”, while the rest are entitled “Policies” the President for a term of 4 years with the consent of the Commission on Appointments. However, there seems to be no clear distinction between what are “Principles” and what are “Policies”.
(2) ARTICLE VIII, Sec. 3 – “The Judiciary shall enjoy fiscal autonomy. II. Sec. 1, Art. Ii – “The Philippines I a democratic and Appropriations for the Judiciary may not be reduced by the legislature below republican State. Sovereignty resides in the people and the amount appropriated for the previous year and after approval, shall be all government authority emanates from them. automatically and regularly released.” This is prescriptive of the kind of government that we should have – it should be “democratic” and “republican”. We cannot have any other kind of government Q: What is fiscal autonomy? Note that in International Law, it is not concerned with the kind of A: Fiscal autonomy contemplates a guarantee of full flexibility to government. What is essential is that there is a government, since it is an allocate and utilize their resources with the wisdom and dispatch that their essential element of the State. needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates “Republican” – hence, we have a representative type of authorized by law for compensation and pay plans of the govt and allocate government – we elect our leaders. and disburse such sums as may be provided by law or prescribed by them in the course of the discharge of their functions. Fiscal autonomy means Thus, we have Art. V on Suffrage, and Art. IX-C on freedom from the outside control. COMELEC
Relate to Art. XI, Sec 1 – “Public office is a public trust. Public officers and employees must at all times be accountabels to the people, serve them with STATE PRINCIPLES AND POLICIES utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and ARTICLE II (AND RELATED PROVISIONS), 1987 CONSITUTION justice, and lead modest lives.”
I. General Considerations: Because sovereignty resides in the people, public office is a public trust. Hence, there is the sense of accountability. Tañada v. Angara – By its very nature, Art. II are policies and principles that III. Sec. 2, Art II – “ The Philippines renounces war as an may guide the Legislature in the enactment of laws and the courts in its instrument of national policy, adopts the generally interpretation accepted principles of international law as part of the law of the land and adhere to the policy of peace, equality, Hence, as a general rule, these provisions are non-self-executing justice, freedom, cooperation, and amity with all nations”
BUT – a provision that is complete in itself, and provides War is renounced as an instrument of national policy. sufficient rules for the exercise of rights, is self-executing Thus, no one has the power to declare war Thus, certain provisions under Art. II are self-executing BUT: Congress can declare a “State of War” Also, the President can only use military powers in case of invasion, rebellion, etc. He has no power to declare war. Eg.: Sec. 16 (See Oposa v. Factoran) BUT, does not that when we are attacked, we cannot engage in war!
Political Law Review Notes (Atty. Edwin Sandoval) 63 Prepared by: Atty Joan P. Gamboa over the military. Thus, the AFP’s role must be understood within the context Constitution only renounces offensive war, not defensive war of civilian supremacy.
This is one of the Rights of States: 1. Sovereignty and Independence INTEGRATED BAR OF THE PHILS. v. ZAMORA 2. Property and Jurisdiction FACTS : Estrada issued an LOI deploying the marines all over Metro Manila 3. Equality 4. Existence and Self-Defense HELD: (1) Civilian Supremacy Clause not Violated – The calling of the 5. Diplomatic Intercourse marines in this case constitutes permissible use of military assets for civilian enforcement. The limited participation of the Marine is evident in the This is constituent with the policy of the UN, of which we are a member. provisions of the LOI, which provides the metes and bounds of their authority. The local police forces are in charge of the visibility patrols – the “Adopt: the generally accepted principles of international law as part of the real authority belongs to the PNP, the Metro Manila Police Chief is the law of the land” overall leader of the PNP-Philippine Marines joint visibility patrols.
Reaffirms the Doctrine of Incorporation (2) Deployment of Marines to assist the PNP does not unmake the civilian character of the PNP – the Marines Examples of generally accepted principles of International Law render only assistance in conducting the patrols. There is 1. Pacta sunt servanda no insidious incursion of the military in civilian affairs. In 2. Rebus sic stantibus fact, military assistance to civilian authorities is rendered in 3. State Immunity from Suit the following actuations: elections, administration of the 4. Sovereign Equality of States Philippine Red Cross, relief and rescue operations during 5. Right to self-determination calamities and disasters, amateur sports, promotion and development, development of the culture and the arts, conservation of natural resources, implementation of the IV. Sec. 3, Art II – “Civilian authority is at all times, supreme agrarian reform program, enforcement of customs laws, over the military. The AFP is the protector of the people composite civilian-military law enforcement activities, and the State. Its goal is to secure the sovereignty of the conduct of licensure examinations, conduct of nationwide State snd the integrity of the national territory. tests for elementary and highschool students, anti-drug enforcement activities, sanitary inspections, conduct of This is known as the “Civilian Supremacy Clause” census work, administration of the Civil Aeronautics Board, assistance in installation of weather forecasting It is expressly stated that it is SUPREME over the military devices, and peace and order policy formulation in LGUs.
Role of the AFP: V. Sec. 4, Art. II – “The prime duty of the Government is to 1. Secure State sovereignty serve and protect the people. The Government may call 2. Secure integrity of the national territory upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions Q: The provision says the AFP is the “protector of the people provided by law, to render personal military on civil and the State” Does this justify a coup d’ etat? service.”
A: NO! This clause should not be lifted out of context. Look Q: What is the Government’s Duty? at the 1st sentence of the provision – that the civilian authority is supreme A: To serve and protect the people
Political Law Review Notes (Atty. Edwin Sandoval) 64 Prepared by: Atty Joan P. Gamboa Thus, its violation gives rise to a cause of action. Service to the State In relation to the Preferential Right of Subsistence Fishermen to the Q: It states that the government may call upon the Use of Communal Marine and Fishing Resources people to defend the State. Does this amount to involuntary servitude? Art. XIII, Sec. 7 – “ The State shall protect the rights of subsistence fishermen, especially of local communities, to A: NO! This is an exception to the rule n involuntary the preferential use of communal marine and fishing servitude: resources, both inland and offshore.”
Exceptions to the rule on involuntary servitude: TANO v. SOCRATES (GR. 110249, 21 Aug. 1997) 1. Military service to defend the State 2. Penal punishment FACTS: The Province of Palawan and City of 3. Assumption of jurisdiction of DOLE in labor Pierto Princesa enacted ordinances prohibiting cases the catching and exportation of live tropical 4. Mariners and pilots fishes. Some fishermen were apprehended for 5. Minor children under the patria potestas of violating said ordinances, They now challenge parents the constitutionality of said ordinances, invoking their preferential rights as subsistence fishermen Note that the provisions says “PERSONAL service” to the use of our communal marine resources. Thus, one cannot hire mercenaries to take one’s place. HELD: The preferential rights of subsistence VI. Sec. 16, Art. II – “The State shall protect and advance the fishermen to the use of marine resources is not right of the people to a balanced and healthful ecology in absolute. Marine resources, per the Regalian accord with the rhythm and harmony of nature.” Dontrine and under Art. XII, Sec. 2, belongs to the State, and their exploration, development and Q: This refers to a right of the people. Why is this utilization shall be under the State’s full control found in Art. II and not in Art. III (Bill of Rights)? and supervision. It is a policy enshrined in the Constitution that the State has the duty to protect A: This right belongs to a different category of rights! and advance the right of the people to a balanced – Oposa v. Factoran (224 SCRA 792, 1993) and healthful ecology in accord with the rhythm and harmony of nature. The ordinances are HELD: While this right is found under the meant precise to this, so that the enjoyment of Declaration of Principles and State Polivies, it does not our resources may be guaranteed for the present follow that it is less important than any of the c ivil and and future generations. The right to a balanced political rights under the Bill of Rights. This right belongs and healthful ecology carries with it a correlative to a different category of rights, since it concerns nothing duty to refrain from impairing the environment. less than self preservation and self- perpetuation, the advance of which may be said to predate all governments VII. Provisions on Economic Policy and Constitutions, since they are presumed to exist from the inception of humankind. 1. Art. XII, Sec. 10(2) – “In the grant of rights, privileges, and concessions covering the national economy and This is self-executing provision! (Oposa v. Factoran) patrimony, the State shall give preference to qualified Filipinos”
Political Law Review Notes (Atty. Edwin Sandoval) 65 Prepared by: Atty Joan P. Gamboa robust industries that can compete with the best This is known as the “Filipino First Policy” in the foreign market.
MANILA PRINCE HOTEL v. GSIS (GR. 118295, 02 May 1997, 267 SCRA 402) VIII. Provisions on Education
FACTS: The Manila Hotel, which was previously Academic Freedom – Art. XIV, Sec. 5 (2) – “Academic freedom owned by a US Corporation, was then owned by shall be enjoyed in all institutions of higher learning.” GSIS. Pursuant to the policy of Privatization, the GSIS held it up for bidding. The Filipino Note that the provision says “institutions of higher Corporation lost. However, it offered to match learning” the bid of the winning foreign corporation. This refers to the tertiary level only! HELD: (1) Art. XI, Sec. 10 (2) is a self-executing provision. It is a mandatory, positive command that is complete in itself and which needs no further guidelines or implementing laws or rules Q: What is “academic Freedom”? for its enforcement, it does not require any legislation to put it in operation. A: This is the right of the school or college to dictate for itself, its aims and objectives, and how best to (2) The word “patrimony” means heritage. attain them – free from outside coercion or Heritage includes not only natural resources but interference save possible when the overriding also our national and cultural heritage. While the public welfare calls fro some restraint. It has a Manila Hotel was not originally Filipino, it has wide sphere of autonomy. (University of San become truly Filipino, with its own history. It is a Agustin v. CA [23 SCRA 761]) mute witness to our history. Subsumed in the tern academic freedom is the freedom to 2. Art. II, Sec. 19 – “The State shall develop a self-reliant and determine, on academic grounds, the following: independent national economy effectively controlled by Filipinos” 1. Who may teach? This refers to the faculty TAÑADA v. ANGARA (272 SCRA 18, [1997])
HELD: This economic policy does not rule out 2. What may be taught? the entry of foreign investments, goods, and This refers to the subject and courses to services, nor does it contemplate “economic be offered exclusion” or “mendicancy in the international community”. Aside from envisioning a trade 3. How it shall be taught? policy based on “equality and reciprocity”, the This refers to the method of teaching fundamental law encourages industries that are “competitive in bothe domestic and foreign 4. Who may be admitted to study? markets”, thereby demonstrating a clear policy This refers to the students against a sheltered domestic trade environment, but one in favor of the gradual development of Right of the School to Determine Who may be Admitted to Study
Political Law Review Notes (Atty. Edwin Sandoval) 66 Prepared by: Atty Joan P. Gamboa Thus, mandamus would not lie to compel a school to MIRIAM COLLEGE FOUNDATION v. CA (348 SCRA 265, accept a student 15 Dec. 2000)
BUT: once the school admitted the student, there is now a HELD: The power of the State to regulate contract between them – this a contract with PUBLIC educational institutions is subject to the INTEREST requirement of reasonableness. Moreover, what is allowed is only the regulation and supervision Thus, the school may not arbitrarily dismiss or of educational institutions not the deprivation of expel a student – it should be based on either: their rights.
1. Failure to meet minimum academic IX. Rights of Indigenous Peoples requirements prescribed for the school or for the subject; CRUZ v. SECRETARY of DENR (GR. 135385, 06 Dec 2. Violation of the school’s rules of 2000) discipline FACTS: The constitutionality of RA 8371 Also, the school must conduct an investigation – (Indigenous Peoples Reform Act) was quesrioned. The it must observe due process to establish the SC en banc voted 7-7, hence, since the presumption is for culpability of the student constitutionality, such presumption was not overthrown, and the law was declared unconstitutional. Each justice wrote a separate opinion, and all opinions form part of the UP BOARD OF REGENTS v. CA (GR. 134625, 31 Aug. 1999) decision. FACTS: Aroklaswamy Willuan Margaret Celine was given SALIENT POINTS a masteral degree and was allowed to graduate. Subsequently, however, it was discovered that her thesis 1. Nature of RA 8371(Separate Opinion of J. Puno) was plagiarized. Thus, UP revoked her degree. RA 8371: HELD: If an institution of higher learning can decide who (1) Recognizes the existence of the indigenous can and who cannot study in it, it can also determine on cultural communities (ICCs) or indigenous whom it can convey the honor and distinction of being its peoples (IPs) as a distinct sector in the graduates. If the conferment of an honor or distinction Philippine society was obtained through fraud, a university can revoke or withdraw such honor or distinction. This freedom does not (2) Grants them the ownership and possession terminate upon a student’s graduation, since it is precisely of their ancestral domains and ancestral the “graduation” that is in question. lands, and defines the extent of these lands and domains, Art. XIV, Sec. 4(1) – “The State recognizes the complementary role of public and private institution in the educational system and shall (3) Gives the indigenous concept of ownership exercise reasonable supervision and regulation of all educational under customary law which traces its origin institutions” to native title.
This deals with the State’s power to regulate educational 2. Definition and Distinction ICCs/IPs (Separate Opinion institutions of J. Kapunan)
Political Law Review Notes (Atty. Edwin Sandoval) 67 Prepared by: Atty Joan P. Gamboa Sec. 3, RA 8371 – IPs/ICCs “refer to a group of continuously until the present, people or homogenous societies identified by except when interrupted by war, self-ascription and ascription of others, who have force majeure or displacement by continuously lived as organized community on force, deceit, stealth or as a communally bounded and defined territory, and consequence of government who have, under claims of ownership since time projects or any other voluntary immemorial, occupied, possessed and utilized dealings with government and/or such territories, sharing common bonds of private individuals or corporations language, customs, traditions, and other distinctive cultural traits, or who have, through It comprise lands, inland waters, resistance to political, social and cultural inroads coastal areas, and natural of colonization, non-indigenous religions and resources therein, including cultures, became historically differentiated from ancestral lands, forests, pasture, the majority of Filipinos. residential, agricultural and other lands whether alienable or not, NOTE: There is really no difference between the hunting grounds, burial grounds, 2 terms, except: worship areas, bodies of water, mineral and other natural ICCs – the term used in the Constitution resources.
IPs – the term used in the international (2) Ancestral Land - Sec. 3(b), IPRA community and the UN These are lands held by the NOTE: The terms are always used in the plural ICCs/IPs under the same conditions form as ancestral domains except that these are limited to lands and that 3. Ancestral Domain and Ancestral Lands, Definition and these land are not merely occupied Nature (Separate Opinion of J. Puno) and possessed but are also utilized by them under claims of individual Nature: or traditional group ownership. These are private property of indigenous peoples – it does not constitute part of the land of Thus, Ancestral Domain is a broader the public domain concept – it includes Ancestral Lands
Definitions: (1) Ancestral Domain – Sec. 3(a), IPRA 4. Acquisition by ICCs/IPs of their Rights to their Ancestral Domain all areas Ancestral Domains and Lands (Separate Opinion of J. belonging to ICCs/ IPs held under a Puno) claim of ownership, occupied or possessed by ICCs/IPs by 2 ways: themselves or through their ancestors, communally or individually since time immemorial,
Political Law Review Notes (Atty. Edwin Sandoval) 68 Prepared by: Atty Joan P. Gamboa (1) By Native Title – over both Meaning, the land is originally public Ancestral Domain and Ancestral land, which is converted to private Lands Note: This requires that the land is (2) By Torrens Title under the Public alienable Land Act – over Ancestral Lands only. Public Land – Art. XII, sec. 3 – “Lands of the public domain are classified into agricultural, 5. Native Title, Concept (Separate Opinion of J. Puno) forest or timber, mineral lands, and national parks” This refers to the ICCs/IPs pre-conquered rights Of these, only to lands and domains held under a claim of agricultural lands are alienable private ownership as far back as memory reaches. Requirement for Acquisitive Prescription – the private individual must have Theses lands are deemed NEVER to possessed the land open, continuously, have been public lands and are exclusively, adversely, and notoriously, presumed to have been held privately in the concept of an owner, for either of since before the Spanish Conquest. the following periods:
This right of private ownership is (1) 30 years – bad faith peculiarly granted to ICCs/IPs over their (2) 10 years – good faith Ancestral Lands and Domains.
Formal recognition of this right is embodies in a Ownership by Native Title Certificate of Ancestral Domain Title (CADT) Here, the land has been held by its A CADT is just like a Torrens Title – it is possessor and his predecessor-in- evidence of private ownership of land by interest in the concept of an owner since native title. time immemorial
6. Ownership by Acquisitive Prescription v. Ownership Thus, the land is not acquired from the by Native Title (Separate Opinion of J. Kapunan) State – there was no transfer from the State Ownership by Acquisitive Prescription The land is private in character as far Involves a conversion of the property’s back as memory reaches. character from alienable public l and to private land 7. Jura Regalia – requires that private title to land must be traced to some grant – express or implied – from Thus, there is a transfer for title from the the Spanish Crown or its successors – the American State to a private person Colonial Government and after, the Philippine Government.
Political Law Review Notes (Atty. Edwin Sandoval) 69 Prepared by: Atty Joan P. Gamboa Registration of Voters
Q: Does jura regalia negate native title? Q: Who may register?
A: NO! A: Only those who are qualified.
In Cariño v. Insular Government, the VOTER’S QUALIFICATIONS SC has held that when as far back as testimony or memory goes, the land has been held by Art. V, Sec. 1 – “Suffrage may be exercised by all citizens of the Philippines individuals under a claim of private ownership, it not otherwise disqualified by law, who are at least eighteen years of age and will be presumed to have been held in the same who shall have resided in the Philippines for at least one year and in the way from before the Spanish conquest, and place wherein they propose to vote for at least six months preceding the never to have been public land. election. No literacy, property or other substantive requirement shall be imposed on the exercise of suffrage.” Native title is an exception to jura regalia. (1) citizens of the Philippines (2) not otherwise disqualified by law Art. XII, Sec 2. – “All lands of the public domain, (3) at least 18 years of age waters, minerals, coal, petroleum, and other (4) resident of the Philippines for at least one year and of the place wherein mineral oils, all forces of potential energy, they propose to vote for at least six months immediately preceding the fisheries, forest or timber, wildlife, flora and fauna elections and other natural resources are owned by the State” Election Period: 90 days before the day of the election and shall end 30 days thereafter This is the recognition of the Doctrine of Jura Regalia -Registration -Filing of Certificate of Candidacy -Campaign Period ELECTION LAW Art. V. Sec 1 Sec. 79(A) OEC Sec. 73 OEC -Substitution of Candidates -Political Parties Monsale v. Nico Sec. 77 OEC Significant Laws Art. IX-C, Sec 2(5) Sec. 66 OEC Sec. 12 RA 9006 BP 881 – Omnibus Election Code PNOC-EDC v. NLRC Miranda v. Abaya RA 6646 – Electoral Reform Law of 1987 Sec. 26 OEC RA 7166 COMELEC Resolution -Disqualification Cases RA9006 – Fair Election Act Sec. 68 OEC RA 9189 – Absentee Voter’s Act of 2003 Sec. 69 OEC (5 days) Sec. 78 OEC (25 days)
Election Process divided into 3 stages: Q: Is there an exception to the residence qualification? (1) Pre-election (2) During election A: Yes. RA 9189 (Absentee Voter’s Act of 2003) (3) Post Election MACALINTAL v. COMELEC Exception to Residence qualification of a voter PRE-ELECTION STAGE
Political Law Review Notes (Atty. Edwin Sandoval) 70 Prepared by: Atty Joan P. Gamboa HELD: Under the RA 9189 ABSENTEE VOTER’S ACT OF 2003, overseas voters with their respective votes for the purpose of assuring that votes have absentee voters are allowed to vote for President, Vice-President, Senators been cast in accordance with the instruction of a third party. and Party-List representatives. This is a clear intent to enfranchise Filipinos abroad, to allow them to have a voice in the selection of our leaders. This Exit polls conducted by ABS-CBN does not violate the sanctity of ballots. refers to IMMIGRANTS and those who acquire the right to reside therein. It The contents of the ballots are not exposed. The revelation is not does not pertain to NATURALIZED CITIZENS. However, there must be an compulsory but voluntary. Also, voters are not required to reveal their affidavit executed by these Filipinos abroad that they will return and resume names. (ABS-CBN v. COMELEC) residence in the Philippines within 3 years. Q: Even if you possess all qualifications and none of the - This is an exception to residence qualification disqualifications. If you fail to register you will not be able/ allowed - For purposes of election law, one’s domicile is that to which the to vote. Is registration then an additional qualification of a voter? Constitution refers when it speaks of residence A: No. It is merely a condition precedent for the exercise of the right Section 8, BP 881 of suffrage. Registration laws are police power measures designed to ensure that only those who possess qualifications and none of the disqualifications can be allowed to exercise the right of suffrage. - Failure of Elections They are for the purpose of conducting an honest and free election. Sec. 6 OEC Sec. 4 (70 Art. VII Sec. 4 RA 7166 Sec. 17 Art. VII Mitmug v. COMELEC Sec. 2(2) Art. IX-C REGISTRATION OF POLITICAL PARTIES
- Pre-Proclamation - Election ProtestQ: Who has the power to register political parties? Sec. 241,242,243 OEC Counter protest Sec. 15, RA 7166 Kho v. COMELECA: COMELEC in accordance with Article IX-C, Sec. 2(5). It is the - Quo Warranto registration with COMELEC that vests personality to an - Effects of Disqualification organization as a political party. Sec. 6, RA 7166 - Effect of Death Guerrero v. COMELEC De CastroArt. v. COMELEC IX-C, Sec. 2(5) – ORGANIZATIONS THAT MAY NOT BE REGISTERED Loong v. COMELEC Santiago v. FVR AS POLITICAL PARTIES Salcedo v. COMELEC (1) religious denominations and sects Tecson v. COMELEC (2) those which seek to achieve their goals through violence or unlawful means (3) those which refuse to uphold and adhere to the Constitution Art. V, Sec. 2 – “The Congress shall provide a system for securing (4) those which are supported by any foreign government the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad xxx” Art. IX-C, Sec. 2(5) Par. 2 – “ Financial contributions from foreign governments and their agencies to political parties, organization, Provides for: coalitions, or candidates related to elections constitute interference (1) A system for securing the security and sanctity of ballots in national affairs, and when accepted, shall be an additional (2) A system for absentee voting ground for the cancellation of their registration with the Commission, in addition to their penalties that may be prescribed EXIT POLLS by law.” The reason for securing the sanctity/secrecy of ballots is to avoid vote buying through voter identification. What is forbidden is the association of This constitute an election offense in accordance to Section 81, Omnibus election Code – “Intervention of foreigners- it shall be unlawful for
Political Law Review Notes (Atty. Edwin Sandoval) 71 Prepared by: Atty Joan P. Gamboa any foreigners, whether judicial (juridical) or natural person, to aid any their official candidates within 30 days before the commencement of the candidate or political party, directly or indirectly, or to take part in or influence campaign period and 45 days for Presidential and Vice-Presidential in any manner any election, or to contribute or make any expenditure in election.” connection with any election campaign or partisan political activity.” GENERAL RULE: It is unlawful for any person to engage in an election campaign except during the campaign period. Otherwise, it will be an election offense. MULTI-PARTY SYSTEM We are supposed to have a multi-party system as provided under Art. IX-C, EXCEPTION: Political parties may hold political conventions to nominate Sec. 6 – “A free and open party system shall be allowed to evolve according their candidates within 30 days before the commencement of the campaign to the free choice of the people, subject to the provisions of this Article.” period within 45 days for President and Vice-President elections.
ELECTION PERIOD CANDIDATE Sec. 79(a) Omnibus Election Code – “ the term “CANDIDATE” refers to Q: What is the election period? any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself of through an accredited political party, A: Art. IX-C, Sec. 9 provides that “unless otherwise fixed by the aggroupment, or coalition of parties.” Commission in special cases, the election period shall commence 90 days before the day of election and shall end 30 days Q: Does Pichay’s as “itanim sa senado” even before the elections and thereafter.” campaign period violate Sec. 80 of the OEC?
PROHIBITED ACTIVITIES DURING ELECTION PERIOD A: No. At that time, Pichay has not yet filed his certificate of candidacy. (1) construction of public highways/ public works He is not yet a candidate within the meaning of the law. Therefore, it cannot (2) public employment, appointment be considered as an election campaign.
CAMPAIGN PERIOD FILING OF CERTIFICATE OF CANDIDACY - duration usually shorter Sec.76. Omnibus Election Code – “Ministerial duty of receiving and - depends on the office aspired for acknowledging receipt – The Commission, provincial election supervisor, -usually starts after the last day of filing of the certificate of candidacy and election registrar or officer designated by the Commission or the board of always ends one day before elections. election inspectors under the succeeding section shall have the ministerial duty to receive and acknowledge receipt of the certificate of candidacy.” ELECTION CAMPAIGN - “Election Campaign” and “partisan political activity” are the same. It is a ministerial duty on the part of the election official to receive and They are used interchangeably. acknowledge receipt of the certificate of candidacy. The question of whether - Under Sec. 79 (b) Omnibus Election Code, it refers to “an act or not a person is disqualified belongs to another tribunal in an appropriate designed to promote the election or defeat of a particular candidate disqualification case. or candidates to a public office xxx” Q: Ka Roger went to Laguna to file COC. The election officer refused Section 80, Omnibus Election Code – “ ELECTION CAMPAIGN OR because he seeks to achieve goals through violence. Valid? PARTISAN POLITICAL ACTIVITY OUTSIDE CAMPAIGN PERIOD – It shall be unlawful for any person, whether or not a voter or candidate, or for any A: No. It is the ministerial duty on the part of the election official to party, or association of persons, to engage in an election campaign or receive and acknowledge receipt of the certificate of candidacy. The partisan political activity except during the campaign period: PROVIDED, question of whether or not a person is disqualified belongs to another that political parties may hold political conventions or meetings to nominate tribunal in an appropriate disqualification case.
Political Law Review Notes (Atty. Edwin Sandoval) 72 Prepared by: Atty Joan P. Gamboa considered ipso facto resigned from his office upon the filing of his certificate PERIOD of candidacy.” Sec. 73, 1st sentence, OEC – “No person shall be eligible for any elective Q: X, a municipal treasurer filed a certificate of candidacy for governor. public office unless he files a sworn certificate of candidacy within the period What is the effect? fixed herein xxx” A: He is considered ipso facto resigned.
The certificate of candidacy must be filed within the period prescribed by law. Q: Is there a need to resign? Late filing not allowed A: NO! The appointive official is ipso facto resigned. Ipso facto means no need to resign. Sec. 73, 3rd sentence, OEC – “No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of QUINTO vs COMELEC candidacy for more than one office, he shall not be eligible for any of them -sustained the constitutionality of sec.66 of OEC. No violation of xxx” equal protection clause. There is a valid classification based on substantial distinction between those holding appointive and elective offices. The certificate of candidacy must be filed for only one office in an election If a candidate files his certificate of candidacy for more than one office, he Q: What if after filing, the appointive official withdrew his certificate of shall not be eligible for any of them. candidacy. Can he be reinstated to his former position? A: No! What matters is the moment of filing. WITHDRAWAL PNOC-EDC v. NLRC Q: Can you withdraw the certificate of candidacy? HELD: The OEC does not distinguish between employees of GOCCs which have original charters and those that do not have one. A: Yes. A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the office concerned a Elective Officials written declaration under oath. (Sec. 73, 2nd sentence, OEC) Sec. 67, OEC – “Candidates holding elective office xxx” has already been repealed by the Repealing Clause of the Fair Election Act under Sec. 14, RA MONSALE v. NICO 9006 – “Repealing Clause. Sec 67 and 85 0f the EOC xxx are hereby On the last day of filing of certificate of candidacy. March 31, Jose Monsale repealed.” withdrew his certificate of candidacy. April 1, campaign started. On April 2, he wanted to run again so he filed a written declaration withdrawing his Q: What governs now? withdrawal. A: Secton 38, COMELEC Resolution 7767 (30 Nov 2006), HELD: The withdrawal of the withdrawal of the certificate of candidacy Implementing Rules of the Fair Election Act – “Effect of Filing Certificate of made after the last day of filing is considered as filing of a new certificate of Candidacy of Elective Officials – Any elective official, whether national or candidacy. Hence, it was not allowed since it was filed out of time. local, who has filed a certificate of candidacy for the same or other office shall not be considered resigned from his office.”
EFFECT OF FILING OF A CERTIFICATE OF CANDIDACY FARIÑAS v. EXECUTIVE SECRETARY Appointive Officials HELD: The provision of the Fair Election Act (RA 9006) to the extent that it Sec. 66. OEC – “Candidates holding appointive office or position – Any repealed Sec.67 of OEC is constitutional. person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in the government-owned or controlled corporations, shall be Q: Vice-governor filed a certificate of candidacy for governor. What is the effect?
Political Law Review Notes (Atty. Edwin Sandoval) 73 Prepared by: Atty Joan P. Gamboa A: He is NOT ipso facto considered resigned. Sec. 67 OEC has been repealed by the FAIR ELECTION ACT (RA 9006). Any elective official, national or local shall not be considered as resigned from their elective Q: Martin de Guzman died while campaigning. His son substituted him. office. Voters on the day of the election wrote Martin de Guzman instead of casting the same in the name of his son, Joel de Guzman. Should the SUBSTITUTION OF CANDIDATES votes be counted in favor of Joel?
Q: What are the GROUNDS for substitution of candidates? A: Yes! As a general rule, under RA 9006, Sec. 12, the same will be considered as stray votes but will not invalidate the whole ballot. A: Sec.77, OEC enumerates 3Grounds: Exception is when the substitute carries the same family name, the said (1) Death provision will not apply. (2) Disqualification (3) Withdrawal of another Section 12. RA 9006 – “Substitution of Candidates. In case of valid substitutions after the official ballots have been printed, the votes cast for the Section 77. OEC – “Candidates in case of death, disqualification or substituted candidates shall be considered as stray votes but shall not withdrawal of another. - If after the last day for the filing of certificates of invalidate the whole ballot. For this purpose, the official ballots shall provide candidacy, an official candidate of a registered or accredited political party spaces where the voters may write the name of the substitute candidates if dies, withdraws or is disqualified for any cause, only a person belonging to, they are voting for the latter: Provided, however, That if the substitute and certified by, the same political party may file a certificate of candidacy to candidate of the same family name, this provision shall not apply.” replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate MIRANDA v. ABAYA of candidacy for the office affected in accordance with the preceding FACTS: In the 1998 election, mayor Miranda of Isabela, already served 8 sections not later than mid-day of the day of the election. If the death, consecutive terms, yet he still filed a certificate of candidacy. As a result, withdrawal or disqualification should occur between the day before the Abaya filed a disqualification case. COMELEC then disqualified Miranda election and mid-day of election day, said certificate may be filed with any and cancelled his certificate of candidacy. The son of Miranda, Joel, upon board of election inspectors in the political subdivision where he is a nomination of their political party, filed a certificate as a substitute. Joel candidate, or, in the case of candidates to be voted for by the entire Miranda won. electorate of the country, with the Commission.” HELD: There was no valid substitution. COMELEC did not only disqualify Q: When may substitution take place? Miranda but also cancelled his certificate of candidacy. Therefore, he cannot A: Substitution can only take place on the first day of campaign period be validly substituted. It is as if he was not a candidate. until NOT later than mid-day of election day. Even on the most basic and fundamental principles, it is already understood that the concept of a substitute presupposes the existence of the person to be substituted, for how can a person take the place of somebody Q: Martin de Guzman, a candidate for mayor, died 3 days before the who does not exist or who never was. The court has no other choice but to election. Can his wife substitute him? rule that in all instances enumerated in Sec.77 of the OEC, the existence of A: It depends. Under Sec. 77, only a candidate belonging to the same a valid certificate of candidacy seasonably filed is a requisite sine quo non. political party may be substituted. By implication, an independent All told, a disqualified candidate may only be substituted if he had a or those who do not belong to any political party may not be validly valid certificate of candidacy in the first place because if the disqualified substituted because nobody will qualify. candidate did not have a valid and seasonably filed COC, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Sec. 77 of the OEC. Q: What are the requirements for substitution? A: (1) nominated by the political party concerned The purpose of the law in requiring the filing of the COC and in fixing the (2) certified by the political party concerned time limit therefore are:
Political Law Review Notes (Atty. Edwin Sandoval) 74 Prepared by: Atty Joan P. Gamboa (a) To enable the voters to know at least 60 days before the regular CAYAT v. COMELEC election, the candidates among whom they are to make the choice FACTS: Rev. Fr. Nardo Cayat ran for Mayor. Palileng, his opponent, found and out that Cayat, before the elections, was previously convicted of acts of (b) To avoid confusion and inconvenience in the tabulation of the votes lasciviousness although he was granted probation. His candidacy was then cast questioned in a disqualification case invoking Section 40 pf the LGC. (Disqualification – The following persons are disqualified from running for any elective local position: (a) those sentenced by final judgment for an Q: Considering that Joel possesses all the qualifications, can he be offense involving moral turpitude or for an offense punishable by one (1) considered as a candidate in his own right? year or more of imprisonment, within (2) years after serving sentence ; xxx) . A: No. The certificate of candidacy was filed long after the last day of COMELEC disqualified Cayat on the ground of conviction of an offense filing (Sec. 73, OEC) involving moral turpitude. However, Cayat alleged that he did not receive a copy of the judgment. That decision disqualifying Cayat became final even 2 The existence of a certificate of candidacy is a condition sine qua non under weeks before the election. Still, Cayat won in the election. Palileng claimed Section 77. that since Cayat is disqualified, he should be the one proclaimed.
Q: Since there was no valid substitution, should the candidate who HELD: The Court agreed and did not apply the doctrine of the rejection of obtained the second highest vote be proclaimed? the second placer. The one who obtained the second highest number of A: No. Under the doctrine on the rejection of second placer, the votes was the one actually proclaimed. This is very peculiar because here, second placer is just like that – second placer. He was not the choice of the there is only one candidate. Since Cayat was disqualified, it is as if he is not electorate. The wreath (crown) of victory cannot be transferred to the a candidate. Hence, there is no second placer here. repudiated loser. (Cayat v. COMELEC citing Butch Aquino v. COMELEC and Sunga v. COMELEC) The doctrine of the rejection of second placer is not applicable because of Sec.6 of RA 6646 Q: Who will now assume the position of mayorship? Also, under Section 6, RA 6646 (Electoral Reform Law of 1987 – Effect of A: Following the rule on succession, it is the Vice-Mayor. disqualification) which contemplates of 2 situations, it is the 1st sentence which applies to Cayat. He was declared by final judgment, to be disqualified because the decision attained finality even 2 weeks before the LABO DOCTRINE election. He shall therefore not be voted for and the votes cast for him shall The thrust is what to do with the votes cast for a disqualified candidate. not be counted. Should they be considered as stray votes? The second sentence contemplates that there was a disqualification case SC: No! That would disenfranchise the majority. The votes cast for the filed before the COMELEC but for whatever reason, COMELEC was not disqualified are not stray votes they are valid votes only that the candidate able to render a decision before the election and such candidate won in the was later on found to be disqualified. election, in which case, the court or Commission shall continue with the trial It would have been different if his disqualification was so apparent, and hearing of the election, inquiry or protest. so notorious, so much so that the people, notwithstanding that they knew him to be disqualified, they still voted for him in which case the votes cast for DISQUALIFICATIONS/REMEDIES BEFORE ELECTION him shall be considered as protest votes. Protest votes are considered as stray votes. But not in this case, where the people of Baguio voted for Labo Any disqualification filed before the election, whether pursuant to Sections only to find out that he is disqualified. 68, 69 and 78 of OEC, the jurisdiction is with the COMELEC
You cannot apply Labo Doctrine in Party-List because of Section 10, RA (1) Section 68, OEC – “Disqualifications. - Any candidate who, in an 7941 action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having:
Political Law Review Notes (Atty. Edwin Sandoval) 75 Prepared by: Atty Joan P. Gamboa (a) given money or other material consideration to influence, induce Within twenty-five (25) days from the time the candidate filed his certificate or corrupt the voters or public officials performing electoral of candidacy/ from the date the candidate alleged to have made functions; misrepresentation in the COC filed. (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that LOONG v. COMELEC allowed by this Code; FACTS: Loong was a candidate for Vice-Governor in ARMM. There was an (d) solicited, received or made any contribution prohibited under election held but there was yet no proclamation. Eventually, it was found out Sections 89, 95, 96, 97 and 104; or that Loong was still underage. Can the petition to disqualify Loong on the (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, ground of material misrepresentation prosper? e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has HELD: No. The petition was filed out of time. The disqualification case been elected, from holding the office.” under Sec. 78 should be filed within 25 days from the date the candidate who made the misrepresentation filed his certificate of candidacy, not on the Any person who is a permanent resident of or an immigrant to a foreign date of discovery. The 25-day period is mandatory. country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or Q: What then is the remedy? immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. A: There is a GAP in the law, which must be addressed by Congress.
Violation of election laws is without prejudice to the filing of criminal action. SALCEDO v. COMLELEC HELD: Material misrepresentation refers to the QUALIFICATIONS of the (2) Section 69, OEC – “Nuisance candidates. - The Commission may elective official for the elective office and NOT to any innocuous mistake. motu proprio or upon a verified petition of an interested party, refuse to give There must be a deliberate intent to deceive the people to one’s qualification due course to or cancel a certificate of candidacy if the candidate is a for public office. nuisance candidate.” Q: Who is NUISANCE CANDIDATE? TECSON v. COMELEC FACTS: A disqualification case was filed against FPJ in accordance with A: A nuisance candidate is a candidate who has no bona fide intention Sec. 78 on the ground of material representation as to the citizenship. to run, his purpose is merely to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the HELD: There was no material misrepresentation. The misrepresentation names of the registered candidates or by other circumstances or acts must not only be material. There must also be a deliberate intent to mislead intended to prevent a faithful determination of the true will of the electorate. or deceive as to one’s qualification to public office. (Bautista v. COMELEC) EFFECT OF DISQUALIFICATION CASES Period to file a petition Within five (5) days from the last day of filing of the certificate of candidacy Section 6. RA 6646 – “Effect of Disqualification Case. - Any candidate who assuming that COMELEC did not act motu proprio. has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate (3) Section 78, OEC – “Petition to deny due course to or cancel a is not declared by final judgment before an election to be disqualified and he certificate of candidacy. - A verified petition seeking to deny due course or to is voted for and receives the winning number of votes in such election, the cancel a certificate of candidacy may be filed by the person exclusively on Court or Commission shall continue with the trial and hearing of the action, the ground that any material representation contained therein as required inquiry, or protest and, upon motion of the complainant or any intervenor, under Section 74 hereof is false. Xxx” may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.” Period to file a petition
Political Law Review Notes (Atty. Edwin Sandoval) 76 Prepared by: Atty Joan P. Gamboa ROMUALDEZ-MARCOS v. COMELEC There was yet no proclamation, hence not yet a member of the HOR. POST ELECTION COMELEC still has jurisdictom PRE-PROCLAMATION CASE
GUERRERO v. COMELEC Q: After election, but before proclamation, what is the remedy? Fariñas was elected, proclaimed and took his oath. The COMELEC ousted A: Pre-proclamation case. But this presupposes that there was itself of jurisdiction. SC upheld COMELEC. It was recognition of the power election of the HRET and the constitutional boundaries. Sec.17, Art.VI-HRET as sole judge of all contests, returns and qualifications Q: After proclamation, what is the remedy? of their respective members. A: (1) Election Protest (2) Quo Warranto Election – 7am – 3pm, then counting, members of Board of Canvassers Return usually 7 copies: In pre-proclamation cases, the governing provisions are Section 241, 242, (1)COMELEC 243 OEC. (2)Treasurer Section 241, OEC – “Definition. - A pre-proclamation controversy refers to (3)Municipal Judge any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered The idea is that in case of lost return, they can refer to the other copies. political party or coalition of political parties before the board or directly with Number of votes written in words and number the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation CAYAT vs COMELEC Apr. 24, 2007 (case of 1st impression!) of the election returns.”
Priest- convicted of acts of lasciviousness- for DQ Section 242, OEC – “Commission's exclusive jurisdiction of all pre- proclamation controversies. - The Commission shall have exclusive Held: he won in the election jurisdiction of all pre-proclamation controversies. It may motu proprio or upon Here SC did not apply the doctrine of rejection of 2 nd placer because for all nd written petition, and after due notice and hearing, order the partial or total intents and purposes there was no 2 placer here. Kayat was as if not a suspension of the proclamation of any candidate-elect or annual partially or candidate at all. totally any proclamation, if one has been made, as the evidence shall warrant in accordance with the succeeding sections.” Applying Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987, states: Section 243,OEC – “Issues that may be raised in pre-proclamation
controversy. - The following shall be proper issues that may be raised in a Sec. 6. Effect of Disqualification Case. Any candidate who has pre-proclamation controversy: been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is (a) Illegal composition or proceedings of the board of canvassers; voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, (b) The canvassed election returns are incomplete, contain material inquiry, or protest and, upon motion of the complainant or any intervenor, defects, appear to be tampered with or falsified, or contain may during the pendency thereof order the suspension of the proclamation discrepancies in the same returns or in other authentic copies of such candidate whenever the evidence of his guilt is strong. (Emphasis thereof as mentioned in Sections 233, 234, 235 and 236 of this added) Code;
Political Law Review Notes (Atty. Edwin Sandoval) 77 Prepared by: Atty Joan P. Gamboa (c) The election returns were prepared under duress, threats, complaint of an interested person to correct manifest errors in the certificate coercion, or intimidation, or they are obviously manufactured or not of canvass or election returns before it. “ authentic; and Questions affecting the composition or proceedings of the board of (d) When substitute or fraudulent returns in controverted polling canvassers may be initiated in the board or directly with the Commission in places were canvassed, the results of which materially affected the accordance with Section 19 hereof. standing of the aggrieved candidate or candidates. Any objection on the election returns before the city or municipal board of canvassers, or on the municipal certificates of canvass before the provincial Section 243, OEC refers to issues that may ne raised in a pre-proclamation board of canvassers or district boards of canvassers in Metro Manila Area, controversy. There are four (4) grounds, which can be summarized into two shall be specifically noticed in the minutes of their respective proceedings. (2): (1) illegality in the composition of proceedings of the BOC – (a) For purposes of election of – (2) illegality in the preparation, transmission, receipt, custody, or (1) President appreciation of election returns – (b, c,d) (2) Vice-President (3) Senators Eg. Ballot box switching not proper for pre-proclamation case; does not fall (4) House of Representatives under any of the instances under Art. 243 of OEC. There can be no pre-proclamation case on matters relating to transmission, custody of election returns; the only issue that can be Once a candidate has been proclaimed, the pending pre-proclamation case raised – illegality of the composition or proceeding of the Board of should be dismissed. After all, the issues pending in the pre-proclamation Canvassers case will also be raised in the subsequent Election Protest or Quo Warranto case filed. Therefore, there can only be a pre-proclamation case on the following: DOCTRINE OF STATISTICAL IMPROBABILITY – LAGUMBAY DOCTRINE (1) Municipal officials Where there exist similarities in the tallies in favor of candidates belonging to (2) City officials one party, and results in the blanking out of the opposing candidates, the (3) Provincial officials election returns are obviously manufactured on the basis of the doctrine of (4) Autonomous officials statistical improbability. FAILURE OF ELECTION As watcher, object to the inclusion of the canvass of the particular return on Section 6, OEC Failure of election. - If, on account of force majeure, the ground that the election returns are obviously manufactured on the basis violence, terrorism, fraud, or other analogous causes the election in any of the doctrine of statistical improbability. If still included, it can result to a polling place has not been held on the date fixed, or had been suspended pre-proclamation controversy. before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in Pre-proclamation cases is NOT allowed in barangay elections. the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the Section 15, RA 7166 – “Pre-proclamation Cases Not Allowed in Elections result of the election, the Commission shall, on the basis of a verified petition for President Vice-President, Senator, and Member of the House of by any interested party and after due notice and hearing, call for the holding Representatives. - For purposes of the elections for President, Vice- or continuation of the election not held, suspended or which resulted in a President, Senator and Member of the House of Representatives, no pre- failure to elect on a date reasonably close to the date of the election not proclamation cases shall be allowed on matters relating to the preparation, held, suspended or which resulted in a failure to elect but not later than thirty transmission, receipt, custody and appreciation of the election returns or the days after the cessation of the cause of such postponement or suspension certificates of canvass, as the case may be. However, this does not preclude of the election or failure to elect. the authority of the appropriate canvassing body motu propio or upon written
Political Law Review Notes (Atty. Edwin Sandoval) 78 Prepared by: Atty Joan P. Gamboa GROUNDS FOR FAILURE OF ELECTION (1) Force majeure Exception: A petition to declare a failure of election shall be heard by the (2) Violence COMELEC en banc.] (3) Terrorism (4) Fraud PRE-PROCLAMATION v. FAILURE OF ELECTION (5) Analogous Causes In pre-proclamation, there is actually an election that took place In failure of election, there was no election at all or it was suspended or there SITUATIONS was a failure to elect. (1) No election The election in any polling place has not been held on the MITMUG v. COMELEC date fixed on account of FVTFA There were 3 candidates for mayor. The total registered voters is 10, 000. (2) Election is suspended Only 3,000 voted. There was a low turn out of voters. A petition was filed to The election in any polling place has been suspended declare a failure of election before the hour fixed by law for the closing of the voting on account of FVTFA HELD: The petition cannot be granted. There was an election that took (3) There is a failure to elect place. The law does not require the majority of voters to cast their votes. After the voting and during the preparation and There can onlybe a failure of election if the will of the people is defiled and transmission of the election returns or to the custody or cannot be determined. canvass thereof, such election results in a failure to elect on account of FVTFA; nobody emerged as winner PROCLAMATION
Q: What are the two (2) conditions that must concur before the Q: Who proclaims the winner? COMELEC can act on a verified petition seeking to declare a failure A: (1) Board of Canvassers of election? (2) President, Vice-President Elections: Congress acting as Board A: (1) no voting took place in the precinct of Canvassers (2) on the date fixed by law or even if there was voting, the election (3) Senators: COMELEC resulted in a failure to elect. (4) Congressman (a) Lone Congressional district – Provincial BOC Q: Where to file a petition to declare a failure of election? (b) Several districts – District BOC A: COMELEC EN BANC. The majority of the Commission may grant the petition and schedule special election in areas affected. It is the ministerial duty of the BOC to proclaim the winning candidate. It has (Section 4, RA 7166 – “Postponement, Failure of election and no discretion whether to proclaim or not. After the last official act, which is special Elections – The postponement, declaration of failure of election and the proclamation, the BOC becomes functus officio and may not validly the calling of special elections as provided in Sec. 5, 6, and 7 of the OEC reconvene motu proprio. However, when the COMELEC ordered the shall be decided by the Commission sitting en banc by a majority vote of its reconveyance of the BOC, it may. Members. The causes for the declaration of a failure of election may occur before or after the casting of votes or n the day of the election xxx”) POST-ELECTION REMEDIES –After election
BANAGA v. COMELEC ELECTION PROTEST v. QUO WARRANTO*** Failure of election is the same with petition to annul election returns ELECTION PROTEST QUO WARRANTO General Rule: “xxx All such election cases shall be heard and decided in - who really won in the election?, determination of real - whether the winning candidate is qualified, eligibility or division, provided that motions for reconsideration of decisions shall be choice of electorate lack of qualifications of the candidate decided by the Commision en banc. (Art IX-C, Section 3)
Political Law Review Notes (Atty. Edwin Sandoval) 79 Prepared by: Atty Joan P. Gamboa - only the candidate running for the same can file - If the winning candidate is disqualified, he shall be (“trial courts of general jurisdiction”) removed and automatic succession shall apply unless -COMELEC (Appellate) - if the protestant wins, he shall be proclaimed and shall what is removed is not a local elective official, in which (Art. IX-C, Sec. 2[2]) replace the previously proclaimed winner. case, the position shall be declared vacant, until there is a special election to fill the(6) vacancy. Elective Barangay Official -MTC (Original) - eg. coercion, terrorism, ballot box switching, vote (“trial courts of limited jurisdiction”) buying. -eg. Citizenship, residence, disloyalty to Republic of the -COMELEC (Appellate) (Art. IX-C, Philippines Sec. 2[2])
DUMAYAS v. COMELEC
Election Protest is a contest between the defeated and winning candidates REYES v. RTC OF ORIENTAL MINDORO on the ground of frauds or irregularities in the casting and counting of the From the decision of the COMELEC, file first a motion for reconsideration. It ballots or in the preparation of returns. It resolves the question of who is only the decision of COMELEC EN BANC that is reviewable by the SC. actually obtained the plurality of the legal votes and therefore is entitled to hold the office. TECSON v. COMELEC cf: sec.4(7), Art.VII
Quo warranto raises in issue the disloyalty or ineligibility of the winning Before the election, a petition was filed on the ground of material candidate. It is a proceeding to unseat the respondent from office but not misrepresentation. COMELEC dismissed the petition. TECSON et. al. necessarily to install the petitioner in his place. argued that the jurisdiction with the SC.
JURISDICTION HELD: Contest refers to “post-election” scenario and not pre-election scenario. It shall consist of either an election protest or quo warranto which (1) President/ VP - SC en banc , acting as - EP are 30 days two (2)from distinct proclamation remedies but with one objective in view, to unseat Presidential Electoral Tribunal QW winning 10 days candidate. from proclamation (Art. VII, Sec. 4[7]) “sole judge” SC has jurisdiction over election contests of President/Vice- Remedy: MFR only President and NOT candidates. It does NOT include a petition qualifying a candidate for President/Vice-President. SC is the sole judge for (2) Members of the Congress -EP orPresident/Vice-President QW and NOT over candidates for President/Vice- -Senators -Senate Electoral Tribunal President.- 15 days after Hence, proclamation the action was dismissed for lack of jurisdiction and -Congressmen -HR Electoral Tribunal prematurity.- 10 days after proclamation -Partylist Reps (Art. VI, Sec. 17) No appeal “election returns” – refers to election protest Or Rule 65 (Special Civil Action “qualification” – refers to quo warranto on Certiorari based on GAD) (3) Governor/ Vice-Governor -COMELEC (Original) -10 daysGALIDO from proclamationv. COMELEC (Art. IX-C, Sec. 2[2]) Notwithstanding the finality of COMELEC’s decision, the parties are NOT -SC (Appellate) precluded from filing a petition for certiorari with the SC.
(4) Regional/ Provincial/City -COMELEC (Original) FRIVALD0 v. COMELEC ; LOONG v. COMELEC -SC (Appellate) If the ground relied upon is lack of citizenship or disloyalty to the Republic, the period must be extended. (5) Elective Municipal Official -RTC (Original) EFFECT OF DEATH OF A PARTY
Political Law Review Notes (Atty. Edwin Sandoval) 80 Prepared by: Atty Joan P. Gamboa Q: What is the effect of death of a party in an election protest? Should It is this decision of COMELEC en banc that may be reviewed by SC by way it warrant the dismissal of the protest? of certiorari.
A: The death of the protestant neither constitutes a ground for the Sec.3, Art.IX-C dismissal of the contest not ousts the trial court of its jurisdiction to decide the election contest. An election protest involves both the private interests of -All election cases including pre-proc cases shall be first heard by the rival candidates and the public interest in the final determination of the COMELEC Division and MFR shall be heard by COMELEC en banc. real choice of the electorate, and for this reason, an election contest necessarily survives the death of the protestant or the protestee. But while GEMENTIZA v COMELEC the right to public office is personal and exclusive to the public officer, an election protest ins not purely personal and exclusive to the protestant or to SC: If what is involve is a mere interlocutory order of COMELEC, the protestee such that after the death of either would oust the court of all the party may go directly to SC by certiorari. Because sec.3, Art.IX-C refers authority to continue the protest proceedings. An election contest, after all, to final order of division of COMELEC which must first be resolve by motion involves not merely conflicting private aspirations but is imbued with for reconsideration. paramount public interests. (DE CASTRO v. COMELEC)
COUNTER-PROTEST – available to a proclaimed winner if his election is ELECTION OFFENSE protested. Q: Who has jurisdiction over election offenses? A remedy available to a duly proclaimed winner in order to protect one’s A: RTC, except in cases where there is failure to register to vote which lead. Allege also the precinct where your opponent cheated. shall be under the MTC.
KHO v. COMELEC Section 268, OEC – “Jurisdiction of courts. - The regional trial Counter protest must be filed within 5 days from receipt of the copy of the court shall have the exclusive original jurisdiction to try and decide any protest. The period is not only mandatory but also jurisdictional. It partakes criminal action or proceedings for violation of this Code, except those the nature of a counterclaim. So that the court is ousted of jurisdiction to relating to the offense of failure to register or failure to vote which shall be entertain a counter protest belatedly filed. under the jurisdiction of the metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in other criminal cases. If a counter protest was belatedly filed, but was erroneously admitted, the remedy is to file a motion to expunge the counter protest from the records. If Q: Who shall prosecute election offenses? not expunged from the record, file a petition for certiorari under Rule 65. A: COMELEC not the fiscal unless the latter is deputized by the COMELEC DE CASTRO vs. COMELEC Q: In case of public official, should COMELEC still prosecute? Effect of death of the protestant in election protest A: COMELEC can still prosecute. It is not the personality of the SC: Election protest involves both private and public interest of the accused but the nature of the offense. electorate. For this reason an election protest survives the death of protestant and protestee. INCLUSION/EXCLUSION PROCEEDINGS
- within the jurisdiction of MTC appealable to RTC -RTC decision is not appealable
WHEN ELECTION PROTEST BECOMES MOOT REYES vs RTC of Oriental Mindoro
Political Law Review Notes (Atty. Edwin Sandoval) 81 Prepared by: Atty Joan P. Gamboa Defensor Santiago filed an Election Protest. Subsequently, she ran for Q: Can you file directly against public official in CSC? Senator and won. She abandoned her protest when she ran for an office A: Yes. It has bot original and appellate jurisdiction over admin cases of different frim that of the President. employees.
RULES ON APPRECIATION OF BALLOTS RA 6770 Ombudsman Act of 1989
(1) GENERAL RULE – After the elections, the liberal interpretation rule -the Ombudsman(In its Administrative jurisdiction) has shall be applied. IN CASE OF DOUBT, the rule in favor of the vote administrative disciplinary authority over all public officers, whether elective being valid as to give effect to the will of the electorate shall be or appointive, national or local. Except impeachable officers, the members of followed. Congress and members of Judiciary.
(2) EQUITY OF INCUMBENT RULE – 2 or more candidates running -Ombudsman has concurring jurisdiction with CSC. From decision for the same office, they bear the same first name, surname or both of Ombudsman in its administrative jurisdiction, the appeal is filed before the and the voter in his ballot wrote only either of the 2, the vote shall Supreme Court. But this was later on declared unconstitutional by SC. be appreciated in favor of the incumbent. If neither of them is incumbent, the votes shall be considered stray votes. FABIAN vs DESIERTO
(3) IDEM SONANS RULE or SAME SOUNDS RULE – If the name of Henceforth, from the decision of Ombudsman the appeal goes to the candidate is misspelled by the voter, for as long as when it is CA and not in SC. pronounced, it sounds like the name of the candidate, the vote is counted in the latter’s favor UNLESS it can be considered as On Question of Availability of APPEAL: marking, in which case the entire ballot is invalid. If penalty imposed is dismissal, demotion, removal or a fine equivalent to (4) DESCRIPTIO PERSONAE – rule is the same in idem sonans rule. more than 20 days salary: APPEAL is AVAILABLE
If penalty is suspension of less than 30 days or fine not equivalent to not ADMINISTRATIVE LAW more than 30 days of salary or anything lower like censure, reprimand or Related Laws: admonition: APPEAL IS NOT AVAILABLE. 1. Civil Service Law 2. RA 6770 Ombudsman Act PAREDES vs CSC 3. RA 7160 Local Government Code SC: Appeal is not a constitutional right. So if there is no law granting it, you CIVIL SERVICE LAW cannot appeal. A reading of CSC law shows that appeal available only to the party adversely affected by the decision. Thus, the party affected here is the Q: When you want to file administrative complaint against public officer, respondent who was found guilty. In fact, if one is found guilty and the where shall you file the complaint (original jurisdiction)? penalty was suspension for not more than 30 days or a fine not exceeding 30 days salary, he may not even appeal. With more reason that if he is not A: Under Civil Service Law, Original jurisdiction is vested in the Secretary or found guilty, there is no more appeal there. Head of Office, Agency or Bureau as the case maybe. Remember in the administrative case, the real offended party is the Q: In LGUs where do you file? government. The complainant is plainly the witness for the government. A: In Local chief executive. Appeal here goes to Civil Service Commission. From CSC, the This Paredes is now abandoned in the case of CSC vs DACOYCOY***: appeal goes to Court of Appeals by virtue of its expanded appellate jurisdiction.
Political Law Review Notes (Atty. Edwin Sandoval) 82 Prepared by: Atty Joan P. Gamboa SC: by this ruling , we now expressly abandon and overrule extant jurisprudence that the phrase “party adversely affected by the decision refers Civil Service Law to government employee against whom the administrative case was filed for the purpose of disciplinary action, etc… While you are investigated administratively, you may be preventively suspended for 90 days. After 90 days if the investigation has not Note: it was not the whole PAREDES case which was abandoned. Only one yet been terminated, you shall be automatically be reinstated. However, if aspect was abandoned. It is that part “the party adverse affected by the you contributed in the delay the period of delay or certiorari will not be decision…” to the extent the ruling has to be vacated. included in the 90 day period.
National Appellate Board of NAPOLCOM vs Mamauag? (August 2005) - Promulgated by Pres. Aquino when she still had legislative powers Nature of Preventive Suspension- it is not penalty. It is merely a measure pursuant to Article XIII, Section 6 (The incumbent President shall continue to of precaution so that EE who is charge may be separated for obvious exercise legislative powers until the First Congress is convened). reasons.(Baje vs CA) -took effect in 1989, only after 2 years. Yabot vs Ombudsman Vasquez; Quimbo vs Gervacio(?) The Code is a general law and incorporates into a unified document the SC: the first 60 day suspension imposed by Ombudsman while major structural, functional and procedural principles of governance and case is being investigated was not a penalty, it was merely a preventive embodies changes in administrative structures and procedures designed to suspension. Second suspension imposed after finding guilty is the penalty of serve the people (Ople v. Torres). suspension. Service of that preventive suspension may not be credited by the penalty - The Code is divided into seven books: service of suspension that was later on imposed as a penalty after finding him guilty of administrative charge because 2 suspensions are different in Book 1 : Sovereignty and General Administration nature. Book 2: Distibution of Powers of the Three Branches of the Government Book 3: Office of the President Layno vs Sandiganbayan Book 4: Executive Branch Book 5: Constitutional Commissions - Indefinite suspension is equivalent to a penalty not merely a Book 6: National Government Budgeting preventive suspension. So that is the preventive suspension is Book 7: Administrative Procedure indefinite, it should be nullified for being violative of due process of law. - includes the Civil Service Law. Note: preventive suspension is not an action in itself. There must be a principal action. You have to ask, was it impose as incident in an admin case Two important definitions of Administrative Law or as an incident in criminal case? 1. Dean Roscoe Pound it is that branch of modern law under the executive department of the SEE page 100 government, acting in quasi-legislative or quasi-judicial capacity, interferes with the conduct of individual for the purpose of promoting the well being of IMPORTANT LAWS concerning Preventive Suspension: the community. 1. Civil Service Law 2. RA 7160 2. Professor Goodnow 3. RA 6770 it is that part of public law which fixes the organization of the government 4. Sec. 13, RA 3019 (In criminal cases) and determines the competence of the authorities who execute the law and indicates to the individual remedies for the violation of his rights.
Political Law Review Notes (Atty. Edwin Sandoval) 83 Prepared by: Atty Joan P. Gamboa GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES In both definitions, the focus is on the executive department acting in quasi- - refers to the corporate governmental entity through which legislative and quasi-judicial functions. the functions of the government are exercised throughout the Philippines including various arms through which THREE IMPORTANT DOCTRINES political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the (1) DOCTRINE OF QUALIFIED POLITICAL AGENCY provincial, city, municipal or barangay subdivisions or The members of the cabinets are deemed alter egos of the other forms of local government. President so that their decision and acts performed in the regular course of business are deemed acts or decisions of the President UNLESS reprobated 2 COMPONENTS: by the ARTICLE VII, Section 17 ARTICLE X, Section 4 (1) Corporate governmental President. Control power of the President - Power of General Supervision - entity, through which the “The President shall have control of all “The President of the Philippines shall exercise general functions of government are (2) executive departments, bureaus and offices. He supervision over local governments xxx exercised throughout the shall ensure that the laws be faithfully Philippines. executed.” CONTROL is the power of the superior to direct POWER OF GENEREAL SUPERVISION means to generally (2) Various arms through the performance of a duty, restrain the oversee, see to it that the local governments and their officials which political authority is commission of acts, review, revise, modify, perform their functions in accordance with law (no more than made effective in the reverse or alter the decisions and even to that) Philippines. substitute the superior’s own decision. CONTROL is the very heart of the power of the · Thus, LOCAL President. (Joson V. Torres) GOVERNMENTS EXHAUSTION OF ADMINISTRATIVE REMEDY are included in the Whenever there is an available administrative remedy provided by definition of GOVERNMENT OF THE REPUBLIC OF THE law, no judicial recourse can be made until all such remedies have been PHILIPPINES availed of and exhausted. (a) They are referred to as “various arms through which political (3) DOCTRINE OF PRIMARY JURISDICTION OR PRIOR RESORT authority is made effective in the Philippines” (ADMINISTRATIVE The courts cannot and will not resolve a controversy involving a CODE) question, which is within the jurisdiction of an administrative tribunal. (b) They are referred to as “territorial and political subdivisions of the Republic of the Philippines (Article X, Section 1, 1987 CONSTITUTION). ADMINISTRATIVE AGENCIES “The territorial and political subdivisions of the Republic of the · Generally, the function is EXECUTIVE Philippines are the provinces, cities, municipalities and barangays. · It implements or enforces There shall be autonomous regions in Muslim Mindanao and the Cordilleras.” Ex: COMELEC - main function is to enforce the laws relative to the conduct of election. *Under the first component, whether the agency is an incorporated or - This is an executive function. unincorporated agency of the government is included in the definitions. · But the law may vest the agency quasi-judicial and quasi-legislative powers. Q. Are government owned or controlled corporations (GOCC's) part of the definition of the GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES?
Political Law Review Notes (Atty. Edwin Sandoval) 84 Prepared by: Atty Joan P. Gamboa A. It depends - subordinate; direct the performance of duty, restrain the commission of acts; (1) If the GOCC is performing governmental function, then it is part of review, approve, reverse or modify acts and decision of subordinate officials the definition. or units; determine priorities in the execution of plans and programs; and (2) If the GOCC is performing proprietary function, then it is not part of prescribe standards, guidelines, plans and programs. Unless a different the definition. meaning is explicitly provided in the specific law governing the relationship of particular agencies, the word “control” shall encompass supervision and Q. When is a GOCC deemed to be performing proprietary function? control as defined in this paragraph. Governmental function? A. If the purpose is to obtain special corporate benefits, or earn (2) ADMINISTRATIVE SUPERVISION pecuniary profit intended for private benefit, advantage - the function is “ Administrative Supervision which shall govern the administrative proprietary. If it is in the interest of health, safety or the advancement of relationship between a department or its equivalent and regulatory agencies public good and welfare affecting the public in general - the function is or other agencies as may be provided by law, shall be limited to the authority governmental. of the department or its equivalent to generally oversee the operations of such agencies and to insure that they are managed effectively, efficiently VARIOUS ADMINISTRATIVE AGENCIES and economically but without interference with day to day activities; or AGENCY OF THE GOVERNMENT require the submission of reports and cause the conduct of management - refers to any of the various units of the government, including a audit, performance evaluation and inspection to determine compliance with department, bureau, office, instrumentality, or government policies, standards and guidelines of the department, to take such actions as owned or controlled corporations, or a local government or may be necessary for the proper performance of official functions, including district unit therein. (Section rectification of violations, abuses and other forms of mal-administration, and to review and pass upon budget proposals such agencies but may not *LGU's are not under the control power of the President. It falls under the increase or add to them.” general supervision of the President. DEPARTMENT - refers to man executive department created by law. (Section ATTACHMENT 2[7] Introductory Provisions E.O. 292) “This refers to the lateral relationship between the department or its - Ex: DOJ, DENR, DOH equivalent and the attached agency or corporation for purposes of policy and program coordination. The coordination may be accomplished by having the BUREAU department represented in the governing board of the attached agency or - any principal subdivision or unit of a department (Section 2 [8] corporation either as chairman or as a member, with or without voting rights. Introductory Provisions E.O. 292) - Ex: BIR under DOF, NBI under DOJ If this is permitted by the charter, having the attached corporation or agency comply with a system of periodic reporting which shall reflect the OFFICE progress of programs and projects and having the department or its - refers to any major functional unit of a department or bureau equivalent provide general policies through its representative in the board, including regional offices. which shall serve as the framework for the internal policies of the attached - Ex: Regional Office of the Bureau of Lands. corporation or agency.”
3 IMPORTANT ADMINISTRATIVE RELATIONSHIPS OTHER AGENCIES (Section 38, Chapter 7, Book IV) INSTRUMENTALITY (1) SUPERVISION AND CONTROL - refers to any agency of the National Government, not “Supervision and Control shall include authority to act directly integrated within the department framework vested with special whenever a specific function is entrusted by law or regulation to a functions or jurisdiction by law, endowed with some if not all
Political Law Review Notes (Atty. Edwin Sandoval) 85 Prepared by: Atty Joan P. Gamboa corporate powers, administering special funds, and enjoying Q. What are the administrative relationships involved? operational autonomy, usually through a charter. - this term includes regulatory agencies, chartered institutions A. (1) Regulatory Agencies - mere administrative supervision, to oversee and GOCC's. (Sec.2 [16], Introductory Provisions, E.O. 292) with no interference with the day-to-day operation. Ex: the relationship between NLRC and Secretary of Labor (Vertical REGULATORY AGENCY relationship) - refers to any agency expressly vested with jurisdiction to regulate, administer, or adjudicate matters affecting substantial (2) Chartered Institution/GOCC - attachment, lateral relationship rights and interests of private persons, the principal powers of involving planning and program coordination. which are exercised by a collective body, such as a commission, board or council. (Sec. 2[4] Introductory Provisions, E.O. 292) BEJA JR. V. COURT OF APPEALS - Ex: PRC, NLRC, SEC, Insurance Commission An attached agency enjoys more autonomy than an agency placed CHARTERED INSTITUTIONS under administrative supervision. It is free from departmentalized control. - refers to any agency organized or operating under a special Likewise, an agency under administrative supervision has more autonomy charter, and vested by law with functions relating to specific than an agency placed under supervision and control. constitutional policies or objectives. - this term includes the state universities and colleges and the monetary authority of the state. Section 2 [12] Introductory ILLUSTRATION Provisions, E.O. 292) Delegation of Powers Conferment of Jurisdiction Ex: BSP QUASI- LEGISLATIVE ADMINISTRATIVE AGENCY QUASI JUDICIAL
GOVERNMENT-OWNED OR CONTROLLED CORPORATION Administrative Regulations Jurisdiction Rules of Procedure - refers to any agency organized as a stock or non-stock corporation, vested with functions relating to public needs Legislative Interpretative Due Process whether governmental or proprietary in nature, and owned by the government directly or through its instrumentalities either Supplemental Contingent Contempt Power wholly or where applicable as in the case of stock corporations to the extent of fifty-one (51%) percent of its capital stock xxx Appeals (Section 2[13] Introductory provisions, E.O. 292)
- Provided, the GOCC's may be further categorized by the Department of Budget, Civil Service Commission and the Commission on Audit for purposes of the exercise and POWERS AND FUNCTIONS OF ADMINISTRATIVE AGENCIES discharge of their respective powers, functions and Q. Generally, how will you describe the functions of an administrative responsibilities with respect to such corporations. agency? A. The functions of an administrative agency are to enforce, implement, · These instrumentalities are NOT integrated to the department administer and execute laws. framework. · They do not fall within the control power of the president over the Q. What kind of function? departments. A. Executive. These agencies belong to the executive branch. They do not · Under Article VII, Section 17, Instrumentalities are not included. perform legislative and judicial functions. However, these agencies may perform quasi-legislative and quasi-judicial functions.
Political Law Review Notes (Atty. Edwin Sandoval) 86 Prepared by: Atty Joan P. Gamboa Ex: COMELEC - to administer all laws relative to plebiscite, DOCTRINE OF DELEGATION OF POWERS referendum, recall CSC - to administer the Civil Service Law GENERAL RULE: A power that has already been delegated may no longer be delegated. Note: Not all administrative agencies perform all kind of functions. EXCEPTIONS: Instances of Permissible Delegation of Powers: Ex: NLRC - exercises in general quasi-judicial function (1) Delegation to the PEOPLE through plebiscite and referendum DOLE - the agency that administers labor law (2) Delegation of EMERGENCY POWERS to the President SEC - has an executive function and quasi-legislative; no more (3) Delegation to the President of TARIFF POWERS quasi-judicial (4) Delegation to ADMINISTRATIVE BODIES LTFRB - has quasi-judicial function (5) Delegation to the LOCAL GOVERNMENT CSC - has an executive, quasi-legislative and quasi-judicial power · The delegation to administrative bodies simply deals with Quasi- Legislative powers.
QUASI-LEGISLATIVE POWER Ex: Under Section 244, NIRC, “The Secretary of Finance, upon Q. What do you mean by Quasi-legislative? recommendation of the Commissioner shall promulgate all needful rules A. It refers to the power or authority of an administrative agency to and regulations for the effective enforcement of the provisions of this promulgate rules and regulations in order to implement a law or a given code.” legislative policy. - This is a delegation to the Secretary of Finance. Without Q. Other names? this delegated authority, the Secretary of Finance may not A. (1) Rule-making power of an agency exercise the power. (2) Power of Subordinate Legislation · The delegation must be valid. Even if the power has been delegated, if the delegation is invalid, the exercise of the power · QUASI-LEGISLATIVE POWER includes the power to promulgate becomes an abdication of powers. Hence, it is not just a matter of ADMINISTRATIVE REGULATIONS or IMPLEMENTING RULES delegating the power. The delegation must be valid. AND REGULATIONS (IRR), which are pieces of subordinate legislation called mini-laws, which may take the form of circulars or TEST OF A VALID DELEGATION memoranda, but which cannot prevail over the laws. (1) COMPLETENESS TEST: The law delegating the power must be Q. In what capacity did the Secretary of Labor acted in promulgating the complete in all its terms and conditions when it leaves the Congress, so rules and regulations implementing the Labor Code? when it reaches the delegates, it will have nothing to do but to enforce it. A. He acted in his quasi-legislative capacity. (2) SUFFICIENT STANDARD TEST: The law must offer a sufficient standard, which are determinate, or at least determinable to specify the · In exercising quasi-legislative functions, the administrative agency limits of the delegate’s authority, announce the legislative policy and specify is acting like Congress but not to enact laws. They cannot have the conditions under which is to be implemented. more powers than Congress.
· An administrative agency may not exercise this quasi-legislative KINDS OF ADMINISTRATIVE REGULATIONS function unless it has been expressly delegated to it. It is a (1) LEGISLATIVE Regulation delegated power. a. Contingent b. Supplemental (2) INTERPRETATIVE Regulation
Political Law Review Notes (Atty. Edwin Sandoval) 87 Prepared by: Atty Joan P. Gamboa regulations cannot amend an act of Congress. The Civil Service Q. What is their distinction? Commission is not the Congress. It may not add anything to the Civil Service A. If the regulation is merely interpretative, it will not require publication. Law.
· When Article 2 of the New Civil Code refers to laws, these do not THIRD REQUISITE: it must be promulgated in accordance with the only refer to those enacted by Congress but includes administrative prescribed procedure. regulations promulgated by administrative bodies in their quasi- - among the prescribed procedure is the requirement of: legislative functions except those which are merely internal or interpretative in nature. (Tanada v. Tuvera) a. PUBLICATION
Q. What are the REQUISITES OF A VALID ADMINISTRATIVE · The clear objective of Article 2 of the NCC is to give the general REGULATION? public adequate notice of the various laws, which are to regulate A. (1) Its promulgation must be authorized by the legislature their actions and conduct as citizens. Without such notice and (2) It must be within the scope of authority given by the legislature publication, there would be no basis for the application of the (3) It must be promulgated in accordance with the prescribed procedure maxim ignorantia legis non excusat. It would be the height of (4) It must be reasonable injustice to punish or otherwise burden a citizen for the transgression of a law which he had no notice whatsoever, not even FIRST REQUISITE: its promulgation must be authorized by the legislature - a constructive one. meaning, there is a valid delegation of power. GR: Publication is required not only to laws passed by Congress, but SECOND REQUISITE: it must be within the scope of authority given by the includes administrative regulations, which are issued in the exercise of legislature. quasi-legislative power of the administrative agencies. - in the exercise of the delegated authority to promulgate administrative regulations, the administrative agency cannot XPNs: amend the main law it seeks to implement. Otherwise, the (1) interpretative regulation delegate will act in excess of authority. (2) internal regulation
b. Furnish a copy of the administrative regulation to the UP TOLEDO v. COMELEC LAW CENTER Attorney Augusto Toledo, at the time of his appointment was - “Every agency shall file with the UP Law Center three (3) already 57 years old. Upon discovery, COMELEC nullified his appointment certified copies of every rule adopted by it” on the ground that a provision in the Civil Service Rules on Personal Actions - there is nothing in the Administrative Code of 1987 which and Policies provides that “no person shall be appointed or reinstated in the implies that the filing of the rules with the UP Law Center is the service if he is already 57 years old, unless the President of the Philippines, operative act that gives the rules force and effect. President of the Senate, Speaker of the House of Representatives or the Chief Justice of the Supreme Court, as the case may be, determines that he possesses special qualifications and his services are needed. FOURTH REQUISITE: it must be reasonable - it must not be unreasonable, whimsical, oppressive, SC: The provision on 57 year old person in the Revised Civil Service Rules confiscatory under R.A. 2260 cannot be accounted validity. It is entirely a creation of Civil - must pass the test of reasonableness Service Commission, having no basis in the law itself that it was meant to - absence of one of these, the administrative regulation ought to implement. The power vested in the Civil Service Commission was to be invalidated. implement the law or put it into effect, not to add to it, to carry the law into effect or execution; not to supply perceived omissions in it. By its administrative regulations, of course, the law itself cannot be extended; said
Political Law Review Notes (Atty. Edwin Sandoval) 88 Prepared by: Atty Joan P. Gamboa LAW ON PUBLIC OFFICER 1. Public office is a public trust
What is a public office? It is merely entrusted to the public officer
It refers to the right, authority or duty created and conferred by law Article XI (Accountability of Public Officer), Sec. 1 provides: “Public by which for a given period either fixed by law or enduring at the pleasure of Office is a public trust. Public Officers and employees must at all means be the creating power, an individual is invested with some sovereign power of accountable to the people, serve them with utmost responsibility, integrity, the sovereign function of the government, to be exercised by that individual loyalty and efficiency, and act with patriotism, justice and lead with modest for the benefit of the public. lives.
Elements: CD-DIP 2. It is not a heritable possession
1. It is created by law or authority of law Y? We live in a democratic and republican state.
-the powers to create and abolish public office are vested in the Art. II, Sec. 26 provides: The State shall guarantee equal access to legislative opportunities for public service and prohibit political dynasties as may be defined by law (provision is not self-executing). -power to abolish is not absolute, it must be done in good faith
2. Possess a delegation of a portion of the sovereign powers of the government, to be exercised for the benefit of the public. 3. It is outside the commerce of man.
3. Powers conferred and duties imposed must be defined directly of It cannot be the subject of a valid contract. impliedly by the legislature. If it is a subject, the contract is void. 4. Duties must be performed independently and without the control of a superior power other than the law. 4. It is not a property.
5. Must have permanence or continuity. It is therefore not protected or guaranteed by the due process clause.
Ex: A is holding public office, Congress decided to abolish it. A cannot Is salary an element in public office? complain that there was a violation of the due process clause if he was not given an opportunity to be heard, provided that the abolition is done in good No. It is merely an incident of public office. faith.
Congress can pass a law eliminating salaries. As a rule this cannot be questioned. If Congress can remove the public office itself, then by all means. It may remove its incidence. However, everything must be done on ABOLITION VS REMOVAL good faith. In abolition, what is abolished is the office itself, while in removal, it is the occupant that is removed, but the office remains.
Characteristics of a public office: PHOP
Political Law Review Notes (Atty. Edwin Sandoval) 89 Prepared by: Atty Joan P. Gamboa Ex: A is holding a public office, he was removed. In this case, A may validly SC: The petition is devoid of merit. An acting appointment is merely invoke his security of tenure. He can only be removed for a just and valid temporary, one which is good only until another appointment is made to take cause and there must be an observance of due process. its place.
PUBLIC OFFICER APPOINTMENT VS DESIGNATION
Who is a public officer? Appointment – selection by the proper authority of an individual who is to exercise the functions of an office. A public office is one who holds a public office. Designation – connotes merely the imposition of additional duties Any person, who by direct provision of law, popular election of by upon a person who is already in the public service by virtue of an earlier appointment of competent authority, shall take part in the performance of appointment or election. A mere designation does not confer upon the public function on the Government of the Philippines or shall perform in said designee security of tenure in the position or office which he occupies only in Gov’t or any of its branches public duties as employer, agent, subordinate, or an acting capacity. official of any rank or class, shall be deemed to be a public officer. Nature of designation May a notary public be considered as a public officer? Essentially temporary and not entitled to security of tenure Yes APPOINTMENT in focus SELECTION Nature of appointment How is public officer chosen? 1. Executive on character 2 ways: 2. Discretionary 1. Election LUEGO VS CSC 2. Appointment Felimon Luego was appointed by Mayor Solon as Administrative DESIGNATION -refers to the imposition of additional duties, usually by law, Officer II. His appointment was described as permanent, but CSC approved on any person already in public office. It presupposes that a person is it on a temporary basis subjecting it to the final action to be taken on the already appointed. protest filed by Felicula Tuazo. Subsequently, CSC found Tuazo to be better qualified than Luego and directed that Tuazo be instead appointed. Luego SEVILLA VS CA questioned this.
Generoso Sevilla was appointed as Asst. City Engineer of Palayan SC: CSC has no authority to revoke said appointment simply because it City, Nueva Ecija until he was designated as the Acting Eng’r of Cabanatuan believed that Tuazo was better qualified, for that would have constituted an City. After the EDSA Revolution, Sevilla was ousted when the City Mayor of encroachment on the discretion vested solely in the City Mayor. Cabanatuan appointed Nerito Santos as the new City Engineer. This was later confirmed by the Ministry of Public Works and Highways and approved Appointment is essentially a discretionary power and must be performed by by the CSC. This was questioned by Sevilla in an action/petition for Quo the power on which it is vested. The only condition being that the appointee warranto filed against Santos. should possess the qualification required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred.
Political Law Review Notes (Atty. Edwin Sandoval) 90 Prepared by: Atty Joan P. Gamboa LUEGO DOCTRINE: President, such conferment necessarily carries the discretion on whom to appoint. This is a political question involving consideration of wisdom which only the appointing authority may determine. For as long as the appointee NEXT IN RANK RULE has the minimum requirements, the CSC and the SC are powerless to render that a better one is more qualified. Where can you find the said rule?
REMONTE VS CSC: Civil Service Law
The head of an agency who is the appointing power is the one who What is the next in rank rule? is most knowledgeable to decide who can best perform the function of an office. If there is a vacancy in a government office that ought to be filled up by promotion, the person holding the position next thereto shall be FLORES VS DRILON considered for promotion.
When the US-Phils treaty expired, Congress enacted RA 7227, creating the SBMA. The Charter provided that for the first year of operation, the President shall appoint the Mayor of Olongapo City as head chairman Q: If the next to the Head Chief Accountant is the Deputy accountant and the and CEO of SBMA. Thus, then Mayor Gordon assumed the positions. third is the Administering Officer IV, then the office of Chief Accountant became vacant and the then Deputy accountant and Administering Officer IV SC: The Charter violates: applied, assume that another Chief Accountant applied and was appointed, can the Deputy Accountant claim that there was a violation of the next in 1. Art IX-B, Section 7, part 1: rank rule?
“No elective official shall be eligible for appointment or A: No. The next in rank rule applies only in case of promotion. What is designation in any capacity to any public office or position during his tenure.” involved here is a mere transfer, a lateral movement involving same rank This prohibits elective officers from being appointed or designated to any and position. public office. The only exception is when the public office is to be held in ex- officio capacity. In case of a promotion, vertical movement from lower to a higher position.
Q: What if the one that was appointed was the Administering Officer, can Deputy Accountant complain? 2. Doctrine of Separation of Powers A: Yes, because it was filled by a promotion. Congress encroached on the power of the President to appoint. The President was not given an option at all. The Appointment was limited to the Mayor of Olongapo. The heart or core of appointment is the power to choose. Also, the nature of appointment is discretionary, not a Q: Can the Deputy Officer claim that he should be the one to be appointed? ministerial act. A: No, appointment is discretionary.
Rules: Hence, when the Congress clothes the President with the power to appoint an officer, it cannot at the same time limit the choice of the President to only 1. It applies only in cases of promotion. one candidate. Once the power of appointment is conferred on the
Political Law Review Notes (Atty. Edwin Sandoval) 91 Prepared by: Atty Joan P. Gamboa 2. Even in promotions, it can be disregarded for sound reasons made PRINCIPLE OF VACANCY known to the next in rank as the concept does not import any mandatory or preemptory requirement that the person next in rank must be appointed to Q: Jose, an employee working for ten years already, was surprised to learn the vacancy. that Pedro replaced him. Jose was removed. But the CSC ordered the reinstatement of Jose which became final. Can Pedro validly complain that 3. The appointing authority is allowed to fill vacancies by promotion, there was a violation of security of tenure? transfer, reinstatement, etc. A: No. This is because there was no vacancy, hence security of tenure did 4. There is no legal fiat that a vacancy must be filled only by promotion, the not attach. appointing authority is given wide discretion to fill a vacancy from among several alternatives provided by law. 2 PRINCIPLIES:
5. One who is next in rank is entitled to preferential consideration for 1. A person no matter how qualified cannot be appointed to an office which promotion to higher vacancy BUT it does not necessarily follow that he and is not vacant. no one else can be appointed. 2. One who is illegally dismissed from office is, by fiction of law, deemed not ABILA VS CSC to have vacated his office. His security of tenure did not attach.
When Amado Villafuerte retired from his position as Admin Officer QUALIFICATION TO PUBLIC OFFICE IV in DOH-Qeuzon City, the Officer-in-Charge appointed Alex Abila, who had been the Acting Asst. Civil Security Officer, as his successor. This was The power to prescribe qualifications to public office is vested with the questioned by Florentina Aleria, the Admin Officer III of DOH. LEGISLATURE.
THREE IMPORTANT LIMITATIONS ON THE PART OF THE CONGRESS:
SC: A vacant position in the CSC may be filled by promotion, transfer of 1. If the qualifications are prescribed by the Constitution itself in an present employees, reinstatement, re-employment or appointment of exclusive manner, then the Congress may not add nor subtract from the outsiders who have the necessary eligibility. The next in rank rule invoked enumerated qualifications. by the CSC to justify its choice of Eleria over Abila APPLIES ONLY when a vacancy is filled by promotion, a process which denotes a scalar ascent of 2. The qualification prescribed must be germane to the functions to be an officer to another position higher in rank or salary. performed.
Even of the vacancy here had been filled by promotion rather by a lateral 3. The qualification must be expressed in general terms only. transfer, the concept of next in rank rule does not import any mandatory or preemptory requirement that the person next in rank must be appointed to TWO SENSES OF QUALIFICATION: the vacancy. What the Civil Service Law provides is that if the vacancy is filled up by promotion, the person holding the position next in rank thereto 1. As an act shall be considered for promotion. 2. As an endowment The one who is next in rank is only entitled to preferential consideration. QUALIFICATION AS AN ACT The next in rank rule is not absolute. Even in promotion, it can be disregarded. -consists in taking of an oath
Political Law Review Notes (Atty. Edwin Sandoval) 92 Prepared by: Atty Joan P. Gamboa -in case of an accountable officer (Ex: Treasurer), consist in the posting of a His acts may be questioned collaterally or directly. bond. Q: Is a De Facto Officer entitled to salary? Constitutional provisions related to it: A: As a rule, No. This is because he is not allowed to benefit from his acts. 1. Art. 7, sec. 5 – before they enter on the execution of their office, the Otherwise it will encourage people to usurp other office. When he assumes President, the Vice President or the Acting President shall take the following office knowing that his title is imperfect, he runs the risk of not receiving a oath or affirmation XXX. salary that attaches to the office.
2. Art IX-B, Sec. 4 – All public officers and employees shall take an oath or EXCEPTIONS: affirmation to uphold and defend the Constitution. 1. There is no de jure officer claiming for the salary OR 3. Art. XV, Sec. 5, par. 1 – All members of the armed forces shall take an oath or affirmation to uphold and defend the Constitution. 2. Assumption was made in good faith.
Q: A public officer was appointed/elected. Then he assumed the office but FLORES VS DRILON failed to take an oath. He nonetheless preformed his duties. Are his acts valid? SC: Gordon should not be made to reimburse for such emoluments. Otherwise the gov’t will be unjustly enriched by his services. Gordon was a A: Yes, insofar only as third persons are concerned and the general public de facto officer. relied on the said acts. He is a de facto officer. Prescriptive Period to attack a colorable title: DE JURE VS DE FACTO VS USURPER/INTRUDER - 1 year from the disposition from office. After 1 year, the de facto De Jure Officer – One who has lawful title officer will ripen into a de jure one. REQUIREMENTS OF A DE FACTO OFFICERSHIP His acts are valid 1. Existence of a de jure office (NO such thing as a de facto office, office is His title may not be questioned either valid or void)
De Facto Officer – One who is in actual possession but only has a colorable 2. Color of title. title. His title is imperfect. 3. Actual physical possession of the office. His acts are valid insofar only as third persons are concerned and the general public relied on the said acts. QUALIFICATION AS AN ENDOWMENT
His title may only be questioned directly in a quo - possession of attributes to be qualified warranto proceedings. - refers to Citizenship, Age, Civil service eligibility, Education, Residence (CACER)
Intruder/Usurper – No Title but in actual possession - qualifications are continuing
His acts are entirely void a. citizenship
Political Law Review Notes (Atty. Edwin Sandoval) 93 Prepared by: Atty Joan P. Gamboa - this is the most important EX: woman (resident of Cabanatuan City) marries husband (resident of Pasig City), woman will adopt the residence of - only Filipinos may hold public office husband. b. residence
- only in elective office – as an elective official, he/she must serve in a IMELDA ROMUALDEZ-MARCOS VS COMELEC particulare constituent Imelda run as a congresswoman in Leyte. For the resident requirement, she In Civil Law, residence and domicile are different. In the said law, a person should be a resident thereof for a period of not less than 1 year immediately may only have several residences but may only have one domicile. In preceding the election. Her qualification was questioned on the ground that Ploitical Law, particularly in election law, residence and domicile are the under the Civil Code, when the woman gets married, she gets the residence same. of the husband by operation of law. Pres. Marcos was a resident of San Juan. At that time, Family Code does not exist yet. 3 CLASSES OF DOMICILE SC: With the death of her husband, her adoption of the San Juan residency 1. Domicile of Birth is lost.
2. Domicile of Choice CAASI VS COURT OF APPEALS
3. Domicile by Operation of Law Miguel Merito ran for mayor in Bolinao, Pangasian. A disqualification case was filed against him by Mateo Caasi, a rival candidate MACALINTAL VS COMELEC for the position on account of his being a green cardholder. His defense was that (1) he was voted by the people, hence the defect was cured. Also, he At any given point, a person may only have one domicile alleged that (2) he never really intended to live there permanently, for all he wanted was a green card to enable him to come and go to the U.S. with Domicile of Origin ease because he had to undergo a regular check-up.
- this is acquired by any person at birth - it is the domicile of the child’s parents and not necessarily the place of birth. SC: Argument No.1) he was voted by the people, hence the defect was cured:
Domicile of Choice Merito was disqualified. People of Bolinao cannot amend the Omnibus Election Code (OEC). His election thereto was null and void. The - take place if one leaves his original domicile, he was able to law applicable to him is Sec. 68 of the OEC –“Any person who is a establish his physical presence in another locality. permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, UNLESS such person has waived his status as permanent resident or immigrant of a foreign Domicile by Operation of Law country in accordance with the residence requirement provided for in the election laws. - domicile law attributes to a person; independent to his intention or residence
Political Law Review Notes (Atty. Edwin Sandoval) 94 Prepared by: Atty Joan P. Gamboa To be qualified to run for any elective office in the Philippines, the --No religious test shall be required for the exercise of civil or political rights law requires that the candidate who is a green cardholder must have waived his status as a permanent resident or immigrant of a foreign country. Therefore his act of filing a certificate of candidacy for elective office in the Philippines did not of itself constitute as a waiver of his status as a Political Affiliation permanent resident of U.S. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his G.R. Not a valid qualification candidacy for elective office in this country. Without such waiver, he was disqualified to run for any elective office. Xpn: Can be a valid qualification under:
The fact was that he is a green cardholder and has acquired the 1. Party-list system right to reside in other country. The renunciation of the green card requires a separate act; the filing of the certificate of candidacy is not renunciation. 2. Membership in the Commission on Appointments What is involved in this case is not citizenship but rather permanent residency in another country. 3. In case of permanent vacancies in the Sanggunian
SC on Argument No (2) -- He never really intended to live there permanently, DISQUALIFICATIONS: for all he wanted was a green card to enable him to come and go to the U.S. with ease because he had to undergo a regular check-up: Sec. 40, LGC. Disqualifications. – The following persons are disqualified from running for any elective local position: Even if he never really intended to live there permanently, this court will not allow itself to be a party to his duplicity by allowing him to benefit 1. Those sentenced by final judgment for an offense involving moral from it and giving him the best of both worlds to speak. turpitude or for an offense punishable by one year or more of imprisonment within two years after serving the offense;
2. Those removed from office as a result of an administrative offense; OTHER QUALIFICATIONS AS AN ENDOWMENT 3. Those convicted by final judgment for violating an oath of allegiance to c). age the Republic;
--must be possessed on the day of the election 4. Those with dual citizenship; d). education 5. Fugitives from justice in criminal or non-political cases here or abroad;
--a qualification under Civil Service Law 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 --true only to appointive officials, in case of elective official, minimum effectivity of this Code; and requirements are that he must be able to read and write 7. The insane or feeble-minded. e). civil service eligibility 1. Within two years after serving the offense: Religious Affiliations -partial disqualification --cannot be a valid disqualification to hold public office
Political Law Review Notes (Atty. Edwin Sandoval) 95 Prepared by: Atty Joan P. Gamboa Q: What offenses? MARQUEZ JR VS COMELEC
A: Those sentenced by final judgment In May 1995 election, Rodriguez ran for Governor (Quezon Province). He won. Marquez, a defeated candidate, filed a disqualification 1. Moral turpitude case against Rodriguez under sec. 40(e) after finding out that Rodriguez had criminal charges against him of insurance fraud or grand theft of personal 2. Punishable by one year or more of imprisonment property.
Contention of Rodriguez – Not fugitive from justice because he is not yet convicted by final judgment. DELA TORRE VS COMELEC
Violation of Anti-Fencing Law constitute an offense involving moral turpitude. SC: No. Fugitive from justice applies not only to those convicted by final judgment and who absconds to evade punishment BUT also to one, where a valid criminal information is already filed and he absconded to evade jurisdiction. 2. Those removed from office as a result of an administrative offense: RODRIGUEZ VS COMELEC
Although there was indeed fraud insurance case before the LINGATING VS COMELEC California court, HE IS NOT A FUGITIVE FROM JUSTICE because the cases were filed 5 months after he has returned to the Philippines, the The administrative case must have attained finality for the controlling factor was the intent to evade jurisdiction. He could not have the disqualification to apply. If still pending appeal or on certiorari, intent to evade because there is no information yet. disqualification is not applicable.
LIMITATION ON THE TERM OF THE ELECTIVE OFFICIALS If the penalty is removal – disqualification shall apply Art. X, Section 8 – The term of office of elective local officials, except barangay If the penalty is suspension – disqualification not applicable by express officials, which shall be determined by law, shall be three years and no official shall provision of Sec. 66, LGC, as long as he meets the qualifications required. serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.
4. Those with dual citizenship:
- this refers to dual allegiance (Mercado vs Manzano) Term: 3 years except barangay officials Can serve for three consecutive terms
5. Fugitives from justice in criminal or non-political cases here or abroad: BORJA VS COMELEC Borja was first elected as Vice Mayor in 1988 at Pateros. In 1989, the Mayor died, so he replaced the Mayor. During the 1992 elections, he ran
Political Law Review Notes (Atty. Edwin Sandoval) 96 Prepared by: Atty Joan P. Gamboa and won. In 1995, he again ran and won. In 1998, he ran again. His A: YES. He was only elected twice since he eventually lost in the election qualification was questioned. protest. In 1995, he is merely a presumptive winner. There is a failure of the two conditions (Mayor LONZANIDA of Zambales VS COMELEC). SC: Borja is qualified. The term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the Read: Francis Ong vs Alegre and Comelec, 01-23-06 same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have Q: X was elected Mayor in 1992 election. In 1995 and 1998 elections, he been elected to the same position for the same number of times before the ran and won again. In December 2000, as a result of an administrative disqualification can apply. case, he was removed. He did not appeal. The administrative case becomes final. Is he qualified to run in the 2001 election?
A: NO! He is disqualified to run because of Sec. 40 of the LGC and not TWO POLICIES EMBODIED HERE: because of Art. X, Sec. 8.
1. To prevent the establishment of political dynasties
2. To enhance the freedom of choice of the people LINGATING VS COMELEC – The administrative case must have attained finality before the disqualification to apply. If still pending appeal or certiorari, disqualification is not applicable.
2 CONDITIONS for the Limitation to Apply (BOTH must concur): Q: X was elected in 1992. In 1995 and 1998, he ran and won again. In 2000, as a result of an administrative case, he was removed but he has able sec.8, Art.X to appeal seasonably. In May 2001, he filed his certificate of candidacy. The administrative case was not yet decided. Is he qualified? 1. The local official must be elected for three consecutive terms for the same position. A: Yes he is qualified to run.
2. He has fully served the 3 consecutive terms.
Q: What happens to his pending appeal?
If resigned: voluntary renunciation, not considered as an interruption from A: It becomes moot and academic because of the Doctrine of Condonation. office, limitation will apply The rationale for this is that when the electorate puts him back to the position, it is presumed that they did so with knowledge of his life, character If suspended: interruption from office – involuntary renunciation and past mistakes.
Q: Mayor was elected in 1988. He ran and won again on 1992 and 1995 SOCRATES VS COMELEC (Nov. 12, 2002, En Banc)***Read election. But there was an election protest regarding the 1995 election. On March 1998, he was removed because of a COMELEC decision. Is he Hagedorn was elected as Mayor in 1992, 1995 and 1998 elections. qualified to run in the 1998 election? In the next election, he ran as governor. However, he lost. Meanwhile, the one elected as Mayor of Puerto Princesa was Socrates. Socrates’ term
Political Law Review Notes (Atty. Edwin Sandoval) 97 Prepared by: Atty Joan P. Gamboa started June 30, 2001. After a year, a resolution calling for a special election Aldovino vs COMELEC, 12-23-09 was passed. On the said special election, Hagedorn filed his certificate of candidacy. His qualification was questioned. -During his 3rd term he was placed under preventive suspension. On the 4th term he won.
SC: There was no interruption. What constitutes interruption to the term is SC: He is qualified. The three term limit is found in Art. X, Sec. 8 and lost of title to the office. reiterated in Sec. 43, par. B of LGC. WHAT IS PROHIBITED IS IMMEDIATE RE-ELECTION to the SAME OFFICE for a FOURTH CONSECUTIVE Bolos vs Comelec, 03-17-09 TERM. In this case there is an intervening date. During 3rd term he ran as kagawad while being punong barangay.
SC: there was no interruption. Tantamount to voluntary renunciation of office Q: What if in 2004 and 2007 he wins again, then in 2010, he wants to run as punong barangay. again, is he qualified to run? Montebon vs Comelec 04-09-08 A: SC in the same case said that: The service of a recall term shall constitute one full term. Reason: Elected official in a recall election should Municipal Councilor for 3 consecutive terms, (1998,2001,2004) know that the service of recall term shall constitute one full term. (OBITER DICTUM) In 2001 Vice Mayor retired and he was the highest ranking councilor so he took over. 2007 he ran for councilor.
SC: Montebon is qualified because there was an interruption when he MENDOZA VS COMELEC, 12-17-02, En banc, GR149736 *READ assumed the position of Vice Mayor. It was not voluntary renunciation so by operation of law he has to assume as Vice Mayor. In 1992, Tet Garcia won as governor. In 1993, Recall election was made, Ting Roman won as governor. In 1995 and 1998 elections, Roman won again. In 2001, Roman ran again. Is he qualified to run? CIVIL SERVICE COMMISSION
One of the Constitutional Commissions SC: He is qualified. Recall term is not a full term. Looking at the Constitutinal records and the Constitution, it can be seen that they both It is the central personnel agency of the government tasked to envision continuance and uninterrupted service of term. The service of administer all the civil service. recall term should not be counted in applying the disqualification. COMPOSITION AND QUALIFICATION
Art. IX-B, Sec. 1(1) – The civil service shall be administered by the Civil Q: With this ruling, has the ruling in Socrates been abandoned? Service Commission composed of a Chairman and 2 Commissioners who shall be a natural born citizens of the Philippines, and at the time of their A: No. What has been abandoned in Socrates was a mere Obiter Dictum. appointment, at least 35 years of age, with proven capacity for public No actual controversy yet. administration, and must not have been a candidates for any elective position in the elections immediately preceding their appointment. Service of recall term which is less then 3year will not constitute one full term in applying the disqualification. SCOPE
Political Law Review Notes (Atty. Edwin Sandoval) 98 Prepared by: Atty Joan P. Gamboa Art. IX-B, sec. 2(1) – The Civil Service embraces all branches, subdivisions, alleging that it is embraced within the Civil Service rules and regulations, instrumentalities and agencies of the government, including the GOCC with being a GOCC with an original charter. Camporedendo questioned this original charters. contending that its charter was already amended corverting it to a public corporation.
TEST: WITH OR WITHOUT ORIGIANL CHARTERS SC: Philippine National Red Cross is a GOCC with an original charter under (1) If a GOCC was created by special law, it is with original charter R.A> 95, as amended. The test to determine whether a corporation is government owned or controlled or private in nature is simple. Is it created - The special law creating it is the charter by its own charter for the exercise of a public function or by incorporation under the general incorporation law? Those with special charters are - It is governed by the Civil Service law government corporations subject to its own provisions and its employees are under the jurisdiction of CSC and are compulsory members of the GSIS. - In case of illegal termination, it is under the jurisdiction of the The PNRC was not impliedly converted to a private corporation simply regular courts because its charter was amended.
Ex: DBP, Land Bank, PCSO, PAGCOR, GSIS
KINDS OF APPOINTMENTS
(2) If a GOCC was incorporated pursuant to the General Corporation, it is 1. Permanent – extended to one who possesses all the qualifications without original charter including civil service eligibility.
-It is nor governed by Civil Service Law 2. Temporary - extended to one who possesses all the qualifications but without the civil service eligibility. -In case of illegal termination, jurisdiction is with the Labor Arbiter or NLRC, hence governed by Labor Code.
The law requires publication of all vacant positions in the government. This is mandatory so that all eligible can apply. BOY SCOUTS OF THE PHILIPPINES VS NLRC
The BSP is an instrumentality attached to DECS and no less than the President himself is the Chief Scout. No less than 7 members of the Positions that need not be published include PRIMARILY CONFIDENTIAL Cabinet are members of the BSP. In short, there is so much government POSITIONS, which are co-terminus with the appointing authority. exposure. They are governed Civil Service Laws and not the Labor Code.
CAMPOREDONDO VS NLRC Duration of Temporary Appointment Baltazar Camparedondo was a chapter administrator of PNRC. During a field audit, he was found short. His request for a re-audit by an - one year independent auditor of his account was denied. Thereafter, he filed with - but it may even be shorter NLRC a complaint for illegal dismissal. PNRC moved to dismiss the complaint on the ground of lack of jurisdiction over the subject matter,
Political Law Review Notes (Atty. Edwin Sandoval) 99 Prepared by: Atty Joan P. Gamboa Q: X was given an extended temporary appointment to a given office. In the 2. Coterminous with that of the appointing authority or meantime, A took the Civil Service examination and passed. Is the subject to his pleasure; or appointment status of X automatically converted to permanent? 3. Limited to the duration of a particular project for which A: NO! There is a need for a new appointment. the purpose for employment was made.
Regular employee – used in Labor Code only, not in Civil Service Q: How do you classify position of members of the Sangguniang Panlalawigan?
A: Non-career. It is an elective office. CLASSIFICATION OF __(DI Ko TALAGA MABASA, MALABO COPY KO)___IN CIVIL SERVICE
1. Career Service All elective officials occupy non-career positions since no examination is required to be taken and the tenure is limited to a period specified by law. 2. Non-career Service
HIGHLY TECHNICAL POSITIONS BAR Question: - One which requires the possession of skill or training in the What are the characteristics pf career positions as well as non-career supreme or superior degree positions? Ex: Scientist in the government service
1. Career – Professors in the state universities
a. Entrance is based on merit and fitness to be determined based on competitive examination or it is based on highly technical qualifications; Q: How do you classify highly technical positions? b. There is security of tenure; A: Career c. Opportunity for advancement to a higher position.
Q: Are engineers in the government occupy highly technical positions? 2. Non-Career – A: NO! They may possess technical skills or training but not in the supreme a. Entrance is based other than those tests of merit and fitness or superior degree, hence non-career. utilized for the career service;
b. Tenure is: PRIMARILY CONFIDENTIAL POSITIONS 1. Limited to a period specified by law;
Political Law Review Notes (Atty. Edwin Sandoval) 100 Prepared by: Atty Joan P. Gamboa Q: What are their classifications? conducted of his act. He was later removed on the ground of loss of trust and confidence. His defense was that he cannot be removed from office on A: Non-Career. There tenure is co-terminous with that of the appointing the ground that under the Constitution, no employee of the Civil Service shall authority or subject to his pleasure. be removed except for causes provided by law. On the other hand, PAGCOR contends that under its charter, all positions are primarily confidential and hence may be removed in the ground of loss of confidence. CSC affirmed his dismissal. On appeal, CA reversed and applied the DEFINITION OF PRIMARILY CONFIDENTIAL POSITIONS proximity rule.
It is one which denotes not only confidence in the aptitude of the appointee for the duties of the office bur primarily close intimacy which insures freedom from the intercourse without embarrassment from SC: Applying the proximity rule, Salas cannot be removed on the said misgivings or betrayals of personal trust or confidential matters of state. ground. The position of Salas as a supervisor is too remote from the appointing authority, the Chairman. There are so many intermediaries GRINO VS CSC between them.
The position of a provincial attorney is both highly technical and primarily confidential position. But its predominant feature is primarily confidential. Hence, he can be removed based on loss of trust or The occupant of a particular position could be considered a confidential confidence. However his staff is highly technical. He holds the position co- employee if the predominant reason why he was chosen by the appointing terminous with the pleasure of the appointing authority. There is no removal authority was the latter’s belief that he can share a close intimacy with the but only expiration of term. occupant which ensures freedom of discussion without fear of embarrassment or misgivings of possible betrayal of personal trust or confidential matters of the State.
When pleasure becomes displeasure, the term becomes fixed and automatically expires. One who is holding a primarily confidential position, who was removed from in the ground of loss of trust and confidence cannot Art. IX-B sec. 2 par. 2 – Appointment in the Civil Service shall be made only complain on the ground that there was a violation of his security of tenure. according to merit and fitness to be determined as far as practicable and except to positions which are policy-determining, primarily confidential or highly technical, by competitive examination. (It has nothing to do with the classification of his position as career on non-career). PROXIMITY RULE
- This is the test to determine whether or not the position is primarily confidential or not. The distance between the positions of the appointing ADMINISTRATIVE DISCIPILINARY CASES authority and the employee is considered.
Q: Who has jurisdiction over administrative disciplinary cases? CSC VS SALAS A: Under the Civil Service Law: Salas was an employee of PAGCOR, a GOCC with an original charter. He was a supervisor of the dealers in the casino. He was ORIGINAL: CSC or head of office, agency or bureau suspected in engaging in proxy betting. There was a discreet investigation
Political Law Review Notes (Atty. Edwin Sandoval) 101 Prepared by: Atty Joan P. Gamboa APPEAL: CA under its expanded jurisdiction
FABIAN VS DESIERTO
Secretary/head of bureau-CSC-CA Direct appeal to the SC has been declared unconstitutional. Its enactment was in violation of Art. VI Sec. 30 of the Constitution which CSCCA provides that no law shall be passed increasing the appellate jurisdiction of the SC without its advice and concurrence. The provision in the Ombudsman Act has the effect of increasing the appellate jurisdiction of the SC without its advice and concurrence. Q: Can you bring an administrative case directly with the CSC?
A: Yes. CSC has original and appellate jurisdiction. Under the Civil Service law, a complaint against a government official or employee may be filed Now, the rule is: OmbudsmanCA directly to the CSC (not only to the heads of office).
GOVERNOR LITO LAPID VS CA Q: Under LGC, where do you file? An administrative case was filed against Lapid by the Ombudsman. A: Local Chief Executive After investigation, it was found that he was guilty. The penalty was suspension from office for one year without pay. He was able to appeal seasonably. Ombudsman Desierto wanted to execute the decision pending appeal. OMBUDSMAN ACT OF 1989 (RA 6770) SC: Under the Ombudsman Act, only the following cases are final and - the charter of the Ombudsman executory: - under this law, the Ombudsman has disciplinary authority overall public officers whether appointive or elective, national or local, 1. Provisional orders of the Ombudsman; except: (1) Impeachable officers – Pres, VP, Members of SC, ConCon, 2. Decision where the penalty is: Ombudsman (Justices of the Sandiganbayan – not included). a. suspension for not more than 30 days; (2) Members of Congress b. fine not more than 30 days salary; c. censure; (3) Members of the Judiciary d. reprimand; e. admonition EXCLUSIO UNIUS EST INCLUSIO ALTERIUS – The suspension against Lapid is clearly not among those enumerated as immediately executory. The Appeal from the decision of Ombudsman in an administrative case clear import of these provisions, taken together, is that all other decisions of the Office of the Ombudsman which impose penalty outside than those Under the Ombudsman Act - Directly to the Supreme Court which are enumerated are not final and unappealable, hence not (Remember, the Constitution provides that no law shall be passed increasing immediately executory. An appeal timely filed will suspend or stay the appellate jurisdiction of the SC without its advice and concurrence.) immediate execution of the decision.
Political Law Review Notes (Atty. Edwin Sandoval) 102 Prepared by: Atty Joan P. Gamboa A: No. However, with respect to the meaning of party adversely affected, the ruling under Paredes has already been abandoned. Hence the answer APPEALS IN ADMINISTRATIVE DISCIPLINARY CASES now is YES.
Q: Is appeal available in administrative disciplinary cases? PAREDES VS CSC
A: Depends on the penalty imposed – Appeal is not a constitutional right but merely a statutory right. A reading of the Civil Service Law will tend to show that appeal is available 1. If the penalty is: only to the party adversely affected by the decision. A further reading of the law, the party adversely affected by the decision is the respondent who was a. demotion; found guilty. In fact, even if he was found guilty but the penalty was suspension or fine for not more than 30 days, appeal cannot be made b. dismissal; because the decision in such a case becomes final and executory. With more reason that if he is exonerated, no more appeal. In an administrative c. suspension for more than 30 days or a fine equivalent to case, the real offended party is the government; the complainant is a mere more than 30 day salary; complaining witness so that he has no personality to pursue the appeal. Hence, party adversely affected was limited to the defendant. Appeal is available.
CSC VS DACOYCOY 2. If the penalty is: Dacoycoy was the head of a government vocational school in a. suspension for not more than 30 days; Samar. Two of his sons were extended permanent appointment under his administrative supervision although he was not the one who neither b. fine not more than 30 days salary; appointed nor recommended them. A case was filed against him for violation of the law on nepotism. CSC found him guilty. The penalty was c. censure; dismissal. As the party adversely affected, he appealed to CA. CA exonerated him. If we will follow the Paredes ruling, there is no more appeal d. reprimand; and the complainant cannot appeal because is merely a complaining witness. e. admonition SC: CSC can appeal because it was their decision that was reversed by the Appeal will not lie; the decision is final and executory by express CA. To this extent only, CSC became the party adversely affected. By this provision of the law. ruling, the Paredes Doctrine, up to this extent, is abandoned. The phrase ‘party adversely affected’ refers to the government employee against whom Appeal is not a constitutional right but merely a statutory right. the administrative case is filed for the purpose of a disciplinary action which may take the form of suspension, demotion in rank or salary, etc. and not Why? Not part of the Constitution included are the cases where the penalty imposed is suspension for not more than 30 days or fine in an amount not exceeding 30 days salary. Q: X was charged administratively, she was later on exonerated. May the (PAREDES VS CSC) complainant appeal?
PREVENTIVE SUSPENSION (pending investigation)
Political Law Review Notes (Atty. Edwin Sandoval) 103 Prepared by: Atty Joan P. Gamboa Nature: Not a penalty. It is imposed while the case is being investigated or If the preventive suspension, however, becomes indefinite, pending appeal. It should be distinguished from dismissal or suspension so much that the term of the elective official is about to expire and his which may only be imposed upon investigation and subsequent finding of suspension is not yet lifted, in effect he was being penalized and considering guilt. that after the investigation is not yet terminated, to that extent, there was a denial of due process, hence must be nullified. Also, the right to due process of the people who voted for him is likewise violated.
BEJA, SR VS CA A preventive suspension that lasted for 5 years becomes an indefinite suspension and therefore violative of due process. Preventive suspension is not a penalty by itself; it is imposed only during the pendency of an administrative investigation. It is merely a A preventive suspension is not an action by itself but merely an measure of precaution so that the employee who is charged may be incident to an action. separated for obvious reasons, from the scene of his alleged misfeasance, ehilr the same is being investigated. Thus, preventive suspension is distinct To know what law is applicable in case of a preventive suspension, from the administrative penalty of removal from office such as the one determine first if administrative or criminal case. mentioned in Sec 8 (d) of PD 807. While preventive suspension may be imposed on a respondent during the investigation of the charges against A. ADMINISTRATIVE CASE him, the removal from office is a penalty which may only be meted out upon him at the termination of the investigation or the final disposition of the case. 1. Civil Service Law
GLORIA VS CA Period - 90 days
Preventive suspension pending investigation is not a penalty. It is Case – Gloria vs CA simply a means of preventing the latter from interfering or intimidating the witnesses against him. 2. Local Government Code
YABOT VS OMBUDSMAN VASQUEZ Period – 60 days for appointive officials
An administrative case was filed against Vice-Mayor Yabot by an . 60 or 90 days fro elective officials American doctor. He was placed under preventive suspension for 60 days. 3. Ombudsman Act Yabot contends that he was already suspended and hence, can no longer be suspended again. Period – 6 months
Case – Hagad vs Gonzales
SC: The first suspension that was imposed was not the penalty. It is merely B. CRIMINAL CASE a preventive suspension. The second suspension was the penalty. The two suspensions are of different nature. The service of preventive suspension 1. Anti-Graft and Corrupt Practices Act cannot be credited with the service of suspension as penalty. Period – 90 days applying by analogy
PREVENTIVE SUSPENSION IN AN ADMINISTRATIVE CASE LAYNO VS SANDIGANBAYAN I. CIVIL SERVICE LAW
Political Law Review Notes (Atty. Edwin Sandoval) 104 Prepared by: Atty Joan P. Gamboa If one is charged administratively, while pending investigation, he investigation is not finished and the decision is not rendered within the can be preventively suspended for a period of 90 days. period, the suspension will be lifted and the respondent will automatically be reinstated. If after the investigation, the respondent is If after the lapse of the 90 day period and the investigation has not found innocent of the charges and is exonerated, he should be been terminated, there will be an automatic reinstatement. reinstated. However, no compensation was due for the preventive suspension pending investigation. However if one contributed to the delay of the proceedings or has filed a petition for certiorari, the period of the delay or certiorari will not In case of a suspension pending appeal, he is entitled to be included in the computation of the 90 day period of preventive compensation for the period of their suspension pending appeal if suspension. eventually he is found innocent. Why? It is actually punitive in character although it is in effect subsequently considered illegal if Q: Who shall impose the preventive suspension? respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the A: The CHIEF of the office, agency or bureau shall be the disciplinary period of the suspension. authority. SIGNIFICANCE OF THE DIFFERENCE: GLORIA VS CA Pending Investigation – not entitled. Why? Not a penalty but is entitled t During the teachers’ strike, the public school teachers in this case reinstatement. did not report for work. Accordingly, they were administratively charged and placed under preventive suspension. The investigation concluded Pending Appeal – if on appeal he is exonerated, he is entitled to full before their 90 day suspension and they were found guilty. On appeal, backwages and reinstatement; it is punitive in character. Merit Systems and Protection Board, later affirmed by the CSC, dismissed their claim. Before the CA, they asked that they be paid for II. LOCAL GOVERNMENT CODE their salaries during their suspension beyond 90 days. This was granted. Hence, Sec. Gloria questioned this. 1.) Sec. 85 LGC – “Preventive Suspension of Appointive Local Officials and Employees. SC: The public school teachers are entitled to their salaries computed a.) The local chief executives may preventively suspend for a from the time of their dismissal or suspension until their actual period not exceeding sixty (60) days, any subordinate official or reinstatement, for a period of not exceeding 5 years. employee under his authority pending investigation, if the There are two kinds of preventive suspension of civil service charge against such official or employee involves dishonesty, employees who are charged with offenses punishable by removal or oppression or grave misconduct or neglect in the performance suspension: of duty, or if there is reason to believe that the respondent is guilty of the charges which would warrant his removal from the 1. Preventive Suspension pending investigation service. b.) Upon the expiration of the preventive suspension, the 2. Preventive suspension pending appeal, if the penalty imposed is suspended official or employee shall be automatically suspension or dismissal and after review the respondent is exonerated on appeal. reinstated in office without prejudice to the continuation of the administrative proceedings against him until its termination, if Preventive suspension pending investigation is not a penalty. It is a the delay in the proceedings of the case is due to the fault, measure intended to enable the disciplining authority to investigate neglect or request of the respondent, the time of the delay shall charges against the respondent by preventing the latter from not be counted in computing the period of suspension herein intimidating or in any way influencing witnesses against him. If the provided.
Political Law Review Notes (Atty. Edwin Sandoval) 105 Prepared by: Atty Joan P. Gamboa days from the time he was formally notified of the case against him. However, if the delay in the proceedings of the case is Q: Maximum period of preventive suspension? due to his fault, neglect or request, other than the appeal duly filed, the duration of such delay shall not be counted in A: 60 days computing the time of termination of the case. d.) Any abuse of the exercise of the power of preventive suspension shall be penalized as abuse of authority. Q: Who shall impose?
A: the local chief executives Q: Period?
A: 60 days for every administrative charge 2.) Sec. 63 LGC- “Preventive Suspension. – a.) Preventive suspension may be imposed: 90 days if there are several administrative charges, during a given (1) By the President, if the respondent is an elective official of a year province, a highly urbanized or an independent component city; (2) By the governor, if the respondent is an elective official of a Q: who shall impose? component city or municipality; or (3) By the mayor, if the respondent is an elective official of he A: if respondent is- barangay a.) Barangay official – mayor b.) Official of component city or municipality – Governor c.) Official of independent component or highly urbanized city or b.) Preventive suspension may be imposed at any time after the province- President issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the JURISDICTION records and other evidence: Provided, that any single preventive suspension of local elective officials shall not extend beyond sixty (60)days; Provided further that in the event that Appointive Officials several administrative cases are filed against an elective official, he cannot be preventively suspended for more than Q: Where do you file an administrative complaint against local ninety (90) days within a single year on the same ground or appointive officials? grounds existing and known at the time of first suspension. c.) Upon expiration of the preventive suspension, the suspended A: From Local chief executive Civil Service Commission Court of Appeals elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within one hundred twenty (120)
Political Law Review Notes (Atty. Edwin Sandoval) 106 Prepared by: Atty Joan P. Gamboa Elective Officials enactment, is deemed to have repealed the Ombudsman Act with respect to the imposition of the preventive suspension. Q: where do you file an administrative complaint against local elective offificals? SC: There is nothing in the LGC (RA 7160) to indicate that it has repealed the pertinent provisions of the Ombudsman Act (RA 6770). Repeals A: (1) Barangay official in a by implication are not favored. Every statute must be so interpreted and brought into account with other laws as to form a uniform system of a. Municipality- sangguniang bayan jurisprudence. Besides, the grounds to impose preventive suspension under b. City – sangguniang panglungsod the LGC and the Ombudsman Act are different. The Ombudsman has concurrent jurisdiction with the officers who have authority to impose (2) Official of a municipality – sangguniang panlalawigan preventive suspension pursuant to Section 63 of LGC.
(3) City official and provincial official – Office of the President PREVENTIVE SUSPENSION IN CRIMINAL CASE
Anti-Graft and Corrupt Practices Act (RA 3019) Section 13 RA 3019 – Suspension and Loss of Benefits – “Any *Sec. 63 relate to Sec. 62 (c) LGC – “xxx no investigation shall be held incumbent public officer against whom any criminal prosecution under a within ninety (90) days immediately prior to any local election, and no valid information under this Act or under Title 7, Book II of the RPC or for any preventive suspension shall be imposed within the said period. If the offense involving fraud upon government or public funds or property whether preventive suspension has been imposed prior to the 90-day period as simple or as complex offenses and in whatever stage of execution and immediately preceding local election, it shall be deemed automatically lifted mode of participation, is pending in court shall be suspended from office. upon the start of aforesaid period.” Should he b e convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during the suspension, unless in the meantime administrative proceedings GANZON vs. CA have been filed against him.”
Q: Who has the authority to impose preventive suspension?
Ombudsman Act (RA 6770) – administrative jurisdiction A: the law is silent. However in LUCIANO vs. PROVINCIAL GOVERNOR, the Court interpreting Sec.13 held that “It is the court where the criminal - The ombudsman or his deputy has the power to preventively case was filed that has the authority to impose preventive suspension suspend pursuant to Sec. 13.” It is not the fiscal or prosecutor nor the Ombudsman. A - For a period of 6 months court that has acquired jurisdiction will have to exercise jurisdiction also over the incidence of the case.
Note: Ombudsman has no authority to impose preventive suspension in HAGAD vs. JUDGE GOZO-DADOLE criminal cases unlike in administrative actions.
An administrative case was filed against a Mayor in one of the Q: Before what court should the case be filed? towns in Visayas. He was placed under preventive suspension for 6 months. A: Depends – He argued that being a local elective official his preventive suspension a. Salary grade 27 and over – Sandiganbayan cannot exceed 60 days as provided in the LGC and the LGC being later b. Below salary grade 27 – RTC or MTC
“shall be suspended from office”
Political Law Review Notes (Atty. Edwin Sandoval) 107 Prepared by: Atty Joan P. Gamboa Preventive Suspension is mandatory. The Court has no discretion whether to place the officer under preventive *Moreover, should the purposes behind preventive suspension become suspension or not. manifest, the respondent court is not bereft of remedies or sanctions. The petitioner may still be suspended but for specifically expressed reasons and While preventive suspension is mandatory, it is NOT automatic. not from an automatic application of Section 13, RA 3019. The court must conduct a PRE-SUSPENSION HEARING, the purpose of which is for the court to determine the validity of the SANTIAGO vs. SANDIGANBAYAN/ PAREDES vs. SANDIGANBAYAN criminal information filed against the accused public officer. It is When X was a governor, a criminal complaint against him for only when the court is satisfied that the criminal information violation of anti-graft was filed. While the Ombudsman was investigating, was validly filed that the court will impose preventive there was an election. X ran for Congressman and won. In the meantime, the Ombudsman filed the criminal information against X before the suspension. Only then that the preventive suspension Sandiganbayan. The Sandiganbayan issued a suspension order addressed becomes mandatory. (SOCRATES vs. SANDIGANBAYAN) to the Speaker of the House of Representatives for him to carryout the order. The Speaker refused to execute because it violated Section 16 par 3 Article Q: What is the duration of the preventive suspension? VI of the Constitution (Each House may determine the rules of its proceedings, punish its own members for disorderly behavior and either the A: The law is silent. However in GONZAGA vs. SANDIGANBAYAN, the court concurrence of 2/3 of all its members, suspend or expel a member. A penalty held that the Civil Service Law should be applied by analogy since Sec. 13, of suspension, when imposed shall not exceed 60 days) RA 3019 is silent as to the duration of the preventive suspension. Hence, the duration is ninety (90) days. There are no more cases now of indefinite SC: there is no encroachment here. What is being imposed by the suspension. Sandiganbayan is not a penalty but merely a preventive suspension. Members of Congress are not exempted from the operation of Section 10, BAYOT vs. SANDIGANBAYAN; SEGOVIA vs. SANDIGANBAYAN; RA 3019. The law says “any incumbent public officer”. We are only DELLOSA vs. SANDIGANBAYAN interpreting the law as you wrote it. The Speaker of the House was held in contempt of the Sandiganbayan. X was a municipal mayor. He was criminally charged before the Ombudsman. While the Ombudsman was investigating the criminal SUSPENSION AS A PENALTY complaint, there was an election. X ran for governor and won. In the Q: Can imprisonment of 10 days be imposed if found guilty? meantime, the Ombudsman filed the criminal case against him with the A: No. Administrative cannot impose penalties which involve deprivation of Sandiganbayan. The Sandiganbayan issued the preventive suspension life and liberty. Hence cannot impose imprisonment, against X. X now contends that he can no longer be preventively suspended for the acts he did when he is still a mayor. Doctrine of Condonation – only in administrative cases AGUINALDO vs. SANTOS – term of elective officials are distinct SC: the contention is not correct. The amendatory provisions clearly from each other and when elected again the public is deemed to have states that any incumbent public officer against whom any criminal condoned his past misconduct; he cannot be punished under the new term prosecution under a valid information under RA 3019 or for any offense of office. involving fraud upon the government or public funds or property whether as a simple or as a complex offense and in whatever stage or execution and PROHIBITIONS/ INHIBITIONS/ DISQUALIFICATIONS mode of participation, is pending in court shall be suspended from office. Thus by the use of the word “office” the same applies to any office which the 1. Article IX-B, Section 7, par 1 – “No elective official shall be eligible officer charged may be holding and not only the particular office which he for appointment or designation in any capacity to any public office was charged. or position during his tenure.” *Section 13 RA 3019 does not state that the officer concerned must be suspended only for the office he was charged.
Political Law Review Notes (Atty. Edwin Sandoval) 108 Prepared by: Atty Joan P. Gamboa General Rule: “No elective official shall be eligible for appointment or 2) Secretary of Justice is an ex-officio member of designation in any capacity to any public office or position during his tenure.” JBC
Exception: Elective official can hold other positions/ office in an ex-officio CIVIL LIBERTIES UNION vs. EXECUTIVE SECRETARY capacity. The prohibition extends only to public and not to private positions. President Aquino issued an executive order (EO284) allowing her (FLORES vs. DRILON) Cabinet members to hold more than 2 offices. The appointments were challenged by the Civil Liberties Union. Defense of the Solicitor General, 2. Article IX-B, Section 7, par 2 – “Unless otherwise allowed by law or members of the Cabinet are appointive officials hence Article IX-B sec 7 (2) by the primary functions of his position, no appointive official shall shall apply and that they fall under the exception. hold any other office or employment in the Government or any subdivision, agency, or instrumentality thereof, including SC: this cannot be allowed. The work of the cabinet members government owned and controlled corporations or their demands full time work. Their position is sui generis. Article VII, subsidiaries.” section 13 is a new provision. The reason is to avoid what happened in the Marcos era. It is a special provision which applies to Cabinet members. Article IX-B sec. 7 (2) on the other hand is a general provision. Hence, the General Rule: Appointive official not allowed from holding other position in EO is unconstitutional. the government *see also PUBLIC INTEREST CENTER vs. ELMA June 30, 2006 Exceptions: a. allowed by law b. allowed by the primary functions of their position 4. Article VI section 13 – “No Senator or Member of the House of (CIVIL LIBERTIES UNION vs. EXECUTIVE SECRETARY) Representatives may hold any other office or employment in the government, or any subdivision, agency or instrumentality thereof, 3. Article VII Section 13, par 1 – “The President, Vice-President, the including government owned or controlled corporations or their members of the Cabinet, and their deputies or assistants shall not, subsidiaries during his term without forfeiting his seat. Neither shall unless otherwise provided in this Constitution, hold any other office he be appointed to any office which may have been created nor the or employment during their tenure. They shall not, during said emoluments thereof increased during the term for which he was tenure, directly or indirectly, practice any other profession, elected. participate in any business or be financially interested in any Prohibition on incompatible and forbidden office contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof. 5. Article XVI, Section 5, par 4 – “ No member of the armed forces in Including government owned or controlled corporations or their the active service shall, at any time be appointed or designated in subsidiaries. They shall strictly avoid conflict of interest in the any capacity to a civilian position in the Government including conduct of their duties.” government owned or controlled corporations or any of their subsidiaries General Rule: President, Vice President, Cabinet Members, deputies, assistants shall not hold any office or employment 6. Law on Nepotism *the provision is new - Violation results to dismissal with forfeiture of benefits *the prohibition is broad – covers both public and private position - Found in the Civil Service Law - Under Section 59, Civil Service Law – “ All appointments in the Exception: Unless otherwise provided in the 1987 Constitution national, provincial, city, and municipal governments or in any e.g. 1) Vice President may become member of the branch or instrumentality thereof, including government owned Cabinet or controlled corporations, made in favor of a relative of the
Political Law Review Notes (Atty. Edwin Sandoval) 109 Prepared by: Atty Joan P. Gamboa appointing or recommending authority, or of the chief of the d. Chairman, heads of bureau or offices bureau or office or of the persons exercising immediate supervision over him, are hereby prohibited. Prohibited relationships - Under the Civil Service Law = 3rd Civil Degree The word “relative” and members of the family referred to are - Under the LGC = 4th civil degree SEC. 79. Limitation on those related within third (3rd) degree of either consanguinity of Appointments. - No person shall be appointed in the career affinity.” service of the local government if he is related within the fourth civil degree of consanguinity or affinity to the appointing or recommending authority.
CSC vs. DACOYCOY April 1999 En Banc
Under the law on nepotism, a public official is guilty of nepotism, if an DEBULGADO vs. CIVIL SERVICE COMMISSION appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following: It was contended that the law on nepotism applies only to original a. Appointing authority appointments but not to promotional appointments. b. Recommending authority c. Chief of bureau or office SC: The law on nepotism applies to all kinds of appointment because d. One who exercises immediate the law does not distinguish. supervision over the appointee A textual examination of Section 69 at once reveals that the prohibition was cast in comprehensive and unqualified terms. Firstly, it SC: Clearly, there are four situations covered. In the last two mentioned explicitly covers “all appointments” without seeking to make ay distinction situations, it is immaterial who the appointing or recommending authority is. between differing kinds or types of appointments. Secondly, Section 59 covers all appointments to the national, provincial, city, and municipal To constitute a violation of the law, it suffices that an appointment is governments, as well as any branch or instrumentality thereof and all extended or issued in favor of a relative within the third civil degree of government owned or controlled corporations. Thirdly, there is a list of consanguinity or affinity of the chief of the bureau or office, or the person exceptions set out in Section 59 itself, but it is a short list. exercising immediate supervision over the appointee. Both an original appointment and a promotion are particular species of personnel action. The original appointment of a civil service EXCEPTIONS TO THE LAW ON NEPOTISM employee and all subsequent personnel actions undertaken by or in respect 1. Teachers of that employee such as promotion, transfer, reinstatement, reemployment, 2. Physicians etc. must comply with the Implementing Rules including of course the 3. Persons employed in a confidential capacity prohibition against nepotism in Rule XVIII. 4. Members of the Armed Forces of the Philippines The conclusion we reach is that Section 59 Book V, EO 292 means 5. Member of a family who, after his or her appointment to any exactly what it says in plain and ordinary language. It refers to all position in an office or bureau, contacts marriage with appointments whether original or promotional in nature. The public policy someone in the same office or bureau, in which event, the embodied in section 59 is clearly fundamental in importance, and the court employment or retention therein of both husband and wife may has neither authority nor inclination to dilute that important public policy by be allowed. introducing a qualification or discretion here.
Under Article VII, Section 13 – “ The President may not appoint his spouse LAUREL vs. CSC or relatives within the 4th civil degree of consanguinity or affinity to Laurel who was the governor of Batangas granted his brother, a. Member of Constitutional Commission Benjamin Laurel a promotional appointment as Civil Security Officer, a b. Office of the Ombudsman position classified as primary confidential by the Civil Service. c. Secretaries and Undersecretaries
Political Law Review Notes (Atty. Edwin Sandoval) 110 Prepared by: Atty Joan P. Gamboa Q: Was there a violation of the law on nepotism? (4) Use property and personnel of the Government except when the A: No. It is under the exceptions of the law Sanggunian member concerned is defending the interest of the government.
Later on, he designated his brother to the position of Provincial (c) Doctors of medicine may practice their profession even during official Administrator a position in the Career Civil Service. Laurel contends that he hours of work only on occasions of emergency. Provided, that officials did not violate the law on nepotism because he merely designated his concerned do not derive monetary compensation therefrom. brother not appointed him. Designation presupposes that he has already been appointed and merely given additional function. Q: Can a mayor practice his profession? A: No. SC: The appointment or designation as Acting Provincial Administrator was violative of the prohibition against nepotism, then embodied in Section Q: Can members of the sanggunian practice their profession? 49 PD No. 807. Moreover, the Court emphatically agrees with the CSC that A: Yes, except during session hours. although what was extended to Benjamin was merely a designation and not an appointment xxx the prohibitive mantle on nepotism would include Q: Can Vice mayor exercise his profession? designation because what cannot be done directly cannot be done indirectly. A: Yes. Vice Mayor belongs to the legislative, while sanggunian members must We cannot accept petitioner’s view. His specious and tenuous distinction be interpreted in general terms. There is no prohibition. Hence, the Vice between appointment and designation is nothing more than either a play Mayor can e belongs to the legislative, while sanggunian members must be ingeniously conceived to circumvent the rigid rule on nepotism or a last ditch interpreted in general terms. There is no prohibition. Hence, the Vice Mayor maneuver to cushion the impact of its violation. The rule admits of no can exercise or practice his profession. However, in case the Vice Mayor distinction between appointment and designation. “Designation” is also becomes acting mayor or acting governor, he cannot practice or exercise his defined as all appointment or assignment to a particular office, and “to profession because in such case then, he exercises an executive position. designate” means to indicate, select, appoint, or set apart for a purpose of (Atty. Sandoval) duty. JAVELLANA vs. DILG *for purposes of the law on nepotism, appointment and designation are the Atty. Javellana is a member of the Sanggunian same. Panlalawigan. Two of the employees of the Provincial Engineer’s Office were removed. They asked for his assistance and so Atty. Javellana 7. Section 90, LGC – “Practice of Profession – appeared in their behalf. He was prohibited from appearing on the (a) All governors, city and municipal mayors are prohibited from ground that the same is prohibited by the LGC where the adverse party practicing their profession or engaging in any occupation other than the is the government. He went to the Supreme Court and challenged the exercise of their functions as local chief executives. constitutionality of Section 90, LGC on two grounds: 1) the provision is (b) Sanggunian members may practice their professions, engage in unconstitutional because it encroached the power of the Supreme Court any occupation, or teach in schools except during session hours, to regulate the practice of law; and 2) the provision violates the equal Provided, that sanggunian members who are also members of the Bar protection clause because the law profession was singled out. shall not: (1) Appear as counsel before any court in any civil case wherein a SC: There is no encroachment on the power of the SC to local government unit or any office, agency or instrumentality of the regulate the practice of law. Section 90 LGC is a reasonable regulation government is the adverse party; designed to ensure that there shall be no conflict of interest in the (2) Appear as counsel in any criminal case wherein an officer or exercise of his functions as a sanggunian member and his function as a employee of the national or local government is accused of an offense lawyer. committed in relation to his office; There is no violation of the equal protection clause. Under (3) Collect any fee for their appearance in administrative the equal protection clause, not all classifications are invalid. There is a proceedings involving the local government unit of which he is an official; substantial distinction between the law profession and the other and
Political Law Review Notes (Atty. Edwin Sandoval) 111 Prepared by: Atty Joan P. Gamboa professions. Of all the professions, it is this profession that is most likely to affect the area of public service. For purposes of this Chapter, a permanent vacancy arises when an elective Moreover, Section 90 LGC does not discriminate against local official fills a higher vacant office, refuse to assume office, fails to qualify, dies, is lawyers and doctors. It applies to all provincial and municipal officials in removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. the professions or engaged n any occupation. It explicitly provides that For purposes of succession as provided in this chapter, ranking in the Sanggunian members may practice their professions, engage in any sanggunian shall be determined on the basis of the proportion of votes obtained by occupation, or teach in schools except during session hours. If there are each winning candidate to the total number of registered voters in each district in the some prohibitions that apply particularly to lawyers, it is because of all immediately preceding local election. the professions, the practice of law is more likely than others to relate to, or affect, the area of public service. *In case of permanent vacancy (section 44) automatic succession applies, so in case of death of mayor, the vice mayor succeeds, in case of the vice 7. SEC. 40. Disqualifications. - The following persons are mayor, the highest ranking sangguniang member succeeds. disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral Illustration: turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; District I (10,000) District II (8,000) (b) Those removed from office as a result of an administrative case; 1. Pedro 5,000 (c) Those convicted by final judgment for violating the oath of 2. Manuel 4,800 allegiance to the Republic; 3. Jose 5,000 (d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical cases here or abroad; (Marquez Jr. vs COMELEC and Rodriguez vs COMELEC) Q: For purposes of succession, how do you determine ranking? (f) Permanent residents in a foreign country or those who have A: For purposes of succession, ranking in the sanggunian shall be acquired the right to reside abroad and continue to avail of the same determined on the basis of the proportion of votes obtained by each winning right after the effectivity of this Code; and candidate to the total number of registered voters in each district in the (g) The insane or feeble-minded. immediately preceding local election (sec 44, LGC last par) *Therefore Manuel is the highest ranking member.
VACANCIES AND SUCCESSIONS (Section 44-45, LGC) Q: Who is ranking between Pedro and Jose? A: A tie between or among the highest ranking Sanggunian members shall Section 44, LGC – “Permanent vacancies in the offices of the Governor, be resolved by the drawing of lots. (Sec. 44 par c, LGC) Vice Governor, Mayor and Vice Mayor. - If a permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall become Q: Let us assume that 8 sanggunian members, the last ranking died. What the governor or mayor. If a permanent vacancy occurs in the offices of the governor, happens? vice governor, mayor or vice mayor, the highest ranking sanggunian member shall A: Apply sec. 45 LGC, not the rule on automatic succession. become the governor, vice governor, mayor or vice mayor as the case may be. Subsequent vacancies in the said offices shall be filled automatically by the other Section 45, LGC – “Permanent vacancies in the Sanggunian – (a) sanggunian members according to their ranking as defined herein. Permanent vacancies in the sanggunian where automatic successions provided above do not apply shall be filled by appointment in the following manner: (b) If a permanent vacancy occurs in the office of the punong barangay, the (1) The President, through the executive secretary, in the case highest ranking sangguniang barangay member or in case of his permanent inability, of the sangguniang panlalawigan and the sangguniang the second highest ranking sanggunian member shall become the punong barangay. panlungsod of highly urbanized cities and independent (c) A tie between or among the highest ranking sanggunian members shall component cities; be resolved by drawing of lots. (2) The governor, in the case of the sangguniang panlungsod of (d) The successors as defined herein shall serve only the unexpired terms component cities and sanggunian bayan; of their predecessors.
Political Law Review Notes (Atty. Edwin Sandoval) 112 Prepared by: Atty Joan P. Gamboa (3) The city or municipal mayor, in the case of sangguniang The last ranking sanggunian bayan member who did not belong to any barangay, upon recommendation of the sangguniang political party resigned. To fill the vacancy, both the mayor and the governor barangay concerned. appointed their own choice. (b) Except for the sangguniang barangay, only the nominee of the political party under which the sanggunian member concerned had been elected and whose SC: Neither of the two appointees should assume position. elevation to the position next higher in rank created the last vacancy in the Sec 45 (c) LGC must be read together with Sec 45 (a). Since this is a sanggunian shall be appointed in the manner herein after provided. The appointee municipality, the governor should appoint but with the recommendation of shall come from the same political party as that of the sanggunian member who the sanggunian concerned which is the sanggunian bayan where the caused the vacancy and shall serve the unexpired term of the vacant office. In the vacancy took place. appointment therein mentioned, a nomination and certificate of membership of the appointee from the highest official of the political party concerned are conditions sine NAVARRO vs. CA sec.45(b), LGC qua non, and any appointment without such nomination and certification shall be null and void ab initio and shall be ground for administrative action against the official responsible therefor. Composition of the municipal government: (c) In case the permanent vacancy is caused by a sanggunian member who Mayor ………………………………………………… Lakas does not belong to any political party, the local chief executive shall, upon NUCD recommendation of the sanggunian concerned, appoint a qualified person to fill the Vice Mayor…………………………………………. Lakas vacancy. NUCD (d) In case of vacancy in the representation of the youth and the barangay 1st to 5th sanggunian member…………….. Reporma in the sanggunian, said vacancy shall be filled automatically by the official next in rank 6th Sanggunian Member…………………….. Lakas NUCD of the organization concerned. 7th Sanggunian Member…………………….. Reporma 8th Sanggunian Member…………………….. Lakas NUCD Q: Who shall appoint? A: (1) Sangguniang Bayan Therefore in the Sanggunian, there were 6 Reporma and 2 Lakas. The mayor died. The Vice mayor became the Mayor. The last ranking Governor position became vacant so the governor appointed someone from Reporma. Sangguniang PAnglungsod in component cities Lakas protested because the vacancy came from Lakas.
(2) Sangguniang Panglungsod of Highly Urbanized Cities SC: Governor is correct. What is crucial is the interpretation of Sec. 45 Sangguniang Panglungsod of Independent Component Cities (6). The reason behind the right given to the political party to nominate a President replacement is to maintain the party representation as willed by the people in Sangguniang Panlalawigan the election. With the elevation of Tamayo (Reporma) as the Vice Mayor it *If one who will be replaced belongs to a political party, the successor must diminished the Reporma’s representation in the Sanggunian. Hence, the one come from the same political party. appointed should come from Reporma. If he does not belong to a political party then apply Sec. 45(c)
Q: Who shall appoint? GAMBOA JR. vs. AGUIRRE JR. July 20, 1994 A: Local chief executive upon the recommendation of the sanggunian The governor went abroad. He was away for 3 months. Governor concerned. issued an administrative order designating the Vice governor as acting governor. The acting governor wants to preside in the session of the sanggunian. FARIÑAS vs. BARBA sec.45(c), LGC SC: Being the acting governor, he cannot simultaneously exercise the functions of his office. The power of the vice governor to preside over sanggunian session is suspended as long as he is the acting governor.
Political Law Review Notes (Atty. Edwin Sandoval) 113 Prepared by: Atty Joan P. Gamboa The creation of temporary vacancy in the office of the governor - There is no need for a criminal charge before a recall may be creates a corresponding vacancy in the office of the vice governor. initiated. - There is only one ground, loss of confidence Q: Then who will preside in the meantime? EVARDONE vs. COMELEC A: Under sec. 49 (b) LGC – “In the event of the inability of the regular A recall is a political question not subject to judicial review. It is a presiding officer to preside at a sanggunian session, the members present political question that has to be decided by the people in their sovereign and constituting a quorum shall elect from among themselves a temporary capacity. presiding officer. He shall certify within ten (10) days from the passage of ordinances enacted and resolutions adopted by the sanggunian in the 2 STAGES session over which he temporarily presided.“ Hence, the members present and constituting a quorum shall elect from themselves the temporary 1. Initiatory presiding officer. Do not apply the rule in permanent vacancy. 2. Special Recall Election
Q: Who appoints the barangay treasurer, secretary and other appointive *The official sought to be recalled becomes a candidate automatically. officials of the barangay? Hence, he is prohibited from resigning.
A: Punong barangay appoints barangay secretary, treasurer, and other * There is only one way of initiating a recall – through a petition signed by at appointive official with the approval of the majority of the members of the least: sangguniang barangay. (ALGUIZOLA vs. GALLARDO) 25% of registered voters – below or 20,000 total registered voters of LGU concerned *Conjoint action by members of Sanggunian and punong barangay 20% of registered voters – more than 20,000 but less than 75,000 total registered voters of LGU The power of appointment is exercised with approval of sanggunian, concerned therefore in removing or replacing an appointive official, there must also be 15% of registered voters – more than 75,000 but less than 300,000 approval of the majority of sanggunian barangay members. total registered voters of LGU concerned Sec. 388, LGC – “Persons in authority – For purposes of the RPC, 10% of registered voters – more than 300, 000 total registered the punong barangay, sanggunian barangay members and members of the voters of LGU concerned lupong tagapamayapa in each barangay shall be deemed as persons in authority in their jurisdiction, while other barangay officials and members *The PREPARATORY RECALL ASSEMBLY (PRA) has been REPEALED. who may be designated by law or ordinance and charged with the (RA 9244, Feb 19, 2004) maintenance of public order, protection and security of life and property, or the maintenance of a desirable and balanced environment and any barangay member who comes to the aid of persons in authority shall be ANGOBUNG vs. COMELEC deemed agents of persons in authority. A was a mayor, a year after his election was sought to be recalled. There was a recall process initiated by only one person. The COMELEC approved the petition and assigned a signing day. Angubong went to the SC RECALL alleging grave abuse of discretion. - Provided in Section 69-75, LGC. This is a mode of removing a local elective official before the expiration of his term. On the SC: The petition for recall signed by only one person is a violation of the groud of LOSS of CONFIDENCE. 25% statutory requirement. The law is plain and unequivocal as to what constitutes a recall proceeding. GARCIA vs. COMELEC
Political Law Review Notes (Atty. Edwin Sandoval) 114 Prepared by: Atty Joan P. Gamboa LIMITATION ON RECALL (SEC.74) AFIALDO vs. COMELEC a. An elective official can be subjected to recall only once Miranda was elected Mayor. On the other hand, Navarro was b. No recall shall take place within one year from the assumption of elected the Vice Mayor. Members of the Preparatory Recall Assembly office or one year immediately preceding a regular local election. adopted a resolution calling for the recall of Vice mayor Navarro. Mayor Miranda was removed by SC. The Vice mayor assumed office. PARAS vs. COMELEC Paras was a punong barangay. There was a petition for recall. The SC: The recall elections become moot and academic. It is clear from SK election was scheduled during that year when the petition was filed. The the resolution that they wanted to remove him from being a vice mayor. contention of PAras was that there would be a regular election; hence the recall cannot push through. AFIALDO vs. COMELEC Before vice mayor Amelita Navarro assumed mayorship, Joel SC: The term regular local election refers to one where the position of Miranda was still mayor. Decision in MIRANDA vs. ABAYA was not yet one sought to be recalled is actually to be contested and filled by the promulgated. When she was vice mayor, the members of the PRA of electorate. Santiago City adopted a resolution calling for the recall of vice mayor. This resolution was submitted to Comelec. A special recall election was then ANGOBUNG vs. COMELEC scheduled. Meanwhile the decision in the Miranda vs. Abaya was The limitation on recall shall not apply if the official sought to be promulgated. Vice mayor Navarro assumed the mayorship upon the removal recalled is a Mayor and the forthcoming election is a barangay election. of Joel Miranda as mayor. What happens now to the special recall election for vice mayor? CLAUDIO vs. COMELEC The issue in this case is the interpretation of “within one year from SC: it has been rendered moot and academic. It is clear from the the date of assumption to office.” Claudio was elected as Mayor. His term resolution of the members of the preparatory center of Santiago City that started 30 June 1998. On 19 May 1999, members of the then Preparatory they wanted to recall her as vice-mayor. They got what they wanted. She is Recall Assembly convened on their plans to initiate a petition for recall no longer the Vice-mayor. She is now the Mayor. against Claudio. On 29 May 1999, majority of the members of the PRA adopted a resolution calling for the recall of Mayor Claudio. It was submitted 2 July 1999. The Comelec scheduled a special recall election. LOCAL GOVERNMENT UNITS/ AUTONOMOUS REGIONS/ ADMINISTRATIVE REGIONS SC: the resolution was validly adopted. The recall refers to the election itself wherein the voters themselves decide whether or not to retain the Article X, Section 1 – “The territorial and political subdivisions of the official concerned. It does not refer to the initiation proceedings. Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the SOCRATES vs. COMELEC Cordilleras as herein after provided.” On May 2001, the governor elected was Socrates. 2 July 2002, members of the Preparatory Recall Assembly adopted a resolution calling for AUTONOMOUS REGIONS the recall of Governor Socrates. 24 September 2002 there would be a recall Article X, Section 15 – “There shall be created autonomous regions election. On 15 July 2002, there was a barangay election. Most of the in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, members who signed the recall resolution lost in the election. Hence, it was municipalities, and geographical areas sharing common and distinctive contended that those who signed have no mandates because they lost in the historical and cultural heritage, economic and social structures, and other election. relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the SC: The contention is not correct, when the members adopted the Philippines.” resolution, their term of office have not yet expired. They were still de jure ADMINISTRATIVE REGIONS officers with no legal disqualification to participate.
Political Law Review Notes (Atty. Edwin Sandoval) 115 Prepared by: Atty Joan P. Gamboa Mere grouping of provinces for administrative purposes. They are 2. Body corporate not considered as political and territorial subdivision. There is a need for a DUAL FUNCTION OF LGU plebiscite to be a political subdivision. 1. Acting as body politic- governmental E.g. Region 1 2. Acting as a corporate entity representing the inhabitants- proprietary Q: Who has the power to create administrative regions? A: It has been traditionally exercised by the President in line with his TWO KINDS OF PROPERTY OF LGU supervisory powers over the LGUs. 1. Properties for public service – owned in the governmental capacity e.g. streets LIMBORA vs. MARGELIN 2. Patrimonial property – owned in their proprietary capacity e.g. north Concept of Local Autonomy cemetery Decentralization of Administration Decentralization of Power - Central government delegates administrative - AbdicationDACANAY of political Case power in favor of power to local government in order to LGU; free to chart itsProperty own destiny. owned for public service cannot be a subject of a contract. broaden the base of the government. CONDITIONS BEFORE A PROPERTY OWNED FOR PUBLIC SERVICE BE CONVERTED TO PATRIMONIAL PROPERTY 1. Continuous non use for public service Q: What kind of autonomy is contemplated by the Constitution? 2. Positive act from legislative branch withdrawing use of property A: Only decentralization of administration, as not to make the LGU sovereign from public service within the state. But with regards to autonomous region, decentralization of power which contemplates grant of political autonomy. MAKASIANO vs. COMELEC In this case, there was a positive act from Congress but the same is METROPOLITAN POLITICAL SUBDIVISION not enough because the two requirements must be met. Article X Section 11 – “The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in CREATION, DIVISION, MERGER, ABOLITION, OR SUBSTANTIAL section 10 hereof. The component cities and municipalities shall retain their ALTERATION OF BOUNDARY basic autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of the Metropolitan Authority that will Article X, Section 10 – “No province, city, municipality, or barangay thereby be created shall be limited to basic services requiring coordination. may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the Local Q: Is MMDA a special metropolitan political subdivision? Government Code and subject to approval by a majority of the votes cast in A: No! The creation of MMDA was not subject to a plebiscite. Also MMDA a plebiscite in the political units directly affected.” has no police or ordinance power. It is purely administrative. TWO REQUIREMENTS MMDA vs. BEL-AIR VILLAGE 1. It must be according to the criteria established in the LGC. In view of the traffic congestion, Bel-Air was compelled to open its village to the public. Criteria established under the LGC: Veritable indicators SC: This cannot be done. The MMDA is not a political unit; not a LGU; a. income nor a metropolitan political subdivision. The chairman was not elected by the b. population people. It is the LGU that possesses legislative and police power. c. land area DUAL NATURE OF LGU 1. Body politic
Political Law Review Notes (Atty. Edwin Sandoval) 116 Prepared by: Atty Joan P. Gamboa 2. Subject to the approval by a majority of the votes cast in a Article X, Section 6 – “ Local government units shall have a just share, as plebiscite in the political units directly affected. determined by law, in the national taxes which shall be automatically 3. SEMA vs COMELEC: Such creation must not conflict with any released to them.” provision in the constitution. 3. Equitable share in the proceeds of the utilization and development of national wealth. Q: Who shall vote? Article X, Section 7 –“ Local governments shall be entitled to an equitable share in the proceeds of the utilization and development of national wealth A: PADILLA vs. COMELEC within their respective areas, in the manner provided by law, including Voters are not limited to the voters of the new area but also the sharing the same with the inhabitants by way of direct benefits.” voters of the parent unit. Since the parent unit is also affected. MUNICIPALITY OF PARAÑAQUE vs. VM REALTY *The doctrine under Paredes has been abandoned by TAN vs. COMELEC, as reaffirmed in the Padilla vs. Comelec. The municipality expropriated a property to be converted into a Youth Center. The issue is: what is required in order for LGU to exercise its Q: In the income requirement, should the IRA be included in the eminent domain powers? computation? A: Yes. SC: Under Section 19, LGC, an ordinance is required. Section 19, LGC – “Eminent Domain – a local government unit, ALVAREZ vs. GUINGONA may through its chief executive and acting pursuant to an ordinance, Congress passed a law creating Santiago. The IRA was excluded. exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just SC: The basis of IRA is Article X, Sec 6. This is not self-executing. It is compensation, pursuant to the provisions of the Constitution and pertinent implemented in the LGC. laws. Provided, however, that the power of eminent domain may not be LGU’s are entitled to 40% of the total national taxes. The exercised unless a valid and definite offer has been previously made to the allocations in Sec 285 LGC- Allocations to Local Government Units.- The owner, and such offer was not accepted; Provided further that the local share of local government units in the internal revenue allotment shall be government unit may immediately take possession of the property upon the allocated in the following manner: filing of the expropriation proceedings and upon making a deposit with the a. Provinces – 23% proper court of at least fifteen percent (15%) of the fair market value of the b. Cities – 23% property based on the current tax declaration of the property to be c. Municipalities – 34% expropriated. Provided finally, that the amount to be paid for the expropriated d. Barangays – 20% property shall be determined by the proper court based on the fair market value at the time of the taking of the property.” Hence, IRAs are regular recurring income. It does not constitute as a mere transfer. It should be included in the computation. It is an income of Ordinance vs. Resolution the LGU. Ordinance Resolution -is a law - merely a declaration of sentiment or opinion of the MAIN SOURCES OF INCOME OF LGU’s lawmaking body - possesses a general; permanent character - temporary 1. Article X, Section 5 – “Each local government unit shall have the power to create its own sources of revenues and to levy taxes, - a third reading on its enactment is required - no reading in its enactment is required unless approved fees, and charges subject to such guidelines and limitations as the by majority of sanggunian members Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees and charges shall accrue exclusively to Q: Do LGUs have inherent powers? the local government.” A: None. They are pure creations of the legislative branch. 2. IRA
Political Law Review Notes (Atty. Edwin Sandoval) 117 Prepared by: Atty Joan P. Gamboa POWER TO TAX DEVELOPMENTS IN PUBLIC INTERNATIONAL LAW Of the three powers of the state, the power to tax is constitutionally delegated power to LGU, subject to guidelines as the Congress may provide By: Atty. Edwin Sandoval in accordance with Article X sec. 5. (1) An individual person as subject of international law POLICE POWER ; EMINENT DOMAIN They are delegated by the Congress not by the Constitution Subject of international law defined
*Police Power: Section 16, LGC – General Welfare – “Every local - an entity which has an international personality government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are - an entity has an international legal personality if it has essential to the promotion of the general welfare. Within their respective rights which may be directly enforced or it has territorial jurisdictions, local government units shall ensure and support, obligations for which it may be held directly among other things the preservation and enrichment of culture, promote accountable under international law. health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance ☻an entity although it has rights, but which can be economic prosperity and social justice, promote full employment among their enforced only through another medium is not a residents, maintain peace and order and preserve the comfort and subject. It is merely an object. convenience of their inhabitants.
*Eminent Domain: SEC. 19. Eminent Domain. - A local government unit may, through its chief executive and acting pursuant to an ordinance, * Two views: exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just a.) Traditional view – only states are subject of international law. compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be - only states have rights which may be directly enforced or exercised unless a valid and definite offer has been previously made to the have obligation for which it may be held directly accountable owner, and such offer was not accepted: Provided, further, That the local under international law. government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the b.) Modern view – not only states are proper subjects of proper court of at least fifteen percent (15%) of the fair market value of the international law. property based on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for the - international organizations (ie. United Nations) are also expropriated property shall be determined by the proper court, based on the proper subjects of international law. fair market value at the time of the taking of the property. - to a limited extent, the individual is now considered as proper subject of international law. ---- End---- Good Luck and God Bless Us all. Govt. of HK special administrative region (represented by Phil. DOJ) vs. Hon. Olalia
- the modern trend in public international law is the primacy place on the worth of the individual person and the sanctity of human rights.
Political Law Review Notes (Atty. Edwin Sandoval) 118 Prepared by: Atty Joan P. Gamboa - slowly, the recognition that the individual person may properly be 1. people a subject of international law is taking root. 2. Territory 3. Government - the vulnerable doctrine that the subject of international law are 4. Sovereignty or Independence or capacity to enter into limited only to states was dramatically eroded towards the second half of the relations(Montevideo Convention) past century. State Continuity Principle - for one, the Nurumberg and Tokyo trials after WWII resulted in the unprecedented spectacle of individual defendants prosecuted for acts -regardless of the changes in the 4 elements of a state, the state characterized as violations of the laws of war, crimes against continues to exist. As long as ALL the essential elements are present. peace, and crimes against humanity. e.g. Change in government - recently, under the Nurumberg principle, Serbian leaders have been prosecuted for war crimes and crimes against humanity committed in RECOGNITION as understood in International Law the former Yugoslavia. 1. Recognition of States- Recognition is a legal act, - these significant events show that the individual person is now a 2 Schools of Thought valid subject of international law. a. Constitutive School of Thought of Recognition- recognition of a state is a legal act for as long ☻ when the individuals were held directly accountable for their conditions of fact exist, it must be given recognition. It crimes, he is no longer regarded as a mere object of international law, he is not a matter of will to whether or not give a has become a subject of international law. recognition. For as long as conditions of fact exist, an entity may demand recognition and must be accorded ☻ the justification for assumption of jurisdiction over the individual recognition. is that crimes against international law are committed by men and not by b. Declaratory School- recognition of state is a political abstract entities. It is only by punishing individuals who commit such crimes act. It is a matter of policy and discretion whether to can the provisions of international law be enforced. give recognition or not. 2. Recognition of Governments- ☻ another instance when an individual is regarded as subjects of international law is in case of human rights violations. 2 TYPES:
- more often, an individual’s human rights is violated by his a. De Facto- recognition is provisional; limited to certain own government such that he cannot have a recourse against his own juridical transaction government. b. De Jure- recognition is more or less permanent; brings about full diplomatic relations - he may have recourse to the international human rights body. Minimum Tests for Recognition of Govt:
STATE- community of persons more or less numerous, permanently a. Objective Test- govt must be effective and stable. It is in occupying fixed portion of the surface of the earth, having a government possession of machinery of state with no substantial resistance organized for political ends, majority of the inhabitants render habitual to its authority. obedience. b. Subjective Test- willingness and ability of gov’t to comply with its international obligations. Elements:
Political Law Review Notes (Atty. Edwin Sandoval) 119 Prepared by: Atty Joan P. Gamboa Recognition to a state is deemed a recognition to government since b. Actual hostilities amounting to civil war within a single govt is an element of a state. Recognition of state is generally permanent state whereas recognition of govt it does not follow that there is recognition of state. Generally, recognition of states is irrevocable.
TOBAR or WILSON Doctrine Tañada vs Angara
-A policy of not giving recognition to a new government that was -ratification of GATT treaty which created the WTO. Purpose of brought about by means of revolution. Unless the duly elected GATT Treaty is free exchange of goods and services between and among representatives of the people have constitutionally reorganized the country. nations. Parties must do away with trade barriers like imposing import or export quotas to promote trade liberalization. ESTRADA DOCTRINE AUTO-LIMITATION of SOVEREIGNTY Mexican Foerign Minister. Reaction to Tobar doctrine. The policy of not giving any statement or recognition but of dealing of to whosoever is in -When we enter intro treaty with other states it is understood that we have to effective control of the state. A policy of not giving pronouncement of surrender some aspects of our power. Especially in view of pacta sunt recognition. servanda.
Legal Consequences of according recognition to governments: (2) Creation/establishment of International Criminal Court
1. Recognized state or government acquires the right of entering * ICC vs. ICJ diplomatic relations and make treaties with the recognizing state; ICJ ICC 2. It acquires right to sue before your courts; 3. It becomes immune from suits; - was created pursuant to the charter of the UN - was created by a separate treaty known as the Rome 4. Recognized government acquires right to demand and itself. statute. received possession of property situated within jurisdiction of the recognizing state which formerly belong to former govt; and - it is the principal judicial organ of the UN. - it is a separate body. 5. Recognition validates the acts and decrees of recognizing state so that courts of law of the recognizing state is precluded - only states may be parties to disputes in - international criminal court will try persons/individuals, from passing judgment on the legality of the acts of recognized international court of justice. not states, who commit the most serious crimes of states. international concern.
Act of State Doctrine- the courts of law of one state are not competent to pass judgment of an act of another state committed in its territory. * Jurisdiction of the International Criminal Court over the following offenses:
3. Recognition of Belligerency a.) genocide b.) crimes against humanity This may be understood in 2 senses: c.) war crimes d.) crimes of aggression a. State of war between 2 or more states-states at war ☻ common characteristics of the four – they are the most serious crimes are called belligerents; of international concern.
Political Law Review Notes (Atty. Edwin Sandoval) 120 Prepared by: Atty Joan P. Gamboa ☻ terrorism is not included. - this gives primacy to national jurisdiction. If the national court has already assumed jurisdiction, icc can no longer assume Genocide – the deliberate destruction or annihilation of a racial, jurisdiction. ethnic or religious group. - unless, the proceeding in the national court is: Ex. Holocaust during the WWII – deliberate policy of Hitler to eliminate all the jews in the world. a) for the purpose of shielding the person concerned from liability; or
b) not conducted independently or impartially.
* Organization of International Criminal Court
- 18 judges (3) International Human Rights
- subject to increase in number by authority of Article 36 of Human Rights its statute - those liberties, immunities, and benefits which all human - organized into: a) appeal division – president and four beings should be able to claim “as of right” of the other judges society in which they live by accepted contemporary values. b) trial division – three judges - those fundamental and inalienable rights which are c) pre-trial division – three judges essential for life as a human being.
- the judicial functions are carried out by judges in chambers - pertain to rights of an individual as a human being which - the workload of the court may require more than one trial are recognized by the international community as a chamber or pre-trial chamber whole through their protection and promotion under contemporary international law. - judges of Appeals chamber shall serve only in that division International Law on Human Rights
- other organs of the court: a) presidency - the law which deals with the protection of individuals and groups against violations by government of their internationally b) office of the prosecutor guaranteed rights, and with the promotion of these rights. c) registry (office of clerk of court) * Classification of Human Rights/ Three Generation of Human Rights: Principle of Complementarity a.) 1st generation of human rights – consisting of civil and political rights - the international criminal court shall be complementary to national criminal jurisdiction. b.) 2nd generation of human rights – consisting of economic, social and cultural rights.
Political Law Review Notes (Atty. Edwin Sandoval) 121 Prepared by: Atty Joan P. Gamboa c.) 3rd generation of human rights – consisting of right to development, c) general principles of law recognized by right to peace and right to environment. civilized nations
* Human rights are either: 2) Secondary
a) individual d) judicial decisions
b) collective – right to self determination of people; the e) teachings of authoritative publicists of various permanent sovereignty over natural nations. resources.
International Bill of Rights ☻ Universal Declaration of Human Rights, while not a treaty, has - the term used to designate the three main instrument of evolved as an international custom, a primary source of international law. human rights in the international plane, which are: ☻ The Philippines commitment to uphold the fundamental human a) the universal declaration of human rights rights as well as the worth and dignity of every person
b) the international covenant on economic, social - commitment is enshrined in Section 2, Article II of our & cultural rights Constitution.
c) the international covenant on civil & political - it provides: “The state values the dignity of every human rights person and guarantees full respect for human rights.” ☻ Recognition and importance given to Human Rights by international organizations and states - The Philippines has the responsibility of protecting and promoting the right of every person to liberty and due - on December 10, 1948, the UN General Assembly process, ensuring that those detained or arrested adopted the Universal Declaration of Human Rights in which can participate in the proceedings before a court, to the right to life, liberty and all other fundamental rights of every person were enable it to decide without delay or the legality of the detention and proclaimed. order their release.
- while not a treaty, the principles contained in the said Govt. of HK special administrative region (represented by Phil. DOJ) declaration are now recognized as customarily binding upon the members of vs. Hon. Olalia the international community. - the Philippine authorities are under obligation to make available to * Sources of International Law: every person under detention such remedies which safeguard their fundamental right to liberty. 1) Primary - these remedies include the right to be admitted to bail a) treaties or international conventions - while this court in the Purganan case, limited the exercise of the b) international custom right to bail to criminal proceedings, however, in the light of various international treaties giving recognition and protection to human rights,
Political Law Review Notes (Atty. Edwin Sandoval) 122 Prepared by: Atty Joan P. Gamboa particularly the right to life and liberty, a re-examination of this Court’s ruling - second Geneva convention in the Purganan case is in order. - applies to armed forces ate sea (navy) (4) International Humanitarian Law (IHL) c) Geneva Convention Relative to the Treatment of - used to be called laws of war/ laws of armed conflict (which may Prisoners of War of August 12, 1949 refer to both international armed conflict and internal armed conflict) - third Geneva convention
- that branch of public international law which governs armed - deals with prisoners of war conflict to the end that the use of violence is limited and that human suffering is mitigated or reduced by regulating or limiting the means of military d) Geneva Convention to the Protection of the Civilian operations and by protecting persons who do not or no longer participate in Person in time of war of August 12, 1949 hostilities. - fourth Geneva convention * Three Grand Divisions of International Law: - applies to civilians a) Laws of Peace – govern relations between and among nations under normal circumstances. 2.) 1977 Additional Protocols – supplement the Geneva convention b) Laws of War – govern relations between and among belligerent states (states at war) during wartime. a) Protocol Additional to Geneva Conventions of August 12, 1949 and Relating to the Protection of Victims of International Armed Conflicts c) Laws of Neutrality – govern the relations of third states not parties to the - Protocol I of June 8, 1977 war with any of the belligerent states. (but the relations of third parties inter se shall still be governed by the laws of peace) b) Protocol Additional to Geneva Conventions of August 12, 1949 and Relating to the Protection of Victims of * Principal legal documents of IHL are: Non-International Armed Conflicts
1.) Geneva Convention of 1949 – define fundamental rights for - Protocol II of June 8, 1977 combatants removed from the fighting due to injury, illness or capture and for civilians. ☻ IHL encompasses both humanitarian principles and international treaties that seek to save lives and alleviate suffering of combatants a) Geneva Convention for the Amelioration of the and non-combatants during armed conflict. It is not concerned with the Condition of the Wounded and Sick in Armed Forces in lawfulness or unlawfulness of armed conflicts. the field of August 12, 1949 (LAND WARFARE) * International Humanitarian Law vs. Human Rights Law - first Geneva convention IHL HRL - applies to armed forces in the field (land) - applies in situations of armed conflict - protects individuals at all times (in war and peace b) Geneva Convention for the Amelioration of the alike) Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of Aug 12, 1949 (NAVAL WARFARE) - no derogation from certain rights are permitted - may permit of some derogation from certain rights
Political Law Review Notes (Atty. Edwin Sandoval) 123 Prepared by: Atty Joan P. Gamboa because it was conceived for emergency situations in situations of public emergency iii) they carry arms openly. namely armed conflict iv) they observe the laws and customs of war in the conduct of - aims to protect people who do not or are no longer - tailored primarily for peace time;their applyhostilities. to everyone taking part in hostilities c) Levee En Masse – civilians of an occupied territories who upon approach of the enemy forces and without ☻ their principal goal is to protecthaving individuals from time to organize, ☻ the rules embodied in IHL impose duties on all arbitrary behavior by their ownspontaneously government; take up arms to resist the parties to a conflict invading forces. ☻ HRL does not deal with conduct of hostilities. - once captured, they are considered as combatants (not - provides for specific mechanisms that help its - human rights in implementing mechanisms are civilians) and will be treated as a prisoner of war. implementation complex and includes regional systems. d) Officers and Crew of Merchant marine vessels who forcibly * Basic Rules of IHL: resist attack – once captured, they are considered as combatants and (1.) Attacks must be limited to combatants and military targets will be treated as prisoners of war.
Combatants – persons taking direct part in hostilities or Others: members of the armed forces. Non-Privileged Combatants – although they have rights Military targets – combatants and objects which by their (limited/minimal), when captured, are not entitled nature, location, purpose or use make an effective contribution to to be treated as prisoners of war. military action and whose destruction offers a definite military advantage. - they do not form part of the regular or irregular forces but actually takes part directly or indirectly in the hostilities as: ☻ Civilians shall not be attacked! a) spies ☻ In case of doubt, a person shall be considered a civilian. b) mercenaries – “soldiers for a fee”/ soldiers of fortune * Four Categories of Combatants: ☻ A soldier, not wearing uniform during hostilities, runs a) Regular Forces – members of the armed forces except medical the risk of being treated as a spy; thus, not to be treated personnel and chaplain. as a prisoner of war. b) Irregular Forces – consists of the guerilla and the militia BAR 1993: Reden, Jolan and Andy, Filipino tourists, were in Bosnia-Herzegovina when hostilities erupted between the Serbs and the - they are treated as lawful combatants, provided: Moslems. Penniless and caught in the crossfire, Reden, Jolan and Andy, being retired generals, offered their services to the Moslems i) they must be under the command of an officer responsible for the for a handsome salary, which offer was accepted. When the Serbian conduct of his men. National Guard approached Sarajero, the Moslem civilian population spontaneously took up arms to resist the invading troops. Not finding ii) they wear uniforms or insignia recognizable from a distance. time to organize, the Moslems wore armbands to identify themselves, vowing to observe the laws and customs of war. The three Filipinos
Political Law Review Notes (Atty. Edwin Sandoval) 124 Prepared by: Atty Joan P. Gamboa fought side by side with the Moslems. The Serbs prevailed resulting - it is prohibited to order or threaten that there in the capture of Reden, Jolan and Andy, and part of the civilian fighting shall be no survivors. (No force. Quarter’s Order – “take no prisoners, kill all”)
1) Are Reden, Jolan and Andy considered combatants thus (3) Civilians, wounded combatants and prisoners should be entitled to treatment as prisoners of war? spared , protected and treated humanely.
NO. Reden, Jolan and Andy are not combatants because Hors De Combat – literally means “out of combat” they are mercenaries. They offered their services to the Moslems for a handsome salary. They are soldiers of fortune. They are not - disabled soldiers members of the armed forces but took part in the hostilities. They are non- privileged combatants and are not entitled to treatment as prisoners of war. (4) Military and civilian medical personnel and facilities (hospitals, clinics, ambulances, etc.) must be respected and protected and must be 2) Are the captured civilians likewise prisoners of war? granted all available help for the performances of their duties.
YES. The captured civilians are prisoners of war. They fall * Concept of Belligerency under the category of levee en masse. When the Serbian National Guard approached Sarjero, the Moslem civilian population spontaneously - may be understood in two senses: took up arms and resist the invading troops without having time to organize. The Moslems wore armbands to identify themselves, vowing to a) state of war between two or more states observe the laws and customs of war. - the states at war are referred to as “belligerent states” or simply ☻ Civilian objects may not be attacked. “belligerents”
-using civilians to shield military targets is prohibited - refers to international armed conflict (in this sense)
- it is prohibited for combatants to pose as civilians b) actual hostilities amounting to a civil war within a state
- starvation of civilians as a method of combat is prohibited - there is just one single state here
- it is prohibited to attack objects that are indispensable to - refers to non-international armed conflict or simply the survival of civilian population internal armed conflict
- it is prohibited to attack dams, dykes, nuclear power ☻ In both instances, IHL applies. plants, if such attack may cause severe losses among the civilian population.
☻ Belligerency in the sense of actual hostilities amounting to a civil war within a state presupposes the (2.) Attacks or weapons which indiscriminately strike civilian and existence of rebel movement within a state. military objects and persons. And which cause excessive injury or suffering are prohibited.
☻ Specific weapons are prohibited. * Stages of Development of a Rebel Movement within a State
Political Law Review Notes (Atty. Edwin Sandoval) 125 Prepared by: Atty Joan P. Gamboa 1) Stage of Insurgency - earlier stage/ less developed stage - willingness on their part to observe
- there is not much international complication as it is purely a matter of * Two Functions of the Government: municipal law. 1) Constituent – constitute the very bends of society 2) Stage of Belligerency - higher stage of rebellion, when rebellion develops and becomes widespread Ex. Administration of justice
- already a matter of international law as there are now international Maintenance of peace and order implications. Fixing the relations between husband and wife\ - when the rebels attain the higher stage, in effect, you are admitting that within a single state, there are now two 2) Ministrant competing governments – legitimate government and rebel government. ☻ IHL will not apply to international conflict but also to non-international - conduct of hostilities should now be governed by the laws and customs of conflict. war (5.) The Law on Treaties - IHL will come into play Jus Cogens Norm - captured rebels are considered combatants and must be treated as prisoners of war (they have rights) - a peremptory/mandatory norm of general international law - third states are to observe strict neutrality in their dealings either with the rebel government or legitimate government - a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can ☻ Non-observance of IHL could lead to sanctions. be modified only by a subsequent norm of general international law having the same character. * Minimum Conditions Before Rebels may Attain the Status of Belligerency-COWS - recognized in the Vienna Convention on the law of treaties as a ground for invalidity and termination of treaties when they are in 1) if the rebels were able to organize a civil government that shall conflict with such norms. have control and direction over the armed struggle they are wagering against the legitimate government. ☻ peremptory means mandatory.
2) if the rebels were able to occupy a substantial portion of the * Examples of norms considered as jus cogens in character national territory. a) the prohibition against the use of force under the UN charter - occupation must be more or less permanent, such that to be able b) the law on genocide to dislodge the rebels, the legitimate the government must use superior force c) the principle of self determination d) crimes against humanity 3) seriousness of the struggle, such that it must be so widespread e) prohibition against slavery and slave trade thereby leaving no doubt as to its possible outcome f) piracy
4) if the rebels were able to observe the laws and customs of war
Political Law Review Notes (Atty. Edwin Sandoval) 126 Prepared by: Atty Joan P. Gamboa ☻ A treaty entered into by two states agreeing to invade another state 1) Negotiation- undertaken directly by the heads of states but he now would have to be invalidated as it runs in conflict with a jus cogens usually assigns this task to his authorized representatives. norm – the prohibition against the use of force under the UN charter. 2) Signature - when the negotiations finally decide on the terms of the Obligation Erga Omnes treaty, the same opened for signature
- it is an obligation of every state towards the international community as a - this step is primarily intended as a means of authenticating the instrument whole. and for the purpose of symbolizing the good faith of the parties but it does not indicate the final consent of the state in cases where ratification of ☻ All states have a legal interest for its compliance, and thus all states are the treaty is required. entitled to invoke responsibility for breach of such an obligation. 3) Ratification - power to ratify is vested in the President, subject to the * Examples of obligations erga omnes concurrence of the state
- outlawing acts of aggression - the role of the senate, however, is only limited to giving or withholding its consent, or concurrence to the ratification. - outlawing acts of genocide - this is the formal act by which a state confirms and accepts the CUSTOM vs USAGE provisions of a treaty concluded by its representatives.
Both involve habitual, repetitious performance of an act over considerable 4) Exchange of the Instrument- signifies the effectivity of the treaty unless period of time; a different date has been agreed upon by the parties
Custom can be a source of Internationally accepted principle whereas a ☻ Where ratification is dispensed with, and no effectivity clause is embodied usage cannot. in a treaty, the instrument is deemed effective upon its signature.
Opinio Juris- the conviction that it is obligatory and right. ☻ Executive Agreements are equally binding obligations upon nations
If an act that is habitual, repetitious and has conviction that it is obligatory is - in international law, there is no difference between treaties and executive a CUSTOM. Absent opinion juris, what is involve is Usage. agreements in their binding effect upon states concerned, as long as the functionaries have remained within their powers. General Principles of Law observed by civilized nations: (6.) Extradition- regarded as a form of jurisdictional assistance in 1. estoppel; international law 2. res alios acta 3. prescription; 4. stare decisis(“de cheeses”) a general principle of law but is not recognized in international law because decisions in internatiol - resorted to by states nowadays to combat transnational crimes court are binding only between parties. (crimes which defy national borders – drug cases, plunder, etc)
☻ Extradition may not be effected unilaterally.
* Treaty Making Process - there are always two states involved in an extradition
Political Law Review Notes (Atty. Edwin Sandoval) 127 Prepared by: Atty Joan P. Gamboa a) requesting state – the state where the offenses was alleged to have - Mr. Wright is an Australian who had been staying in the been committed Philippines for a long time already. b) surrendering state – the state where the fugitive sought refuge - when he first came over, there was no yet extradition treaty between the Philippines and Australia ☻ One of the characteristics or our criminal law is territoriality - it was only much later when the two states entered into an - we can only enforce our criminal laws within our jurisdiction. extradition treaty
* Fundamental Principles Governing Extradition - when Australian government learned that Mr. Wright was in the Philippines, it requested that Mr. Wright be extradited to Australia to face trial 1) a state is under no legal obligation under international law to surrender a for his alleged criminal offense therein. fugitive from justice absent an extradition treaty. * under PD 1069 (Extradition Law), jurisdiction over 2) religious and political offenses are generally not extraditable. extradition cases is with the RTC.
Attentat Clause – a provision in an extradition treaty which states - during the extradition proceeding in the Makati RTC, Mr. Wright that the murder or assassination of the head of a state or any questioned the entire proceedings on the ground that it violates his right member of his family will not be considered a political offense and against ex post facto laws. therefore extraditable. SC: The prohibition against ex post facto laws under Section 3) a person extradited may only be charged and prosecuted in the 22, Article III (Bill of Rights) applies only to criminal or penal laws. An requesting state for an offense which was the basis of the request for his extradition treaty is neither a criminal nor a penal law. It is a treaty. It extradition (Principle of Specialty) may be given retroactive effect.
4) unless otherwise stipulated in the treaty, the offense must have been Secretary of Justice vs. Hon. Ralph Lantion committed in the territory of the requesting state. - Govt. of US requested the extradition of Mark Jimenez coursed * Two Types of Extradition Treaty through the Department of Foreign Affairs.
1) Old type – contains a list of extraditable offenses - pursuant to PD 1069, the DFA transmitted the request to the DOJ for initial evaluation 2) Modern type – does not contain a list of extraditable offenses - when Mark Jimenez learned of the request made by the US govt - also called a “no-list treaty” for his extradition, he now requested the DOJ to furnish him copies of the basic request for his extradition and the supporting documents and - it merely provides that the offense must be punishable in both states evidence so that allegedly he can prepare for his defense.
- it is not even required that the designation of the offense be the same in -the DOJ refused both jurisdictions. SC: (decided January 18, 2000 by a 9-6 vote) Indeed there - follows the principle of double criminality was denial of due process. How can you expect him to prepare for his defense if he will not be furnished copies of the documents he was Wright vs. CA requesting. An extradition proceeding is similar to a criminal proceeding.
Political Law Review Notes (Atty. Edwin Sandoval) 128 Prepared by: Atty Joan P. Gamboa Likewise, the initial evaluation stage in an extradition proceeding is also * Distinctions between extradition proceedings and criminal similar to a preliminary investigation in a criminal proceeding. proceedings
* Strong dissenting opinion 1) the process of extradition does not involve the determination of the guilt or innocence of an accused. - this is no longer a case of due process; it is now a case of overdue process - his guilt or innocence will be adjudged in the court of the - what happens now to our obligations under the US-RP Extradition state where he will be extradited Treaty. - hence, as a rule, constitutional rights that are only SC: (decided October 17, 2000 by a 9-6 vote) reconsidered; relevant to determine the guilt or innocence of an accused cannot be controlling doctrine!!! invoked by an extraditee especially by one whose extradition papers are still undergoing evaluation. - an extradition proceeding is sui generis 2) an extradition proceeding is summary in nature while criminal - it is not a criminal proceeding which will call into operation all the proceedings involve a full blown trial rights of an accused as guaranteed by the Bill of Rights. 3) with respect to application of rules of evidence, criminal - presumption of innocence does not apply proceedings requires strict adherence to the rules of evidence while extradition proceedings follow the liberal interpretation rule. - as an extradition proceeding is not criminal in character and the evaluation stage in an extradition proceeding is not akin to a preliminary 4) in terms of quantum of evidence to be satisfied, criminal investigation, the due process safeguards in the latter may not necessarily proceedings requires proof beyond reasonable doubt for conviction while a apply during the initial evaluation stage in an extradition proceeding. fugitive may be ordered extradited upon showing of the existence of a prima facie case (which is even lower than substantial evidence) - this we hold for the procedural due process required by a given set of circumstances must begin with a determination of the precise nature 5) in a criminal proceeding, judgment becomes executory after of the government function involved as well as the private interest that has having attained finality while in an extrajudicial proceeding, our courts may been affected by governmental action. adjudge an individual to be extraditable but the President has the final discretion to extradite him. - the concept of due process is flexible for not all situations calling for procedural safeguards call for the same kind of procedure. * Judicial Approaches to Resolve Questions in Constitutional Law * Mark Jimenez is not entitled to the documents he was requesting only at the early stage of the proceeding. 1) Dangerous Tendency Rule
- eventually he will be furnished those documents at the time - for the state to justify the impairment or suppression of individual of filing of the case before the court freedoms, it is enough that the state is able to point out a substantive evil which the state is duty bound to prevent or suppress. - the court must consider the more compelling state interest - for as long as the speech or the expression has that dangerous - the court applied the balancing of interest test in resolving the tendency of producing the substantive evil which the state is duty bound to issue prevent or suppress, impairment of fundamental freedoms will be justified.
Political Law Review Notes (Atty. Edwin Sandoval) 129 Prepared by: Atty Joan P. Gamboa - this rule leans heavily in favor of state power as against - dispersal of the rally and arrest of the speakers fundamental freedoms. will be unjustified
- abandoned!!!
Ex. Speech – “ibagsak ang bulok na gobyerno! Magrebolusyon - the state may be able to show the substantive tayo!” evil which it is duty bound to suppress or prevent but such substantive evil is not of a clear and - the speech had a dangerous tendency of producing the present danger type. substantive evil which the state is duty bound to prevent or suppress – the resulting revolution, death, injuries, chaos, were the substantive evils, even if it did not take place. * BP 880 – Public Assembly Act - the arrest and dispersal of the rally will be justified under this rule. - under which, the orientation/policy to be observed by police officers in dealing with rallies and even in the dispersal thereof is maximum tolerance 2) Clear and Present Danger Rule (the highest degree of restraint)
- formulated by Justice Holmes (backed up by Justice Brandeis)
- this is the more libertarian rule - we therefore live in the era of clear and present danger rule
- for the state to be justified in the curtailment or suppression of fundamental freedoms, it is not Bayan vs. Ermita enough that the state is able to point out the substantive evil which the state is duty bound to prevent or suppress, - if the CPR (Calibrated Pre-Emptive Response) policy adopted by but the substantive evil must be of a clear and present the Arroyo administration in dealing with rallies and mass actions means no danger type. more than maximum tolerance as defined by BP 880, then it become a superfluity (no need for that; the policy has already been laid down by law).
- this rule leans heavily in favor of the fundamental freedoms as against state power. - however, if the CPR policy means more than maximum tolerance as defined by BP 880, then it becomes unconstitutional.
Ex. A group of demonstrators, unarmed, numbering 10,000 participated ☻classic example of Justice Holmes when he formulated the clear in by students, urban poor dwellers and religious and present danger test members shouting “ibagsak ang gobyerno!” - when you are inside a movie house and you shouted, “fire, fire” naturally you will get arrested.
Political Law Review Notes (Atty. Edwin Sandoval) 130 Prepared by: Atty Joan P. Gamboa SC: Mayor Bagatsing is wrong. Any act of the government alleged to have infringed upon fundamental freedoms comes to court with - when you are in the middle of an open field and you a heavy presumption of unconstitutionality. So that the burden now is on the shouted “fire, fire!”, you will not be arrested. part of the government to justify the act.
* The presumption now is that any act of the government alleged to have infringed upon or impaired fundamental freedom, such an act or measure comes to court with a heavy presumption of unconstitutionality. 3) Balancing of Interest Approach
- so that the burden of justifying the act lies on the part of - two equally desirable interest of society are colliding but the government. these interests are equally desirable to the society.
* Two Requirements for the Government to Justify the Act Sec. of Justice vs. Hon. Ralph Lantion
1) by some compelling interest - there are two compelling state interests:
- the government must be able to show a compelling a) the interest in the observance of due process interest that will justify the impairment. b) the interest to comply with our treaty obligation.
2) the measure must be narrowly drawn to preclude abuses SC: The more compelling state interest must be upheld to - it must not be overbroad, does not suffer from vice of prevent the escape of potential extraditee which can be precipitated by vagueness and it is not unreasonable (doctrine of premature information of the basis for the request of his extradition. overbreadth and void for vagueness doctrine). - especially since, in extradition, an extraditee is always presumed to be a flight risk
JBL Reyes vs. Bagatsing - under PD 1069, the moment the extradition - Anti-Base Coalition applied for a permit to hold a rally in front of case is filed in court, the judge will the US embassy. immediately issue a warrant for his arrest.
- Mayor Bagatsing denied on the ground that it might be infiltrated - only when he is in custody of law will he be which might cause violence. entitled to a copy of the documents.
Political Law Review Notes (Atty. Edwin Sandoval) 131 Prepared by: Atty Joan P. Gamboa - this is but a soft restraint on his right to due - under section 2 of the Bill of Rights, prior notice and process on that stage hearing was never a requirement for the issuance of a warrant of arrest
- there is no denial of due process for as long as fundamental fairness is observed. - on the contrary, the provision says after examination under oath of the complainant and the witnesses he may produce, not of the extraditee.
Government of USA vs. Judge Purganan
1) before a judge issues a warrant of arrest against a potential extraditee, 2) during the pendency of an extradition proceeding, a potential extraditee is prior notice and hearing is not required on two basis: not entitled to post bail; no bail rule applies.
- under section 13 of the Bill of Rights and Rule 114 of the Rules of Court on bail, the word used was “conviction” a) first, statutory basis
- under section 6 of PD 1069, once a petition for extradition is filed with the RTC, the judge will - hence, bail is only available to one who is arrested and detained immediately issue a warrant of arrest. for violation of Philippine criminal laws.
- the word used was “immediately” - it does not apply in extradition cases where the innocence or the guilt of an accused is not in issue.
- this word would be rendered nugatory if the issuance of warrant of arrest is set for hearing. - moreover, the right to bail flows from the presumption of innocence in favor of an accused in a criminal case.
- however, by way of an exception, bail may be granted for as long - arrest subsequent to a hearing is no longer immediate. as the following conditions concur: a) that once granted bail, the extraditee will not be a flight risk or a danger to the community; and - the law could not have contemplated the word “immediately” as a mere superfluity but as a means of b) that there exists a special humanitarian and compelling inferring a sense of urgency. circumstances that will justify the grant of bail - the burden of proving these two requirements lies on the part of the applicant by clear and convincing evidence. b) second, constitutional basis
Political Law Review Notes (Atty. Edwin Sandoval) 132 Prepared by: Atty Joan P. Gamboa Govt. of HK special administrative region (represented by Phil. DOJ) * Two Doctrines vs. Judge Olalia (En Banc) 1) Doctrine of Incorporation - the ruling in Purganan should be re-examined - the generally accepted principles of international law - these remedies should include the right to bail automatically become part of their laws and will no longer require an enabling act from the legislative body. - in light of the various international treaties giving recognition and protection to human rights particularly the right to life and liberty, a re- - the Philippines subscribe to this doctrine under section 2, examination of the court’s ruling in Purganan is in order article II of the Constitution, which provides that, “the Philippines adopts the generally accepted principles of international law as part of the law - especially the trend in international law where an individual is not of the land.” merely considered as an object but rather a subject of international law and also in view of the Universal Declaration of Human Rights and the Covenant 2) Doctrine of Transformation of Civil and Political Rights where the Philippines is a signatory and because of our commitment to human rights under the Constitution. - the generally accepted principles of international law does not automatically become part of their laws and will still require an - yet, for an extraditee to be allowed to post bail, he ought still the enabling act from the legislative body. two requirements:
a) that once granted bail, he will not be a flight risk or a danger to the community; and
b) that there exist a special humanitarian and compelling * Examples of generally accepted principles of international law circumstance that will justify the grant of bail to him. Pacta Sunt Servanda (treaties must be observed in good faith) - the burden of proving these requirements still lies on the part of the applicant by clear and convincing evidence. - under the pacta sunt servanda rule, a state may not advance the provisions of its own Constitution, as well as that of its laws in order not to Clear and Convincing Evidence comply with its obligations under a treaty.
- a new standard of evidence adopted by the court lower than proof - a state must make the necessary modifications to its laws in order beyond reasonable doubt required in a criminal case but higher than to comply with its obligations in a treaty. preponderance of evidence required in civil case. Doctrine of State Immunity from Suit - a state may not be sued - this is applied only in application for bail in extradition without its consent proceeding Doctrine of Sovereign Equality of all States - in extradition proceedings, mere prima facie evidence is required. - par in parem non habet imperium FUNDAMENTALS OF INTERNATIONAL LAW - all states are sovereign equals; an equal may not Relations between International Law and Municipal Law from the view assume jurisdiction over another equal. of practice Rebus Sic Stantibus (things remaining as they are)
Political Law Review Notes (Atty. Edwin Sandoval) 133 Prepared by: Atty Joan P. Gamboa - opposite of pacta sunt servanda
Special Thanks To: ATTY. JOAN LOU P. GAMBOA For sharing her handwritten lecture notes in Political Law Review under Atty. Edwin Sandoval and for her generous support throughout the years to UST Law Batch 2009!!!
Political Law Review Notes (Atty. Edwin Sandoval) 134 Prepared by: Atty Joan P. Gamboa