Kwin Transcripts - Consti - Until June 27 Discussion

CONSTITUTIONAL LAW
Kwin
May 30, 2011 DEFINITION OF POLITICAL LAW It is a branch of public law that deals with the organization and the relation of the different governmental lines and how they relate with each other and the powers they are supposed to exercise and the extent of exercise of the powers as well as defining the relationship between the government and the governed, or the states with other sovereign states. SCOPE OF POLITICAL LAW So in terms of scope, it is broader than other laws that relates to the government. CONSTITUTIONAL LAW is just a branch of political law. It deals with how to balance with authority on one hand and rights of individuals. Because this pertains to government limiting the rights of individuals as recognized by bill of rights and at the same time these rights put a limitation on the powers of the state; then constitutional law must be part of political law. You have other braches like ADMINISTRATIVE LAW that deals on how government officials run the government and the extent of the exercise of the powers on how one branch or one department, bureau or agency or instrumentality relates with each other. That is administrative law that is why after consti 1 and 2, you will also be reviewing political law as part of political law review. You also have ELECTION LAWS which pertain to the election of the representatives of the government by the people, the limitation on the conduct of election. It has something to do with the government because without election, there cannot be a government or officials in the government. You also have LAW ON PUBLIC OFFICERS, LAW ON PUBLIC CORPORATIONS and PUBLIC INTERNATIONAL LAW These are the different parts of political law. SOURCES OF POLITICAL LAW What are the sources of political law? What are the basis of your understanding on the powers of the government and the limitations on the exercise of the powers? Primarily the source is the 1987 CONSTITUTION. Aside from that, you also have the other laws. Because you will always have to refer to the other laws which each constitution has evolved. Or from which the constitution has evolved, like 1987 Constitution, which makes reference to the 1935 Constitution, which was promulgated pursuant to the organic laws passed by congress, Tydings Mcduffi Law, Jones Law of 1960, Philippine Bill on 1902, McKinleys instructions on school amendment. All of these were passed because of Treaty of Paris, the instrument that formally transferred the powers from Spain to the US. These are the sources of your political laws. So when you go into the understanding of your provisions of the constitution, it cannot be avoided that we make reference to those laws to be able to fully understand why such a decision of the SC had been reached. Other than those laws passed by the US, we also make reference on the DECISIONS OF THE SC, that may have changed the implication or the meaning of the law. Example. The patrimony is limited only to natural resources before. Now, because of the decision of SC, even a building that is not belong to natural resources is considered as part of national patrimony like Manila Hotel. So it is reserved only to Filipino citizens. It cannot be sold to foreigners. If theres any, priority should be given to Filipinos because it is part of the patrimony where the provisions of the constitution provided that it should be reserved or priority should be given to Filipino citizen.
We will be tackling on the study of the government, particularly the REPUBLIC OF THE Philippines REPRESENTED BY THE THREE BRANCHES OF THE GOVERNMENT. Executive, legislative and judiciary, in the national and local governments in relation to the national government. We will also tackle on the study of the other agencies of the government independent of the three braches such as the CIVIL SERVICE CMMISSION, COA, COMELEC and OFFICE OF THE OMBUDSMAN on the accountability of public officials. Then we will be discussing on the BILL OF RIGHTS. We have those topics.
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CONSTITUTIONAL LAW
Kwin
CONSTITUTION Primary source of understanding of political law is the 1987 Constitution. DEFINITION What is a CONSTITUTION? It is the highest fundamental law of the land, upon which all powers are founded, that would limit, divide, assign the exercise f the powers. DIFFERENT PARTS CONSTITUTION 1. constitution of government 2. constitution of liberty 3. constitution of sovereignty Preamble does not form an integral part of the constitution. We have it because we copied the preamble of the US. But it is neither a source of obligation or a source of rights of people. CONSTITUTION OF GOVERNMENT. This provides for the structure and the powers of government and the limitations of on the exercise of powers. You have the Bill of Rights as provision on liberty. And then we have sovereignty which refers to the power of the people to amend or revise the constitution or the representatives. DIFFERENT KINDS OF CONSTITUTION As to origin: 1. ENACTED/CONVENTIONAL CONSTITUTION -enacted by a Constitutional Convention. 2. evolutionary / cumulative constitution -a product of history 3. fiat / granted constitution -made by one sovereign for another As to form: 1. WRITTEN CONSTITUTION -not because it is in writing -all other sources are found in one single instrument -CHARACTERISTICS: a. broad b. brief c. definite 2. not written constitution -most sources are written are written but are scattered -some parts are not written -ex. customs and traditions As to the manner of changing the constitution: 1. RIGID CONSTITUTION -difficult to change. Not flexible -must follow a certain procedure (STAGES): a. proposal b. submission c. ratification A. PROPOSOAL -KINDS OF CHANGES a. revision (overhaul/change philosophy or principles which constitution is founded) b. amendment (not change the whole philosophy) Q: Is the change of government a revision or an amendment? Ex. change from presidential to parliamentary? A: REVISION. Because you totally change the philosophy to be adopted as basis of the enforcement of the provisions of the constitution. Q: If you change the term of office of the president, is that a revision or an amendment? A: AMENDMENT -WHO MAY PROPOSE: 1. Congress -WHAT KIND OF PROPOSAL: a. revision b. amendment -HOW: At its discretion, congress may: a. act as ConCon Constituent Assembly for votes b. call for a Constitutional Convention for 2/3 votes c. if they are undecided, refer the question to a referendum for majority votes, separately (all members of congress) 2. People -WHAT KIND OF PROPOSAL a. amendment ONLY -HOW a. initiative on amendments of the constitution -VOTERS You need 12% of the total registered voters wherein each legislative district is represented by at least 3% of its total registered voters. These two must concur with each other OW the proposal is invalid. -SIGNATURE The petition itself must be signed by the voters. IOW you cannot only attach a blank papers to the petition. (Lambino vs Comelec). This is the reason why the petition for the
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change of system of government from presidential to parliamentary was dismissed by SC and confirmed by SC because it was improperly done. So if you were to propose an amendment imitated by the people, they must sign the petition itself. CONSTITUTION VS STATUTE Both provide for how government should be managed or provide for powers or limitation or the exercise of he powers or define relationship between the government and governed. The difference is that, the CONSTITUTION is the highest law of the land. So if it is n conflict of the statute passed by congress, it should always prevail as the statute is based on the constitution. The constitution provides for the basic principles. The STATUTE provides for the details because the constitution cannot be detailed that might result to the misunderstanding of the meaning of the provisions. It has to be able to cover everything from today and future needs of the government and the people. Statue provides for the details of the broad constitution for effective enforcement or implementation. The constitution is the direct act of the people because without their ratification, the constitution does not take effect. Whereas the statute is being only assed by the representatives of the people through congress.
Q: Is the provision on the constitution authorizing the people to propose amendments on the constitution self executing as in the case of Santiago vs Ramos? A: no. SC said RA 6735 is insufficient to provide for mechanism or procedure on how people can propose amendments to the constitution. Since it is lacking in provision, it is presumed that people, without legislation cannot propose amendments to the constitution. Q: What would be the justification, should they be allowed? A: It boils down to their being sovereign. It becomes a political question. It is up to them to decide. (Lambino vs Comelec) But the prevailing jurisdiction is people cannot propose amendments to the constitution although it is mandated but the provision is not self executory. B. SUBMISSION There is consultation among the people for a better understanding of the proposed change. PIECE MEAL SUBMISSION of proposed changes is prohibited. Should there be any submission, it has to be the whole thing for the better understanding of the relationship of the proposed changes to the constitution. C. RATIFIATION When does the amendment take effect? Upon ratification by majority votes cast in a plebiscite called for the purpose, not a referendum. This is based on plurality. Not based on majority voters.
CONSTUTION VS ORGANIC LAWS Remember you have organic laws passed during the American occupation like Philippine Bill of 1902, Jones Law of 1916 and Tydings McDuffy Law. They are similar in a sense that organic laws also provide for the structure, organization and operation of the government at the time. It even provided for the bill of rights and a definition of citizenship. A difference between these laws is that while the constitution a direct act of the people, organic laws are passed by the representatives of the people. During that time, the US congress.
As to basis:
1. EMOCRATIC REPUBLICAN -depend on the form of government that is provided in the constitution itself PHILIPPINE CONSTITUTION -written -enacted -rigid -democratic/republican -presidential
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1987 CONSTITUTION Going back to the kinds of laws used s basis in the understanding of government and the relationship between the government and governed, we also go into a particular law that we will use in understanding the government. EFFECTIVITY When did the 1987 Constitution take effect? You have learned that it is prepared by a Constitutional Commission pursuant to Proclamation number 9 by then President Aquino under the Revolutionary Government consisting of 50 non elected by appointed members, from the different sectors of society. After they have drafted, it was ratified by the people on Feb 2, 1987. It was declared to have been validly ratified in Feb 11, 1987 by the Exec Order 50 by President Aquino. Because there are provisions in 1987 constitution that were inconsistent with 1973, and therefore they are deemed repealed. For example, death penalty. 1973 does not prohibit death penalty. But the 1973 has expressly prohibited death penalty except when congress by compelling reason, congress will pass a law for heinous crimes and impose death penalty. Therefore there was a law passed defining heinous crimes and providing death penalty bit was repealed lately. Is death penalty abolished in 1987 constitution? Yes. That is the GR. The exception is when there is reservation by congress to pass a law defining what heinous crimes are and imposing death penalty. If 1973 does not prohibit but 1987 prohibits, assuming that there is no law yet, here is on convicted in 1985 to be executed in 1988, should he be executed? If the constitution took effect on Feb 2, 1987 and he is to be executed on Feb 5, 1987, then the execution is against the constitution. But if the constitution took effect on Feb 11, the execution will still be in accordance with the law because what will govern is the 1973 constitution. This was the issue in the case of De Leon vs Esguerra. There was an appointment of he OIC because under the Freedom Constitution, the term of office of local officials then actually already expired but they were asked to hold over until they will be replaced by OICs through the Ministry of the Government. And then there was the 1987 Constitution, saying that they will not be replaced anymore because they have to hold on until elections will be called. The Barangay Captain was replaced on Feb 9. If the constitution took effect on Feb 2, the replacement is illegal because the transitory provision of the constitution says that they have to hold office until election is called. But if the constitution took effect on Feb 11, then the replacement is valid. SC said THE CONSTITUTION TOK EFFECT ON THE DATE OF RATIFICATION FEB 2, 1987. What is the constitutional basis? Sec 27 Art 18 of the Constitution.
Section 27. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions.
ELEMENTS OF A STATE As you have learned in your first year, the study of political law basically a study about the state and when you study the state, you have to go about its elements. From the POV of Political law, there are only four elements: 1. people 2. territory 3. government 4. sovereignty From the POV of International law, for a state to be considered as such, two other elements must be present: 5. degree of civilization acceptable by the Family of Nations 6. recognition of the Family of Nations PREAMBLE
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society, and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.
It is an introduction only. It is not part of the constitution, it is not even necessary. To a certain extent, it has its practical use which is to indicate the source of sovereignty. The provisions in the preamble will help or guide the members of congress and SC and other courts in construing the provisions of the constitution because the constitution is founded on the purposes as enumerated in the preamble. IMPLORING THE AID OF ALMIGHTY GOD Does this violate the separation of church and state? Because this is just an assertion of the kind of people that we are. This is not a conferment of rights. This does not impose religion but only a declaration that we believe in god. So you cannot go to court and use preamble for you assertion on you freedom of religion because, like art 2 is not self executing. It is not a source of rights or obligations.
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PURPOSES 1. to build a just AND humane society 2. to establish a Government that shall embody our ideals and aspirations 3. to promote the common good (not general welfare) 4. to conserve and develop our patrimony 5. to secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace ACQUISITION OF THE ISLANDS How did we acquire the islands comprising the Philippine archipelago? Primarily we acquire them by cession, except for the Batanes islands which we have acquired through long occupation and possession. How was the transfer made? Through the Treaty of Paris which was entered into by Spain and US on Dec 10, 1898 which was amended by two more treaties in 1900 transferring the Turtle Islands and Mangsi Islands. And then you have the Great Britain and US treaty, the Treaty of Washington, which also ceded two more islands. TN that basically, these islands that consists of the Philippine archipelago was acquired by us through transfer. The only islands not part of those islands is the Batanes Islands in fact they were apparently excluded in the Treaty of Paris. That is the reason why we need to define the national territory under the 1935 Constitution to include the Batanes Islands which has the phrase all those belonging to the Philippines by historic right or by legal title. TN that these Philippine archipelago, if you are asked what provisions in the national territory hat expressly provide for the adoption of the archipelagic doctrine, and that is one of those that states or defines what comprises the Philippine territory which says - the Philippine archipelago, with all the islands
and waters embraced therein.
1. TERRITORY ART 1
ARTICLE I - NATIONAL TERRITORY The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.
NATIONAL TERRITORY COMPOSITION 1. Philippine archipelago, with all the islands and waters embraced therein 2. all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its: a. terrestrial domains b. fluvial domains c. aerial domains including its d. territorial sea e. seabed f. subsoil g. insular shelves h. other submarine areas 3. waters -around, between, and connecting the islands of the archipelago, -regardless of their breadth and dimensions ARCHIPELAGO The kind of territory you have is archipelago. So you have to understand what an archipelago is. Two definitions: 1. a body of water studded with several islands 2. a group of islands surrounded or separated by sea waters What do we follow under UNCLOS UN Convention Law of the Seas? An archipelago is a body of water studded with several islands.
IOW it does not consist only of the islands. It also includes the waters embraced in the archipelago. TERRITORIES NOT FOUND I NTE ARCHIPELAGO What are these territories? - all other territories
Philippines has sovereignty or jurisdiction.
over which the
TN that the conjunctive word is OR, not and. JURISDICTION is when you put up a government and you have the laws enforced by the government. But there are instances when we are claiming certain territories where we have not established Philippine government there but we are claiming as part of our national territory. The legal basis for that is SOVEREIGNTY. Sovereignty could either be: 1. Emperium 2. Dominium EMPERIUM meaning acts of sovereignty, meaning exercise of governmental powers. So if we claim a property under the principle of emporium, it belongs to the state in its sovereign capacity. It is not subject to tax and any suit against the property that belongs to the state in its sovereign capacity, the state canot be
AFTER BREAK
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sued. Under he principle of DOMINIUM where the property is being owned by the government in it proprietary capacity. IOW it refers to the legal title. We might not have established a government there but as far as we are concerned, it belongs to us by either historic right or legal title. So on jurisdiction, it is obvious that there has to be a government established. Like the one we established in Kalayaan Islands which is part of Palawan. Or the government in Scarborough Shoal which is part of Zambales. These are examples of territories being part if he Philippines over which the Philippines has jurisdiction. Remember that we also have claims over Sabah and North Borneo. To some jurists, they would say that we have both emperium and dominium over the territory. The basis of which is historic right as well as legal title. It was allegedly owned by a Sultan of Solo and then it was even to the Datu of North Borneo and it was leased to the Britished Indies Company which is a British owned corporation of the government. They turned over the territory to the Malaysian Government and that is the reason why Malaysia is claiming it. But as far as Philippines is concerened, the sultan of Solo has transferred the rights to the Philippine government so that they can make a legal claim over the property. It became more of a controversy by reason of the Jabadah Massacre that compelled us to drop our claim over Sabah. To remove the irritant of the relationship between Malaysia and the Philippines, we rephrased the provision on the definition of the national territory and instead of adopting by historic right or by legal title, we change it to and all other territories which the Philippines has jurisdiction or sovereignty. Always remember that this does not preclude us from claiming properties which we have not established a government, however we have sovereignty over them by reason of historic right or legal title. Likewise, we are not precluded from claiming future properties. For as long as the mode of acquisition is acceptable by international standards, and not by invasion. It could be by purchase. So far we are claiming the Spratley Islands against other countries. Also certain portions of Kalayaan Islands. Remember that these islands like Kalayaan and Scarborough Shoal are found outside the archipelago. If we are to consider the territorial seas as part or belonging to these territories of which the Philippines has jurisdiction or sovereignty, we do not follow the normal baseline method because ours is an archipelago. What we have adopted is the ARCHIPELAGIC DOCTRINE. ARCHIPELAGIC DOCTRINE The waters around the islands, between or connecting, regardless of the deepness and the wideness belong to the internal waters of the Philippines. How do you determine the internal waters of these islands considering the Kalayaan Group of Islands and Scarborough Shoal? We adopt the straight baseline method. You determine the outermost islands of the archipelago. You imagine an archipelago that looks like a rectangle if we are to consider all the islands in the archipelago. You have to connect the outermost points of the outermost islands by a straight line. Because of this, it is considered that all islands inside are considered internal waters. They are considered like rivers, lakes and swamps, regardless of deepness and wideness separating the islands. They are not even considered maritime domain. They are simply internal waters. This had been objected to b the members of the UN when the had the UNCLOS because they are saying that it is not fair because while the Philippines has internal waters, they have a claim over territorial seas or the maritime domain which is 12 NM from the normal baseline. So they wanted us to redraw our internal waters in order hat they would be able to determine the extent of our internal waters. And so this prompted congress in May 2009 that there should be proper determination of internal waters or archipelagic doctrine. They had RA 9522. RA 9522 The law withdrew the baseline to comply with the UNCLOS requirements for archipelagic state, in the process excluding the Kalayaan Group of Islands and the Scarborough Shoal. So what looks like rectangular becomes triangular now because they were excluded. So how are these islands now treated if they are excluded from the main archipelago in the determination of internal waters or the archipelagic waters? They will be simply be treated as regime of islands. So you will determine its terrestrial domain following normal baseline, around the islands will be the basis of determination of the extent of jurisdiction over the waters. They are just simply considered as outside of main archipelago. the the sea the
So when you connect the outermost islands, you do not
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include the Kalayaan Group of Islands and the Scarborough Shoal. So you will just focus on the main archipelago. ARCHIPELAGIC WATERS Then you go by the archipelagic waters. It would be from the normal baseline to the outermost islands, 12 NM. So inside are considered as internal waters. MARITIME DOMAIN OR TERRITORIAL SEAS Now you go by the determination of the maritime domain or territorial seas. You have 12 NM from the normal baseline of the outermost islands. INTERNATIONAL WATERS Beyond that, that is considered as international waters. CONTINENTAL SHELF AND INSULAR SHELF TN you also have as part of our territory, continental shelf and insular shelf. This could be the continent that is submerged under the water. While it is low tide, it is dry. So you will know that it is still an extension of the island. But while it is high tide, it is covered by the sea water, and it could go beyond 12 NM from the normal baseline of the outermost island. PRINCIPLE OF CONTIGUOUS ZONE Would that still be part of the national territory? No. beyond the 12 NM from the normal baseline of the outermost islands, it is no longer part of the national territory. The Philippines however has jurisdiction up to 24 NM from the normal baseline. IOW 2 more NM from the end of 12 miles of the territorial seas. Again, that is not part of the national territory as it is beyond the 12 NM. But for purposes of implementing or protecting our: 1. fiscal laws 2. sanitary laws 3. immigration laws 4. customs laws We can run after these people up to 24 NM from the normal baseline or 12 NM from the end of the territorial seas consisting of 12 NM from the normal baseline. This is the PRINCIPLE OF CONTIGUOUS ZONE. It extends only up to 12NM from territorial seas. Although not part of the territory, the coastal state may exercise jurisdiction to prevent infringement or violation of customs, fiscal, immigration and sanitary laws. EXCLUSIVE ECONOMIC ZONE For purposes of enforcing the laws I have enumerated, you can go beyond up to 12 more NM if it is within the contiguous zone but it does not belong to the Philippine territory but you can explore the natural resources beyond the 12 NM up to 200 NM. That is EXCLUSIVE ECONOMIC ZONE. It is not part of the territory where we have exclusive sovereign right to explore, exploit, conserve, and manage the natural resources which may consist of the establishment and use of artificial islands, installations and structures for marine and scientific research and the protection and preservation of marine environment. CONSTITUTIONALITY OF RA 9522 So what must be emphasized as to its constitutionality is RA 9522. It is the definition of the archipelagic baseline. It is questioned because it will in effect change the definition of the national territory. The basis of the definition in the delineation of the boundaries, latitudes and longitudes, or the extent of our jurisdiction in the archipelago is the Treaty of Paris. With the adoption of RA 9522, this has practically changed because of the reduction of our claim over the internal waters by excluding the Kalayaan Group of Islands and the Scarborough Shoal from the main archipelago in the determination of the internal waters. Territorial seas refer to maritime domain, 12 NM. The seabed is the portion under the sea which could be rich in oil and other resources. Talking about subsoil, to what extent do we have jurisdiction? There is no limitation on that under the international laws. Then you have the insular shelves and other submarine areas which include the trench. WATERS CONNECTING THE ISLANDS The other definition of the adoption of the international doctrine is one that says the waters around, between and connecting the islands of the archipelago, regardless of the breadth and dimension. They are considered as part of internal waters. FOREIGN EMBASSIES How about foreign embassies in the country as part of the national territory? Yes. But we do not exercise jurisdiction in these premises, because by and agreement, treaty or customs of international law that embassies are treated as extensions of the country that it represents. Here, we are not exercising the acts of sovereignty. But definitely, it is part of the national territory (Reagan vs CIR)
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BASIS OF CLAIM AGAINST KALAYAAN ISLANDS You have the HISTORIC RIGHT, allegedly fro the discovery of Tomas Kroma, a Filipino from Bohol. He was a mariner. PD 1956, on June 11, 1978, that was the declaration of the discovery; that it was being discovered by a Filipino and becomes part of the territory. Effective occupation, that started with the family of Tomas. They migrated but did not last. Then eventually the coast guards took over. Then we have the PRICIPLE OF CONTIGUITY because of its proximity. It is nearest to us. It is part of the CONTINENTAL SHELF under the straight baseline method. RA 3046 and RA 5446, then we have RA 9522. PEOPLE RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURE The matter on the right of people against unreasonable searches and seizure. Who is referred to there? It refers to all inhabitants of the country. He may be a foreigner or a citizen. CITIZEN TN that from the POV of political law, the most important thing that you must know is that the government is relating not to any people but to its citizens. So then you must know who are the citizens of the Philippines. CITIZEN VS NATIONAL TN of the difference between a citizen and a national. N: owes allegiance to the state All citizens are nationals but not all nationals are citizens. Because while you may be a Filipino by origin, but you are no longer a citizen because you have been nationalized in another country. But still you may be loyal to the Philippines being a former citizen of this country. C: N: member of a democratic political community member of any community
1. PEOPLE PEOPLE AS AN ALEMENT OF THE STATE Another element of the state is people. From the POV of political law, the most important thing is you must understand who are these people being referred to; how is the word people used in the provisions of the constitution People could mean the INAHBITANTS IN GENERAL. The inhabitants could either be a citizen or a foreigner. A citizen could either be a qualified voter or a non voter. So when the constitution says sovereignty resides in the people and all government authority emanates from them, does the term people include the foreigners? Certainly not. Because they have nothing to do with the establishment of government. Does it include those who are not qualified voters? No. because they cannot chose representatives of the government. So when we say sovereignty resides in the people, the people being referred to here actually refers TO THE QUALIFIED VOTERS OR TO THE ELECTORATE. PEOPLE RIGHT TO INFORMATION When the law says THE RIGHT OF PEOPLE TO INFORMATION OF MATTERS OF PUBLIC CONCERN, can a foreigner join the list? No. because the people being referred to there refers only to citizens of the country. Many he be a voter or non voter.
ACQUISITION OF CITIZENSHIP THROUGH BLOOD RELATIONSHIP Insofar as citizen is concerned, title he holds is CITIZENSHIP. And how is this acquired by him in order to be a member of a democratic body politic? Genrally, you have by blood relationship on the principle of jus sanguinis. You have the place of birth and naturalization or by marriage. So from birth, there are two choices, either jus soli or blood relationship. But in this jurisdiction, we do not recognize jus soli. But if you are asked, once upon a time, did we recognize jus soli principle? During the American occupation, there was no definition on who are citizens of the Philippines. We were also not citizens of US and Spain, we were their subjects. Until the Philippine Bill of 1902 was passed in July 1, 1902 where there was a definition of Citizens. Between Dec 10, 1988 (transfer of sovereignty from Spain to US) to July 1, 1902, there was no definition as to who were the citizens of the Philippines. Thus the recognition of the principle of JUS SOLI, following the law in America.
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DEFINITION OF CITIZEN Until there was that definition in Jul 1, 1902 by virtue of the Philippine Bill of 1902 referring to all inhabitants, subjects of Spain as of April 11, 1899 and the children of these inhabitants. USE OD JUS SOLI Between Dec 10, 1988 to July 1, 1902, the jus soli was recognized. In fact this was enunciated in the case of Roa vs Collector of customs, then it was corrected when the SC said we do not recognize jus soli principle. What we recognize in the Philippines is only jus sanguinis. But because even if the judgment of the court may be erroneous, but because the judgment of the court has become final and executory, the principle of res judicata applies. But we have never really recognized jus soli. It was only for practical reason because of the absence of definition of citizens during the American occupations first period. ACQUISITION OF CITIZENSHIP THROUGH NATURALIZATION Of course this refers to foreigners who wants to become Filipino citizens. How about stateless individuals? Can they be naturalized? For as long as they have the qualifications required by the law and none of the disqualifications, then they may qualify. ACQUISITION OF CITIZENSHIP BY MARRIAGE not adopted Then you have by marriage. If a Filipina marries a foreigner and the law of the husband foreigner will consider her as a citizen of the country, then she will have the citizenship of her husband, at the same time retain her Philippine citizenship. In the Philippines, do we adopt the principle that one may become a Filipino by marriage? NO. if you are a foreigner, wife has to go through ADMINISTRATIVE NATURALIZATION. She has to prove that she does not suffer any of the disqualification, IOW, it is not automatic. ACQUISITION OF CITIZENSHIP BY ADOPTION not adopted We do not also recognize adoption as a mode of adopting citizenship in the Philippines OW what is the use of naturalization if we recognize adoption. IMPORTANCE OF CITIZENSHIP Why is it important why we have to know who are the citizens of the Philippines? Because there are certain rights that can only be enjoyed by the citizens of the country and enjoyed by the citizens of the country or reserved only for the citizens of the country. KINDS OF CITIZENS 1. JURIDICAL CITIZENS 2. NATURAL PERSONS FILIPINO CORPORATION Who are considered Filipino corporation? Hen the capital o9f that corporation is at least owned by 60% of Filipino citizens, natural persons. RIGHTS FOR NATURAL FILIPINO CITIZENS Examples are to run for public office and to be employed in the government. Sec 18, art 11 of the constitution requires that all public officers and employees must be loyal to the Republic of the Philippines and its laws. So that any change of citizenship from a Filipino to immigrant should be dealt with by law. That would be a ground for dismissal from the service. ART 4 SEC 1
Section 1. The following are citizens of the Philippines: [1] Those who are citizens of the Philippines at the time of the adoption of this Constitution; [2] Those whose fathers or mothers are citizens of the Philippines; [3] Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and [4] Those who are naturalized in accordance with law.
ART 4 SEC 1 PAR 1

[1] Those who are citizens of the Philippines at the time of the adoption of this Constitution;
When did the Philippine constitution take effect? Feb 2, 1987 Who is covered by this? This covers all those who are already citizens of the Philippines when 1987 Constitution was adopted in Feb 2. Meaning those who are citizens under 1973 constitution, which says: a. those who are citizens of the Philippines at the time of the adoption of the 1973 Constitution which was adopted in Jan 17, 1973. b. those whose fathers and mothers are citizens of the Philippines c. those who are born of Filipino mothers and elected Filipino citizenship b. those naturalized in accordance with law In the first paragraph of 1973 Constitution, we refer to the 1935 Constitution, which says: a. those who are citizens of the Philippines at the time of the adoption of the 1935 Constitution, May 14, 1935 b. those who were born in the Philippines of foreigner parents who before the adoption of 1935 constitution was elected to office c. those whose fathers were citizens of the Philippines d. those whose mothers are Filipinos and upon reaching the
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age of majority and upon reasonable time elected Filipino citizenship e. those who are naturalized in accordance with law. First paragraph of 1935 Constitution, who are covered there? Those who are defined as citizens under the Philippine Bill of 1902 pursuant to the provisions of the Treaty of Paris, as amended b Jones Law of 1916. Who are the citizens of the Philippines under the Philippine Bill of 1902? It refers to all inhabitants subject of Spain of the Philippine islands as of April 11, 1899 (exchange of instruments/treaties bet Spain and US). Who are the INHABITANTS? a. native born, the indios of the Philippine islands b. residents or inhabitants coming from the Spanish Peninsulares who as of April 1899 were residing in the Philippine islands and had chosen to remain in the Philippine islands c. those who were inhabitants of the islands of Spanish papers n or before April 11, 1988 Tecson vs Comelec Lorenzo Poe died somewhere n 1954. They were wondering what was the citizenship of Fernado Poe Jr because the father declared himself as a Spaniard as indicated in his marriage certificate with his first marriage. The grandfather, Lorenzo was an inhabitant of the Philippines presumably because he died in the Philippines at the age of 0s in 1954. So he must have resided in the Philippines as of 1899. Under the Philippine Bill of 1902, the subsequent children of the inhabitants are considered Filipino citizens as well. Because the father of Fernando was the son of Lorenzo, then he must be a Filipino citizen even if he declares himself as a Spaniard. How could FPJ be a Filipino citizen when the father was not married to the mother? If he is illegitimate, he must follow the legally known parent and the legally known parent is the mother, who is a US citizen. According to opinion of the friends of the SC, FPJ was recognized by his father. The 1935 constitution provides that citizens are those whose fathers are citizens of the Philippines. It does not qualify whether the father was legitimate or illegitimate. The child who follows the name of the father is presumed to be recognized by the father. In the case, it is presumed that FPJ was recognized by the father because of the fact that after his birth, there is an affidavit of the sister of his father that his father continued to cohabit with the mother. So presumably he was recognized. Because the father is Filipino, then FPJ is a Filipino citizen. Case: Vallez vs Comelec The father del Rosario was a Filipino when he migrated to Australia. He got married to an Australian citizen and had his daughter. The daughter went to Davao and ran for public office until she ran for a higher position as governor when her citizenship was questioned because not only was she registered an Australian citizen, she was also carrying an Australian passport. She was born in Australia. The mother was an Australian citizen, and the father was already an Australian citizen. Then it was discovered that the father was the son of an inhabitant of the Philippine territory as of April 11, 1899. Being one, he must be Filipino citizen. If he acquires another citizenship, it is not conclusive that he has lost his Philippine citizenship. And because he had lost it at the time of birth of his daughter, by jus sanguinis, she must also be a Filipino citizen. In fact, a natural born citizen of the Philippines. TN the provision in the 1935 Constitution with respect to foreigners who were born in the Philippines. Meaning those of foreign parents. However despite being a foreigner, elected to a public office. Chong Bian The father was elected as an officer in Misamis. When Chong Bian acquired a shipping business, his citizenship was questioned because then he was already born when the father was elected to a public office. The father of course became Filipino citizen. how come that he too became a Filipino citizen? Because at the time, he was still a minor. By DERIVATIVE CITIZENSHIP, he too became a Filipino citizen and thus he is qualified to engage in a business which is only reserved for Filipino citizens. In fact, the children subsequent thereto are considered natural born citizen. FATHERS ARE CITIZEN At the time, only those who are born to Filipino fathers can adopt the citizenship. MOTHERS ARE CITIZEN What about if he is born to a Filipina? He is still also a Filipino citizen for as long as she is not married to a foreigner. Meaning, if father and mother is Filipino, no choice, child is Filipino. Not because the mother is Filipino but because the father is Filipino.
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FILIPINA MARRIED TO A FOREIGNER - 1935 CONSTITUTION But if the mother is Filipina, and there is a foreigner, under the 1935 Constitution, she loses her citizenship because there is a presumption that she acquires her citizenship of her foreigner husband. Thats the reason why the child during his minority has no choice. He is considered a foreigner. But he is given the option to elect Philippine citizenship. The requirement however is that the mother must be a Filipino citizen at least at the time of marriage to foreigner father. And the child was born before Jan 17, 1973. But if the Filipina is not married to the foreigner, the child follows the citizenship of the legally known parent. As far as the child is concerned, the legally known parent is the mother. ADOPTED CHILD OF FILIPINO FATHER If father is a Filipino and the child is adopted, can the child become a Filipino citizen? No. In this jurisdiction, what we follow is the principle of jus sanguinis. You cannot acquire Filipino citizenship by adoption. There is naturalization for the child to acquire Philippine citizenship. The only exception to this is RA 9225 which is the DERIVATIVE CITIZENSHIP under DUAL CITIZENSHIP ACT that even the adopted children of a former natural born citizen be patriated under this provision will become a natural born citizen being a minor child, although adopted. Again, adoption is not a mode of acquiring Filipino citizenship. ART 4 SEC 1 PAR 2
[2] Those whose fathers or mothers are citizens of the Philippines;
When the Filipina under the 1935 constitution, she is presumed to have acquired the citizenship of her foreigner husband. And thus automatically, she loses her Philippine citizenship. IOW the burden of proof lies with her that she never lost her citizenship because she never acquired the citizenship of her husband. But the law presumes that by their marriage, she acquired the citizenship of her husband and thus she loses Philippine citizenship. The citizenship of the child if born B4 Jan 17, 1973 is the fathers citizenship. He has no choice. Because now the mother is foreigner just like the father. But the child, only during his minority is considered a foreigner. The child is given the chance to become a Filipino citizen upon reaching the age of majority (21) or within reasonable period of time (3 years), he elects Philippine citizenship, then he becomes a Filipino citizen. If he does not elect Filipino citizenship, then he remains a foreigner. If the parents married in 1965 and child was born in 1974, what is the citizenship of the child during his minority? Does he need to elect Filipino citizenship in order to become Filipino citizen? The child is a foreigner. He cannot elect Philippine citizenship. Mother lost her Filipino citizenship at the time of marriage. So at 1974, at the time of birth of the child, the mother is already a foreign unless she acquired her Filipino citizenship at the time of birth of the child. He cannot elect Philippine citizenship. Because from birth, the mother is already a foreigner. REQUIREMENTS TO ELECT FILIPINO CITIZENSHIP 1. the mother, must have been married under 1935 Constitution who is a Filipino citizen at the time of marriage 2. the child must be born before Jan 17, 1973 MARRIAGE AFTER 1973 Would it make any difference if the mother is married to the father at 1973 Constitution? Yes. Because when the Filipina marries the husband foreigner, she does not lose her citizenship unless by her act or omission she is deemed by the law to have renounced her citizenship. In which case, because she is presumed to have remained Filipino citizen, at the time of birth the child is a Filipino citizen because the law says those whose fathers and mothers are citizens Does he need to elect? No need. Because he is already a Filipino citizen.
FILIPINA MARRIED TO A FOREIGNER - 1973 & 1985 CONSTITUTION Relating that provision to 1973 and 1985, here, the female counterpart of the Filipino citizen is put to a level equal to the male counterpart so that of the mother is Filipino citizen, regardless who the husband is for as long as she did not lose her Filipino citizenship at the time of forth of the child, child is Filipino citizen. But TN of the cut off period. The child has to be born at least on Jan 17, 1973 or thereafter to apply that provision. The mother at the time of the birth must be a Filipino citizen for that child to be considered a Filipino. If the mother was married under 1935 constitution, even if the child was born after 1973 Constitution was adopted, the child is not a Filipino. At the time of birth, the mother has already lost her Filipino citizenship by virtue of her marriage to a foreigner husband under the 1935 Constitution.
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EFFECT OF ELECTION OF FILIPINO CITIZENSHIP NATURAL BORN If he a natural born citizen if he elects Philippine citizenship assuming that the mother was married to the father before 1973 Constitution and he is born under 1935 Constitution. He elected Filipino citizenship before 1973 Constitution was enacted, is he a natural born Filipino citizen? Yes. He is presumed to be natural born. There is no definition then. Under 1973, there is a clear definition those who are citizens from birth without having to perform any act in order to acquire Filipino citizenship is a natural born. To elect Filipino citizenship is perfecting or acquiring Filipino citizenship. Under that definition, a citizenship by election is not a natural born. So that if this person was born under 1935 Constitution, elected Filipino citizenship under 1973 Constitution, he is a Filipino citizen but not a natural born. However, it is anomalous because while these two persons are situated under the same circumstances, the only difference is the date of election, one is considered a Filipino citizen and the other is not. Precisely this was corrected under the 1973 constitution. That even those who are elected as Filipino citizenship are now considered as natural born citizens. Apply retroactively. So there is no more problem in determining whether he is natural born or not. Even if he elected Filipino citizenship, he is a natural born citizen, therefore qualified to run for office that requires only natural born citizens. June 6, 2011 ART 4 SEC 1 PAR 2
[2] Those whose fathers or mothers are citizens of the Philippines;
RETAINING CITIZENSHIP This refers only to children born in 1973 or thereafter because upon effectivity of 1973 Constitution, if a Filipina marries a foreigner, she does not automatically lose her citizenship. She retains her Filipino citizenship unless by her act or omission she is deemed under the t5he law to have renounces her citizenship. So at the time of the birth of the child, as long as the mother, although married to the father has remained a Filipino citizen, the child is a Filipino citizen, regardless of the citizenship of the father who is marries to the father. MARRIED BEFORE 1935, BORN AFTER 1987 But if the mother was married under the 1935 Constitution under which he is considered to have lost her Filipino citizenship by virtue of the marriage to the foreigner and the child is born only after the 1987 Constitution, what would be the citizenship of the child? It depends at the citizenship of the mother at the time of birth. If at the time of birth, the e mother has not reacquired her Philippine citizenship, then she remains a foreigner. In which case, the child has no choice. Both parents are foreigners. And even if he elects Philippine citizenship, he cannot acquire Philippine citizenship. REQUIREMENTS OF CITIZENSHIP BY ELECTION Because here to avail of CITIZENSHIP BY ELECTION pursuant to the provisions of 1935 Constitution, TN of the requirements: 1. born before Jan 17, 1973 2. mother is Filipino at least at the time of the marriage to the foreigner husband Even if the mother has become a foreigner at the time of the birth of the child, the child has a chance of becoming a Filipino by election upon reaching the age of majority or within a reasonable period of time.
MANNER OF ELECTION How is election be made in order to be considered a citizen? 1. taking of oath of allegiance 2. participating in election by a. running for public office b. voting c. actively campaigning for a candidate 3. declares under oath as a Filipino citizen APPLICATION UNTIL 1997 Citizen by election applies only until 1997. Because if the child was born after 1973, there is no need to elect Filipino citizenship because he is already considered a Filipino citizen. So the cut off is 1973. Plus 21, that means 1994. Plus 3 years 1997 (3 years after reaching the age of majority). He has to elect by the age of 21 or within reasonable period of time.
ART 4 SEC 1 PAR 3

[3] Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and
We have discussed this already. The is only temporary and transitional in a sense that by 1994 to 1997, there will be no more children by election because the presumption is the child must have either elected Filipino citizenship or the time has passed for him to elect Filipino citizenship.
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CITIZENS BY ELECTION ARE ATURAL BORN CITIZENS Even those who elected Filipino citizens are now considered as NATURAL BORN CITIZENS under the 1987 Constitution. So regardless whether he has elected Filipino citizenship either before or after Jan 17, 1973, the child is definitely a natural born Filipino citizen. You go back to the definition of the natural born citizens in the 1987 Constitution, it includes those who elected Philippine citizenship. ART 4 SEC 1 PAR 4
[4] Those who are naturalized in accordance with law.
RECENT RULING OF QUALIFICATIONS AND DISQUALIFICATIONS Now, for as long as perhaps you do not have all the qualification but you do not suffer any disqualification, you may apply for naturalization which could either be judicial or administrative or by legislation. JUDICIAL NATURALIZATION Insofar as judicial process, it is very tedious. You follow a particular procedure: 1. make a declaration of intent to become a Filipino citizen 2. file intent with the OSG 3. wait for 1 year as SolGen investigates whether you have all the qualification 4. issuance of certification by SolGen that you are qualified 5. file a petition with RTC 6. RTC to acquire jurisdiction will order the publication of the petition in a newspaper of general circulation and the official gazette 7. hearing and reception of evidence 8. judgment and grant of petition 9. waiting period of 2 years 10. court schedules taking of oath of allegiance REVOCABLE - JUDGEMENT ON NATURALIZATION TN the judgment in the naturalization case will never become final. Anytime it will be subject to revocation upon motion by the SolGEn. QUESTION ON VALIDITY OF NATURAZATION PROCEEDINGS If there is any question on the validity of the naturalization proceedings, in the case of Limkaichong vs Comelec, that only the SolGen or the government can question the validity of a naturalization proceedings in a DIRECT ACTION and not in a collateral proceedings such as a petition for disqualification of a candidate in an election case Case: Limkaichong vs Comelec There was a question on the qualification of the candidate because Limkaichong who is now a congresswoman was the child of a former Chinese citizen who applied for naturalization. According to the petitioner, the fathers naturalization is invalid and therefore the father never became a Filipino citizen. Naturally, the children are not considered Filipino citizen. thus they ask for the disqualification of Limkaichong. COMELEC dismissed the petition and SC reviewed by SC and SC said that only the government or the SolGen can question thevalidity of the naturalization proceedings.
COMMONWEALTH ACT 473 This is the original provision on naturalization. If you are a foreigner and you want to become a Filipino citizen, then you have to apply for naturalization. NATURALIZATION BY A FOREIGNER Naturalization by a foreigner by a foreigner is not a matter of right, it s a privilege, an act of grace granted by a sovereign state to a foreigner. Therefore it is discretionary upon the state WON to confer Filipino citizenship to a foreigner. And in connection therewith, there are certain qualifications that an applicant foreigner must possess and must also avoid suffering any of the disqualifications provided by the law. And the law is very strict. You have to have all the qualifications and none of the disqualifications. NATURALIZATION BY A STATELESS INDIVIDUAL How about if one is a stateless individual? Can he apply for naturalization? The law is silent regarding on that, for as long as he has all the qualifications and none of the disqualifications. QUALIFICATIONS 1. 21 years of age 2. of good moral character 3. resident of the Philippines continuously for 10 years 4. property of not less than 5k 5. children of school ages must be in public schools 6. able to read and write English and any of the Philippine dialects DISQUALIFICATIONS 1. believer in bigamy or polygamy 2. suffering from incurable and contagious disease 3. believer in the use of violence in asserting your principles
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CONSEQUENCES OF THE GRANT OF NATURALIZATION TO A FOREIGNER 1. foreigner becomes a citizen of the Philippines 2. wife may become a Filipino citizen through ADMINISTRATIVE NATURALIZATION -there is no acquisition of Filipino citizenship by marriage -by asking for the cancellation of ACR and by proving that she suffers none of the disqualifications provided by law -it is not automatic 3. as to children: a. those who are already born at the time of the approval of naturalization of the father, consider whether he is a minor or of age at the time a.1. if he is already of age, he does not become a Filipino citizen. if he wants to, e has to apply for naturalization a.2. if he is a minor, he by DERIVATIVE CITIZENSHIP becomes a Filipino citizen a.3. if at the time of the approval, he is outside the Philippines, he is only Filipino during minority. Upon reaching the age of majority, he is given the choice either to remain a Filipino citizen or revert back to original citizenship of the father -those who have become Filipino citizen by derivative citizenship, they are considered NATURALIZED Filipino CITIZENS. b. those who are born after the father becomes a Filipino by naturalization, they are citizens -they are considered NATURAL BORN. -you go back to the definition, those who are citizens from birth. Because the father at the time of birth is a Filipino citizen, then the children are Filipino citizens Declaration of an administrative body or a certification does not change a judicial judgment -Case: Kilos Bayan vs Ong This is the appointment of Ong as Justice of SC where these was a question on his citizenship. He was a Sandigan Bayan Justice. Somebody asked for an injunction not to issue the appointment considering that there was a question on his appointment. He was born to a father who is naturalized and a Filipina mother. The mother was a daughter of his grandfather who is naturalized, originally Chinese married to a Filipina. Grandfather became naturalized. The mother at the time was still a minor, and by derivative citizenship, the mother became a Filipino citizen. The mother got married to a Chinese who at the time was still applying for naturalization. At the time of marriage, the husband was still a Chinese citizen. During the 1935 Constitution, the mother automatically lost her citizenship. Eventually the father became a Filipino by naturalization. But the birth certificate of Ong says that he is a Filipino citizen by virtue of derivative citizenship. When he took the bar exam, there was a question on his citizenship because his family name is foreign sounding. A declaration made, a certification of DOJ through the bureau of immigration declaring him as a natural born citizen. And this was his basis in the application for judgeship and justiceship in SB where it requires natural born citizen. When this was questioned in the application for justiceship in SC, SC looked into the matter. In fact Ong was asking why now look at the application when there was never a question on his application when was not questioned in the qualification for SB. SC said that it is a CONSTITUTIONAL ISSUE OF SIGNIFICANT MATTER considering that it goes into the qualifications of an SC justice required by the constitution. The constitution requires that in order for one to become a natural born citizen, he has to be a natural born citizen. SC declared that a declaration of an administrative body or a certification does not change a judicial judgment that states the father was naturalized citizen and therefore by derivative citizenship, the child who was then a minor cannot be natural born. Ong was banking on the fact that the mother was a Filipina and that she never lost her citizenship upon marries and at the time of his birth, he was a Filipino citizen. SC said, if you are to CHANGE your BIRTH CERTIFICATE, you cannot do that by a certification of an administrative body like the Bureau of Immigration. That requires judicial change or declaration. For you to claim that you re natural born, you have to go to court and make necessary changes in your birth certificate and not by simply a declaration of an administrative body. There was a petition to DECLARE ALL JUDGMENTS RENDERED VOID because at the time he rendered the judgment, he was disqualified supposedly to sit as justice of SC for lack of the requisite citizenship of a natural born. SC said that it is VALID having been rendered by a DE FACTO OFFICER. The appointment was in good faith on the assumption that he was qualified. Ultimately there was a decision of SC declaring him as natural born after his birth certificate has been corrected.
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REVOCATIONOF NATURALIZATION PROCEEDINGS Another point you should TN in naturalization is the revocation. It is never final and executory, res judicata principle does not apply. EFFECT ON DEATH OF GRANTEE PENDING QUESTION ON VALIDITY OF NATURALIZATION What if the grantee of the citizenship has died already when there is the revocation of the naturalization? Is it deemed mooted upon the death of the grantee? That depends on the grounds of the revocation: a. If the ground for revocation is that the JUDGMENT IS VOID on the ground that he has disqualified, then it shall CONTINUE because of the citizenship that has been also extended to his minor children and to the wife. Because when citizenship is granted, he becomes a Filipino. The minor children and the wife will have some basis to apply for naturalization before they can become Filipinos. If revoked, naturally premised on the judgment being void, then there has never been any citizenship enjoyed or can be transferred by the grantee. So even after the death of the grantee, the action for revocation on the decree of naturalization may still posper b. If the ground for revocation is that the grantee has VIOLATED THE CONDITIONS OF NATURALIZATION or he LOST HIS QUALIFICATIONS THEREAFTER, (ex. convicted of crime involving for moral turpitude), it will not prejudice those who derived their citizenship from their father. If the applicant grantee dies, then the case will have to be dismissed as the case has become MOOT AND ACADEMIC. MODES OF ACQUIRING CITIZENSHIP 1. from birth by blood relationship/ jus sanguinis 2. naturalization You cannot acquire Filipino citizenship either by marriage or by naturalization. MODES OF LOSING CITIZENSHIP According to the modes provided for by law: 1. applying for a foreign citizenship/ naturalization of foreign citizenship Case: Labo vs Comelec Faith healer who got married to an Australian citizen and thereafter applied for naturalization in Australia. He voluntarily and expressly renounced his Philippine citizenship to become an Australian citizen. By that act, he is deemed to have lost his Philippine citizenship. 2. expatriation Expatriation has to be done expressly. It is not just a mere declaration. It could be like: a. taking an oath of allegiance to support and defend the foreign government in applying for naturalization b. taking an oath of allegiance to support the constitution of the foreign country Effect on carrying of foreign passport In relation to this, the mere carrying of a foreign passport is not considered as express renunciation of foreign citizenship. Effect on registration in Bureau of Immigration as a foreigner A registration in the Bureau of Immigration that you are a foreigner is not considered as an express renunciation of foreign citizenship. It is only an ASSERTION OF A FOREIGN CITIZENSHIP. But not express renunciation. -Case: Aznar vs Comelec and Banez vs Comelec -Case: Osmena When he ran as governor, there was a question on the citizenship because in the Bureau of Immigration, he declared himself as a US citizen as well. That is not considered loss of citizenship by expatriation. It is a mere assertion of foreign citizenship but not conclusive as to having renounced his Philippine citizenship, unless there is proof that he has expressly renounced his foreign citizenship. 3. serving the armed forces of a foreign country Except where we have signed a mutual defense agreement. Unless by their act or omission, they have deemed to have renounced their foreign citizenship, like applying for naturalization of US.
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4. by marriage of Filipina to a foreigner, and by their actor omission they are deemed to have renounced her citizenship But GR Filipinas marrying foreigners remain Filipinos. 5. deserter of the Armed Forces, convicted by final judgment Especially during war time. 2.A. RA 8171 If you have lost your citizenship because you have served the allied forces during WW2, you can reacquire it by RA 8171. Other grounds for RA 8171 are for reasons of economic and political necessity. REQUIREMENTS 1. apply for repatriation with the Bureau of Immigration in their Special Committee on Naturalization 2. take oath of allegiance 3. register oath of allegiance with the civil registry where you last resided or presently residing at 4. furnish copy to the Bureau of Immigration through Special Committee on Naturalization REQUIRMENT OF REGISTRATION IN CIVIL REGISTRY It is not enough that you take your oath of allegiance. It has to be registered. Case: Frivaldo vs Comelec He was disqualified. He insisted that the moment he filed a certificate of candidacy where he took his allegiance and made a declaration that he is a Filipino citizen, in effect, he has renounced his US citizenship. But he failed however to register that he is a Filipino citizen in the nearest civil registry where he was residing which is required under 8171. RETROACTIVE FROM TIME OF FILING OF PETITION You reacquire your citizenship from the time he filed his petition for repatriation. Which means that for as long as he complied with all the requirements for someone to run for an elective office, before he assumed office, he completed his requirements and it was approved, then he is considered qualified for the position. Case: He filed his petition for repatriation in 1997. In Mar 2004, he filed his certificate of candidacy. It was only on the date of election when he completed his papers and registered his oath of allegiance to he civil registry. Assumption of office is on the 30th day of June. Is he qualified to assume office? Yes. While the approval was only on May, the effectivity retroacts from the filing of the petition in 1997. CITIZENSHIP REQUIREMENT IS ONLY ON ASSUMPTION OF OFFICE The statute does not require that you have to be a citizen on the day of election or on the day of appointment. The law only requires age, residency, and other qualification but never on citizenship. For as long as upon assumption of office, you are a Filipino citizen, you are qualified, because after all, the effectivity of
MODES OF REACQUIRING CITIZENSHIP AND REQUIREMENTS 1. naturalization 2. repatriation 1. NATURALIZATION Naturalization could be: a. judicial b. administrative c. through act of congress 1.A. JUDICIAL NATURALIZATION Judicial, you have 1. Commonwealth Act 63 - for those who have lost and want to reacquire 2. Commonwealth Act 473 - Original application for naturalization by a foreigner 2. REPATRIATION For purposes of reacquisition of Philippine citizenship, there are several laws on repatriation: a. RA 8171 b. RA 725 c. RA 9225 If you have lost you citizenship because you are married to a foreigner and you want to reacquire your citizenship, you can reacquire it by RA 8171, 725 or other laws on repatriation.
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repatriation and the reacquisition of citizenship shall be reckoned from the filing of the petition. STATUS Upon repatriation, he reacquires his original status as a NATURAL BORN CITIZEN. CONSEQUENCES 1. you become again a natural born citizen. 2. minor children by derivative citizens also become natural born citizens -legitimate or illegitimate or adopted -not married -under 18 years old 3. wife has to prove that she suffers none of the disqualification 4. grantee may vote under RA 9189, even if he continues to reside in the foreign country where he is also a citizen -Case: Lewis vs Comelec Lewis became a citizen by virtue of RA 9225. When he wanted to vote, he was refused by the consular office saying that he has not complied with the requirement of residency (6 months in place to vote, 1 year in the Philippines) The issue is whether they can vote under 9189 as specifically authorized under 9225. They are treated like OFWs and as such they are expected to establish a residence here in the Philippines. They can vote but within a period of 3 years. After all, what is important on residency is that you have the intention to return to the country after you have declared the specific residence in the Philippines. 5. may run for public office 6. may practice profession ADDITIONAL QUALIFICATIONS FOR RUNNING IN PUBLIC OFFICE 1. take oath of allegiance as required by law 2. expressly renounce all foreign citizenships (in writing) This requirement does not apply for those who are considered as dual citizens because or birth. NON APPLICATION TO DUAL CITIZENS NOT BY 9225 -Case: Mercado vs Manzano -Case: Valles vs Comelec Manzano had dual citizenship because he was born in America, by principle of Jus soli, he is a foreign citizen. because both parents are Filipinos, he is also considered a Filipino citizen. When he ran as a vice mayor of Makati, there was a question on ownership because he was carrying at the same time a US passport. As explained earlier, the carrying of passport is not a conclusive proof of renunciation. SC declared, THE MOMENT HE FILED THE CERTIFICATE OF CANDIDACY, HE IS CONSIDERED TO HAVE ELECTED PHILIPPINE CITIZENSHIP AS HIS SOLE CITIZENSHIP AND RENOUNCED ALL OTHER FOREIGN CITIZENSHIP. This principle will apply only to Filipinos who became dual citizens not by virtue of RA 9225. Only those involuntary acquisition of foreign citizenships such as because of the application of jus soli.
2.C. RA 9225 DUAL PHILIPPINE CITIZENSHIP ACT This took effect on August 29, 2010. Who can apply? Any former natural born citizen who lost their Philippine citizenship. There is no specific grounds on the loss of citizenship. WAYS ON BECOMING A DUAL CITIZEN There are two ways on becoming a dual citizen. 1. loss by political and economic necessity For one who have lost it already for reasons of political and economic necessity; if he reacquires Filipino citizenship, does he lose his foreign citizenship? The law is silent on that. By the opinion of SC, it says that he has impliedly renounced his citizenship. But impliedly only. But whether he is still recognized as a citizen of that foreign country, that is not a concern of the Philippine government. as far as Philippine government is concerned, he is now a Philippine citizen. It is possible that he may not automatically lose his foreign citizenship. So as a result of which, he becomes a Filipino citizen and a citizen of the country where he was naturalized as such. 2. application for naturalization in a foreign country Another way of becoming a dual citizen is one who is now Filipino citizen but applied for naturalization in a foreign country. Notwithstanding his application for naturalization in foreign country, he retains his Filipino citizenship. The Philippines doesnt care if he applied for a foreign citizenship in another country. As far as the Philippines is concerned, you are a Filipino citizen. TN this takes effect only on August 29, 2003. HOW TO APPLY FOR 9225 NOT RUN FOR OFFICE That is not a problem at all if you do not run for public office. All that you need to do is to: 1. take an oath of allegiance 2. pay the necessary fees 3. sign the form
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-Case: Lopez vs Comelec If he became a dual citizen because of his reacquiring Philippine citizenship by virtue of 9225, for him to run for public office, to qualify, he has to expressly renounce his foreign citizenship. EXCEPTION- WHEN CARRYING OF FOREIGN PASSPOSRT IS CONSIDERED RENUNCIATION OF PHILPPINE CITIZENSHIP -Case: Yu He became a naturalized Filipino citizen and notwithstanding, continued to carry his Portuguese passport and declared himself as a Portuguese citizen, this is an exception to the principle that the mere carrying of a passport is not a conclusive proof of renunciation of Philippine citizenship, but in this case, it was considered an exception where he is considered to have renounced his Philippine citizenship. EFFECT OF REPATRIATION ON NON MINOR CHILDREN -Case: Tabasa If the kids are already of age, they cannot avail of the privilege of Philippine citizenship through derivative citizenship. ADDITIONAL QUALIFICATIONS FOR PRACTICE OF PROFESSION (LAW) -Case: Dacanay Dec 17, 2007 Dual citizens may practice law in the Philippines by 1. leave of Sc (permission) 2. compliance of requirements to restore the good standing as members of Philippine bar a. payment of annual dues b. compliance of MCLE 2.B. ADMINISTRATIVE NATURALIZATION RA 9139 This is with reference to foreigners who were born in the Philippines. In order to give them some form of amnesty, (especially smuggled Chinese) Accepting the reality that eventually some children of these foreign smuggled persons into the country had children born into the Philippines without clear status as to their citizenship, this law was passed for them to have the option either to: 1. apply for naturalization by administrative process 2. apply for naturalization by judicial process Under this provision, it grants Philippine citizenship by administrative proceedings to aliens born and residing in the Philippines. They have the choice to apply for judicial or administrative naturalization subject to the prescribed qualifications or disqualification provided by law. DUAL ALLEGIANCE What is prohibited under the constitution for it is INIMICAL TO PUBLIC INTEREST is dual allegiance, not dual citizenship. Until now, there is no definition on what would constitute dual allegiance. Case: Kalilong vs Datumanong May 11, 2007 SC said that if the legislature has not defined it, it is not for the Court to make a definition on what would constitute dual allegiance. Definitely, RA 9225 does not constitute dual allegiance but mere dual citizenship. So there is no question as to the constitutionality of RA 9225.
OTHER CASES -Coroboro vs Comelec Feb 19, 2009 Tambunting, an owner of pawnshops in Mali, was enjoying dual citizenship because he was born in US of Filipino parents. When he ran for election, his citizenship was questioned. He said, by the mere filing of his certificate of candidacy, he had renounced his foreign citizenship. He was right. Being a dual citizenship is not a result of 9225 but a result of an involuntary acquisition because of the circumstances of his birth. So he need not comply with the requirement of express renunciation of foreign citizenship. The etwin requirement does not apply. -Lopez vs Comelec, July 23, 2008 -Hapson vs Comelec, Jan 18, 2009 -Roselier de Guzman vs Comelec Jun 19, 2009 2 requisites to run for public office: 1. taking of oath of allegiance 2. express renunciation of foreign citizenship before any public officer authorized to administer an oath
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EFFECT OF IMMIGRANT STATUS ON AN APPOINTED PUBLIC OFFICER For the green card holder, having an immigrant status, what will be the effect on the appointment public official who assumed public office? Case: Oberacion vs Comelec SC said that a Filipino citizens acquisition of permanent residence abroad constitutes an abandonment of his domicile and residence of the Philippines. The green card status in the US is a renunciation of ones status as a resident in the Philippines. You are given only a green card if you are a permanent resident of the Philippines. So it will be inconsistent to be occupying a public office and at the same tie, holding a green card. That can be a ground for the dismissal of office. RIGHT OF SUFFRAGE Right of suffrage is both a right and a privilege of a citizen of a country. As a privilege, it is the right of the people to chose the representatives to run the government for them. QUALIFICATIONS There are certain qualifications however for you to enjoy this right, as provided by law 1. at least 18 at the time of election when you cast your vote 2. resident of the Philippines for one year AND 6 month sin the place where you propose to vote RESIDENCE/DOMOCILE REQUIRIEMENT RESIDENCE FROM POV OF POLITICAL LAW -it is synonymous with domicile KINDS OF DOMICILE: a. DOMICILE OF ORIGIN -where you are born/raised by parents b. DOMICILE OF CHOICE -by work or by marriage PRINCIPLE OF ANIMUS REVERTENDI The principle is, you can only have one domicile. We are following the principle of ANIMUS REVERTENDI, that for as long as you have the intention to return to the place even if you are n9t actually living in the place, there is intention to reside in the place, you are considered a resident of that place, even if you are just renting. DOMICILE OF CHOICE - REQUIRMENTS When you change you domicile to your domicile of choice, TN of the requirements: 1. intention to abandon the original residence 2. acts must correspond to the intention to change residence -Case: Romualdez Marcos vs Comelec She ran as congresswoman in Leyte when she was known to be a resident of Manila because the husband was the president before they left for Hawaii. When se returned barely 1 year in Leyte, she filed her certificate of candidacy. In fact in the certificate she placed that she resided in the place for 10 moths. A disqualification case was filed because of the requirement that at least she must has resided for at least 1 year in the district where she is to run for congress. Sc said that when the husband died and she decided to return in her place of birth, she reacquired her domicile of origin and she never lost it. She is not a resident of Leyte for 10 months but a resident in the place since birth.
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-Case: Aquino vs Comelec Aquino ran as congressman in Makati after he transferred residence from Conception Tarlac after he has exhausted the three terms as congressman. He was disqualified upon petition of another candidate. SC declared that there was no effective transfer of residence because the records would show that he was still a registered voter of Conception Tarlac. He only has a condominium in Makati. His acts do not correspond to his intention of changing his residence. JURISDICTION PROMULGATION OF RULES ON MATTERS OF SECRECY OF CASTING VOTES Promulgation of rules on matters of election on secrecy of your casting of your ballots. Who has jurisdiction to promulgate the rules? Congress. JURISDICTION ON PORCEDURE FOR VOTING On the matter of providing for procedures on how a voter can vote, who has that power to do? COMELEC DISQUALIFIED VOTERS If you are a permanent disabled voter who cannot prepare his own ballot, are you allowed to vote? He is disqualified. Who are disqualified? 1. convicted by final judgment of a criminal case where the penalty is more than 1 year of imprisonment 2. deserter of armed forces 3. insane person JURISDICTION ON: PROMULGATION OF RULES RELATING TO ELECTION LAWS -Comelec (exclusively on quasi legislative function) PROMULGATING LAWS RELATING TO GOVERNING PROCEDURE -Congress
RESIDENCE AND DOMICILE TN of these cases because insofar as in public office running and voting, they are of the same n the POV of political law. EXCEPTION TO REQUIREMENT OF RESIDENCY ON EXERCISE OF RIGHT OF SUFFRAGE As an exception to the requirement of residence, for purposes of enjoying the right of suffrage TN of the case of Lewis vs Comelec, Dual Citizens, RA 9225, and Absentee Voting, RA 9189. ABSENTEE VOTING RA 9189 1. local absentee voters 2. foreign absentee voters 1. LOCAL ABSENTEE VOTERS Those because of their jobs, require them to vote in another place, although they are not residents of that place. Examples: military, teacher, OFW.
AFTER BREAK
JURISDICTION ON ISSUES RELATING ON THE RIGHT TO VOTE Who has jurisdiction relating to the right to vote? MTC. It is a judicial issue. COMELEC is only on the matter of registration. But on the right to vote, it is he court that determines any issue pertaining to the right to vote such as disqualification.
SUBSTANTIAL QUALIFICATIONS PROVIDED BY THE CONSTITUTION CANNOT BE EXPANDED Substantial qualifications provided by the constitution cannot be expanded. Only procedural requirements may be expanded by congress through laws. So you cannot require that you have to have some properties or be able to read or right. If you do that, you will be amending the constitution by ordinary legislation.
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4. SOVEREIGNTY SOVEREIGNTY is the highest ruling authority, it is the uncontrollable power by which the state is governed. Without which, the state cannot be considered a s state. MANIFESTATIONS OF SOVEREIGNTY A. supreme power to rule within and outside as manifested by: 1. peoples obedience to the laws 2. enjoyment of independence or freedom from independent control of a state CHARACTERISTICS OF SOVEREIGNTY 1. indivisible -it cannot be shared because there is only one highest ruling OW it could mean the destroyment of sovereignty 2. imprescriptible 3. absolute -no body can question the exercise of the power and the laws passed by the sovereign 4. uncontrollable 5. virtually no limitations -if there is any limitations, its because we decide to have limit as provided in the constitution 6. not subject to any statute of limitations 7. non transferable -it cannot be alienated. The moment you transfer, the one who was exercising seizes to be sovereign and the transferee becomes the new sovereign 8. comprehensive -covers practically everything and every person within its boundaries and authority 9. exclusive MANIFESTATIONS OF SOVEREIGNTY WITHIN THE STATE 1. enactment or passage of law where everybody and everything is subject to This is manifested by the states jurisdiction over persons and things found within its boundaries and even outside its territory KINDS OF JURISDICTION a. territorial jurisdiction b. personal jurisdiction c. extraterritorial jurisdiction A. TERRITORIAL JURISDICTION All things and persons found within the state are subject to the laws of that state. However there are some exceptions to this, such as: a. extraterritoriality principle b. persons exempt from the jurisdiction of the state 1. heads of state -they are considered as extension of the personality of the state that is sovereign; that these heads of state are representing 2. things and persons in certain areas like embassies, ambassadors and consular officials -to a certain extent they are not subject to the laws of the countries where they are found -an EMBASSY is an extension of the country that it represents. 3. where an agreement was entered into by two parties -like what we had in US Military Bases agreement. The military personnel were not subject to the local laws c. foreign vessels that docked in our ports -if foreign military vessel, we do not have jurisdiction even if they are in our waters because it is like as extension of the country it represents. -if merchant vessels, we follow the principle of French and English principle -NATIONALITY PRINCIPLE goes by what flag is being flown by the vessel -FRENCH RULE - anything that happens inside the vessel, even if it is docked in our ports, as long as it doesnt affect the peace and order or nation al security of our country, it is within the jurisdiction of the country whose flag is flown by the vessel. -ENGLISH RULE anything that happens in the vessel, for as long as it affects only the persona and crew in the vessel, the Philippines has no jurisdiction. Only when it affects our security that the Philippines has jurisdiction. Virtually, the effects are the same.
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B. PERSONAL JURISDICTION This refers to the citizens of the country that even if they are found outside the country, they are subject to our laws because the Philippines is sovereign, specially those laws governing on status. So even if you contract divorce abroad, as far as the Philippine laws are concerned, you are still married. Because they are subject to our laws still, they are subject to our protection still. C. EXTERRITORIAL JURISTDICTION This refers to the states jurisdiction over persons and things found outside the territory. Example, Philippine embassy in the US is subject to Philippine laws. Persons found in the embassy are subject to the laws of the country. IMMUNITY OF STATE FROM SUIT Because the state is sovereign, there cannot be any authority higher than that. Thus it cannot be subjected to the control and supervision of the courts. Precisely not cannot be sued. Case: Carlo vs COA The principle why the state cannot be sued is because there cannot be any legal right as against the authority that makes the law on which that right to sue depends. So even if your claim against the state is valid, that can easily be defeated by the states invocation of immunity from suit because the state is sovereign. And that is what we call THE ROYAL PREROGATIVE OF DISHONESTY. It is synonymous to immunity from suit. IMMUNITY OF FOREIGN STATES Foreign states are likewise immune from suits. When it comes to conflicts with certain persons or entities in the country where ordinarily under certain circumstances, applying our laws, they are supposed to be settled before our local courts. But because foreign state, like our state are immune from suits, they cannot be tried on cases filed in court. THEORIES ON IMMUNITY FROM SUITS OF FOREIGN STATES 1. absolute and classical theory 2. restrictive theory 1. ABSOLUTE CLASSICAL THEORY Same reasoning. The state is immune from suit and therefore he cannot be subjected to local laws. However, this applies only to governmental acts, relating to functions discharged which is governmental in nature. IOW an act of a sovereign state. But in a restrictive sense, it may still be suable if the acts subject of the suit are commercial, nothing to do with the performance of a governmental function. Case: Del Rosario Vatican. Supposedly the property was donated to it so that they can build an office. Instead, it was sold to someone else, under the condition that the squatters in the area will be ejected. But the owner failed to do that, so they are being sued. Are they suable? First of all you must understand that Vatican is a foreign state. As a foreign state, can it be sued in our courts? That depends on in what capacity was the contract of sale entered into by the Vatican, governmental or commercial. SC said it was governmental. Therefore, they are not suable in our courts.
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IMMUNITY OF Philippines AS A STATE Insofar as the Philippine state is concerned, it is immune from suit as it is provided under sec 3 art 16 of the constitution.
SECTION 3. The State may not be sued without its consent.
STATE THAT YOU CANNOT SUE But what is the state that you cannot sue? It is represented by the following: A. Republic of the Philippines B. unincorporated government C. public officers and employees in the discharge of governmental functions A. REPUBLIC OF THE PHILIPPINES DETERMINITION IF IT IS A SUIT AGAINST A STATE The COMMON DENOMINATOR is even if you sue any of the three, if it does not require an act on the part of the government such that it would require appropriation of public funds or it will involve a loss of public property, that is not considered a suit against the state. IOW the determining factor in considering the suit as a suit against the state, and therefore as a GR should not prosper is that, in the end if judgment is rendered against any of those enumerated would mean appropriation or disbursement of public funds or loss of government property, then that is considered a suit against the state and should not be allowed unless the state gives its consent. REGISTRATION OF PROPERTY For example, the Republic of the Philippines, by the registration of cases of title over a parcel of land (Torrens Title all title should be registered OW it is presumed to be the property of government). So you file for registration of title. Against whom will you apply this property for registration? Against the Republic of the Philippines. So you implead it which may be represented by an incorporated agency of the Republic, the DENR or the Department of Lands. Why? Because of the principle of REGALIAN DOCTRINE - All lands and resources belong to the state unless you can prove that these lands are alienable acquired by a private individual and therefore it does not belong to the government. Because ultimately, the owners of he land and the natural resources are the government.
Because you impleaded the Republic as party defendant or respondent of the case, will the case be dismissed because it is a suit against the state? Is it a suit against the state? You go to the test. DOES THIS REQUIRE AN AFFIRMATIVE ACT such as appropriation of public funds in the event judgment is rendered in favor of the petitioner declaring him as the property owner? Would that mean disbursement of public funds? Would that mean loss of government property? Certainly it will not require appropriation by congress. Would this result to loss of government property? NO. the property never belonged to the government. It would have been different if after finding out that it is owned by the state, you grant it and gave it to petitioner. Then that would mean loss of government property. In which case, the action may not prosper because it is a suit against the state. EXPROPRIATION OF PROPERTY There is an issue whether after expropriation the land can be recovered by the original owner if he is not paid of just compensation... Because of this principle of the immunity from suit. You have an action for the recovery of expropriated property that was not paid with just compensation. Can we recover as a general rule? NO. Except when there is payment within 5 years after the finality of judgment, because the state is immune from suit. (Lim vs Republic) After 5 years, you can sue even if it is already registered in the name of the republic.
B. UNINCORPORATED AGENCIES OF THE GOVERNMENT AGENCIES OF THE GOVERNMENT The agencies of the government may be classified as 1. Unincorporated 2. Incorporated 3. Municipal corporations 2. INCORPORATED AGENCIES The INCORPORATED are the agencies of the government such as GOCC which are chartered by special laws or governed by charters or the corporation code which under the law, they are considered as juridical persons having a separate and distinct personality from the government of the Philippines allowing them to acquire properties and to sue and be sued in connection therewith. Because they have a separate and distinct personality, they can sue. And as a consequence of allowing them to sue, they open themselves to countersuit. Because it would be unfair if they would call upon immunity from suit. And if judgment is rendered against them, they have funds to satisfy the judgment, independent from public funds which are earmarked for public purposes.
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And that can be subjected to garnishment in an execution on the judgment. FUNCTIONS Incorporated agencies primarily are COMMERCIAL, PROPRIETARY FNCTIONS. Its a business function. Even if it is not a business function, still by its own charter it is allowed to sue and be sued. For example, state universities in their charters are allowed to sue and be sued and therefore cannot invoke immunity from suit. 1. UNINCORPORATED AGENCIES UNINCORPORATED AGENCIES are those that do not have a separate and distinct personality from the government of the Republic of the Philippines. So if you are to sue them, it is like suing the Republic of the Philippines. If you sue the Republic it is not allowed because the republic enjoys immunity from suit. It has to involve disbursement of public funds or loss of property in the event judgment is rendered against the unincorporated agency of the government. FUNCTIONS You have to distinguish what was the function that was exercised by this unincorporated agency. a. governmental b. ministrant or proprietary function PURELY GOVERNMENTAL NOT SUABLE It is not suable if the function is purely governmental. If it is primarily COMMERCIAL/business function, then you can sue the unincorporated agency. Example, when the PNP enters into a contract with a supplier of raincoats to be used by traffic enforcers. Is that commercial or government? You go by the purpose. Law enforcement. Definitely that is governmental because hat would involve implementation of the law. In case PNP does not pay for the raincoats, can the supplier sue the PNP? NO. because it is an unincorporated agency of the government. It is a suit against the state. If the government enters into a contract and engages into a business, then it is suable, even if it is unincorporated. If PNP engages in a barbershop, if somebodys ear was cut because of negligence, is PNO suable? YES. Because this is purely commercial. Nothing to do with the governmental function. Case: Camp John Hay It was owned them at the time by US armed forces. The cook urinated on the soup. The customer sued the armed forces. Is it suable? The US armed forces is an unincorporated agency of the government of US that is immune from suit. But their engaged purely on business has nothing to do with the function of the armed forces. SC said it is suable. When they entered into a contract to repair the walls and piers used by armed forces, but they did not pay, are they suable? No. because this is a governmental contract.
PURELY COMMERCIAL - SUABLE Purely commercial for an unincorporated agency to be suable.
COMMERCIAL FUNCTION INCIDENTAL TO GOVERNMENTAL FUNCTION NOT SUABLE If it is also engaged at the same time a commercial function or business, however incidental to the discharge of the governmental function, is it suable or immune from suit. In the case of Bureau of Customs also engaged in arrastre business, which is important to the assessment of taxes, to be brought to the office to be assessed. In the event they cause damage, will they be suable? NO. Because the arrastre business is merely incidental to the performance of a governmental function taxation function/assessment of taxes. RULES 1. incorporated 2. unincorporated a. purely governmental b. business
-suable, no dstinction -not suable -suable
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3. MUNICIPAL COROPRATION This is a hybrid kind of corporation, the LGUs. It is hybrid in a sense that they are engaged both in governmental and proprietary functions. GOVERNMENTAL FUNCTION So therefore, if it is governmental/sovereign function, as a GR it is not suable. But the LGC allows them to sue and be sued their own charter or chartered cities with some LGUs. And therefore they are suable. -IMPLEMENTATION OF THE JUDGMENT AGAINST LGU But TN the proving of a claim against the LGU is one thing. Implementing the judgment against the LGU is another thing. So that if you are suing the LGU because it is allowed under the LGU and you won the case, can you ask for a writ of execution to garnish public funds of the LGU? NO. not without an appropriation or an ordinance providing for an appropriation. If public funds, because the suit is premised on the exercise of a governmental function by a municipal corporation. C. PUBLIC OFFICERS AND EMPLOYEES IN THE DISCHARGE OF GOVERNMENTAL FUNCTIONS For as long as the public officers discharges the function within the scope of his authority, he is not suable except if he is a SPECIAL AGENT. Under art 129 of NCC, the state has expressly given its consent to be sued for acts or omission that constitute torts of a special agent, even if it was in discharge of a governmental function. A SPECIAL AGENT is one who is designated a position foreign to his regular duties and responsibilities. If he commits damage to someone that would constitute torts, the government has expressly given it s consent to be sued. PUBLIC OFFICER WITHIN AUTHORITY - EXEMPT OW for as long as it is within the scope of the public officers authority, he is not suable; he is considered as an agent. An act of a public officer is considered an act of state therefore he is immune from suit. EXCEPTIONS: WHEN PUBLIC OFFICER WITH AUTHORITY IS SUABLE 1. acts without authority 2. ULTRAVIRES ACT 3. acted in malice and bad faith 4. gross negligence 5. grave abuse of discretion These are not considered acts of the state and therefore it can be sued in his personal capacity. Case: Sandoval vs Republic Those military personnel and policemen responsible in the shooting of the farmer at Mendiola. Farmers were shot to death by police and military personnel. The case against the Republic was dismissed but not with those responsible policemen and military men in their personal capacity. Based on the findings of the Davide Commission, there was gross negligence on the part that resulted to the massacre of these farmers. So when one is sued because he is a public officer, that does not mean that there is a public officer that is immune from suit. If there is an allegation of abuse of discretion, the suit against him may not be dismissed.
PROPRIETARY FUNCTION But if it proprietary function and you are suing the municipal corporation, you can ask for a writ of execution. They engage in distribution of water and electricity. If sued in its purely proprietary capacity, you can garnish the funds of that corporation that the LGU may engage in. -SUE BY MANDAMUS TO COMPEL PAYMENT If the LGU refuses to pay, then you can sue the government with mandamus to compel it to pass the supplemental budget with the appropriation of funds in payment of the award in the judgment.
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EXCEPTION TO EXCEPTION Case: Ministerio vs CFI The road in Gorordo was expropriated without appropriation for just compensation. IOW it was expropriated without provision on the payment of just compensation. It was taken and used by the public. The property owner then sued DPWH and the director. DPWH is unincorporated and the director is a public officer. The moved for the dismissal of the case on the ground invoking the immunity from suit. SC allowed the owners of the property the DPWH. Because if the owner of the property will only be allowed to sue the director in his personal capacity, what can he pay it with. Definitely this is dismissable because the act of the director is not the act of DPWH. Because it was made without authority, it was an ultra vires act. This was the exception where the SC said; if it causes injustice to the property owner, he may be allowed to establish and prove his claim against him. The expropriation cases where the issue is non payment of just compensation, the owner of the property is allowed to sue the republic or its implementing agency. This is an exception. only be through a statute. Even if it is stipulated in the contract that in the event some conditions are violated by the government, the other party shall have recourse against the government, that is not a valid waiver of immunity. It can only be through a law. ALLEGATION IN THE COMPLAINT In fact, when it is filed in a complaint, it has to be alleged in the complaint. the court would presume that the state is not giving its consent to be sued and that can be dismissed for lack of jurisdiction because simply the state enjoys immunity from suit. EXPRESS GIVING OF CONSENT GENERAL LAW It can only be by general or special law. Example of GENERAL LAWS; a. Act 3083 b. Commonwealth act 327 as amended by PD 1445 c. Art 2180 NCC d. Art 2189 NCC e. Law creating the Department of Agriculture A. ACT 3083 Act 3083 refers to all claims/civil liability arising from contracts. The state has given its consent to be sued. B. COMMONWEALTH ACT 327 AS AMENDED BY PD 1445 All money claims against the state either arising from contracts or OW must first be filed with the Commission on Audit. It is only when it is denied by the COA, when you can bring up the matter to the SC on certiorari and thereby suing the government agency concerned including the COA. IOW there is a specific procedure provided under the law before you can sue the state on money claims. First you have to file your claim with the COA. COA has a period of 60 days to act on it, whether to grant or deny your claim for money. In the event it is denied by COA, you can go directly now to SC on certiorari, and sue the state. Like in the case of PNP not paying the supplier, supplier should not immediately sue PNP. Theres a requirement under PD 1445 that supplier must go to COA. If the claim is justified, COA will direct PNP to pay. If COA finds it excessive, unreasonable or contrary to law, COA will deny your claim. Now you can sue PNP and COA to SC on certiorari. Under that law, the state has given its consent. In the event judgment is rendered, there is a different procedure now to execute the judgment of the SC because now you have to get another consent.
EXCEPTIONS 1. giving of consent When the state give its consent whether expressly or impliedly then the you may now prove your claim. TN that it has to be strictly construed against the waiver of immunity from suit. If it has to be EXPRESS CONSENT, it has be done through a statute or law passed by congress, not by a contract nor consent of a lawyer nor declaration of the president. It can only be through a legislation either through a SPECIAL LAW or a GENERA LAW. Case: Sandoval President Aquino created a committee to do an investigation. After the investigation, she declared that the government was at fault on the massacre. On the basis of that declaration, they sued the Republic for damages. Here they said there was a waiver of immunity from suit by the states own declaration that it was somehow at fault on the killing of the farmers. Was there a valid waiver of immunity by that declaration? SC said no. waiver can only be done by a statute. Case: In another case where it was a government lawyer who was saying that any violation of the contract may be sued in the courts. That is an invalid waiver. It cannot be compromised. It may
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E. LAW CREATING THE DEPARTMENT OF AGRICULTURE There is another law like creating the Department of Agriculture. The law creating the DA, allows it to sue and be sued. So it is suable, even if it is unincorporated. C. ART 2180 NCC 2180 is about special agents, the state has specially given its consent to be sued. D. ART 2189 NCC 2189 on torts, any damage injury or death caused by the roads, bridges, maintained by a municipal corporation by an LGU. TN the one responsible to its maintenance and repairs and somebody is inured because of the non maintenance or improper, you can sue the LGU concerned. Because the state has expressly given its consent under this law. PCGG is an unincorporated agency. But it is suable because the claim initiated by PCGG was to seek for affirmative relief, to recover the allege ill gotten wealth. By initiating the complaint, it has gone down to the level of a mere ordinary individual and as such, he is open to counterclaim. IOW he is considered to have waived his immunity from suit. PROTECTION OF INTEREST AND RESIST A CLAIM AGAINST IT But not in the case here the state initiated the complaint because to has to protect its interest and resist a claim against it. Case: Pal Oriental There was the dispute of ownership on a vessel that was used as a collateral on a loan by a private individual to a bank. The private individual was not able to pay the bank. The vessel was foreclosed as a bank. The government intervened as a plaintiff against the bank to stop the foreclosure claiming that the vessel belongs to the government and not the individual who mortgaged it. In the event the court says the real owner is the debtor and not the government, can the bank sue the government because there is no more vessel to foreclose because it was destroyed when 100 years passed because of the intervention of the government? No. because the intervention or litigation commenced by the government against the bank is not for the purpose of seeking affirmative relief but to resist a claim against it.
EXPRESS GIVING OF CONSENT SPECIAL LAW A special law is a law passed by congress specifically allowing the particular individual to sue the state. Case: Government vs Meruit He was riding on his motorcycle bumped by the Veterans Hospital ambulance, which is a government entity. At first it was dismissed because it is immune from suit. He went to congress and he was granted the right to sue the hospital with a special law.
IMPLIED GIVING OF CONSENT 3 instances: a. when the government initiates the filing of a complaint against a private individual asking for affirmative relief AFFIRMATIVE RELIEF The purpose of the compliant should be for an affirmative relief, they are asking for redress. Because if the purpose of filing a complaint is to resist the claim against the state, then even if it was initiated or started by the government, that is not considered a waiver of immunity from suit and therefore still it cannot be sued in a counterclaim. Case: PCGG PCGG was suing individuals and corporations for ill gotten wealth. They thought that the shares of stocks actually are owned by the Marcoses and the registered owners are mere dummies. Later it was declared to SC that they belong indeed to the owners of the corporation and not the Marcoses. Because of the damages suffered by the corporation because of the case filed by PCGG, they filed a counter claim for damages.
2. when the government engages in purely business transaction It has to be purely business. If it is incidental only to the governmental function, it still enjoys immunity from suit. Even if it is unincorporated. Example. The Philippine information agency to raise revenues engaging in promoting activities like PBA games or beauty contest. To do that they have to promote it and contract the services of broadcasting co0mpanies. They did not pay. Can they be sued? YES. While it is unincorporated, it engaged in purely business transaction. Therefore it is suable.
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3. when it enters into purely commercial contracts It has to be purely commercial. Example. The case of Camp John Hay is purely commercial. If you are contracting the purchase of computers for the Comelec, that is purely governmental because hat has something to do with election. If there is a breach of contract, is the Comelec suable? You file a money claim with the COA, before you can sue the Comelec. The rule is, you cannot garnish public funds. Aside from that, there is the presumption of solvency on the part of the government. You cannot make attachments on government properties to satisfy the judgment. AGAINST INCORPORATED AGENCIES OF THE GOVERNMENT But for incorporated agencies of the government, can you ask for writ of execution and garnish its funds in the bank? Yes. EXPROPRIATION CASES You can only ask for a writ of execution to implement and garnish up to the extent of funds appropriated. Remember that before expropriation, there is an appropriated amount. But inasmuch as it is the court that will ultimaterly decide just compensation, it could be more than what is appropriated. For example, 1m is appropriated for the widening of the road. The courts awarded up to 5m. The judgment has become final and executory. Can you ask for a writ of execution to garnish the amount of just compensation awarded by the court? Yes. But only up to the extent of 1m. the 4m, you have to submit to the implementing agency which is submitted to the president for inclusion in the budget to be submitted to congress for the appropriation of funds. If it is a LGU, TN you can ask for the payment but only up to the extent of the appropriated amount, should they refuse to cast a supplemental budget to pay the remaining amount of the just compensation awarded by the courts, you can sue the LGU for mandamus to compel it and pass the supplemental budget.
INTERPLEADER When one is compelled to be a litigant in a case, it was upon the order in the court. Is that covered by the immunity from suits? YES. The government cannot be compelled to litigate and be an interpleader.
EXECUTION OF JUDGMENT When judgment is rendered and it is against the state, can you ask for a writ of execution? NO. Even if allowed, to prove a claim against the state, it is not automatic that the state be liable for whatever judgment is rendered against it. You need to ask for another consent because public funds are EARMARKED for certain public purposes. If you allow the garnishment of public funds, that would prejudice public service because you would be depriving or denying certain purposes for which these funds are appropriated. So you need another consent of the state to answer for the liability that is adjudged by the courts. IOW for suits against the state, those that are allowed because the state has given its consent to be sued, it will be only up to the rendition of judgment. You cannot ask for a writ of execution. AGAINST NATIONAL GOVERNMENT Once you get the money claim, you prove that the judgment is final and you are entitled to the judgment. COA will submit it to the office of the president, then the office of the president includes that in the budget to be submitted to the congress and congress will appropriate the corresponding amount, if it is a claim against the national government. AGAINST LOCAL GOVERNMENT If it is a case against the local governments, then you have to provide the LGU a copy of the judgment that has become final. You ask for the payment. And if it does not make payment, you sue the LGU for mandamus to compel the passage of a supplemental budget.
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June 11, 2011 Back to forms of government ACCORDING TO LEGITIMACY 1. de jure government 2. de facto government To differentiate de jure and de facto is relevant only if there is 2 governments at a time. If there is only one government managing the affairs of the state then there is no need to distinguish. It is understood that the government must be de jure. DE JURE GOVERNMENT A de jure government is a government established by legal processes like a constitution ratified as basis for that government. Or you have election of government officials to run that government. That government has the consent of the rightful authority, which is the people. It has the support of the majority of the people. It exists not only in law but also in actuality. TWO GOVERNMENTS But when there are two governments at the same time, that government may only exist in law, not in reality because theres another government controlling the affairs of the state. And thus we now make a distinction between de jure and de facto. DE FACTO GOVERNMENT A de facto government is one which is established by force, by usurping the powers of a legitimate government or by invading the territory after a war or defeating a particular authority and thereby thereafter establish a government. KINDS OF DE FACTO GOVERNMENT There are three kinds of de facto government: a. government of paramount force This is the government that we had during the Japanese occupation b. government that is established by the inhabitants of the country who rise in insurrection against a parent state c. government that is established after usurping the powers of a legitimate government and maintaining itself against that legitimate government A. GOVERNMENT OF PARAMOUNT FORCE JAPANESE OCCUPATION Take for instance the government that we had during the Japanese occupation while we were still under US. We had the Commonwealth Government that was established pursuant to the Tydings McDuffie Law. It was US who has the rightful authority of the Philippine territory on the basis of the Treaty of Paris. The US was not overthrown by the Japanese military authority. IOW here has never been a transfer of authority then from US to the Japanese. Between the two governments, the Commonwealth and the one established by the Japanese military army, the prior has the consent of the rightful authority. But you cannot deny the fact that the Japanese also established their government in Manila. And because of the establishment of the government there, they had to transfer the seat of the Commonwealth Government to Washington DC. So in reality, the one controlling the affairs of the country through Manila were the Japanese, not the Commonwealth, so that the Commonwealth government exists only in law but cannot exercise the acts of sovereignty at the time because of the presence of Japanese military. While the Japanese is controlling the country, they exist only in fact, but not in law because they did not have the consent of the rightful authority. EFFECTS OF BELLIGERENT OCCUPATION OR GOVERNMENT OF PARAMOUNT FORCE What is important here in political law is that you will know and understand the consequence of the establishment of the government of the Japanese. This is what we call belligerent occupancy or a government that was established by paramount force. What happens to the laws that was passed by the Commonwealth government? ex. 1935 Constitution. Can it still be applied during the Japanese occupation? Remember that the constitution is political in nature. POLITICAL LAWS Insofar as political laws are concerned, can they still be applied? Are people still bound to obey and consider that as the constitution during the Japanese occupation? Except for the allegiance to the territory, US or laws on treason, all political laws were suspended. It is not abrogated because there is no change of sovereignty. TN of the difference. The sovereignty of US over the territory was merely suspended because of the presence of the Japanese. As between Spain and US, when there was a transfer of sovereignty, all political laws were automatically abrogated, repealed or abolished.
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CONSTITUTIONAL LAW
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But not during Japanese occupancy. POLITICAL LAWS WERE MERELY SUSPENDED. Except on laws relating to laws on allegiance and laws on treason.!!! MUNICIPAL LAWS Municipal laws continue unless they are repealed by the belligerent occupant. EFFECT OF REMOVAL OF BELLIGERENT OCCUPATION What happened after the belligerent occupant was removed and there was the resumption of the operation of the commonwealth government which later turned out to be the Third Republic of the Philippines? What happened to the laws that were passed by the Japanese sponsored government? POLITICAL LAWS Insofar as laws that are political in nature, they are automatically abrogated. Laws or acts of government tainted with political complexion are also abrogated. NON POLITICAL/MUNICIPAL LAWS Non political/municipal laws or acts of government remain good and valid. DECISIONS OF THE COURT Meaning decisions of the court at the time that were made during the Japanese occupation that were non political are still recognized as good and valid. But if these decisions, were tainted with political complexion, they too are abrogated. Case: He was convicted for robbery for stealing wires of communication. And when there was a resumption of the government, he asked for a writ of habeas corpus on the ground that his conviction was politically tainted. It was not an ordinary robbery. He stole the wires for the purpose of sabotaging the government of the Japanese. So it was politically tainted. B. GOVERNMENT THAT IS ESTABLISHED INHABITANTS OF THE COUNTRY WHO INSURRECTION AGAINST A PARENT STATE BY THE RISE IN
FIRST PHILIPPINE REPUBLIC A good example of this is during the revolutionary period of the Spanish period. Remember the establishment of the First Philippine Republic by Aguinaldo whose declaration of independence we will be celebrating this June 12 (1898). It was not however recognized as such because it only lived for a month. They were not able to get the recognition from the Family of Nations. AQUINO ADMINISTRATION Then we have the legitimacy of the Aquino Administration after EDSA. There was a question WON Aquinos administration was de jure or legitimate. REQUISITES Here, you take note of the requisites: 1. taking over by one power over an existing government Either by force, violence or voice of majority. 2. for the government to be considered de facto, it must maintain itself against the legitimate government. Considering that insofar as 1973 Constitution was concerned, it was the Marcos Administration that was legally declared as the de jure government, was there still a Marcos Government that the Aquino government was maintaining against after the EDSA revolution? Apparently, there was no Marcos administration anymore. So apparently, there is no need to make a distinction. And in fact this was ratified by the recognition of the Family of Nations that indeed the Aquino Government is a government that was with the consent of the Filipino people. And this was formally recognized by the ratification of the 1987 Constitution, which is a legal process and the subsequent election of the governmental officials, particularly the congress. It may have started as a revolutionary government, but ultimately, they were able to obtain the legitimacy be legal process, such as by ratification of the constitution that was used by the government and the election of government officials, and ultimately the recognition by the Family of Nations.
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CONSTITUTIONAL LAW
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ARROYO ADMINISTRATION Then there was the question on the Arroyo administration after the EDSA II, on WON the government of Arroyo is de jure. Case: Estrada vs Disierto Sc said that there is no question of legitimacy because Arroyo only succeeded by operation of law. Estrada having resigned, she became the next president. So it is de jure. It has nothing to do with transferring power from one government to another. This involves only one government and the change of administration by operation of law. In this case, succession. Therefore, Arroyo became the legitimate president of the Republic. PRINCIPLES UNDERLYING THE OPERATIONS OF GOVERNMENT ART 2 DECLARATION OF PRINCIPLES AND STATE POLICIES GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES But you already know what government we are referring to, that is defined under sec 1 of the Revised Administrative Code as the corporate governmental entity through which functions of government are exercising as the country appear from the context throughout the country, including various arms through which political authority is made effective in the Philippines pertaining to: Autonomous regions Provinces Cities Municipalities Barangays Other forms of local government IOW when we say Government of the Republic of the Philippines, we refer to agency or instrumentality exercising governmental functions. NON SELF EXECUTORY This government is founded on the principles as declared in art 2. But TN, they are not self executing. Therefore, you cannot go to court and use these provisions as basis for judicial action, unless there is a law implementing the provisions of art 2. Case: Tanada vs Angara SC said you cannot use the provisions of art 2 as your legal basis to go to court for judicial relief. If there is any violation of the judicial provision, you cannot implement these provisions unless there is a statute or legislation implementing the provisions of art2. It cannot be a source of right neither can it be a source of obligations of the government.
FUNCTIONS OF THE GOVERNMENT Insofar as liability and suability, we should know the difference between: 1. governmental or constituent function 2. ministrant or proprietary function OBLIGATIONS OF THE GOVERNMENT Insofar as the obligation of the government is concerned, there is no more distinction between constituent and ministrant. They are all mandatory functions of the government especially the concept of the PROMOTION OF SOCIAL JUSTICE. IOW what used to be an optional functional government now has become a mandatory function of the government. Because without the governments intervention, no one can live a decent life. MANDATE OF THE CONSTITUTION TO THE GOVERNMENT Inasmuch as the government is mandated, what is the mandate of the constitution to the government? That it must give those who have less in life, more in law; so that a man can live a decent life as part of his promotion of and protection of human rights.
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SEC 1
SECTION 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.
EX. INTERPRETATION OF THE LAW In the interpretation of the law, SC is assigned. EX. ADMISSION TO THE BAR Admission to the bar, it is the SC. Therefore, the president cannot interfere in that function of SC. Like in the lowering of the bar rating, congress cannot legislate that because that function is exclusive to the SC. Because the constitution says so. If you have mastered articles 6, 7, and 8, you will know that these functions cannot be interfered with. The moment that is interfered with, then there is always the question of violation of separation of powers. IMPLIED EXCLUSIVE POWERS Also you must TN, while there are different powers of each branch, there are powers that are not expressed but are understood by implication, because it is inherent and necessary in the exercise of the express powers. And that is a prerogative as well of the branch that cannot be interfered with by the 2 other branches of government. -EXAMPLE: CONGRESS CONTEMPT Congress main function is to make laws. That is express by the constitution. Thats plenary. As an incidental function, to make it effective, they inquire in aid of legislation. That too is express. But what if the person being summoned by congress will not appear. This is not provided in the constitution but it is inherent in the express power granted in congress which is contempt powers. So you have to master the incidental powers granted to a particular branch in the exercise of the express powers because they too shall be exercised with the guaranty that they too should not be encroached or interfered upon by the two other branches. OW any encroachment of these inherent or implied powers or residual powers are considered violation of separation of powers.
We started discussing on section 1. MANIFESTATIONS OF A REPUBLICAN GOVERNMENT So we explain, how do you know that that the government is republican? You will know that it is republican because of the manifestations 1. existence of the bill of rights 2. government of law and not of men 3. observance of the separation of powers -corollary principle: principle checks and balances Judicial review 4. non delegation of legislative powers 5. right of suffrage 6. accountability of public officers 7. prohibition against the passage of irrepealable laws 8. plurality 9. rule on majority 3. SEPARATION OF POWERS If the powers are concentrated only in one person, then the system is not democratic but a monarchial, autocratic, tyrannical or a dictatorial government. So you have three branches. HOW OBSERVED In a system of presidential form of government, how is this observed? For as long as the power is a prerogative, a discretionary power of a branch, that cannot be interfered with by the two other branches of the government. How do you know that this is a prerogative of one branch or a discretionary power of one branch? Because the constitution expressly assigns the power to that particular branch. EX. MAKING OF LAWS In the making of laws, the constitution says it is assigned to congress. Therefore as a general rule, that power can only be exclusively exercised by congress, not by the president, not even by SC. EX. EXECUTION OF THE LAW In the execution of the law like appointment of government officials to execute the law, the constitution says it is assigned to the president. Therefore, congress cannot interfere, neither can SC.
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CONSTITUTIONAL LAW
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ON THE MATTER OF IMPEACHMENT What does the constitution say on impeachment? To whom is this vested? Initiation of impeachment proceedings, the constitution is very clear, house of reps. Prosecution and hearing of the case, the prosecution will be in the house of reps if there is an initiation of impeachment. But who is gonna hear the case? Exclusive of the senate. What is the controversy on the impeachment proceedings? Because the SC issued a TRO and now the house of reps are complaining that that is an encroachment to the exclusive prerogative that the constitution has expressly assigned to them. Was there an encroachment vis a vis a judicial review by SC, and in fact SC issued a TRO in the case of ombudsman? TN that while it is true that SC has provided an assignment for each branch, this must be exercised in accordance with the provisions of the constitution. OW, if you go beyond what is granted to you, who will be saying that you have abused your authority? It is the courts, as an express assignment of the constitution to the courts. Remember, judicial power is defined as not only limited to settling disputes involving legally demandable and enforceable rights and as well as to determine whether there has been a grave abuse of discretion amounting to lack or in excess of jurisdiction. So SC says that what they are doing is their job as assigned by the constitution that they are to review whether the discretion is abused amounting to lack of jurisdiction. This is not an assertion of the superiority of the courts but the supremacy of the constitution as enunciated in the case of Angara vs Electoral Commission. June 13, 2011 EXPRESS POWERS For as long as the power is a prerogative of a particular branch, that cannot be interfered with or encroached upon by the other branches in the government. How do you know that it is a prerogative or a discretionary power of that branch? Because it is assigned to it expressly by the constitution as a GR. IMPLIED POWERS Although, because of that express grant of the power, there are certain powers although not granted by the constitution is inherent in the express power, still that is considered as discretionary in the branch and therefore that cannot be interfered with by the other branches of government. EXAMPLE CONGRESS CONTEMPT Law making is an express grant of powers to congress. In fact it is plenary. Except for the limitation that may be provided in the constitution for both procedural and substantive limitations. But as you knew already, corollary to the mower to make laws is the power of legislative inquiry and that is expressly granted by the constitution to congress. But in that express grant of power, there is no mention about contempt power that may be exercised by congress for contumacious witnesses who refuse to testify in relation to this legislative inquiry in aid of legislation. But it is understood, it is inherent in the power of legislative inquiry in relation to the law making power of congress that there should be some teeth to the exercise of powers OW it will be useless to summon witnesses to shed light on certain matters that would help them in legislation if they can easily refuse the summons being issued by congress. And that contempt powers as a general rule cannot be interfered with by the SC by issuing an injunction because that is a discretionary power of congress, although not express, its inherent in the express power granted by the constitution to congress. Neither can the president interfere by granting pardon to those who are cited for contempt. Because that will be considered an encroachment of a prerogative of a particular branch and thereby violating the separation of powers. That is the more difficult part. Because insofar as the express powers, you have mastered that. And as a GR, it cannot be interfered with because of the principle of separation of powers. Inherent powers, residual powers or powers that are implied in the grant of the express powers are those that you are not too familiar because they are jurisprudentially established by express provision of the constitution.
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CONSTITUTIONAL LAW
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EXAMPLE PRESIDENT DEPORT UNDESIRABLE ALIEN For example is the power of the president as the chief executive of this country to deport undesirable alien. You cannot find that in any provision of the constitution. It is a residual power inherent in his being the chief executive. And therefore it cannot be questioned by the congress, neither by the court. EXAMPLE ENTRY TO COUNTRY (?) On the matter of who should be allowed to enter the country, that is also a residual power established by jurisprudence. Case: Marcos vs Manlapus It was considered an encroachment by the SC when it was reviewed. Later it was explained why it was reviewed and there was a justification why the SC was not cited for violating of separation of powers. Because there are exceptions to this. But generally, when the power is granted to the constitution or if the power is inherent in the express grant of powers, the residual power or implied power necessary to the express power, like the express powers, they are exercised by the three branches without the encroachment or the interference of the other branches of the government. EXAMPLE PRESIDENT DECLARATION OF STATE OF NATIONAL EMERGENCY You also have hat issue relating to the declaration of the state of national emergency. Is there any provision in the constitution that the president can expressly exercise the power? NO. But this was implied in the case of Arroyo as the chief executive fostered by her being the commander in chief of the armed forces, and should not be interfered with b ythe courts. SC sustained that power of the president. PRINCIPLE OF CHECKS AND BALANCES Another point that you should TN on the separation of powers is on the checks and balances on the exercise of discretionary powers. Because while it is true that the power is expressly assigned to a particular branch by the constitution, the constitution itself provides for the limitation or the checking of the power in order to balance the powers of the government and protect the people from any arbitrary control by any of the branches in the government. -EXAMPLE LAW MAKING POWER (CONGRESS) What I have earlier pronounced that the law making power of congress is plenary, but the power by express provision of the constitution is being limited or checked by the constitution itself. How is this checked by the constitution? No bill shall be passed unless it is signed by the president. So if the president finds it contrary to the constitution, the president can always exercise his prerogative as expressly granted the constitution vetoing the bill. If the veto power of the president is likewise abused by the powers of the president, that can also be checked by congress itself by repassing the bill. Of it obtains 2/3 votes, then the veto power is overridden. The bill becomes a law regardless of the veto of the president. JUDICIAL REVIEW And in the event, if that bill is contrary to law, however it was sighed by the signed by the president or overridden by 2/3 votes of all members, the constitution provides for a limitation. If anyone is aggrieved by an unconstitutional law, he can always seek relief or redress from the courts and only then can the courts check these powers by judicial review. TN of the powers of SC or other inferior courts in the exercise of judicial review. Because of the separation of powers, the court cannot moto proprio declare a law unconstitutional, or consider the exercise of the prerogative as having been exercised with grave abuse of discretion amounting to lack or in excess of jurisdiction. Someone has to invoke the authority of the courts by filing a case in courts. But it is not the mere filing of the case in court because there are other requisites that must be complied with in relation to the separation of powers. REQUISITES TO FILE A CASE TO DECLARE A LAW UNCONSTITUTIONAL: 1. actual case or controversy 2. raised by the proper party 3. raised at the earliest opportunity time 4. question of constitutionality must be the lis mota of the case
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GENERAL CONCEPT OF JUDICIAL POWER Here, in the event someone goes to court and questions the constitutionality of law, TN of the role of SC. SC can now review. Because now under sec 1, art 8, judicial power is not just limited to applying the law and determine the conflict by settling the disputes, applying laws that are applicable in case of a conflict involving rights that are both demandable and enforceable. Then, the court usually in the exercise of judicial power interpret the law and apply the law. That was the general concept of judicial power. EXPANDED CONCEPT OF JUDICIAL POWER But TN that has been expanded that the SC and other courts can also review WON there has been grave abuse of discretion amounting to lack or in excess of jurisdiction. IOW what our constitution has recognized that each branch is supreme on its own sphere whose prerogatives cannot be interfered with by the other branches including the SC; because of the provisions of art 8, here that may still be reviewed if somebody goes to court and ask for relief, questioning the validity in the exercise of the prerogative. The constitution so provides. So the SC has no choice but to review because that is part of their power and obligation. And if it finds that indeed there is a grave abuse that while that is your discretionary power, however you abuse it amounting to lack or in excess of jurisdiction, SC has the task to nullify it or declare it as null and void. This is not an assertion of the courts superiority. This is an assertion of the supremacy of the constitution. (Angara vs Electoral Commission) amounting to lack or in excess of jurisdiction. In many cases where there is a question on constitutionality, specially when there is a conflict between the exercise of powers of the president and of congress, the SC can always act as a referee. Even if he claimed that the power is discretionary because it is expressly assigned to them by the constitution, this is not to preclude the SC to review if that discretionary power is abused. Precisely, before the SC resolved on the merit, the issue, the SC still has to determine whether there is justification to exercise its power of judicial review. Because as I have said, the judicial power may be used to interfere into the prerogatives of the two other branches to make sure that SC will not be accused of interfering so you must make sure that the 4 requisites are present. So if one of the elements is absent, generally, there is no justification for SC to exercise judicial review. OW that would be an encroachment of the prerogatives of the two other branches of the government. Case: Ombudsman Merceditas Gutierez There was an accusation made in the house of reps particularly the Committee on Justice, the SC has abused the power of judicial review because they have interfered with the prerogative to initiate impeachment proceedings. Here TN that the issue is not the interference into the impeachment proceedings prerogative to initiate on he part of the house of reps, but to determine as it was alleged by the petitioner that that prerogative has been abused by the house of reps by not following the procedure as provided b the constitution. The constitution provides that there can only be an initiation of impeachment proceedings not more than once in a year, and that was an issue. Naturally the SC has to look into that because it was alleged. And eventually the SC ruled in favor of the house of reps saying that there has been no abuse of discretion and there has been no violation of the requirements of initiation of impeachment proceedings. That does not make the SC superior of the two other branches, but simply assert what is provided in the constitutionnot the superiority of the courts but the supremacy of the provisions of the constitution.
POLITICAL QUESTIONS IOW, even political questions involving purely discretionary matters may still be reviewed by the courts without violating the separation of powers. Its more on checking the powers in order to balance the 3 branches powers and protect the people from any arbitrary control by the presidents exercise of his prerogative or by congress in the making of laws, through this judicial review power of the courts. However, insofar as political discretionary powers, the issue is limited into WON there has been a grave abuse of discretion amounting to lack or in excess of jurisdiction. Case: Marcos vs Manlapus There was a question on the discretionary power of the president to determine who should be allowed to the enter the country. Notwithstanding that it is a discretionary power of the president, the SC reviewed it if only to determine whether that discretionary power of the president is abused
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CONSTITUTIONAL LAW
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SHARING OF THE POWERS Another point that you should TN are those circumstances where no less than the constitution or existing statute providing for the sharing of the exercise of the powers. -EXAMPLE SHARED LAW MAKING POWER For instance, the law making power is definitely the power expressly assigned to congress as provided in the constitution. But do you know that this power by express provision of the constitution has also been assigned or delegated to the two other branches of the government? The PRESIDENT is delegated with EMERGENCY POWERS under sec 23 or to ADMINISTRATIVE BODIES on subordinate legislation. This is executive branch and yet exercising the power to a certain extent for purposes of implementing the law. They promulgate rule and regulations insofar as administrative bodies under subordinate legislation, the president insofar as the exercise of emergency power. In effect, the executive branch exercises legislative powers, however limited. We will explain this further when we go to the delegation of legislative powers. The SC under sec 15 art 8, the SC has exclusive power to promulgate rues governing: 1. Pleadings 2. Practice of law 3. Procedure in court 4. Admission to the bar 5. Matters extending free legal assistance to the indigents These are exclusive. In the case of Gingoyon vs Republic, congress is never precluded form promulgating or making or enacting laws providing or amending the rules of court. Because after all, the legislative power is plenary as far as congress is concerned. -EXAMPLE SHARED EXECUTIVE POWER How about the executive power? Are there instances when it is also being exercised by the two other branches? YES. In the matter of APPOINTMENT, by nature that is executive. To ensure hat laws are faithfully executed, the president being the chief executive makes the appointment in the government. In fact, if there is no law providing who should be the appointing authority, it is understood that that power is being appointed with the president being the chief executive. But this power is being assigned to CONGRESS and SC, in the matter of APPOINTING THEIR OWN STAFF AND PERSONNEL to maintain the independence of the three branches. -EXAMPLE SHARED JUDICIARY POWERS In the exercise of QUASI JUDICIAL POWERS by the ADMINISTRATOVE BODIES, settling disputes between and among employees subject to the review of the president. That is by nature judicial but that is assigned to the executive department. CONGRESS to a certain extent also exercises judicial functions. CONTEMPT power is by nature judicial. ELECTORAL TRIBUNAL POWERS to conflict or settle conflicts involving election offenses among members of congress. Who are the members of Electoral Tribunal? 6 of whom are members of congress. IMPEACHMENT is judicial by nature. There is a proceedings where it is adversarial where house of reps acts as a prosecutors and the senate as the adjudicators or tribunal.
So if you can observe, there is more to the blending of powers rather than the complete or absolute separation of powers. Theres more to the interdependency of the powers rather than on complete independence. TN in relation to it, you have checks and balances and you have judicial review power of the courts.
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CONSTITUTIONAL LAW
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4. NON DELEGATION OF LEGISLATIVE POWERS Related to separation of powers is the non delegation of powers, particularly legislative powers. Because there is separation of powers, as a GR, the powers should not be given up to anyone. It is not only a power to exercise but an obligation. The people through the constitution has expressly assigned the power to that particular branch. What has been delegated cannot in turn be delegated by the delegate to another delegate. That is the reason why there is the prohibition against the delegation of powers. As I have said earlier, it is more on the legislative power because theres more on the law making where the government has to come up with laws in order to meet the exigencies and needs of the public. PERMISSIBLE DELEGATION OF LEGISLATIVE POWER (EXCEPTIONS) While non delegation of powers is a GR, there are certain exceptions to that. This is what we can permissible delegation of legislative power. Because of the growing complexities of the people and the government has to meet the needs of he people immediately, it cannot be avoided and it would be best for the power to be delegated. And so we have the power delegated to the: 1. president 2. administrative bodies 3. local governments 4. people at large 1. DELEGATION OF POWER TO THE PRESIDENT TN of sec 23 art 6, the requisites and the relevant principles.
SECTION 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.
EMERGENCY POWER Emergency power is vested with congress. This is not exercised by the president unless it is delegated. Os it is only delegated to the president. And by sec 23, it is delegated to the president in cases of: a. national emergency b. war LIMITATIONS TN of the limitations: a. it can only be delegated or granted by law passed by congress b. in cases of national emergency or of war c. limited only for a period of time 1. until emergency exists 2. unless it is lifted or withdrawn earlier 3. until the next adjournment of congress (special or regular session) d. it can only be withdrawn by a resolution -there is no need of the approval then of the president (not a law) e. scope is limited only to carry out the declared policy of congress The president cannot therefore exercise the power without the express grant of congress.
Case: David et al vs Arroyo This relates to the state of national emergency. Case: Sanlakas vs Executive Secretary This relates to the declaration of a state of rebellion
DECLARATION OF STATE OF NATIONAL EMERGENCY How about the declaration of the state of national emergency? Can the president do that without the congress delegating the exercise of emergency powers to the president? The SC said theres no need for the delegation of emergency powers to the president to make a declaration either of a state of rebellion or a state of national emergency. Because after all, this is based on the president being the chief executive. He knows the status of the country and the condition of the country at the moment considering that the evidences and materials he would be needing are within his reach because the departments providing for the information are under the control of the president like the PNP and military. So definitely the president can declare a state of national emergency bolstered by the fact that the president is the commander in chief of the armed forces. But the moment that the president orders the warrantless arrest, the taking over of some public utilities or vital industries because of such emergency, he cannot do that without the grant of emergency powers to him by congress. (David et al vs Executive Secretary)
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2. DELEGATION TO ADMINISTRATIVE BODIES As part of subordinate legislation, what has been delegated is only the rule making power. There cannot be the promulgation of rules by the administrative bodies having the force and effect of law if in the first place theres never been a law delegating the exercise of the power to the administrative body. So there has to be a law passed by the congress providing for the basis of the promulgation of implementing rules and regulation. Supposedly, the rules promulgated by the administrative bodies will provide for the details or for the limitations or parameters for which the law can effectively enforced. KINDS OF LEGISLATION THAT ADMINISTRATIVE BODIES MAY PROMUGLATE There are two kinds of legislation that the administrative bodies may promulgate as part of subordinate legislation: a. providing for details b. providing for limitation For as long as it is within the provision of the law. TEST ON VALID DELEGATION OF POWER TO ADMINISTRATIVE BODIES So you TN of the test in the delegation of the power to the administrative bodies: a. COMPLETENESS TEST The law must be complete in itself so that nothing is left to the administrative body to determine what the law is. All that it needs to do is to implement the law. Because it is incomplete, it is lacking with basic provisions, then there is undue delegation. b. SUFFICIENCY OF STANDARD TEST You may find this in the introductory part of the substantive law itself. You may provide for the reason why this law is adopted. So that in the promulgation of the rules and regulation, the administrative bodies will be guided accordingly as to how the rules will be promulgated, the boundaries and parameters to which that law will be implemented. Case: Ipira vs Department of Energy Theres the universal charge imposed for the distribution of electricity. The purpose of which is to have electricity distributed all over the country. It is shared by all electricity consumers. And it is the Department of energy that enforced it by promulgating the rules and regulation. There was a question on the Department of Energy to do that. They say there was no delegation because this was a tax imposition. SC said thee is no violation of the non delegation of non legislative power because what the DOE is simply to implement the law. This is not a taxing power that is being exercised but more on police power. And this is by express delegation of the law itself to the DOE. 3. DELEGATION TO LOCAL GOVERNMENTS RA 7160 LOCAL GOVERNMENT CODE There cannot be an exercise of the power of LGUs without the express grant of Congress; RA 7160, the Local Government Code. LIMITATIONS TN because it is a delegated power, the power is not without limitations. In fact, LGUs cannot pass laws contrary to the constitution and contrary to laws passed by congress. They cannot therefore prohibit a trade that is allowed under existing laws neither can they pass laws amending national laws. Because the power is limited. They cannot prohibit. They can only regulate. CANNOT PROHIBIT BUT MAY REGULATE Case: Cruz vs Paras This is about the closure of night clubs which was not the an activity that is considered illegal by law. They cannot be prohibited by LGUs. They may only be regulated. CANNOT PASS LAWS CONTRARY TO NATIONAL LAWS We do not have a federal system of government. Ours is still unitary. Our LGUs are not independent from the national government. They cannot make laws contrary to laws already passed by the national government. Case: Magtakas vs Pryce Properties This is about the establishment of casinos in CDO. It was declared unconstitutional because the government cannot prohibit the activity. They can only regulate. CANNOT PROHIBIT PRACTICE OF PROFESSION Including the practice of professions, LGUs cannot in the guise of promoting general welfare prohibit certain practice of profession or business. It can only be regulated by LGUs but certainly cannot be prohibited. NOT OPPRESSIVE, NOT UNREASONABLE AND LIMITED TO TERRITORIAL JURISDICTION Another is that the laws passed should not be oppressive, not unreasonable and it is only limited within its territorial boundaries. So if a municipality passes an ordinance, as long as it is not contrary to existing laws, it cannot be a applied to another municipalities because it is nly applicable within its territorial boundaries.
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MMDA MMDA is not a local government or a political subdivision. It does not exercise police power. You can only enforce the law of LGUs composing of Metropolitan Manila. But they cannot on their own make rules and implement them. Either they make rules on the basis of existing laws or on the basis of local laws on the different municipalities and cities comprising the MMDA. Case: Bel Air vs MMDA This question WON they can divert the traffic in a private subdivision, invoking the exercise of police power without paying just compensation. SC said, in the first place, MMDA has no police power. It cannot also take private property without payment of just compensation because virtually, by allowing traffic to enter a private subdivision is taking the property for public use. Case: Garin An MMDA traffic enforcer confiscated the license of a lawyer. The lawyer was saying he has no authority because he does not have police power. SC sustained the argument that MMDA was not a political subdivision and therefore does not exercise police power. However, because it is an administrative body, there is existing law allowing them to confiscate, then they can do so. Not by their authority as an office but the local governments that comprise the MMDA. Case: Francisco vs MMDA Regarding on the Wet Flag Scheme, there was a question on due process and on the authority of MMDA to pour water on you for traffic violation. They were authorized by LGUs to implement traffic rules. Francisco questioned the constitutionality. There was a question WON he is a proper party because he was not the one who got wet. There was no problem with due process because SC said that was only preventive. In preventive, no hearing is required. Does the MMDA have the authority? Yes. Not because of it being MMDA but because they were authorized by the LGUs comprising the MMDA. They are treated as an administrative coordinating body. 4. DELEGATION TO PEOPLE AT LARGE As regards to the exercise of the power, you will wonder shy should it be delegated to the people when the source of sovereignty is the people. In fact sec 1 art 2 provides:
Sovereignty resides in the people and all government authority emanates from them.
Why is there a need to delegate the power when the sovereignty resides in them? As provided in the constitution, it is not on the delegation. Its more on the provision on the procedure or mechanism on how he people can exercise the power. RA 6735 And thus under sec 31 of art 6 of the constitution, the congress is mandated by the constitution to pass and enact a law providing for a procedure. And thus we have RA 6735 providing on procedure on people making laws either directly or indirectly including amending the constitution. How is this done: 1. initiative a. on statute b. on local legislation c. on amendments to the constitution 2. referendum 1.a. INITIATIVE ON STATUES Case: Lambino vs Comelec As regards to initiative on statues, people can directly propose national laws provided that the petition has to be signed by petitioners comprising of at least 10% of the total registered voters of which 3% are representing the different districts nationwide. (amendment on constitution is 12% and 3%) 1.b. INITIATIVE ON LOCAL LEGISLATION What are the political subdivisions that can initiate local legislation? How many voters required to sign? a. autonomous regions 2000 voters b. provinces 1000 c. cities 500 d. municipalities 100 e. barangays 50 It could be ordinance or resolution
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1.c. INITIATIVE ON AMENDMENTS OF CONSTITUTION We need 12% and 3% of each legislative district. Case: Lambino vs Comelec SC says that RA 6735 is sufficient to provide for the mechanism on how people can initiate amendments on the constitution. However, it is only limited to amendments, not a revision. This is now modified decision of SC in Santiago vs Ramos, RA 6735 is not sufficient XXX This has been changed in the case of Lambino. As long as the petition has been signed by the authors of the initiative, subject to ratification of majority vote in a plebiscite called for the purpose. Insofar as SC is concerned, still we follow majority rule. Still we follow majority rule, like the declaration of the law to be contrary to the constitution and therefore null and void, you need majority of those who actually participated in the deliberation. 6. ACCOUNTABILITY OF PUBLIC OFFICERS Because the public officers are chosen by the people, you should always remember that the authority emanates from the people. And thus at all times, they are accountable to the people. We have a separate provision on the accountability of public officers. One of which is the impeachment of public officials in the government or the office of the ombudsman and his Anti Graft Courts or SB just to let the people or the officials in particular be aware that they are always accountable to the people. 7. PROHIBITION AGAINST THE PASSAGE OF IRREPEALABLE LAWS The GR is laws passed by congress are always subject to changes/amendment/revision. EXCEPTION: IMPAIRMENT OF CONTRACT Can you cite an example of an exception where the law cannot be repealed? Because to repeal it, it becomes unconstitutional? When the law impairs existing obligations of contract. Like if you grant a tax exemption based on valuable consideration, that cannot be revoked without violating the law against the non impairment clause. 2. GOVERNMENT OF LAW AND NOT OF MEN All men are subject to the law. Case: Villavicencio vs Lucban Case: Echenova vs Gonzalez You cannot just violate the law with impunity just because you are powerful. Theres no one this country who is so powerful that he can be above the law.
2. REFERENDUM Referendum is an indirect way of proposing laws. Instead it will be congress for the national law to propose. And people will either reject or approve it in a referendum. Same with the LGUs. the sanguninans will propose and the people in the locality will approve or reject it in a referendum. In initiative on amendments, it is to be ratified not on referendum but in a plebiscite.
AFTER BREAK
1. EXISTENCE OF THE BILL OF RIGHTS As we explained, the Bill of Rights will serve as a balance or fulcrum between authority on one hand that is represented by the inherent powers and rights of individuals on the other hand. Without the balance, you cannot have a republican system of government. You will have a tyrannical system of government. 9. RULE ON MAJORITY Inasmuch as we cannot get the unanimous approval, we can only estimate the consent of the people. And thats the device on the majority rule. Because after all, the heavier weight carries with it the lighter weight. In many cases, you have specially where the body of the government is collegiate or collegial, you always have a decision reached by the approval of the majority. Like for instance, in congress, you have the majority votes which is only of the totality plus 1, and 2/3 or votes in more important decisions that need to be made by congress.
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SEC 2
SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
The things that you need to consider on the RENUNCIATION OF WAR and the adoption of the GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW AS PART OF THE LAW OF THE LAND. RENUNCIATION OF WAR What we are renouncing is only an OFFENSIVE WAR where we become the aggressors. We cannot give up a war because it is the duty of the government and the people to defend the state. INCORPORATION CLAUSE What may be the source of generally accepted principles of international law automatically, under the incorporation clause, they form part of our legal system. IOW they are treated as ordinary statues if there are no applicable local law and in case when there is a need to apply an international law. WHAT MAY BE INCORPORATED TN of what can be incorporated as generally accepted principles: 1. treaties duly ratified by the president As enunciated in the case of Pimentel vs Ermita. All the cases being entered into by the president, we are bound by it. Case: Pimentel vs Ermita This is the Statute of Rome that was questioned by Pimentel because the president refused to give a copy to the senate for concurrence. It was declared by SC that on the matter of ratification, that is exclusive to the president and under separation of powers, they cannot ask for mandamus to compel the president to forward a copy of the statute or the treaty. This was on the establishment of the criminal courts of justice. Even if the senate has concurred to it, if the president refuses to ratify it, then the president is not compelled to ratify the treaty because after all, that power is exclusive to the president. To bind therefore the republic insofar as the treaties being entered into, it must be ratified by the president with the concurrence of 2/3 of the house of the senate, to consider it as part of the legal system. Inasmuch as it was not ratified by Arroyo while it was signed by Estrada it was not ratified because the president did not submit a copy to the senate for concurrence.
Are we bound by it? NO. But is the establishment of the International Court of Justice; are we subject to its jurisdiction? YES. While we did not sign it, that law became a customary law for it was ratified my the majority vote of the members of the UN. So you may still be bound by it by incorporation clause because one of the sources of international laws, other than treaties entered into by the president, concurred by 2/3 of the members of the senate, are treaties which become part of customary law. 2. treaties that have become part of customary law Case: Nihok vs Director of Prisons Case: Kuruda vs Halandoni While we were not signatory to the establishment of Commissions to prosecute the criminals during the war who were responsible to the atrocities committed during ? the WW II, we were never signatories Dakilo Brian that authorized the establishment of the tribunals. But because that treaty, although we were not signatories thereto has become a customary law, meaning it was adopted and followed by majority of the members of UN, then we too are bound by it, because as customary law, automatically, it forms part of our legal system under this provision on the incorporation clause. Case: Pimentel vs Ermita The same with the Statute of Rome, we were not signatories because we did not ratify although it was signed by President Estrada. But the moment it is a customary law, that can be applied to us. IOW like if there is accusation of the presidents violation of human rights against those groups or individuals. Can she be prosecuted in the International Courts of Justice? YES. If you invoke incorporation clause, she may be subjected to, following customary laws. 3. norms of general or customary laws Case: Mijares et al vs Javier, April 12, 2005 With regard to the recognition of foreign judgments, we dont have laws. Neither have we signed treaties with other countries. This has something to do with a case that was prosecuted in US for violation of human rights against the Marcoses. Judgment was rendered in favor of those plaintiffs who complained that their rights were violated. They were asking for damages. Their problem is that the properties of the Marcoses were in the Philippines. They wanted to implement the judgment, but there is no treaty between the Philippines and the US as regards to recognizing the judgment being rendered by a local court in US. SC said that there is no obligatory rule derived from
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treaties and conventions that requires the Philippines to recognize foreign judgments or allow a procedure for the enforcement thereof. However, generally accepted principles of international law by virtue of the incorporation clause of the constitution form part of the laws of the land, even if they do not derive from treaty obligations. ELEMENTS: (when it becomes customary law) The classical formation of international seize those customary rules accepted as binding result from the combination of two elements: a. established, widespread, and consistent practice on the part of the state. b. psychological element known as OPINION JURIS CIVI NECESSITATES (meaning opinion as to law or necessity) Implicit in the latter element is a belief that the practice in question is rendered OBLIGATORY by the existence of the rule of law requiring it. Case: Pharmaceutical and Health Care Association of the Philippines vs Duke et al., Dec 9, 2007 In milk cans, you see the notice breast milk is the best for babies. The producers of companies manufacturing these milk say that they are not obliged because there is no law requiring them, the bill at the time was still pending. But there is an international requiring it, which has been accepted and approved by majority, if not all members of UN in the international community. SC said it becomes a customary international law. CUSTOMARY INTERNATIONAL LAW is deemed incorporated into our domestic system. A mere constitutional declaration, international law is deemed to have the force of domestic law. Because there is that international law, then it has to be complied like a local statute. So there are only 3 sources of generally accepted principles of international law: 1. treaties that are ratified and concurred 2. treaties that have become customary laws 3. customary laws and international norms METHODS OF INCORPORATION In the incorporation, it could be by: 1. transformation 2. incorporation 1. transformation TRANSFORMATION is an express adoption of a generally accepted principle of international law as a local law, by legislating and making it a statute. 2. incorporation In INCORPORATION, it is like adapting a generally accepted principle of law by passing a statute, expressly making it as a local law, or by pronouncement of the constitution. In our case, it is by the pronouncement of the constitution that it is transformed into a local law by adapting them as part of the legal system by express constitutional declaration. And that is SELF EXECUTING. WHEN APPLICABLE INTERNATIONAL CONFLICT, NO LOCAL LAW This is only relevant when there is no applicable law in the locality and it involves an INTERNATIONAL CONFLICT. If there is, it conflicts with the local law. So if there is no applicable law in the locality and you need to apply the law on a conflict, you may refer to these international laws that are generally accepted as if it is a local law. It is treated like a statute. CONFLICT BETWEEN LOCAL LAW & GENERALLY ACCEPTED PRINCIPLE OF INTERNATIONAL LAW. The problem will only arise if there will be a conflict between a local law and a generally accepted principle of international law. How do you resolve? First, according to SC, you have to RECONCILE AND HARMONIZE the differences because after all, there is the presumption that the government will not be stupid to enter into an agreement to enter into its laws. Neither would they pass laws that would be running contrary to international congregation such as the treaties entered into. However, if it becomes irreconcilable, how do you resolve the conflict? The GR is, it must always be the constitution that prevails. No problem because a statue and a generally accepted principle are of the same level, then if the statute is contrary to the constitution, it will be declared unconstitutional. Similarly, a generally accepted principle of international law that is treated as a domestic law when it runs conflict with the constitution will be declared null and void.
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But if it an ordinary statue and an international law Case: Ychong vs Hernandezr This is the case of internationalization of our retail trade, where the foreigners are not allowed to enter into trade or business such as a sari-sari store. There was a question on which of the laws will prevail, the Retail Trade Act or the Treaty of Amity and Friendship with China, where we promised to the Chinese that their nationals will be treated similarly with the Filipinos in the matter of business. According to the Retail Trade Act, only Filipinos were allowed to engage in that business. Inasmuch as the case will be resolved by our local courts that are created by our local laws, it will be stupid to sustain an international law against a law that created it. So its understood that our local laws will always prevail over international laws. The courts themselves are created by law. Case: Secretary of Justice vs Lantion According to SC, the doctrine of incorporation is applied whenever municipal tribunals are confronted with situations in which there appears to be a conflict between the rule of international law and the provisions of the constitution or statutes of the local state. Efforts should first be exerted to harmonize them so as to give effect to both since it is presumed the municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the incorporation clause. In a situation however where the conflict is irreconcilable and a choice has to be made within a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances. The fact that international law has been made part of the law of the land does not pertain or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation as applied in those countries decrees the rules of international laws are given equal standing with, but are not superior to national legislative enactments. Accordingly, the principle LEX PROSTERIO DEROGAT PRIORI takes effect. A treaty may repeal a statute. The statute may repeal a treaty. In states where the constitution is the highest law of the land such as the Republic of the Philippines, both statues and treaties may be invalidated if they are in conflict with the constitution. SEC 3
SECTION 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.
ROLE OF THE ARMED FORCES Is it their duty to maintain peace and order in the country? NO. Their duty is specific inside. SUPREMACY OF CIVILIAN AUTHORITY HOW ENFORCED
Civilian authority is, at all times, supreme over the military to secure the sovereignty of the State and the
integrity of the national territory.
- Outside force, rather than
How is this enforced? 1. You have the president, a civilian authority who is made as the highest military authority as the commander in chief of the AFP. 2. You have Congress, a civilian institution which has the power to appropriate public funds in the creation of offices for the military and for the expenditures of the military operations. Without public funds appropriated, there is no activity of the military. 3. On the matter of recruitment of the members of the armed forces, proportionate, by regions, to avoid establishment of a clique among certain individuals. 4. The prohibition against the appointment of active military men in the civilian government. 5. On the matter of appointment and promotion of members of AFP, it has to be with the concurrence of the Commission on Appointment. 6. In relation to the matter of Military Tribunals (court matials hears cases involving members of the armed forces who have been charged with offenses related to the articles of war or in relation with the performance of their duty) This is also a manifestation of the supremacy of the civilian authority over the military. Case: Gonzales et al vs Rabaya, Aug 10, 2006 Senator Trillanes wanted to have his case tried before the civilian court, so he moved for the dismissal of the case in the court martial. Inasmuch as there is the supremacy of the civilian authority over the military authority, the court martial should be divested of jurisdiction over his case. SC said that court matials are instrumentalities of the executive to enable the president as commander in chief to effectively command control and discipline over the armed forces. In short, court matial form part of the disciplinary system to ensure the presidents control and thus civilian
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supremacy over the military. At the apex of this disciplinary system, it is the president who exercises review powers of the court matial. So basically, thats the reason why the decision of court matial is subject to review by the president in his capacity as the commander in chief of the armed forces as a system of disciplining the members of the military. Case: Budani vs Senga There is the implementation of the supremacy of the civilian authority over the military. Budani was asked not to appear before the senate committee regarding the irregularities being committed in the last election of 2004. He was told not to appear by the chief of staff upon the order of the president as the commander in chief of the armed forces. Notwithstanding that order, he appeared before the committee saying that he is being summoned and the president, in the matter of invocation of executive privilege will not apply as far as he is concerned. He was court matialed thereafter for not heeding to the lawful order of the chief of staff. And then there was the question of the supremacy of the civilian authority. WON it was correct for Budani to be prosecuted before the court matial for not heeding to the orders of the chief of staff, not to appear in the committee hearing in congress. SC said that by the vitality of the tenet of the president as the commander in chief of the armed forces is most crucial to the democratic way of life, to civilian supremacy over the military and to the general stability of our representative system of the government. The constitution reposes final authority, control and supervision of the AFP to the president, a civilian who is not a member of the armed forces and whose duties as commander in chief represent only a part of the organic duty imposed upon the office, the functions clearly civil in nature. Civilian supremacy over the military also countermands the notion that the military may bypass civilian authority such as civil courts on matters such as conducting warrantless searches and seizure. The ability of the president to prevent military officers from testifying before the congress does not turn on an executive privilege. It has nothing to do with the executive privilege, but on the chief executives power as the commander in chief to control the actions and speech of the members of the AFP. The presidents prerogative as commander in chief are not hampered by the same limitations as in executive privilege. The president could as a GR require military officers to seek presidential approval before appearing before congress is based foremost on the principle that a contrary rule duly diminishes the prerogative of the president as commander in chief. So TN when you are asked a question WON the executive privilege of the president is violated where the member of the AFP or a military officer is prohibited to appear before the committee hearing without the approval of the president, TN, this does not apply on them. The president can prohibit them not as a chief executive enjoying executive privilege but rather as the commander in chief of the armed forces in order to implement the supremacy of the civilian authority at all times over the military authority.
Case: IBP vs Zamora This is with reference to the employment of the military to some shopping malls in order to maintain peace and order. Why was it questioned? Primarily the role of the AFP is to secure territorial integrity of the country and political sovereignty, and not to maintain peace and order. Thats the PNPs role. But it was justified by SC saying that they were following orders of a civilian authority.
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SEC 4
SECTION 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military or civil service.
SEC 6
SECTION 6. The separation of Church and State shall be inviolable.
TN that it is INVIOLABLE. PROVISIONS IMPLEMENTING What is important are the provisions implementing sec 6. In subsequent provisions of the constitutions, we have the: 1. non establishment of religion In order to maintain the separation between the church and the state 2. prohibition against accreditation of the church or religious sector as a party list 3. prohibition against a representative coming from a religious sector 4. prohibition against the appropriation of public funds for the support of religion or any sector of society Except when they are paid to priests, ministers or other ecclesiastical ministers assigned in: a. Military institution b. Penal institution c. Government d. Orphanage e. Leprosarium EXCEPTIONS There are however exceptions: 1. when the state has accommodated religion because they acknowledge the contribution of religion to the promotion of general welfare Example is tax exemption on properties of churches that are actually, directly and exclusively used for religious purpose however limited only to property tax. 2. optional religious instruction in public, elementary and high schools REQUIREMENTS: a. written consent from the parent or guardian of the child b. taught during school hours without additional cost to the government c. taught by someone who is accredited or recognized 3. on the matter of appropriation of public funds, when the funds are used by priests and ministers assigned in the a. Military institution b. Penal institution c. Government d. Orphanage e. Leprosarium
This is with regards to the duty of the government to serve and protect the people. However, the government may also require civilians in the country to defend the state. PERSONAL OR CIVIL SERVICE HELP DEFEND In relation to maintaining peace and order where the people are required to help defending the state by rendering personal or civil service; Case: Chavez vs Romulo As regard to the right of bearing arms. There was a pronouncement made by the chief of the PNP that all licenses to carry firearms are revoked, without any hearing. It was only a declaration at the time of election. And so he was complaining that it was a violation of the right to due process where his right to bear arms is being removed without hearing. SC said, that in relation to the matter of defending the state by civilian authority or by the people as their prime duty, and the maintenance of peace and order, SC said maintenance of peace and order and the protection of the people against violence are constitutional duties of the state. And to bear arms is to be construed in connection and in harmony with these constitutional duties. SC said that insofar as the license to bear arms, it is neither a property or a property right, it is a privilege granted by a sovereign state subject to the police power of the state. It can be removed without hearing. Remember the due process, the extent of protection no person shall be deprived of life, liberty or property without due process of law. To bear arms is not a property. Neither is it a property right. Rather it is a privilege granted to a state to an individual subject to its police power.
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4. on the ownership of educational institution GR, educational institution may only be owned and administered by: (requirements) a. an individual a Filipino citizen b. a corporation qualified Filipino corporation, 60% of it capital is owned by Filipino citizens EXPT: c. religious group or mission board, even they are all foreigners GENERAL PRINCIPLE TO IMPLEMENT THE PRICIPLE OF SEPARATION OF CHURCH AND STATE -BENEVOLENT NEUTRALITY ACCOMMODATION OF RELIGION It is not hostility with each other. The state will remain neutral. Under the general principle of BENEVOLENT NEUTRALITY ACCOMMODATION OF RELIGION, as enunciated in the case of Estrada vs Escritor. For as long as there is NO CLEAR AND PRESENT DANGER to public convenience, public health, public morale, public safety, public policy, you should be allowed to enjoy your religion without interference from the state. SEC 12
SECTION 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.
This is important in relation to RH Bill and the pending Divorce Bill. TN that these are all principles that are not self executing, unless there is a law that implements the provision, you cannot use this as basis for judicial action. This is one of the basis of questioning the constitutionality of passing the RH Bill because they are saying that it encourages abortion or the prohibition against conception because of the use of contraceptives. In case there is a conflict, although it is recognized , it is the duty of the state to protect the life of a child from conception but in case there is a conflict between the mother and the child, it is understood that the mothers life will prevail. Regarding the RH Bill, its not your choice of a right to privacy, as it has something to do with the constitutional obligation on the part of the state to protect the child or unborn child from conception.
SEC 7
SECTION 7. The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to selfdetermination.
INDEPENDENT FOREIGN POLICY Case: Angara vs Tanada As regards to WTO, we can enter into treaties and agreements with other foreign countries for as long as we consider: 1. national sovereignty 2. territorial integrity 3. national interest 4. right to self determination
SEC 16
SECTION 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.
SEC 8
SECTION 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory
TN because with the focus climate change and protection of environment, do not forget this provision. This right, although provided in art 2 is one of the provisions they say is self executing. It is not less important as those civil and political rights that are enumerated in the bill of fright. Its a public right. Case: Oposa vs Factoran The courts took cognizance over the petition notwithstanding that they were filed by the minor children of Atty Oposa. The basis of the proper party requisite there in reviewing the constitutional policies of DENR is on the INTERGENERATIONAL RESPONSIBILITY of the government to preserve the forest or timberland from being destroyed by certain individual in connection of the right of his children to a balanced and healthful ecology. Case: Province of Rizal vs Executive Secretary This is with reference to the demand for a balanced and healthful ecology where the LGU has intervened for the protection of the environment.
This is with regards to nuclear weapons I the territory. TN that we are for freedom from nuclear weapons, not however precludes us from using the nuclear power as our source of energy like in Japan. What is prohibited is the possession and control and manufacture of nuclear weapons. The test of these nuclear arms as well are also prohibited. But of course that will not be absolute. As long as it is consistent with national interest, then we might get into the manufacturing because we cannot be forever be isolated from the rest of the world. But as of now, it is still prohibited.
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LOCAL AUTONOMY We do not have a federal system of government. in understanding what consists of local autonomy is the cases of Pasco vs Pagcor, Limuna vs Mangilin, Lina vs Tano. The bottom line there is that there is no transfer of powers from the national government to local. What has been transferred is merely administration so that LGUs can make their own rules in order to implement their own policies, to manage their own affairs and resolve their own problems. The power of LGUs to impose taxes and fees are always subject to limitations which congress may provide by law. The principle of local autonomy under 1987 Constitution simply means DECENTRALIZATION. It does not mean local government sovereign within the state of an emporium unlike a federal system. The matter of regulating, taxing or OW dealing with gambling is a state concern. And hence it is the sole prerogative of the state to retain and delegate it to local governments. Case: Limuna vs Mangilin Under the constitution, provinces, cities, municipalities and barangays enjoy local autonomy subject to the supervision of the national government acting through the president and the department of local governments. Autonomous Regions of Muslim Mindanao and Cordilleras on the other hand, are subject unknown to the decree of the organic act creating them and accepted principles on the effects and the limits of autonomy. Remember the juridical entity of Bangsa Moro, where it was also emphasized on the matter of local autonomy. Case: Lina vs Tano SC said, ours is still a unitary form of government, not a federal state. Being so, any form of autonomy granted to a local government will necessarily be limited and confined within the extent allowed by the central government. UNDER CONTROL AND SUPERVISION OF THE PRESIDENT Suffice to say, it is not absolutely independent from the national government. It is still under the control and supervision from the office of the president. Case: Matulin vs COA As regards to the extent of the supervision of the president over LGUs, insofar as the president is concerned, it is merely supervision. It cannot therefore, even his alter egos like the secretary, cannot interfere in local affairs as the LGU acts within the parameters of the law and the constitution. This has something to do with the giving of allowances to judges, when it was being regulated by the COA. SC said that as long as the LGU acts in accordance of law, that cannot be interfered with by the national government, including the COA.
POWER TO TAX To maintain local autonomy there is the lending them power to tax so that they can raise revenue to become independent at least from the national government In fact, even if there is no law conferring upon the local governments to raise revenue through taxes by express provision of the constitution on local autonomy, local governments can impose taxes. That provision in the constitution is self executing, there is no need of a legislative enactment. Nonetheless, there are laws as regards to the limits of the exercise of the powers.
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SEC 26 EQUAL ACCESS OF OPPORTUNITIES FOR PUBLIC SERVICE
SECTION 26. The State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law.
ARTICLE 6 THE LEGISLATIVE DEPARTMENT SEC 1

SECTION 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.
Everyone has equal opportunities to run for public office or to serve the public office. Is this a matter of right? Case: Pamatong vs Comelec, April 30, 2004 Atty. Pamatong is a lawyer teacher of UP. He challenged his disqualification as president because he cannot command a national campaign for presidency. So he was disqualifies as a nuisance candidate. SC said that the provision does not bestow a right to seek the presidency. It does not contain a judicial, enforceable constitutional right. It merely specifies a guideline for legislative action. It is not intended to compel the state to enact positive measures that would accommodate as many as possible into public office.
It is not exclusive to congress. There is reservation made for the people to exercise the power as well. LEGISLATIVE POWER The power is not limited to law making: 1. ordinary 2. constituent ORDINARY, when it is an ordinary law being passed. It is not only law the makes law but also people through initiative and referendum CONSTITUENT is the power to propose revisions and amendments to the constitution.
POLITICAL DYNASTY On political dynasty, for as long as there no law yet passed the congress defining what would constitute political dynasty, there is no such thing as political dynasty. There is no definition.
VOTES REQUIRED BY CONGRESS How many votes to propose amendments and revisions to the congress acting as Constitutional Assembly? votes. And if they are undecided, they can call for Constitutional Convention. How many votes are needed? 2/3 votes. They can ask the people for refenrendum. How many votes are needed? Majorty votes.
SEC 27
SECTION 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.
RELATED LAWS 1. Requirement of statement of assets and liabilities The point its, it is a constitutional mandate. Unless there are laws implementing and providing for the measures to go about it, it is just a state principle. SEC 28 TRANSPARANCY
SECTION 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.
CONSTITUTENT POWER EXERCISED BY PEOPLE If people are to exercise constituent power, how? Through initiative, but limited only to amendments of the constitution. How many percent? 12% and 3% of the registered voters represented by the different districts.
Statement of assets and liabilities Disbursements of public funds, it has to be published There are certain transactions where the law prohibits premature disclosure of information pertaining to government (right of people on matters of public concern)
BICAMERAL TN that the legislative body is bicameral. It consists of two houses: 1. house of senate 2. house or representatives
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NUMBER OF SENATORS There are two houses, house of senate consisting of 24 and house of congress consisting of not more than 250. Can this be changed by power of legislation? No. its fixed by the constitution. To increase or decrease the membership, you have to amend the constitution. How are they chosen? They are chosen nationwide. NUMBER OF REPRESENTATIVES How about the house of reps? They are 250 unless OW provided by law. Therefore, they may be increased or decreased as determined by law. It is a legislative function. The membership will depend on PROPORTIONATE REPRESENTATION which is determined every after 3 years as a result of a census being conducted. So they are chosen by districts. In the manner of election, it is by districts, not nationwide. NO PREPROCLAMATION CONTESTS Is there a preproclamation contest as regards to members? And where do you file cases involving election contests, qualification and returns of members of congress? Case: Pimentel III vs Comelec, Mar 30, 2008 Like the president and VP, members of congress, as a GR; the preproclamation cases or matters relating to preparation, translation, receipt, custody and appreciation of election returns or certificates of canvass are prohibited. IOW there is no preproclamation contest. But that is no longer a problem now with the automation of the counting of ballots. JUDRISDICTION OF COMELEC MANIFEST ERROR But if there is a manifest error in the election return, then you have: Affecting composition Proceeding with the board of canvassers Determining of the authenticity and the due execution of the certificates of canvass as provided RA 7166 as amended by 369, These can still be taken cognizance by the Comelec. EXTENT OF THE EXERCISE OF THE POWERS Insofar as the exercise of the power as far as congress is concerned, it is virtually plenary, absolute, no limitations; Except those limitations provided by the constitution or substantive and procedural limitation. SUBSTANTIVE LIMITATIONS (EXAMPLE) 1. matters relating to the constitutional rights of individuals that they must not be violated in the enactment of laws PROCEDURAL LIMITATIONS (EXAMPLE) 1. no bill shall become a law unless it is signed by the president and has passed through 3 readings.
KIND OF LAWS THAT MAY BE PASSED 1. derivative laws 2. original laws ORIGINAL could be from the people themselves. DERIVATIVE is the power that is exercised by congress as delegated when they are elected in an election as members of congress. DELEGATION OF POWERS It may be delegated to certain delegates under certain circumstances: 1. President 2. Administrative bodies 3. Local governments 4. People at large
CASES RELATING TO DELEGATION OF LEGISLATIVE POWERS 1. PRESIDENTS ORDINANCE POWER It is part of the executives rule making authority in implementing and executing constitutional or statutory powers. Indisputably, there are constitutional powers vested in the executive branch that are self executing. The president can also make rules having the force and effect as part of his ordinance power. However, he cannot make rules without a statute or constitutional provision as basis.!!! There has to be a law authorizing him to exercise the power. 2. POWER OF THE SECRETARY OF FINANCE Case: Suartez Cigar June 11, 2009 SC said, unless expressly granted to the BIR, the power to reclassify cigarette brands remains a prerogative of the legislative and cannot be usurped by the former as an administrative body.
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3. AMENDING THE FUNCTIONS OF CHED Under RA 7722, whether the president has the power as a delegated power concerning CHED is under the control of the president. Case: Review Center Association of the Philippines vs Ermita, April 2, 2009 The president has no inherent or delegated legislative power to amend the functions of CHED under RA 7722. So he cannot add or decrease the functions of CHED. Only the congress can do that. 4. CREATION OF DISTRICTS Case : Sema vs Comelec, July 16, 2008 Congress cannot validly delegate to ARMM (they have autonomous act to pass laws PVDD not affecting national laws, and applicable only to autonomous regions) This has something to do with creation of districts in the autonomous regions by consolidating the places in Cotabato to be part of ARMM. This effects the national affairs. To consolidate cities to be part of ARMM to create legislative districts, it results to increase in membership in congress, which is national in character. SC said that congress cannot validly delegate to the ARMM regional assembly, the power to create legislative districts, the power to increase the allowable membership of the house of representatives and to reapportion legislative districts is vested in congress. The other point is, it affects the national affairs. So the law creating new legislative districts in ARMM is unconstitutional. WHO MAY BE MEMBERS OF THE HOUSE OF REPS There are two kinds of members: 1. representatives from legislative districts 2. representatives from the party list system 1. REPRESENTATIVES FROM LEGISLATIVE DISTRICTS They are chosen from the different districts depending on the population of each legislative district. -one representative for every 250k population -PROPORTIONAL REPRESENTATION -one representative for every province, regardless of the population The membership may be changed. It can be fixed by law, unlike the senate. The manner of choosing (manner of electing) the senate may be changed by law, but not the membership (number of members). You need to change the constitution.
2. REPRESENTATIVES FROM THE PARTY LIST SYSTEM While the law says they would comprise 20% of the total members of the house of reps. -at least 50 = 20% of 250 members WHO MAY BE PARTY LIST GROUP Party list are the marginalized group. They represent the group that is less represented in our sector of society. ORGANIZATIONS DISQUALIFIED FOR ACCREDITATION a. religious sector b. those having the support of a foreign government or organization c. supporter of violent or illegal group d. supported by government find HOW TO GET A SEAT OF THE 20% Case: Banat vs Comelec How do you get the 20% allocated for the party list? How much percentage of the votes cast for the party list should be obtained to get a seat in house of reps representing the party list? 2% 2% is only a qualification to get a GUARANTEED SEAT. To get an additional seat, is it necessary for you to get 2%? No. As long as there is available seat from the 20%, even if you have less than 2% you can get an additional seat. So if you have 100 party list, and you are to get 56; for the 100 organizations accredited to participate in the election of the party list system, they should get 2% for the votes cast of the party list. If only 20 got 2%, then there will be 20 organizations who will
cases relating to the apportionment of legislative districts in leyte in creation of biliran province It was the Comelec that apportioned the municipalities that would comprise the legislative districts. SC said no because Comelec does not have the authority. The power is vested with congress because the apportionment of legislative districts is primarily a legislative function. In fact there are cities that are created by law that are considered a legislative district. No cities will be considered as such without legislative enactment. So basically, the creation of legislative districts is a legislative function.
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get one seat. You still have 36 left. To divide the 36 seats left, you list according to the number of votes obtained from highest to lowest, he may get an additional seat in the house of representatives representing the party list, even if they got 1% of the votes cast. For those getting more than 2, they can have more seats for as long as it is not more than 3 seats. June 18, 2011 LEGISLATIVE POWER It is vested with congress It is the power to propose, enact, amend or repeal the law. It can be original or derivative. It is vested with congress by express delegation of the people to them through the constitution. EXERCISE OF POWER You have original exercise of the power. It is one with the people delegated to the congress, acting as a constituent assembly, exercising the constituent power to propose amendments or revisions to the constitution. COMPOSITION OF THE CONGRESS We were also discussing the composition o the congress: 1. senate 2. house of representatives a. district of representative b. party list system. NUMBER OF MEMBERS As to the number of senators, we have 24, that is fixed by law. It cannot be increased or decreased. The only change that can be made is the manner of electing them. As of now, we elect them at large or nationwide. OTOH, the house of reps, they are no less than 250 which can be increased depending on the apportionment of legislative districts. Only congress has the power to apportion or reapportion legislative districts, exclusively, not the Comelec, neither the regional assembly of the autonomous region. CREATION OF LEGISLATIVE DISTRICT The only requirement in the creation of a district is that, if it is a province there is no requirement as to population; as long as it is type one legislative district. If it has more than the 250k requirement, it will have more. As long as the municipalities comprising the legislative district are continuous, compact and adjunct with each other to ? avoid GERI MANDARIN when you create a legislative district that would favor a candidate by selecting only the municipality or cities that are favorable to him, even if far apart from each other. Insofar as the house of reps, in the election of members thereof, we have: 1. by legislative district 2. by party list
REPRESENTATIVE OF THE PARTY LIST ORGANIZATION Should you be one of those in the sector to qualify to sit? It is the prerogative of the organization. In fact, it is a requirement, they are supposed to submit names of nominees. The law is silent. If you go by the intent of the law, it is not required for as long as you are not a member. Case: Arroyo vs Comelec (did not reach SC) He is representing the security guards. He need not be a security guard because you are not electing an individual but a sector. He feels for them. He has been fighting bills for the rights of the security guards. He is qualified to represent them MAJOR POLITICAL PARTIES Is it allowed for political parties to join party list system? As a political party, they are prohibited because that will defeat the purpose. But they can represent an underrepresented sector. Constitutional Commission and RA 7941 prohibits major political parties from participating in the party list. The framers of the constitution intended that the major political parties to participate in party list election through their sectoral whims. So major political parties can organize or affiliate with chosen sector/s.
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RA 7941 PROHIBITIONS ON ACCREDITATION The party list must be accredited by the Comelec. You read the law relating to party list system; RA7941, as regards to accreditation or registration or the prohibition against sectoral organization or political party or coalition of sectoral organization like accreditation of a. religious sector b. organization supported by government funds c. organization supported by a foreign government or international organization d. promotes the use of violence Go over with these prohibition. UNDERREPRESENTED MARGINALIZED GROUPS The provision is on representation of the under represented marginalized groups. POLITICAL GROUPS Would these in clued marginalized groups as well? YES. Provided that they are representing a particular sector. NUMBER OF MEMBERS IN THEPARTY LIST As to the number of members coming from the party list, it is so provided in the constitution that the ceiling is 20%. To get a guaranteed seat, the party list must have 2% of the votes cast for the party list system. For additional seats, for as long as it is still covered in the 20%, even if the organization gets less than 2%, then they may still get a seat. If you are to get additional seats, the limitation is not for more than 3 seats QUALIFICATION OF MEMBERS OF CONGRESS (SENATE) 1. natural born citizen 2. age: 35 years at the day of election 3. able to read and write 4. registered voter 5. resident in the Philippines for 2 years immediately preceding the election RA 9225 Former natural born citizens who become again natural born citizens, should they run for senate and for congress, they must have the other qualifications as well provided by law. On citizenship, the reacquisition there is on the assumption of office, not on the date of election. For as long as he regained citizenship before he assumed office, which commences on the noon time of the 30th day of June following the election Of course he must have the requirement of residency of 2 years immediately preceding the election. The reacquisition of citizenship is not a presumption that he has regained his residency as well, especially when he has lost his citizenship by naturalization and has not come back to the Philippines until he applied for repatriation under 9225. If he has stayed only for one year, then he is disqualified AGE QUALIFICATION On the matter of age qualification, that is on the day of election. CITIZENSHIP On citizenship, on the day he assumed office. That is on the assumption that he has all the qualifications provided for by law. RESIDENCY On the residency, it is synonymous to domicile. You have either: 1. domicile of origin 2. domicile of choice Should there be a change of residence or domicile, there has to be the bona fide intention to relinquish or abandon all residents and these corresponds to the act of abandoning the old residents and transferred to a new residence. Case: Aquino vs Comelec It is not enough for him to say that he has already transferred residence. He has to show that indeed he had the intention to abandon his former residence. The abandonment must actually correspond to his acts by actually abandoning and transferring to another residence. QUAIFICATIONS OF THE MEMBERS OF THE HOUSE OF REPRESENTATIVES A. DISTRICT REPRESENTATIVES 1. natural born citizen 2. age: 25 years at the day of election 3. registered voter 4. resident of the district in the Philippines for at least 1 year B. PARTY LIST 1. natural born citizen 2. age: 25 years at the day of election -EXPT if representing the youth sector, maximum age is 30 years. (during the term of your office)3. registered voter 4. resident of the Philippines for at least 1 year - need not be a resident of the place where the organization is established 5. bona fide member of the organization he represents within the period of 90 days before election 6. not change political affiliation or party affiliation within 6 months preceding the election
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STANDARDS TO DETERMINE WHETHER A GROUP OS MARGINALIZED OR UNDERREPRESENTED Case: LGBI vs Comelec, April 8, 2010 On the accreditation of Ladlad, there was the disqualification of Ladad for being immoral. SC, insofar as the matter of its accreditation, is an organization composed of men and women who identify themselves as lesbians, gays, bisexuals or transgender individuals, has satisfied that the exacting standards that the marginalized and under represented sector must demonstrate. You have: 1. past subordination or discrimination suffered by the group 2. immutable or distinguishing characteristic or attribute or characteristic that distinguish or define them as a discrete group and present political and economic powerlessness SC said that they have been historically disadvantaged and discriminated against because of negative public perception and has even alleged acts of violence perpetrated against their members by reason of their sexual identification and gender identity. The magnitude of opposition against petitioners participation in the party list system is by itself demonstrative of the sectors lack of political power. So too is the fact that proposed legislation seeking to prohibit discriminatory treatment have been languishing in congress. So they represent the marginalized group. to the continuity of his term of office. ELECTIONS 1. regular election 2. special election REGULAR ELECTION is being held in the second Monday of may and three years thereafter. The term of office of the senate is on staggered basis. So for the first 12 when we had election in 1992, serving for 6 years and the last 12 served for 3 years. Thereafter, you have the continuity. The term of office of 12 of the senators will serve for 6 years. The same is true with the members of house of representatives. Because of the staggered basis of the term of office of the senate, it is practically a continuing body. Unlike the house of representatives, after the expiration of the period of time of three terms then there is an interruption until the election of members. But the senate is continuous. VACANCY SPECIAL ELECTION - DISCRETIONARY In the event a vacancy occurs in the house of senate or in the house of representatives, we call for a SPECIAL ELECTION. But the calling for a special election is discretionary on the house concerned. But in the event they call for a special election in case of vacancy, TN of RA 6645, where it has provided for a special procedure on how to call for a special election to fill up the vacancy. TERM But the senator or member of the house who may be elected in a special election will only serve the unexpired term of his predecessor. LIMITATION TN there cannot be a special election in the senate if the vacancy occurs less than 18 months before the next election. They will just have to wait for the next election, or 1 year in the house of representatives. Because it is very expensive to hold a special election. SPECIAL ELECTION HOW In the even a special election is held, how is this done? 1. declaration of vacancy or certification of the respective house concerned 2. called 3. held within 45-90 days from the date of the resolution or certification
In the different view, when we go into the non establishment of religion, that was also the reason why they should be accredited. Because if you say they are disqualified because of their religious orientation, that they are considered as immoral, according to SC has no place insofar as the government is concerned, considering that the government has no religion. RA 7941 You just go over RA 7941 especially on the requirements in order to be accredited as a party list. TERM OF OFFICE OF MEMBERS OF CONGRESS SENATE -6 years, not be for more than 2 consecutive term -voluntary renunciation of once office regardless of period of time shall not be considered interruption insofar as continuity of the term of office for purposes of determining successiveness of the term -even if one has not completed his term and he resigns, that is considered as one whole term HOUSE OF REPRESENTATIVES -3 years, not be more than 3 successive terms -voluntary renunciation is not considered an interruption as
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SALARIES OF SENATORS AND MEMBERS OF CONGRESS They shall be determined by law. Can they be increased or decreased? INCREASE They cannot enjoy the increase until the term of office of all the members who approved the increase shall have expired. This is to avoid conflict of interest or graft and corruption. This is subject to tax. DECREASED It is effective immediately. This does not include allowances. Salaries are determined by law. PERKS OF CONGRESS: CONGRESSIONAL IMMUNITIES There are only two legislative immunities: 1. freedom of speech 2. freedom from arrest FREEDOM FROM ARREST When one is charged with an arrest whose imposable penalty is not more than 6 years of imprisonment. For as long as congress is in session, WON the member is actually attending the session, he is immune from arrest. TN that in some cases, this is a privilege and a way of an exception only when one is allowed to enjoy this immunity without any condition or is absolute. Case: Jalosjos Jalosjos was convicted and was confirmed by SC. At the time, he was already convicted as congressman. He wanted to be escorted by the jail guards in order for him to attend the session in congress. He said that being a congressman, he is practically exonerated by his election to the office. He said also that by PARLIAMENTARY IMMUNITY which is the freedom from arrest and detention, being a member, he should enjoy that privilege. SC said, the history of that provision granting senators and congressman immunity from arrest and detention shows that the privilege has always been granted in a restrictive sense. There cannot be a preference to congressman OW there will be a violation of equal protection clause in the enforcement of the criminal laws. FREEDOM OF SPEECH The freedom of speech means that you cannot be sued for civil damages or libel or slander. Whatever statements he made, while the congress is in session, if it is relation of course to the matter that is subject to discussion, he is immune from any suit relating to his speeches so that he can discuss and debate with anyone for any issues relevant subject to legislative enactment. NOT INCLUDE DISORDERLY BEHAVIOR TN this does not include liability of the member of congress that may constitute disorderly behavior. Immunity is limited only to civil and criminal liability. But not administrative liability. Case: Osmena vs Pendaton You can still be held administratively liable but not criminal or civil. COVERED This extends to committee hearings and even agents of the legislators in their reports. It is not only limited to oral utterances. Anything that is communicative in nature is included in the immunity. Case: Trillanes IV vs Pimentel Same reasoning in this case. Trillanes insisted that he still had the presumption of innocence. He is not like Jalosjos who has been convicted. His case was still pending however it was not bailable, as he is charged with coup d etat. SC said that there is no distinction between the two cases. The presumption of innocence include the enjoyment of privileges and rights provided by law. So SC said, the presumption of innocence does not carry with it the full enjoyment of civil and political rights. Following the equal protection of laws, this immunity from arrest and detention cannot be availed of by the senator.
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PROHIBITION If they enjoy some perks, they also have some prohibitions for being members of congress. What are some of the prohibition? 1. You cannot be appointed to other positions of the government. Unless you resign. If you are appointed to an office that is inconsistent to being member of congress, you are considered to have forfeited your seat. But in other cases, like forbidden appointments, if you are responsible for the creation of that office, or increase its salary or allowances, you cannot be appointed to that office, even if you resign. Case: Liban vs Gordon, Jul 15, 2009 Gordon is also a chairman of Red Cross. There was a question on his appointment that he should vacate his position as senator having been appointed. SC said, Gordon did not relinquish his senatorial post despite his election to and acceptance of the post of chairman of the Philippine Red Cross. Because PNRC is a private organization merely performing a public function. PNRC chairman is not a government official or employee. Not being a government office, the PNRC chairmanship may be held by any individual including a senator, or a member of the house of congress. PNRC is autonomous, neutral and independent from the Philippine government. it is a voluntary organization that does not have government assets and does not receive any appropriation from congress. Gordon may serve as chairman without giving up his position. 2. Appearing as counsel before any court of office, electoral tribunal, quasi judicial and administrative bodies. Any court of justice includes appellate courts. The prohibition is only against personal appearance. This does not include consultation and signing pleadings in cases pending any courts of justice. SEC 15
SECTION 15. The Congress shall convene once every year on the fourth Monday of July for its regular session, unless a different date is fixed by law, and shall continue to be in session for such number of days as it may determine until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays, and legal holidays. The President may call a special session at any time.
Sessions in congress may either be: 1. regular 2. special REGULAR SESSION -every 4th Monday of July -shall continue as determined by them by law until 30 days before the next opening of regular session -exclusive of Saturdays, Sundays and legal holidays SPECIAL SESSION -when congress is in recess and president calls for a special session -it is the president who calls for this session to attend to certain important urgent matters that need immediate attention by congress. ADJOURNMENT OF SESSION -they have to inform each other if they have to adjourn, and not in separate places SEC 16
SECTION 16. (1). The Senate shall elect its President and the House of Representatives, its Speaker, by a majority vote of all its respective Members. Each House shall choose such other officers as it may deem necessary. (2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner, and under such penalties, as such House may provide. (3) Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days. (4) Each House shall keep a Journal of its proceedings, and from time to time publish the same, excepting such parts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at the request of one-fifth of the Members present, be entered in the Journal. Each House shall also keep a Record of its proceedings. (5) Neither House during the sessions of the Congress shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.
3. Becoming financially interested in any contracts of government 4. Cannot intervene in any matter before any office of the government This is part of transparency and public disclosure.
OFFICERS OF CONGRESS -IMPORTANT PRINCIPLE IN ELECTION OF OFFICER B4 START OF SESSION: election of officers by MAJORITY VOTE IOW even if the president comes from a minority political party, for as long as he was chosen by the majority of the members of the house, he is never precluded to be elected in the position of majority floor leader or as the president of the senate. The only requirement is that he is chosen by majority of the
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house. But this is on the presumption of a quorum (50% plus 1). However, it has to be based on the coercive power of the house concerned, where the house has the power to compel the member to attend the session even if he is sick. For as long as he is within the jurisdiction of the house, he may be compelled. And still if he is absent, he can still be considered in the determination of quorum. Example. You have 24 members in the house of the senate. One of whom is in the hospital and one is on vacation abroad. In determination of quorum, what would be the basis of 50% plus 1? 23. A quorum is not based on the total membership but the members who may be coerced or compelled to attend the session. That includes the one in the hospital because he can still be coerced in a stretcher. But for one who is abroad, he will not be considered. Because even if congress wants to and issue a warrant of arrest, our warrant is nothing abroad because congress hs no authority outside our territory. When they deliberate, how many votes are needed in order to pass a law? Majority of the quorum. Thats why quorum is important. It must be established at the beginning of the session. SHIFTING MAJORITY PRINCIPLE As the attendance increases, that starts with the quorum, there is also an increased number of majority in the passing of the law. It is possible that at the start, there were 13 attending. And therefore, all that is needed to approve the law is majority of 13. But in the course of the session, other members arrived and we have now 20, then the majority required to approve a legislative enactment will also increase. DETERMINATION OF QUORUM The matter of determination of quorum will be based on the internal rules of congress. They make their own rules and regulations. The SC cannot interfere unless there is violations of the provisions of the constitution. Case: Joker Arroyo vs de Vinecia There was a question on WON there was a quorum at the start of the deliberation of the bill. He said that it was passed when there was not quorum. Therefore there was no majority. SC said that is up to the house concerned. They have their own rules It is a factual matter and it is not for SC to interfere because of separation of powers, insofar as they affect the members of congress. SC cannot inquire into the allegations that in enacting a law, the house of congress filed to comply with its own rules in the absence of showing that here was a violation of the constitutional provision or private rights. Parliamentary rules are mere procedures which may be waived or disregarded by the legislative body. DISCIPLINING OF MEMBERS OF CONGRESS If you can impeach some impeachable officers like the president, how do you remove a member of congress before the expiration of office? Certainly not by impeachment, not even by the office of ombudsman. To maintain their independence, the discipline of the members of the congress is exclusive to the house concerned. VOTES How many votes are needed to expel a member of congress? 2/3 votes of the members for the house concerned. GROUNDS DISORDERLY BEHAVIOR For what grounds? There is only one ground, unlike in impeachment where there is 6 grounds. Only for DISORDERLY BEHAVIOR. The definition if disorderly behavior is discretionary in congress. NOT SUBJECT TO REVIEW BY COURTS Is this subject to review by the courts? NO. EXPT: JUDICIAL REVIEW Case: Osmena vs Pendaton SC said, the house of representatives is the judge of what constitutes disorderly behavior. This is with regards to Pendaton being censored. The court will not assume jurisdiction in any case which will amount to interference of judicial department with the legislature. Of course, when there is ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION in the discipline of members of congress, then that can be reviewed by SC in exercise of its judicial review powers.
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Case: Jalosjos Did his election as congressman condone his criminal conviction? SC said, his election as congressman did not amount to condonation of his offense. Neither does it entitle him pending appeal to be free from confinement and to be allowed to attend session of congress for the people elected him with full awareness of the limitations of his freedom of action and movement. It was never the intention of the framers of constitution to show the members of congress from the consequences of his wrong doings. A member of congress can only invoke immunity from arrest for relatively minor offenses punishable at most by correctional penalties. Case: Paredes vs Sandigan bayan He was then the Secretary of Health when he was charged by the SB. It was asked by the office of the prosecutor when he became a member of congress to suspend him preventively while the criminal case in SB is pending. SB placed a member of congress under preventive suspension without violating the exclusive power of congress to discipline its own members. SC said that that preventive suspension imposed by the court is not yet a penalty. It is just a precautionary measure. While it is true that the matter of disciplining its members is exclusive to congress, it does not preclude the courts to place someone under preventive suspension because of the pendency of the criminal case before the courts. There is no similarity here because what is contemplated as exclusive to congress is the penalty of penalizing disorderly behavior. In the case of SB, it is a precautionary measure so that the evidences would not be tampered neither would the members of the congress use his office in order to intimidate possible witnesses of the criminal case in the SB. ADJUNCTS OF CONGRESS-OFFICES EXTENSIONS OF CONGRESS 1. Electoral Tribunal 2. Commission on Appointments CONSIDERED AS
ELECTORAL TRIBUNAL It is the sole judge of election contests relating to election, returns and qualification of members of congress. KINDS There are two electoral tribunals: 1. SET Senate Electoral Tribunal 2. HRET House of Representatives Electoral Tribunal MEMBERSHIP Both consist of 9 members each. 3 of whom are justices of SC. 6 others are coming from political parties by proportionate representation. The basis of the election to the electoral tribunal to represent a political party is by proportional representation from political parties including the party list. IOW, you cannot just choose them from one political party. They have to be proportionate. You go by the number of members consisting a political party. And then divide that by the number of the member of the house and multiply it by 6 allocated for the political party. Example. You have two senators from the political party of Liberal party; 2 X 6 = number of representation in the tribunal 24 What about representative coming from the party list, will there be a chance for one sectoral organization to be elected in the electoral tribunal? SC said, for as long as they qualify the qualification of proportionate representation, it is for congress to determine how they can go about it. Perhaps they can join coalist with other sectoral organization in the party list just to make sure that they can get a seat in the electoral tribunal. INDEPENDENCE OF MEMBERS FROM POLITICAL PARTY TN the moment you are chosen in the electoral tribunal, you become independent from your political party that you represent. This is to maintain the impartiality of the electoral tribunal, being a quasi judicial body determining election contest. The change of political party or the removal of a member of electoral tribunal from the political party will not be a ground for the removal from the electoral tribunal itself.
PENALTIES 1. Expulsion 2. Suspension MAXIMUM PERIOD If the intention of Congress is to suspend a member of the house for more than 60 days, then he might as well be expelled. The maximum suspension therefore that can be imposed by a member of congress for disorderly behavior should not be more than 60 days. Should it be more than 60 days, then it should be an expulsion.
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Case: Bundoc vs Pineda Here is a member of the electoral tribunal who was expelled from the political party that he was representing because he voted against a candidate of the political party in an election contest that was held for the electoral tribunal The question there is, would that mean removal because he does not anymore represent the political party? SC said, no. Because his seat is permanent and he is independent from the political party. This was clarified in the case of: Case: Barbers vs Comelec What has been referred to as election returns and qualifications within the jurisdiction of electoral tribunal, it should be interpreted to its totality as referring to all matters affecting the validity of the contestees or protestees title. But if it is necessary to specify, you can say that ELECTION refers to the conduct of the post including the listing of voters, the holding of the election campaign and the passing in counting of the votes. RETURNS refer to the canvass of the returns and the proclamation of the winners including questions concerning composition of the board of canvassers and the authenticity of election returns. QUALIFICATION refers to matters that could be raised in a quo warranto proceedings against the proclaimed winner, such as his disloyalty, ineligibility or inadequacy of his certificate of candidacy. The moment he is proclaimed validly as a member, this is within the exclusive jurisdiction of the electoral tribunal. What is the jurisdiction of the Comelec? Remember that there is no pre proclamation contest involving members of congress. So that matters pending with the Comelec could be a disqualification case at the time of the filing of certificate of candidacy which was not even despite the election of the candidate. For as long as the candidate has not been proclaimed yet, Comelec still has jurisdiction. Example. Here is a candidate running for the senate. He filed for certificate of candidacy and a case for disqualification was filed against him in the Comelec. Despite the pendency of that case, he was elected. As long as there is no proclamation yet of that candidate as member of the congress, any questions pertaining to qualifications of that member should be resolved by the Comelec. IOW the Comelec should not be divested of its jurisdiction over the case yet. Case: Cudilla vs de Vinecia Cudilla was disqualified by a division of the Comelec because he was accused of an election offense. According to a complainant he had this infrastructure, delivering of gravel, despite election period which is an election offense. Despite the resolution of the division of Comelec disqualifying him, he won the election. Because of the disqualification, his votes were not counted and his rival was proclaimed as the duly elected. In the mean time, while the election was on going, he was able to file his appeal seasonably with the Comelec en banc and the decision was reversed saying that it was Cudilla who won because he was not disqualified.
JURISDICTION What is the jurisdiction of the electoral tribunal? All contests When you say contests, there has to be two parties: 1. protestant 2. protestee The protestant is the defeated candidate against the winning candidate who has been proclaimed and had assumed office as a member of congress. If there is no contest, then you file a quo warranto proceeding with the electoral tribunal; if the person you are trying to remove has already become a member of the congress. Case: Sumaya vs Daza There was an accusation that he was a green card holder of US and thus moved for disqualification. It was dismissed because in the first place, according to SC, it has already become moot and academic because at that time, Dazas term of office has already expired. A case of disqualification should have been filed in earlier at the time of filing the certificate with the Comelec. They filed the disqualification case in the SC, it should have been filed with the electoral tribunal because he is a member. There is no contest because this pertains to a qualification of a member. He is not at all there to replace him in the event this candidate or member is removed because of qualification. Should it be electoral tribunal? Instead of electoral tribunal, you file it with the house concerned for his exclusion as a member to protect the integrity of the house that only qualified members should become members of the house. Because the jurisdiction of the electoral tribunal is limited only to contests. There is no contest because there is no defeated candidate filing an election contest in order to replace him.
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So Cudilla went to de Vinecia to ask him to let him assume office because he was a duly elected representative of Leyte per resolution of the Comelec en banc. De Vinecia told him to file his Quo Warranto proceedings in HRET because Locsin has already been proclaimed as a member of the house. Is de Vinecia correct? SC says, no. because the proclamation of Locsin was premature. There was an appeal seasonably filed, therefore, the Comelec was never divested of his jurisdiction over the disqualification case. Since the proclamation is invalid, it is as if no member has been proclaimed as such. So it should have been the Comelec to recognize that he is a member. He does not have to file a Quo Warranto proceedings in the electoral tribunal because that is already an pronouncement that he is the duly elected representative of the district of Leyte. divested of jurisdiction over the disqualification case. Case: Berauco vs Nograles, Paras vs Nograles, Billondo vs Comelec Once the winning has been proclaimed, taken his oath of office and assumed office as member of the house of representative, Comelecs jurisdiction over the election contest relating to election returns and qualification ends. And the HRET jurisdiction begins. The proclamation of the winning candidate divest the Comelec of jurisdiction over matters ending before it at the time of proclamation. It says here that after the proclamation of the winning candidate in the congressional elections, the remedy of those who may assail its eligibility or ineligibility, qualification or disqualification is to file before the HRET a petition for election protest or a petition for a quo warranto within the period prescribed by the HRET Rules. Case: Zubirri vs Comelec , Mar 13, 2008 Pimentel went to SC and asked for an injunction to stop the proclamation of Zubirri because he wanted to get the election returns from the ARMM. Zubirri was already proclaimed as duly elected senator. SC said hat they do not have jurisdiction on the matter anymore because the matter of determining election contest relating to election returns in qualification is exclusive to the electoral tribunal. In which case, it is with the SET. It is not a matter of administrative proceedings. You are not questioning the results of election. It is the SET which has exclusive jurisdiction to act on the complaint of Pimentel involving as it does a contest relating to the election of Zubirri, now a member of the senate.
Case: Limkaichong Limkaichong ran as congresswoman in Negros Oriental. Before the election, a disqualification case was filed against her for lack of the required requisite of citizenship. According to the complainant, the father was not a naturalized citizen because the proceedings was invalid. And because the father was not a citizen of the Philippines, that makes Limkaichong ot a Filipino. Despite the pendency of the disqualification case, Limkaichong won the election. And the exercise of the quasi legislative function of the Comelec passed a resolution that all those who have won the election without prejudice that the pendency of disqualification case should be proclaimed as the duly elected candidate. In this case, a resolution was passed and Limkaichong was then declares as duly elected and she became a member of congress. Paras went all the way to SC because the disqualification case was dismissed. According to Comelec, they were already been divested of jurisdiction because Limkaichong has already been proclaimed as a duly elected member of congress. You continue the proceedings with the electoral tribunal this time. See the difference in the circumstances in the case of Cudilla and Limkaichong. In Cudilla, there was an appeal but there was a resolution saying that pending the resolution of the disqualification case, you are duly proclaimed as elected candidate. In Limkaichong, there was a resolution of the Comelec saying that all the candidates notwithstanding the pending cases, shall be proclaimed as duly elected, without prejudice to the continuation of the proceedings in a proper forum. So in the case of Lmkaichong, she was proclaimed as duly elected. Now that she is a member of congress, Comelec is
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NO APPEAL OF DECISION OF ELETORAL TRIBUNAL Where do you appeal the decision of the electoral tribunal? Their decisions are final and executory. Except when there is an allegation of abuse of discretion amounting to lack or in excess of jurisdiction. Case: Abubacar vs HRET Jurisdiction of SC to review the decisions and resolution of HRET operates only upon the showing of grave abuse of discretion on the part of the tribunal tantamount to lack or in excess of jurisdiction. Such grave abuse of discretion implies capricious and whimsical exercise of judgment amounting to lack of jurisdiction or arbitrary and despotic exercise of power because passion and personal hostility. The grave abuse of discretion must be so patent and gross as to amount to an evasion and refusal to perform any duty enjoined by law. In this case, it was absent. And thus the decision of the electoral tribunal was sustained. COMMISSION ON APPOINTMENTS MEMBERSHIP It consists of 12 senators and 12 members of the House of Reps presided over by the President of the senate FUNCTION The main function is to act on nominations by the president on certain appointments where the constitution requires the confirmation by the Commission of Appointments. They should act within the period of 30 days while congress is in session from the submission of the nomination. APPOINTMENTS REQUIREING THE CONFIRMATIN OF CoA 1. Heads of executive department 2. Members of AFP From Captain to Corporal in the navy or Cornel to General in the ARMY. 3. Officers whose appointment are vested in the president by the constitution a. Comelec commissioner b. COA commissioner c. Civil service commissioner d. Regular members of the judicial and bar council 4. Ambassadors, consuls and other public ministers These cannot be expanded by ordinary legislation. PROCEDURE One the matter of procedure, CoA can only hold session while congress is in session. APPOINTMENTS Appointments could either be regular or ad interim on the part of the president. If it is REGULAR APPOINTMENT, appointment of those I have enumerated must require confirmation to make the appointment permanent. Talking about regular appointments while congress is in session, if it is only in acting capacity therefore temporary in nature, even if those referring to I have enumerated, the president is not compelled to submit the names to the CoA for confirmation because of the nature of appointment which is only in acting capacity and that is discretionary on the president. APPOINTMENT DURING RECESS If the president makes an appointment while congress is in recess, therefore CoA is likewise in recess, what is the nature of the appointment? It is permanent but immediately it is effective upon qualification of the appointee but will last only until the next adjournment of the congress if it is not confirmed. By next adjournment, it could mean regular or special session because there is no distinction.
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So if the congress is not in recess, they should follow that there is confirmation. But if the congress is in recess, the president can still make an appointment even for a secretary of a department. It is still permanent but the duration is limited. Unless it is confirmed by the CoA, it shall last only until the next adjournment of congress. ADJOURNMENT OF SESSION The adjournment can be of a regular session or a special session. If it is a regular session, it is determined by law, it will last until 30 days before the opening of the next regular session. If it is a special session, after the termination of the special session by congress after they are being called by the congress. Case: However in the case of this commissioner, he was nominated by the president to be the chairman of the Comelec. This has always been by passed by CoA until the president appointed him in an interim appointment, immediately permanent. Because he was not confirmed by CoA, upon the next adjournment of congress, his appointment expired. He was again reappointment by the president. Was there a violation of the prohibition on reappointment of the commissioner? No. because the appointment was ad interim, not a regular appointment. The prohibition against reappointment applies only to a regular appointment, meaning appointed or nominated by the president, confirmed by the CoA, he had finished his term, then he cannot anymore be reappointed. But for an ad interim appointment, it will last only upon the next adjournment of the congress and therefore expires if not confirmed. Upon the next adjournment he can still be renominated to the same position.
REAPPOINTMENT Can you be reappointed or renominated to the same position? Yes. For as long as it is not disapproved, you can be renominated. If it is only by passed, meaning it is not acted on within 30 days from its submission to the CoA, you can be renominated.
MEMBERSHIP OF CoA It is the same, PROPORTIONATE REPRESENTATION from the political parties. CHANGE OF POLITICAL AFFILIATION And this is highly partisan in the sense that the moment that you seize to be a member of the party, automatically, you are removed as a member of CoA. The change of political affiliation has to be permanent. If you it is only a coalition, that is not considered a permanent change of political party affiliation to remove you as a member of CoA. NUMBER OF MEMBERS There are 24 members all in all. 25, if you include the president of the senate. But there is no need to fully fill up the 24 membership in the CoA. It is upon their discretion, as long as: 1. they constitute majority of the membership 2. at least a political party is represented by 2 members in order to qualify to get a seat in the CoA.
EFFECT OF NON CONFIRMATION ON PREVIOUS POSITION Can you go back to the previous position if not confirmed? If it is a regular appointment, you can go back to your previous position because the effectivity of appointment is upon confirmation. If it is an ad interim appointment, it is effective immediately upon the qualification. You may be renominated but you cannot go back however to your previous position. Case: Matibag To be appointed to the Constitutional Commissions, there is a prohibition against reappointments. You have affixed term of office without reappointment. This appointment being referred to here that is prohibiting a reappointment refers to an appointment that is regular and confirmed by the CoA. Once confirmed you become a commissioner for a fixed term. In which case, you cannot be anymore reappointed upon the expiration of the term.
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AIDING IN LEGISLATIVE ENACTMENTS LEGISLATIVE INQUIRY and QUESTION HOUR as part of the oversight function of congress. LEGISLATIVE INQUIRY It is the power of congress to inquire into any matter that may be a subject of legislative enactment. Either it is pending or not pending at all, for as long as it will help congress in formulating a law. WITNESSES So those persons who may be summoned to appear before a legislative inquiry are witnesses. They are not accused. And sometime we would wonder why in the course of the session, they become defensive. So they cannot invoke the right against self incrimination because it is supposedly an enlightening session. You as a witness to enlighten congress, help them in legislation. EXECUTIVE PRIVILEGE EO 461 Case: Drillon vs Executive Secretary Arroyo passed an Executive Order 461 on Executive Privilege, saying that cabinet members should not appear in a legislative inquiry either in Congress, house or Committee Hearing without her consent. So if one is served with summons to appear, they would say, ask the president first. Then you have Drillon questioning the constitutionality of EO 461. Is it correct for the president to invoke executive privilege? SC said yes. However, that can only be invoked by the president. IT IS NOT EXTENDED TO THE CABINET MEMBERS. So SC partially nullified the provisions of EO 461. It is not by the position that you hold as a cabinet member that makes you exempt from legislative inquiry, but it is the information that you are in possession with because it involves the privilege of the president. It is an executive privilege. Precisely, to determine WON information will affect the office of the president, or it will affect the integrity of the office of the president, it will discharge the functions of the president, one has to ask the president if the information being held by the cabinet member that the congress wants to inquire into is an executive privilege. And so they have to stay the purpose of the summons of this cabinet member so that to give time to the president to invoke the executive privilege. It is not the cabinet member who enjoys the executive privilege but it is the president. The information being held by the cabinet member that the president may invoke executive privilege. So then, if the president thinks that the information Congress wants to inquire into is privileged, under the separation of powers, he can invoke the executive privilege and not allow cabinet member to testify or to appear in committee hearing. HOW TO INVOKE EXECUTIVE PRIVILEGE How does the president invoke executive privilege? By the president himself saying that it is an executive privilege, and it cannot be disclosed, or By the authority of the president invoked by the executive secretary. Case: Neri vs Senate Committee WON the information that the senate wants to look into was an executive privilege. Neri invoked the executive privilege of the president saying that he cannot disclose. Notwithstanding the invocation of the executive secretary of the executive privilege of the president, they continued to harass Neri, in fact because he did not appear anymore in the senate, they issued an arrest order for contempt. SC sustained Neris right with the invocation of the president of the executive privilege. Senate wanted to know this; Neri disclosed that there was an offer of bribe to him just to approve the broadband contract with ZTE. He was saying $250m, being offered by the Chairman of the Comelec. He said that he told the president about it. Senate wants to know what was the reaction of the president. The president timely invoked executive privilege. The question there is, are those information asked by the senate executive privilege? SC said, the communications illicited by the three questions; 1. Whether the president followed up the NBM project 2. Where you dictated to prioritize ZTE? 3. Whether the president said to go ahead and approve the project after being told about the alleged bribe, Are covered in the presidents communication privilege. SC said, first, the communication refers to a non delegable power of the president, the power to enter into executive agreement with the other countries. This authority of the president to enter into executive agreements without concurrence of legislature has been traditionally recognized in the Philippine jurisprudence as confidential. The communications are received by a close advisor of the president under the OPERATIONAL PROXIMITY TEST, Neri can be considered as a close adviser being a member of the Cabinet. Third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and the
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availability of the information elsewhere by an appropriate investigating authority. You can get the information elsewhere. IOW in this case, the executive privilege was sustained. June 20, 2011 LEGISLATIVE INQUIRY It is the power of congress to inquire and investigate on any matter WON there is a pending subject matter on legislation which includes the power of contempt. POWER OF CONTEMPT The power of contempt may not have been expressly granted in the constitution, but inherent in the power of congress to conduct investigation, to give teeth to that power OW it will be useless to call people and give them option to attend or not. LEGISLATIVE POWER OF CONGRESS This power is discretionary, and cannot be encroached upon by the two other branches of the government due to separation of powers. Case: Neri vs Senate In fact, if cited for contempt in a legislative inquiry, the president cannot grant him pardon, neither can the court issue an injunction to enjoin the implementation of contempt made by congress unless of course there is an abuse of that discretion amounting to lack of in excess of jurisdiction.
NATURE OF EXECUTIVE PRIVILEGE It is the implied power of the president to withhold information requested by other branches of the government. The constitution does not expressly grant this power to the president but courts have long recognized implied presidential powers necessary and proper in carrying out powers and functions expressly granted to the executive under the constitution. This jurisdiction, several decision have recognized executive privilege starting with 1995 case of: Case: Almonte vs Vasquez On the SALN being confidential. Case: Chavez vs Public Estate Authority Case: Senate vs Ermita
OTHER MATTERS COVERED IN EXECUTIVE PRIVILEGE BY JURISPRUDENCE 1. As the commander in chief, as chief executive the president is ultimately responsible for the military and national security matters. 2. As officially in control if the nations foreign service, that is also executive privilege. 3. Executive agreements entered into by the president, diplomatic negotiations. 4. Internal deliberations to the president by his cabinet There is a pending bill limiting the executive privilege of the president, defining what may be considered as executive privilege.
EXECUTIVE PRIVILEGE There are certain information that may not be disclosed such that matter of executive privilege of the president. The information that is in the possession of the president or of his executive officer or cabinet members that cannot be disclosed even to congress and to public at large for it might affect the office of the president or his integrity. Examples: 1. discussions or deliberations during a cabinet hearing 2. conversation between the president and advisors 3. conversation with consultant for policy making 4. city negotiation by petition 5. matters relating to the presidents power as a commander in chief with respect to military secrets or strategy These are information that may not be disclosed to congress even if a cabinet member is summoned by congress to appear.
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BALANCING OF EXECUTIVE PRIVILEGE However, according to SC, this has to be balanced with 1. the power of legislative inquiry on the part of congress 2. the right of people to information on matters of public concern insofar as the public at large 3. insofar as the exercise of the power of SC and other courts in the settling of disputes, And how to balance it, that has to be determined by the courts. IOW it is not absolute, it still has to be looked into by SC. Which of these two equally important interest must be given priority? Executive privilege? Or the three other public interest? CASES Case: Senate vs Ermita This is the declaration of the unconstitutionality of EO 464 on Executive Privilege, as to the extent of the exercise of the executive privilege of the president. Case:Neri vs Senate They discussed what kind of privileges of the president that the president or his cabinet members cannot be compelled to disclose. Case: Akbayan vs Aquino This has something to do with Jepepa where there is a question whether Secretary Aquino was asked to give a copy of Jepepa for the study of congress. Because it was still under negotiation, it is confidential and part of the executive privilege of the president. According to SC, he cannot be compelled because after all, it is the very matter or if they want to inquire about it, there are other sources other than from the office of the BPI. SEPARATION OF POWERS VS LEGILATIVE INQUIRY Case: Tengyon vs Committee SC said that should there be a pending case already filed, supposedly, the person being summoned to appear on committee hearing to shed light on matters that might be of help to congress in the making of law may not be compelled if it might violate the separation of powers between the legislative branch and the judiciary. Case: Benzon This has something to do with the illgotten wealth of the Marcos and the corruption committed. There were cases filed with SB. SC sustained the separation of powers by stopping the legislative inquiry as there was already a case filed in court. Case: In contrast of that, there is a case filed in the trial court and what happened was that there was an inquiry of a transaction relating to a purchase of a property in Mindanao. They filed a case in court. Thereafter, they ask for an injunction to stop the inquiry on the transaction. SC said that you cannot stop this by simply filing a case because the power of congress is plenary. Case: Standard Chartered Bankvs Senate Committee The officers of Standard Chartered Bank had to appear before the committee who are in charge of banking transactions because of possibility of violations of law that might affect the economy of country and what they did was that the officers of the bank asked for injunction to stop the inquiry, saying that there is already an investigation conducted by the Central Bank, and anytime soon, there might be a case filed against them. SC says, the mere filing of a criminal or administrative complaint before court or quasi judicial body should not automatically bar the conduct of legislative inquiry OW it would be easy to subvert inquiry of the congress through the convenient ploy of instituting a criminal or administrative complaint. The exercise of congress or any of its committee of the power to punish contempt is based on the principle of self preservation of the branch of government vested with legislative power independently of judicial branch. It can assert its authority and punish contentious acts. It cannot penalize the violators even if there is overwhelming evidence of criminal culpability. It can only recommend measures or remedy which may be unearthed during investigation, although it may include in its report of its investigation or report for the criminal indictment of persons who may appear liable.
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WITNESS SUMMONED CAN BE COMPELLED While we would say that the mere filing of a criminal or administrative complaint against a witness or person summoned before a legislative inquiry can be compelled to appear before the senate or the congress. Because they are not accused in a legislative inquiry. Rather, they are mere witnesses. So they do not violate the separation of powers between the legislative branch or any court or quasi judicial bodies where there is also a case filed against witnesses. VARIETIES OF EXECUTIVE PRIVILEGE 1. state secrets Invoked by the president if it will subvert crucial military, diplomatic objectives. 2. informers privilege These are information that the president cannot be compelled to disclose; not to disclose the identity of persons who furnished the information of violation of law to officers charged with the enforcement of the law. 3. generic privilege Internal deliberations attached to intra governmental and the documents reflecting advisory opinions, recommendations and deliberations comprising part of process which governmental decisions and policies are formulated.
Benzon case has different circumstances as that of the Chartered Bank. CONDUCT OF LEGISLATIVE INQUIRY PROCEDURE One cannot be inquired into or cited for contempt. There has to be the Rules of Procedure and that must be published. That is also emphasized in the case of Neri vs Senate.
PCGG Can the congress compel the commissioner of PCGG despite the privilege given to the office that they cannot be subject of investigation. (my recording starts here) Case: Savio He was cited for contempt. In the matter of petition for issuance of writ of habeas corpus on Savio, SC said that congress power of inquiry is broad that it encompasses everything that concerns the administration of existing laws as well as propose needed statutes. It even extends to government agency created in congress and officers whose positions are within the power of congress to regulate or even abolish. PCGG belongs to this class. So long as constitutional rights of witnesses like Chairman Savio and his commissioners will be respected by respondents senate committees. It is their duty to cooperate with them in their efforts to obtain the facts needed for intelligent legislative action. The obligation of citizen is to respond to subpoena, to respect to the dignity of congress and its committees and to testify fully with respect to matters within the realm of investigation. Case: Miguel vs Gordon, Act 17, 2006 A mere provision of law cannot pose limitation on the power of congress in the absence of constitutional basis.
CABINET MEMBERS As regards to the cabinet being sovereign before the legislative inquiry, they have to ask for the consent to appear to give the president the chance to invoke the privilege.
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QUESTION HOUR APPROVAL OF PRESIDENT Does it need the approval of the president? Yes. LIMITED TO CABINET How is a question hour conducted? This is limited to cabinet members. So not any person will be summoned before any committee or senate or congressional inquiry. So it is either a. the cabinet requesting an audience with the senate or congress or any of its committee insofar as matters that affect or they want to clarified about. b. the president to be informed of the sessions on reaching the congress, c. congress summoning a member of the cabinet. POWER OF OVERSIGHT OF CONGRESS If it is just a follow up on laws that are to be enforced by the different departments that is part of the oversight function of congress which would include scrutiny, investigation and supervision. Power of oversight embraces all activities undertaken by congress to enhance its understanding of and influence the over the implementation of the legislation it has enacted. Clearly, oversight concerns post enactment measures under taken by congress to monitor beurocratic compliance with program activities, to determine whether the agencies are properly administered to eliminate executive dishonesty and prevent executive usurpation of legislative authority to assess executive conformity with congressional perception of public interest. This may be done in a question hour. DECLARATION OF WAR Who has the power to declare war? It is the president who declared war. But there cannot be declaration of war should there be no definition of the existence of a state of war. The law does not make it a condition sine qua non to the declaration of war. But in the matter of the existence of the state of war is for the purpose of granting or vesting in the president emergency power, that is why they have to determine WON there exist a state of war. But WON there is a determination of the existence f a state of war, of course the president can declare war as the commanding chief of the AFP. OW if the president has to wait for congress to hold session and vote WON we are on a state of war, then we are already invaded. DECLARATION OF STATE OF WAR However, for purposes of the prosecution of the war such as granting emergency power to the president so that the president can incorporate funds for the war, it is important that there has to be a declaration of state of war, and that is vested with the congress. How many votes are needed? 2/3 votes both houses, voting separately.
EMERGENCY POWER Where is emergency power vested? It is not in the president but it is delegated to the president. It is vested in congress. This is the power that is delegated to the president in a statute under sec 23. Because you might think that this power is exercised by the president; this can only be exercised by the president if it is delegated by the congress to the president. Under what cases? Only in cases of: 1. national emergency 2. war And thus precisely a determination of congress whether we are in a state of war. But in the determination if we are in the state of rebellion or national emergency, that may be done by the president only. (David et al vs Arroyo).
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LAW MAKING PROCESS There is a sponsor of the bill which will be under first reading. Only the title will be read. Thereafter, it is referred to a committee for referral. The committee could either conduct a further study on a bill that is being sponsored through hearings or may just lay it on the table, meaning not act on it. In the event the committee concerned acts on it, it goes back to the plenary session for a second reading. On the second reading, not only will the title be read but the whole text of the sponsored bill including the recommended changes made by the committee. Thereafter, there will be discussion and debate on the bill. Then it will be recommended for printing. After the printing, it will distributed at least three days before the plenary session is held and then there will be a third reading. After the third reading, no amendment will be made, then they will take a vote. Thereafter, it will be transferred to the other house. The three readings is indispensible. But where the president certifies that the bill is urgent because of an exigency or emergency, the three readings may be done on the same day. And the printing may be dispensed with. After the third reading, there will be the taking of the vote. If there are differences between the two houses version, it will be referred to a bicameral conference committee. It can even make a practically new version of the bill of both houses. There will be no violation here. It is not superior to the two other houses because after all, the recommendation of the bicameral conference committee still has to be submitted to the plenary sessions of both houses where they will take a vote whether to agree to the bicameral conference committee or not. So ultimately, if it is carried out, it is approved by both houses. The amendments could take as a substitute. RULES AND LIMITATIONS IN MAKING OF LAWS There are certain rules and limitations in making of laws, both substantive and procedural. AS TO BILLS THAT MAY BE SPONSORED a. bills that must originate from the Representatives 1. appropriation bills 2. revenue bills 3. tariff bills 4. bills authorizing increase of public debts 5. bills of local application and private bills
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Meaning, the house of senate cannot initiate unless they receive the first version of the house of reps. They may probably come up with their own version. What are these kinds of bills? 1. appropriation bills -authority to disburse public funds -may be general or special 2. revenue bills -designed to raise money or revenue through imposition or levy 5. bills of local application and private bills -for matter relating to LGU -ex. change from municipality to city The bills may be: 1. general bill 2. special bill
1. general bill -ex. ANNUAL BUDGET -prepared by the president to be submitted before the regular session -MAY NOT BE INCRESSED BY CONGRESS -MAY BE DECREASED BY CONGRESS -must specifically to some particular appropriation and the legislation or enactment must be limited in its operation to the appropriation to which it relates -of course there must be an available fund for that purpose -NO JUGGLING OF FUNDS -if there is an amount appropriated for a specific purpose, you cannot transfer it as GR to another purpose or from one item to another item -EXCEPTION: -depends on whose budget, who will approve a. executive - president b. legislative - president of the senate or the speaker of the house of representatives
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c. judiciary - chief justice of SC d. constitutional commissions - chairman -example. The budget of the military cannot be transferred from one item to another, it has to be with the consent of the president, not in his capacity as the commander in chief but his being the president to avoid the juggling of the funds. Case: Suplico vs Romulo This is on appropriation. The rule is, any disbursement of public funds should be supported by an appropriation law. They borrowed money to be placed to the general fund for a public purpose. Instead of placing it to the general fund, they applied the proceeds of the loan directly for the purpose which is was made. Can that be done? SC said, any government expenditure without corresponding appropriation by congress is unconstitutional. There can be no dispute that the proceeds of the foreign loans whether concluded or not cannot be obligated in a procurement contract without a prior appropriation from congress. When the executive branch secures a loan to file a procurement of goods and services, the loan proceeds enter the national treasury as part of the national funds of the government. Congress must appropriate by law the loan proceeds to find the procurement of goods and services OW the loan proceeds cannot be spent by the executive branch. When the loan falls due, congress must make another appropriation to authorize the payment of the loan of thee general funds of the national treasury. This appropriation for the repayment of the loan is what is covered by automatic appropriation. They were saying that in ZTE, they borrowed money but it did not push through because it did push through because of the controversy. They borrowed money and supposedly the proceeds will be applied to the contract that they have entered into with the Chinese government. To go into short cut, they will pay it directly without putting it in the general funds. This cannot be done. Even if it is for a public purpose, there has to be an appropriation law. That is the GR. AUTOMATIC APPROPROPRIATION What is the rule then on automatic appropriation? It is an exception to the loans that we borrowed where we schedule the payment of the loan. There a specific amount that you are going to pay it with. In which case, you do not have to make a separate appropriation for that purpose. Automatically, it will be carried out in the next budget. Thats automatic appropriation, as an exception to every disbursement having an appropriation.
AS TO VETOING AN APPROPRIATION BILL As a GR, if the president should veto a bill, the president vetoes the entire bill except when it is an 1. appropriation bills 2. revenue bills 3. tariff bills On APPROPRIATION BILL, you have to make further exception because sometimes the members of congress will insert subject matters that are not related to appropriation. So then you will have to understand what is the NATURE OF APPROPRIATION. It primarily authorizes the disbursement of funds for a specific public purpose. But sometimes, in the guise of an appropriation bill create an office and insert that in an appropriation bill. That is not an appropriation bill. It is just a creation of office, the allocation of funds is merely incidental to the creation of office. That can be vetoed by the president as an INAPPROPRIATE PROVISION. So 2 EXCEPTIONS TO THE RULE THAT IF THE PRESIDENT HAS TO VETO THE BILL, HE HAS TO VETO THE ENTIRE BILL: 1. appropriation bills, revenue bills, tariff bills 2. inappropriate provisions Of course with the condition that the rest of the provision of the bill can stand on their own excluding that portion that has been vetoed by the president.
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POWER OF CONGRESS TO IMPOSE TAXES Except for sec 28, where tariff powers are vested in the president, the congress is the one that imposes taxes. WHO IS SUBJECTED And as a GR, in the imposition of taxes, everybody is subjected to tax except by vote of majority of the members of congress. TREATY TAX CREDITS Tax credits granted by treaty. How many votes are needed? It needs no concurrence from congress. But because it is a treaty, it needs concurrence of 2/3 of senate. TAX EXEMPTIONS ON CERTAIN INSTITUTIONS Churches, personagesproperties that are directly, actually and exclusively used for religious purposes and for charitable institutions. Case: Lung Center vs Quezon City Under 1973, 1987 Constitution and RA 7160, in order to be entitled to exemption, petitioner is burdened to prove by unequivocal proof that it is a charitable institution and the properties are actually, directly and exclusively used for charitable institution. EXCLUSIVELY USED TN of the definition of EXCLUSIVE. It is defined as possessed or enjoyed to the exclusion of others, barred from participation or enjoyment. And exclusively is defined in a manner to exclude or enjoy the privilege exclusively. The words DOMINANT USE and PRINCIPAL USE cannot be substituted for the words used exclusively without doing violence to the constitution and the law. SOLELY is synonymous to the word exclusively. Case: Lung Center vs Quezon City Part of its property was for charitable purposes for free for indigent purposes. But there is a part of a property which they had for a fee. So those who are well off enough to pay for fees will pay. They are now asking for exemption because they are taxed for the income that they derived, and on the property as well because it was with a fee. They say that this institution is principally a charitable institution. SC said, that would not mean exclusive. So there is the definition of exclusive use there. EDUCATIONAL PURPOSES The application of the exemption refers to non stock non profit educational institutions that would include their revenues. Not only the properties that they are in possession with, including the revenues. They are exempt from taxation for as long as it is in relation of educational purposes. In contracts, you have those proprietary educational institution, do they enjoy the same privilege as a non stock non profit institution? Because this is the issue of some schools here that is for business? The law says, unless OW provided by law. So they may be exempt. But our local laws are subjecting them to taxation, so they cannot complain. This includes foundations that are non stock non profit, like USC foundation. They are exempt also from taxation.
PROCEDURAL LIMITATION Every bill must embrace one subject matter. Same thing as when laws are initiated by the people on the process of initiative and referendum. OW, if there will be several subject matters, that will be a HODGE PODGE LAW and is prohibited by law and can be prohibited by the president on the concept of INAPPROPRIATE PROVISIONS. RECORDS OF THE PROCEEDING OF THE DELIBERATIONS Records of the proceeding of the deliberations: 1. journal 2. enrolled bill Which of these two will prevail in case of conflict? What is their probative value? ENROLLED BILL is the certified and authenticated version of the bill that is signed by the president before becoming a law. After both houses through their respective heads certify that that is their version, it will be enrolled. It will be authenticated by the president of the senate and the speaker of the house of representative and signed by the president. In case there is a conflict and a question on what is the version of the law, the enrolled bill is conclusive upon the courts as to the contents, the tenor of the legislative proposal. Should they think that it is actually not the version that both houses intended, then they need to amend it. They cannot just set aside the enrolled bill. So far as the court is concerned, it is conclusive
What else are exempted? 1. religious purposes 2. educational purposes
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What if it conflict with the journal? The JOURNAL is required by the constitution to be kept by the secretary of each house in order to contain the following: 1. veto message of the president 2. voting of both houses overriding the veto 3. yeas and nays of the members of both houses in the passing of the bill 4. yeas and nays requested by 1/5 of the members of the house to be entered in the journal Insofar as those information are concerned, they are conclusive upon the courts. So you must know what are these information that need to be entered in the journal. In case of conflict of the voting, the journal always prevails. If you go by the matter WON the bill is valid in its content or tenor, you have to go by the enrolled bill. Case: Abakada Guro Party list vs Ermita, Oct 18, 2005 The signing of the bill by speaker of the house and the president of the senate and the certification of the secretaries of both houses of congress that it was passed are conclusive of its due enactment. Case: Pons vs US This about the substances. This is important. One, as regards to the conclusiveness of the journal, and the another one is the conclusiveness of the enrolled bill. This has something to do with the time when the bill was passed because there was an allegation that the bill was signed after the term of office of the office. But it was stated in the journal that it was passed before 12 midnight. So which two will prevail as far as the court is concerned? It should be the journal because according to the SC, the memory of man may fail but definitely what was recorded in the journal. And it is inclusive upon the courts because the courts must accord respect to the two branches of the government, having these records prepared by co-equal braches of government which is congress. ARTICLE VII - EXECUTIVE DEPARTMENT EXECUTIVE POWER It is vested in the president. Some powers that are not assigned either to the legislative or the judiciary, the power is vested on the president being the chief executive. This is what we call the RESIDUAL POWER OF THE PRESIDENT Example. DETERMINE WHO IS ALLOWED TO ENTER COUNRTY On the matter of determination who is allowed to enter the country. (Marcos vs Maglanos) PRESIDENTIAL IMMUNITY On the enjoyment of the president of immunity. On the presidential immunity, this is only available to the president during his incumbency. This is not an express grant of the constitution. This is jurisprudential. IOW by the decisions of the SC that this power of immunity from suit is enjoyed by the president. With the enjoyment of this immunity, TN of the cases of: Case: Estrada vs Disierto Estrada was saying that he is still the president and therefore he should still continue to enjoy the immunity and thus he cannot be prosecuted in SB. SC said that in as much as he is already considered resigned, he is no longer the president. And not being the president anymore, he can no longer invoke the immunity. IOW he can now be prosecuted in any court of law because such is CONCURRENT ONLY TO HIS TENURE, not to his term. The TENURE means the period which he actually holds office. The TERM is a period which he is to hold office as a matter of right. Case: Romualdez vs Sandiganbayan SC said that the executive immunity applies only during the incumbency of the president. Case: David et al vs Arroyo Arroyo was dropped from that case. SC said it is not proper to implead Arroyo as respondent. Settled is the doctrine that the president during his tenure of office or actual incumbency may not be sued in any civil or criminal case, and there is no need to provide for it in the constitution. Case: Soloven vs Macasial They moved for the dismissal of the case filed against them by President Aquino, invoking immunity from suit. They are saying that when you can sue us, we cannot file a countersuit against you because of immunity from suit. And
SEC 32
SECTION 32. The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters thereof.
INITIATIVE AND REFERENDUM
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thus they moved for the dismissal of the case. TN this can only be invoked by the president. It is personal to the president. So it is up to the president to invoke it or waive that right. So when the president files a case against a private individual, president is considered to have impliedly waived his immunity. But its up to the president. It cannot be used as a defense on the part of the person being sued by the president IMMUNITY FROM SUIT IS PERSONAL TO THE PRESIDENT TN immunity from suit is personal to the president. It cannot be invoked under qualified political agency by the alter egos of the president. This cannot be delegated to the different secretaries of the different departments. Case: Secretary Gloria Arroyo She invoked immunity from suit being the secretary of the Department of Education. SC said that it is not extended to the cabinet members. This is only personal to the president. QUALIFICATIONS 1. natural born 2. resident of Philippines for 10 years immediately preceding the election 3. 40 years on the days of election 4. citizen before assuming office TERM PRESIDENT 6 years Unless OW provided by law Term begins at noon of Jun 30 following the election. When we say, unless OW provided by law, can his term of office be extended? No. It refers to the commencement of his term of office. It could be other than June 30 following the day of election. VICE PRESIDENT 6 years but in no case for 2 successive terms. So he can serve for more than 12 years as long as it is not successive. Can the VP who assumes the presidency run again as president after the expiration of his term? It depends. If he had served for more than four years in the office of his predecessor, he is disqualified. If 4 years or less, he can still run as president. MANNER OF ELECTION PRESIDENT How are they chosen? They are chosen by direct votes. BOARD OF CANVASSERS Who canvass the election returns from the different provinces and cities? Who serves as the board of canvassers? The congress. The congress cannot delegate that to Comelec. It is directly transmitted to congress. But they can conduct a joint committee to authenticate the election returns that have been submitted. But I dont think that is now a controversial thing now that we are automated. Still it is the congress that will canvass and thereafter they are going to make a proclamation. BTW, remember that during the election time, usually, the term of office of the members are already expiring except for the 12 senators whose term of office have not already expired yet. Is it not that they adjourn sine die? What is adjournment sine die? When they adjourn as a legislative body. Meaning, in the matter of law making. Elections are held every 2nd Sunday of May. Before an election is made, they adjourn sine die. This is without prejudice to continuing their session not as a legislative body but as to perform other functions vested in them or conferred upon them by the constitution such as the canvassing of votes for president and VP. This is a function that they can be compelled to stay in session and attending and performing the function notwithstanding that they have already adjourned insofar as being a legislative body. So they adjourn as a legislative body insofar as lawmaking but not insofar as performing functions that are required of them by the constitution such as acting as the board of canvassers. PROCLAMATION Then they have to vote. To proclaim, they have to have majority votes in a joint session voting separately. DEADLOCK In case there would be a deadlock or a tie, they have to break the tie with majority of both houses. ELECTION CONTEST OR PROTEST In the mean time, any election contest or protest, where is it filed? You have the PET Presidential Electoral Tribunal.
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PET PRESIDENTIAL ELECTORAL TRIBUNAL It is the SC acting as the PET. When the law grants the SC the power to resolve an election contest between and among the presidential candidates, no new or separate court is created. The law merely conferred upon the SC the functions of the PET. NO PRE PROCLAMATION CONTEST There is no pre proclamation contest with regards to president and VP. WHO MAY BE PROTESTANT Who may be a protestant in a presidential election? Case: Poe Only a real party in interest may be a protestant. A real party in interest are only the two persons, the second and third placers only. The rule makes in effect determine the real party in interest concerning an on going election contest. Envision the scenario where if the declared voter have not been truly voted upon by the electorate, the candidate who received the second or third highest number of votes would be the legitimate beneficiary in the successful election contest. Case: Tecson vs Comelec The actions contemplated in sec 4 art 7 of the constitution are post election remedies, namely: 1. regular election contest 2. quo warranto The word contest means that the jurisdiction of the SC may only be invoked after the election and proclamation of the VP or president. There can be no contest before a winner is proclaimed. Case: Legarda vs de Castro She also filed an election protest against de Castro. After that, she ran for election to the senate. SC said that Legarda has effectively abandoned or withdrawn her protest when she ran for senate which coincides with the term of vice presidency.
Case: Estrada In the case of Estrada running again as president. Supposedly 6 years without reelection. So meaning, you have to finish the term in 6 years. Because it did it say: voluntary renunciation is considered an interruption of the continuity of the term of office like in the case of members of congress. So, the presume that the president in order to be disqualified to run for election, he will have to finish the 6 years term. This is not being made clear, because eventually, what if for example, you are being impeached, on the second year of his term, can he run for presidency on the next election? It is not voluntary? It case of resignation it is voluntary It is rather confusing because the law is very clear, 6 years without reelection. Adding to the confusion is Estrada running for reelection. His theory is he is qualified because he had not finished his term. Anyhow, there is no decision on that by the SC.
EFFECT IF PROTESTANT REASSUMES OFFICE What will happen if the protestant reassumes his office? Case: Santiago Santiago ran as president. She was not able to get the result of the contest, she went back to her being a senator. For those who will run as president, they are not considered resigned. They can go back to their position so long as the term did not expire. What was the effect on the election protest? SC said, in assuming the office of the senator, President Santiago has effectively abandoned or withdrawn her protest to the election protestee. Case is dismissed.
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FILLING UP OF THE VACANCY It may occur at the beginning of the term or during the term of the president or VP. BEFORE ASSUMPTION - DEATH If it occurs before the term or even before the president assumes office, he died or he suffered permanent disability, the VP becomes the president. If there is no VP, then it would be the president of the senate, the speaker of the house of representatives, in that order acting as the president in the mean time until the VP has succeeded, qualified or chosen. BEFORE ASSUMPTION FAILED TO QUALIFY OR NONE CHOSEN If at the beginning of the term, the president failed to qualify, then the president or the senate shall act as the president. Or if no president has been chosen, then the president of the senate or the speaker of the house of representatives, in that order will be acting as the president. In the absence of the speaker, they will have to convene and provide for a law that will serve to provide the manner of succession who shall be acting as the president in the mean time the elect president has not yet been chosen or failed to qualify. WHEN THERE IS ASSUMPTION During this time, the term of the president, you go into the succession, only when there is permanent vacancy caused by: 1. death 2. permanent disability 3. resignation 4. impeachment 2. PERMANENT DISABILITY In the case of PERMANENT DISABILITY, should it always be physical? What about FUNCTIONAL DISABILITY? Meaning you cannot anymore function effectively as a president because you do not have anymore the support of your cabinet, AFP or LGUs. Case: Estrada It is not so much on the resignation but on the functional disability of the president. Virtually, he was a laying duck because he cannot command anymore the leadership insofar as the government is concerned because he lost the support of the key officials of the government especially the support from the AFP. That has to be defined by the SC because it was a mere opinion of one of the justices. The permanent disability as has been ventured in its definition by the definition of one of the justices, perhaps it could also include functional disability. But the understanding is PHYSICAL DISABILITY. 3. RESIGNATION This is defined in the case of: Case: Estrada vs Disierto No formal process is required like when you have to tender a resignation letter. For as long as there is a manifestation of the relinquishment of the power and the act is more to the relinquishment by abandoning physically the office that he is abandoning, that is already considered as resignation. There were enumerated manifestations of the act of relinquishment of the power which the SC has concluded that indeed, he has resigned. 4. IMPEACHMENT The president can only be removed through impeachment. Because he is the president, you have the initiation by the house of representatives, and then you have the senate acting as the tribunal. You will have the chief justice of SC as the presiding officer. How about the VP? Same manner in creating a vacancy in the office of the VP. 1. death 2. permanent disability 3. resignation 4. impeachment Insofar as the VP is concerned, the one who is going to preside the impeachment proceedings in the senate will be the president of the senate. SUCCESSION DUE TO VACANCY OF PRESIDENT In case a vacancy occurs, there will be the succession. The VP shall become the new president by operation of law. In the absence of the VP, you will have the president of the senate o act until the election shall be held. Or you have the speaker. But TN in the absence of either, congress will meet and provide for the manner of succession. Here, they will call for a special election. No special election however will be called unless the vacancy occurs within 18 months before the next regular election. SUCCESSION DUE TO VACANCY OF VP The president nominates and the members of congress shall vote by majority votes, voting separately. There will be no special election. Special election will be held when both offices of the president and VP are vacant.
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TEMPORARY DISABILITY OF THE PRESIDENT There is a discussion on the temporary disability in the case of: Estrada vs Disierto In the determination WON there is a conflict between the presidents pronouncements and that of the majority of his cabinet, it will be for congress to decide, WON indeed the president suffers temporary disability in order to have the VP to take over and act as the president. VOTES REQUIRED TO DECLARE TEMPORARY DISABILITY How many votes are needed to declare the temporary disability on the part of the president? 2/3 votes voting separately. It is only when on the second time that the majority of the cabinet will declare that the president to be under temporary disability. INITIATIVE OF DECLARATION OF TEMPORARY DISABILITY So the declaration of temporary disability could either be by the initiative of: 1. the president himself informing congress that he is under temporary disability 2. the majority of its cabinet INITIATIVE OF MAJORITY OF CABINET MEMBERS This can be protested by the president. And the moment the president contradicts that, then he can reassume the functions of the president. Then the cabinet again can go back to congress and tell then that indeed the president is in temporary disability. The second time that they will do that, then congress has to decide. And the matter of declaring temporary disability is discretionary of congress. Not even the SC can interfere. Case: Estrada vs Disierto The question whether there is temporary disability of Estrada is a political question beyond SCs power of review. The decision that President Arroyo is a de jure president, made by a co-equal branch of government cannot be reviewed by the SC because that is discretionary of the SC. DECALARTION OF TEMPORARY DISABILITY In relation to this, you have also the requirement that while the president is ill, it has to be declared and the public has to be informed about it. ACCESS TO PRESIDENT DURING ILLNESS And during the illness of the president, who has access to the president? 1. national security adviser 2. secretary of foreign affairs 3. chief of staff of AFP DISQUALIFICATION OF THE PRESIDENTAND VP AND MEMBERS OF CABINET 1. prohibited from holding any office or employment during their tenure, either government or private -unless OW provided by the constitution or by law a. VP may also be appointed as a cabinet secretary -does not require confirmation of Commission on Appointments b. Secretary of Justice is an ex officio member of judicial and bar council -does not require confirmation of Commission on Appointments c. when they hold office in a capacity of ex officio -do not receive salary or emoluments -ex. Secretary of Finance at the same time Head of the Monetary Board 2. prohibited from practicing profession directly or indirectly during their tenure 3. cannot participate in any business 4. cannot be financially interested in any contract or any franchise or any special privilege that may be granted by any subdivision of the government, agency including GOCC 5. cannot appoint spouse of president and relatives within the fourth civil degree either by consanguinity or by affinity to be the head of the Constitutional Commission or the commissioner of COA, Civil Service or Comelec 6. cannot appoint the spouse to be the ombudsman or secretary of any of the department under the executive branch or undersecretary or chairman of bureaus or offices including GOCCs and their subsidiary NO PROHIBITION ON THE APPOINTMENT OF SPOUSE Can the spouse be appointed as chief justice of SC or to be an ambassador or consul? Yes. There is no prohibition. If the spouse is already in office before he was elected as president, can she continue? Yes. What is prohibited is the appointment or the reappointment of that spouse or relative to those positions I have enumerated within or during his tenure.
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APPOINTMENT POWER OF THE PRESIDENT Being the chief executive, by nature, appointing power is vested in the president. What are the different kinds of appointments? 1. heads of executive departments 2. ambassadors and public ministers and consuls 3. officers of AFP -excluding those that are no longer part of AFP: a. PNP b. Philippine Coast Guard 4. other officers whose appointment is vested in him by the constitution like: a. chairman and commissioners of 1. Civil Service 2. Comelec 3. COA b. ombudsman and his deputies -controversy: -4 deputy ombudsman: 1. Luzon 2. Visayas 3. Mindanao 4. Military -it is only under this administration that they went into the matter of removing them or investigation them. You also include the special prosecutor who is being placed under preventive suspension. The deputy ombudsman for the military has already been dismissed from service. -the ombudsman, while he is appointed by the president, cannot be removed by the president. He is only removable by impeachment. -the law however is very clear as to who are the impeachable officials: those who are not included in the list are excluded. Therefore, that excludes the deputy ombudsman. -who can discipline them? From the previous understanding, they can only be disciplined by the office of the ombudsman to maintain the independence of ombudsman. They have this committee that investigates deputy ombudsman who has been charged administratively. -it is only under this administration where the president has conducted investigation, and we already have and example of Gonzales having been dismissed from the service in relation to that incident that had happened in Luneta, where there was the holding hostage of some Chinese tourists in the country. We also have the preventive suspension of the special prosecutor, who has the same rank of the deputy ombudsman. 5. judges of the judiciary -but the president cannot remove them. -to maintain independence of SC, only SC can remove judges 6. all other officers whose appointments are not provided by law and those who may be authorized by law to appoint -if there is no law providing who the appointing authority, it is understood that the president makes the president because the appointing power by its nature is executive. -or those laws that specifically provide that they are subject to the appointment of the president. -because there are certain appointments that are not made by the president, like: a. personnel in congress b. staff and employees in judiciary -only the judges and up are appointed by the president -they have filed cases in the SC right now. SC will still decide on the issue of the presidents disciplining the deputy ombudsman being the appointing authority. c. regular members of the judicial and bar council d. sectoral representative in congress before the party list system
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LIMITATIONS OF APPOINTMENT 1. CONFIRMATION OF CoA The first four appointments that we have mentioned are subject to the confirmation of the Commission of Appointments. KINDS OF APPOINTMENTS TN of the different kinds of appointments relating to this, insofar as confirmation: 1. permanent 2. temporary 1. regular 2. ad interim PERMANENT APPOINTMENT If the appointment is permanent, and congress is in session, the process is like this: The president nominates, and then the CoA supposedly should act in it within 30 days. If the CoA confirms the nomination, then the president issues what they call, COMMISSION. And thereafter the appointee accepts the appointment and assumes office. If the CoA disapproves, then the president cannot renominate the same candidate. Can the appointee return to the previous position he was occupying before the nomination of the president? YES. Cen he be renominated? NO. If the CoA does not act on the nomination within 30 days from submission, then the nomination is as good as by passed. Can the appointee return to the previous position he was occupying before the nomination of the president? YES. Cen he be renominated? YES. Because his removal or separation of office shall take effect only upon confirmation. REGULAR APPOINTMENT It is made by the president while congress is in session. TN that CoA cannot act if the congress is not in session. The president has to submit the nomination to the CoA. If the CoA disapproves, then he cannot renominate the same candidate. If the CoA approves, then the appointment takes effect upon confirmation. If the CoA does not act on it within 30 days, then it is good as by passed. The president can still renominate the same candidate. AD INTERIM APPOINTMENT It is made by the president while congress is not in session, therefore CoA is not in session. It is effective immediately upon qualification of the appointee. And it is permanent. However, it will last only until it is disapproved by the CoA upon the resumption of the session. If it is not confirmed, then it shall last only until the next adjournment of congress. So there is a limit on its duration although it is permanent. Can the same candidate be renominated after the expiration of the appointment because it was not confirmed even after the adjournment of congress? YES. It is only when it is disapproved when he cannot be renominited. Even if there is a prohibition on reappointment in the case of Constitutional Commissioners of COA, Civil Service or Comelec? YES. Because the prohibition against reappointment as to the officers I have mentioned applies only to regular appointment, not interim appointment. Case: Matibag vs Beripayo Case: Binamira vs Garucho SC said, an ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the president once an appointee is qualified into office. The fact that it is subject to confirmation by the CoA, does not alter its permanent character. It is effective until disapproved by the CoA or until the next adjournment of congress. It is extended only during the recess of congress. If it is disapproved by CoA, appointing can no longer extended in the new appointment. If by passed, the president is free to renew the ad interim appointment.
TEMPORARY APPOINTMENT Even a temporary appointment or a mere designation, does that require confirmation by the CA? Assuming it refers to heads of executive department, officers of AFP, consul, etc If its only temporary or in acting capacity, or its a mere designation (additional functions to the regular function), that would not require confirmation by the CoA. Acting appointment can be made even if congress is in session because it does not anyway require confirmation by the CoA.
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Case: Pimentel vs Executive Secreatry The law allows the president top make such acting appointment. The president may even appoint in acting capacity a person not in the government service as long as the president deemed that person competent. Acting appointment is temporary in nature. It is intended to fill up an office for a limited time until the appointment of permanent occupant to the office. In case of vacancy in an office occupied by an alter ego of her choice as acting secretary before the permanent appointee of her choice and assume office, it may be extended anytime there is vacancy even while congress is in session. Had the framers intended top extend the prohibition contained in sec 15 art 7 to the appointment of members of the SC they should have explicitly done so. We explain. As provided in the constitution, how do you fill up the vacancy in the office in the SC? It has to be filled up within how long? 90 days from the occurrence of the vacancy. Unlike the rest of the courts in the judiciary, the filling up of the judiciary is only within 90 days from the submission of the list of nominees. Insofar as the SC is concerned, within 90 days from the occurrence of the vacancy that they will fill up. If they have to wait for the new president to be elected, they are saying that they might violate the provisions of the constitution which is mandatory. Whereas for the rest of the judiciary, in the case of Valenzuela, on why the prohibition applies to the judiciary because after all, the appointments can be made within 90 days from the submission of the list. So it may run conflict with the provision of the SC. Thats why according to SC, if this applies to all, then hey should have specified. But they did not. So still they maintain SC is not subject to that prohibition on appointment. So the appointment of Chief Justice Corona was sustained as to its propriety and validity. Because if you ask about independence, because they have this political prejudice already as to the appointing authority. Supposedly, whoever is appointed after being appointed, should remain independent as required by the constitution. So all the more, they should not be afraid of the SC being bias against the next administration because it is so established to be independent from the two other branches of the government. The only thing is that they cannot remove the personal sentiments of people from what is supposedly provided by law.
2. LIMITATION ON MIDNIGHT APPOINTMENT This was a controversy last year because of the appointment of the chief justice of SC. The president cannot make appointments because it is prohibited within 2 months immediately preceding a regular election of the president. So TN of the following cases: Case: De Castro vs JBC Case: Serrano vs JBC Case: Reconza vs JBC TN of the reapplication of sec 15 art 7 of the Constitution to appointments of the judiciary. Because in the law, particularly of sec 15, art 7, that in reference to appointment of officers (no distinction), for a s ling as it is within the presidents power to appoint; except when the continued vacancy would cause prejudice to public service, then he may appoint temporarily the executive officers to offices in the executive department. Does this apply to the judiciary? In these cases, SC said, the prohibition under art 7 sec 15 of the constitution against presidential appointments immediately before the next presidential election and up to the end of the term of the outgoing president does not apply to the vacancies in the high tribunal, meaning the SC. Although we have the case of: Case: Valenzuela Where SC said that it applies to the judiciary came to hold that the prohibition covered in judicial departments, it cannot be disputed that the ___ dictum did not firmly rest on the deliberation of Constitutional commission. Thereby, the confirmation made to the JBC by then Senior Justice Florence Regalado of this court, a former member of the Constitutional Commission, about the prohibition not being intended to apply to the appointments to the judiciary which confirmation Valenzuela even expressly mentioned should prevail.
NOT APPLICABLE TO LOCAL EXECUTIVES Election ban. Only presidential election is covered in the prohibition. This does not apply to appointments made by local executives. Therefore, in the local level, they can make midnight appointments.
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POWER OF CONTROL AND SUPERVISION BY THE PRESIDENT CONTROL VS SUPERVISIONS C: -when the president nullify, alter or set aside what a subordinate officer has done in the performance of his duties and to substitute the judgment of the officer or subordinate S: -merely overseeing over the acts of the public officer. The president cannot alter or nullify the same except when they are contrary to law. -its more on overseeing the acts of officer rather than the actor Case: Malaria Malaria Employees and Workers Association of the Phils. Inc. were some of the functions the DOH have been transferred. SC said that the president has the authority to carry out the reorganization of the DOH under the constitution and statutory laws. This authority is an adjunct of his power to control under art 7 sec 1 and 17 of the 1987 constitution. The presidents power to reorganize the executive branch is also an exercise of his residual power, which grants the president broad organizational power to implement the reorganization measures. Be that as it may, the president must exercise good faith in carrying out the reorganization of any branch or agency of the executive department. Case: SC said the control of the organization of the national government and agencies may include the power 1. to group, consolidate bureaus and agencies 2. to abolish offices to transfer functions 3. to transfer functions 4. to create and classify functions, services and activities 5. to standardize salaries and materials The validity of the laws are unquestionable. The 1987 constitution clearly provides that all laws, decrees, executive orders and proclamations, letters of instructions and other executive instruments not inconsistent with the constitution shall remain operative. Case: Domingo vs Zamora The presidents power to reorganize offices outside of the office of the president proper is limited. Merely transferring functions or agencies from the office of the president to the departments or agencies and vice versa. In DECS, it is now DoE. What happened to Culture and Sports? The functions have been transferred to the Philippine Sports Commission. It was removed. It is now attached to the office of the president.
EXAMPLE C: -control over executive department S: -supervision over local governments REORGANIZATION OF OFFICES In relation of the power of control of the president over the different departments, bureaus and agency under the executive branch or office of the president, TN of presidents REORGANIZATION OF OFFICES which may include even 1. the transfer of functions from one department to another 2. the merger of offices under the executive branch 3. the abolition of offices in the executive branch Case: Buklod vs Zamora This was the deactivation of the EIIB because some of the functions were already performed by the other offices of the government. Some of the personnel were transferred offices. And those who cannot be transferred lost their job. Thus the question of the authority of the president to do that because virtually it abolished EIIB. According to them only congress that created the office can do that. But SC said that GR has been the power to abolish the public office is dislodged with the legislature. The exception however is that as far as bureaus, agencies or offices in the executive department is concerned, the presidents power of control may justify him to inactivate the power and functions of an office or certain laws may grant him broad authorities to carry out the reorganization measures. The chief executive under our laws has the continuing authority to reorganize the administrative structure of the office of the president. TN only the office of the president or the executive office proper.
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QUALIFIED POLITICAL AGENCY DOCTRINE TN as regard of the power of control is the QUALIFIED POLITICAL AGENCY DOCTRINE. That power of control of the president is delegated to the different secretaries of the different departments as adjunct to the office of the president, or acting as alter egos of the president. They perform the function and they are considered as the functions being performed by the president himself unless the acts are disapproved or repropriated by the president or if the president is require to act in person by law or by the constitution. This is important; that while we have this qualified political agency which practically makes the act of the secretary as the act of the president; precisely in the exhaustion of administrative remedies, the moment it is decided by the secretary of the department, you need not go to the president because the act of the secretary has exhausted the administrative remedy, you can now go to the courts; as an exception to exhaustion of administrative remedies. NON DELIGABLE ACTS TN however that there are certain acts that cannot be delegated to a delegate such a secretary of a department. So that even if it is acted upon by the secretary, that is not considered as an act of the president. Even if ratified by the president, still, it cannot be considered as final. Still, it has to be acted upon by the president himself. What are these functions? 1. residual power of immunity from suit -this cannot be also enjoyed by an alter ego 2. declaration of martial law 3. suspension of the privilege of the writ of habeas corpus 4. pardoning power of the president -this is the grant of pardons, commutations, reprieves, and remissions of fines and forfeitures Case: Constantino vs Gizia What about the president, through the BSP contracting foreign loans? Does that need the presidents action personally? Can that be delegated to the president of BSP? SC said, on the question on WON BSP can enter into contracts the matter of entering of treaty and agreements is a function of the president. SC said, nevertheless, there are powers vested on the president by the Constitution which may not be delegated to or exercised by an agent or alter ego of the president. Justice Laurel in his ponencia in Guillena made this clear; the argument of ratification may seem plausible under the circumstances concerned which by some certain acts which by their nature cannot be validated by subsequent approval or ratification by the president. There are certain constitutional powers and prerogatives of the chief executive of the nation which must be exercised by him in person and no amount of approval or ratification will validate the exercise of any of those powers by any person; such for instance is the power: a. to suspend the writ of habeas corpus b. to proclaim martial law c. to the exercise of the divine prerogative of mercy (pardon) These distinctions hold true to this day. There are certain presidential powers which arise out of exceptional circumstances and if exercised would involve the suspension of fundamental freedoms or at least called for the supercedence of executive prerogative over those exercised by co-equal branches. The declaration of martial law, the suspension of privilege of the writ of habeas corpus, the exercise of the pardoning power notwithstanding judicial determination of the accused; all fall within the special class and demands for the exclusive exercise by the president of the constitutionally vested power. It is by no means exclusive. But there must be showing that the executive power in question is ofsida gravitas and exceptional import. SC said, we cannot conclude that the power of the president to contract or guaranty foreign debts falls within the same exceptional class. Indubitably, the exception to contract and guaranty foreign debts is a vital public interest but only akin to any contractual obligation undertaken by the sovereign, which arises not from the extraordinary incident but from the established functions of the governance. IOW this power can be delegated. And it can be performed by an alter ego even without prior approval b ythe president. It is considered an act of the president unless it is disapproved or reprobated.
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COMMANDER IN CHIEF POWERS OF THE PRESIDENT POWERS What are the powers? 1. call out AFP (cannot decipher) -the power to call out the AFP to prevent or suppress lawless violation, invasion or rebellion 2. suspend writ of habeas corpus 3. proclaim a state of martial law 4. control the acts of the AFP POWER TO CALL OUT AFP This is the power to call out the AFP to prevent or suppress lawless violation, invasion or rebellion. It is not subject to judicial review. It is discretionary of the president. He doesnt have to report to congress, unlike the suspension of the writ of habeas corpus or the declaration of martial law, where there are constitutional limitations. CONSTITUTIONAL LIMITATIONS OF SUSPENSION OF WRIT OF HABEAS CORPUS AND PROCLAMATION OF STATE OF MARTIAL LAW REQUISITES Only two requisites: 1. invasion or rebellion, AND 2. public safety requires it Invasion or rebellion must be actual and not merely imminent. EXPIRATION On 60 days, automatically it is lifted by operation of law upon the expiration of the period unless it is revoked earlier or if not it is extended by congress by majority votes in a joint session voting jointly. (!this is one of the exceptions where the houses vote jointly!) The president cannot set it aside neither can it be reviewed by SC. REPORT TO CONGRESS Then the president has to report to congress within 48 hours from the declaration of suspension. He must submit a repot to congress. The purpose of the report is for the congress to determine whether it should be revoked. LENGTH OF DETENTION For how long can you be detained where the court cannot interfere into the detention after a warrantless arrest pursuant to the suspension of the writ of habeas corpus? You cannot be detained for more than 72 hours, unless you are judicially charged. -RIGHT TO BAIL And the right to bail is still available unless it is not bailable, like coup d etat. Of course this is without prejudice to hearing. Because there are two requisites to deny you of your right to bail: 1. charged with capital offense 2. evidence of guilt is strong
POWER TO CONTROL THE ACTS OF THE AFP 1. APPERANCE IN LEGISLATIVE INQUIRY Prohibiting them from appearing in any legislative inquiry. Executive privilege has nothing to do with it. It is part of the presidents power as the commanding in chief. 2. CHAIN OF COMMAND Prohibiting members of AFP to freely say what they want to say or go wherever they want to go. They have to follow the chain of command. So obey first before you complain. That is the structure of the military. OW should they refuse, they can be court martialed. In which case, the decision of that tribunal is subject to appeal not to any civilian court but to the resident in his capacity of commander in chief of AFP. DECALARTION OF NATIONAL EMERGENCY Another point you should TN being the commander in chief, the president can declare a state of national emergency, or state of rebellion. TN of cases: Lacson vs Perez, Sanlakas vs Executive Committee, Integrated Bar of the Philippines David et al vs Executive Secretary DECALARATION OF WAR Of course the president as the commander in chief can declare war. But there has to be determination of state of war. This is for the purpose of granting emergency power. WON there is a declaration of a state of war, the president can declare war if indeed there is war.
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SEC 19 EXECUTIVE CLEMENCY Grant of: 1. Pardon 2. Amnesty 3. Reprieve 4. Commutations 5. Remittance of fines and forfeitures GRANT OF PARDON Usually this is granted to persons or accused who are charged with ordinary offenses whether criminal or administrative in nature It can only be granted when the judgment of conviction has become final and executory. EFFECT OF GRANT What will be effect of granted? He will be relieved of further punishment. Meaning, if convicted and the judgment of conviction has become final and executory, even if he has served it already, still he can be granted pardon because that will relieve him of further punishment. So he need not serve his remaining years if there is still a number of years that he has to serve as part of his sentence. KINDS OF PARDON The moment he is granted pardon, it could either be absolute or conditional. ABSOLUTE, WON it will be accepted by the pardonee, it doesnt matter. CONDITIONAL, that requires the consent of the pardonee because it can be more burdensome on his part. GRANT IN ADMINISTRATIVE CASES What is the effect of grant of pardon in administrative cases? Would it reinstate him? That depends on the nature of pardon that may be granted by the president. The president has to specify that it is including his reinstatement in office. EFFECT ON FULLY SERVED SENTENCE This may also be served to persons who have fully served his sentence because there are some cases where you have conviction for more than 2 years of imprisonment or when you are dismissed from the service. There are accessory penalties included in the penalty or sentence. Like the forfeiture of your: Right to vote Parental authority over children Administration over conjugal property Right to run for public office. If it is absolute pardon and you have already served your term of imprisonment, it is still relevant. LIMITATIONS ON THE GRANT OF PARDON 1. cannot be granted to someone who is convicted of impeachment 2. not apply to employees of the judiciary including the judges -because the discipline of judges and employees of the judiciary are exclusive to the SC. 3. not granted to persons convicted of election offenses -unless there is favorable recommendation from the Comelec 4. not granted to one who is cited for contempt in a legislative inquiry 5. not granted to one who is cited for contempt in civil cases and court proceedings PARDON WITHOUT CONCURRENCE FINAL AND EXECUTORY In pardon granted by the president, without concurrence of congress, that is final and executory, not subject to review non appealable. That is discretionary in the president. It is non appealable. The moment it is granted, it cannot be appealed unless there is a grave abuse of discretion.
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GRANT OF AMNESTY It is a pardon granted by the president however with the concurrence of the majority of the members of congress. Without the concurrence of congress, the president cannot grant amnesty. This is relevant to the amnesty granted to the mutineers including Trillanes. Usually this is granted to a group of individuals or individual belonging to a group charged with political offenses. And this can only be granted with the concurrence of congress. TN this can be granted before or after conviction. IOW before he is tried in court, the president can grant him amnesty. Unlike in pardon, it can only be granted by the president when the judgment of conviction becomes final and executory. Case: Estrada What was granted to Estrada was not amnesty. It was pardon. Thats why he had to withdraw his motion for reconsideration to make the judgment final and executory to qualify him to pardon. AMNESTY GRANTED TO MUTINERS Case: Capuna jr vs CA This was during the time of Ramos, the grant of amnesty to those people who staged a coup d etat including Honasan. This is about Proclamation no 347 that was issued by Ramos. This is supposed to be granted to former NPAs, the rebels. So they were asking if it would apply to the rebel military as well in the grant of amnesty. SC says that the effects of Proclamation 347 issued by Ramos cover the members of AFP. It extends to all persons who committed the particular acts described in the provision and not just rebels or insurgents. CONDITION OF AMNESTY ASK FOR FORGIVENESS You cannot be granted amnesty unless you ask for forgiveness. Because this is an act of mercy to someone who had faulted the state. So why should the state grant you pardon if you do not ask for it. You have to admit your guilt in order to be granted amnesty. Its a risk actually because what if it is disapproved by congress? It is like pleading guilty as charged. So the next thing that the court will do is to impose the penalty if it is denied. GRANT OF REPRIEVE It is a matter of postponing the execution of death penalty to another day or the execution of his sentence. Case: Echegaray It was the SC who issued the injunction to suspend the execution of death penalty of Echegaray. They were questioning SC because the power of reprieve is vested only in the president. The justification of SC that they are never precluded form looking in to the case again specially when it is the life of the person that is at stake. Just because the judgment has become final and executory, they are not deprived of control over the judgment. They have the duty to protect the fundamental rights of an individual, as emphasized in a law particularly section 15 regarding the rules for the protection of fundamental rights of individuals. If in fact there is a pending bill repealing the death penalty, what will be the effect? It will be applied retroactively because it is beneficial to the accused. His penalty will be commuted from death to life imprisonment.
GRANT OF COMMUTATION The grant of commutation of penalty is simply to reduce the penalty to a degree or 2 degrees lower depending on the circumstances. That is the prerogative of the president.
GRANT OF CANCELLATION OF FINES AND FORFEITURES
POWERS TO CONTACT AND GUARANTY FOREIGN LOANS REQUIRE CONCURRENCE OF MONETARY BOARD This is entered by the resident by way of a treaty. But it does not require the concurrence of the senate. Only the concurrence of the Monetary Board. Subject to the limitations as provided by law. Of course MB has to submit to congress these treaties relating to the loans contracted.
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SEC 21
SECTION 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.
NEGOTIATION POWERS OF THE PRESIDENT You have the powers to negotiate treaties and other international agreements. Such treaties and agreements must pass the senate for: 1. concurrence of 2/3 votes, or 2. may be disapproved outright or 3. be approved conditionally subject to the conditions made by the senate so the president can renegotiate it Case: Pimentel vs Executive Secretary Who has the sole power to ratify the treaty? The sole power is vested upon the president. However to bind the republic, it is subject to the concurrence of the senate. The role of the senate is limited to giving or withholding its consent or concurrence to the ratification. Hence it is within the authority of the president to refuse to submit the treaty to the sanate or having its consent or ratification, refuse to ratify it. Although the refusal of the state to ratify a treaty which has been signed in its behalf is serious detriment, it should not be taken lightly. Such decision is within the competence of the president alone which cannot e encroached by the court via a writ of mandamus. The SC has no jurisdiction over actions seeking to enjoin the president in the performance of official duties. The court therefore cannot issue a writ of mandamus prayed for by the petitioners as it is beyond the jurisdiction to control the executive function of the government to transmit the signed text of Rome statute to the senate. PROCESS OF TREATY MAKING There is the negotiation by the president. Then they would sign initially. Thereafter, through the DFA, that treaty will be submitted to the senate for review. The senate could either: 1. disapprove it outright 2. concur with it or recommend some changes before they concur it What will happen if the senate will recommence for their concurrence? They will renegotiate.
HOW TO BIND THE REPUBLIC What is the effect if the senate does not concur it yet the president has signed it? Can we still be obliged internationally? Even if the president has signed it but the senate does not concur it, it does not bind us. Even if the senate has concurred it, but the president it does not ratify it, still it does not bind us. Remember, concurrence is exclusive to the president, however to make the treaty effective and bind the Philippines, it has to be with the 2/3 votes of the senate. Case: Akbayan vs Aquino The treaty negotiations is primarily confidential. Case: Bayan vs Zamora In the case of DFA, it is inconsequential whether the US to treats it as an executive agreement because under the international law, an executive agreement is as binding as a treaty. In the field of negotiation, the senate cannot intrude and congress is powerless. REQUIREMENT OF CONCURRENCE TN of the requirement of concurrence. Only treaty and international agreement. Executive agreement, they cannot interfere, that is exclusive to the president. TREATY AND INTERNATIONAL AGREEMENT VS EXECUTIVE AGREEMENT T/IA: it is political in nature, it affects the whole country EA: it is only providing for details. It is not permanent. It is for time to time negotiation. So no need to be concurred by the senate.
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ACCEPTANCE OF AMBASSADORS, CONSULS, ETC This is discretionary of the president. DEPORTATION OF THE ALIENS Deportation of the aliens is not provided in the constitution but it is part of its residual power. CLASSIFICATION AND SALE OF PUBLIC LANDS The classification of public lands and to sell the same, belongs to the president. Only lands that is classified as alienable may be sold. There must be a law authorizing its sale or alienation. Case: SRP They are saying that there has to be with the consent of congress if that is acquired by the LGU in its proprietary capacity. Its not a lot belonging to the Republic of the Philippines. Because when you sell it, there has to be a declaration that it is disposable and alienable. It must be with the consent of congress. So the president may not covey or sell real property of the government on her sole will. He must be authorized by law through congress. Remember that property in Japan, Repongi property. If it is a property owned by the state in its sovereign capacity, it has to be with the consent of congress. PROVISION OVER LOCAL GOVERNMENTS We have discussed this already. June 25, 2011 ARTICLE VIII JUDICIAL DEPARTMENT SEC 1
SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
JUDICIAL POWER 1. settling disputes 2. judicial power of review We will know what judicial power is. Because in 1987 constitution, there has been an EXPANDED JURISDICTION of the courts including the lower courts. Not only that the function is to settle disputes justiciable in nature, involving rights which are demandable and enforceable; meaning his rights have been violated and you are seeking redress in the courts Because the 1973 Constitution, the definition of Judicial power is limited only to settling disputes, this time, it includes the determination whether there has been a grave abuse of discretion amounting to lack or in excess of jurisdiction. This is what we call the JUDICIAL REVIEW POWER OF THE COURTS, also known as the EXPANDED JURISDICTION OF THE COURTS or the POWER OF JUDICIAL INQUIRY. 1. SETTLING DISPUTES TN as regards to the matter of settling disputes, it only involves justiciable questions, and one is asking for reliefs or redress of the violation of his rights. So there has to be an applicable law such as statutes or the constitution as basis for the settling of disputes. 2. JUDICIAL REVIEW OTOH, on judicial review, as a GR, laws passed by congress and policies made by the executive branch cannot be reviewed by the courts because it might violate the separation of power. So on issues of policies and wisdom, TN, that should be answered by the people on their sovereign capacity which capacity has been delegated the full discretionary power to the president who makes the policies or to congress who makes the rules. So as a GR, it should not be interfered with OW there may be a violation of the separation of powers. Its only when this discretion is abused amounting to lack or in excess of jurisdiction that the courts may look into in order to comply with its mandate under the constitution to make sure that whatever laws that may be passed or policies of the government may formulate, must be in accordance of law.
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This is not an assertion of the superiority of the courts, rather the supremacy of the constitution. Case: Angara vs Electoral Commission Case: Marcos vs Manlapus Because of this requirement, TN as a GR, only JUSTICIABLE QUESTION right for judicial adjudication, that may be the subject of the subject of a judicial inquiry as a GR. However, POLITICAL QUESTIONS may be look into if there is allegation of abuse of discretion. Only to that extent. POLITICAL QUESTIONS TN on political questions. The court cannot look into them because its a matter of questions of policies or issues of wisdom and thus it cannot be looked into as a GR. Only when there is allegation of abuse of discretion that it may be looked into by the courts. REQUISITES FOR JUDICIAL REVIEW ON MOOT AND ACADEMIC ISSUES Case: David et al. vs Executive Secretary The SC proceeded in determining the issue on constitutionality because the issue raised is of transcendental importance or on paramount public interest. SC said, the MOOT AND ACADEMIC PRINCIPLE, it is not a magical formula that can automatically dismay the courts in resolving a case. Courts will decide cases OW moot and academic if: 1. there is gave violation of the constitution 2. the exceptional character of the situation and the paramount public interest is involved 3. constitutional issues raised requires formulation of controlling principles to guide the bench and the bar and the public 4. the case is capable of repetition yet evading review. IOW there is still a possibility that this may crop up again in the future. At least there is specific guidelines to judges, lawyers and public on how to deal with it. In which case, even if the issue has become moot and academic, the court may still entertain the question of constitutionality in order to: 1. provide for guidelines 2. educate the bench and the bar DECLARATORY RELIEF On the matter of declaratory relief, where you have to declare the rights and obligations of the parties under the contract; although there is no conflict yet, may the court review the contract on its validity based on the constitutional provision or an existing statute? Even if no rights yet that are involved that are in conflict, but it may happen that if it is not interpreted, then there may be cases that would be cases that would be filed in court? Is this hypothetical or only asking for advisory opinion? Example. A claim by two claimants and there are different laws as basis. However, there is a question on the constitutionality of the laws based as basis for the claims over the deposit. The bank is not involved in the conflict of these two claimants. But certainly, if the bank will award any of the claims of either party, the bank will be sued by either one who is aggrieved by the decision of the bank. So the bank has to be sure that if they are going to award the account to a particular claimant on the basis of a law, the law that they applied must be constitutional. Can they go to court and seek the court to decide WON the law that was used as basis as constitutional? YES. A PETITION FOR DECLARATORY RELEIF according to SC is an actual case or controversy.
REQUISITES OF JUDICIAL REVIEW The courts must make sure that the requisites of a judicial review must be present. 1. actual case or controversy 2. raised by the proper party 3. raised at the earliest opportunity of time 4. lis mota of the case (the main case cannot be decided without resolving the issue on constitutionality) 1. ACTUAL CASE OR CONTROVERSY If it is an actual case, meaning it must be existing. Ripe for judicial determination or adjudication. Meaning, it should not be premature, and it should not be also moot and academic. And it should not be simply asking of a hypothetical question or an advisory opinion. So if it is premature, then the case may be dismissed outright by the court for there is no conflict yet, no contrariety of rights involved. Nobody is aggrieved. MOOT AND ACADEMIC PRINCIPLE OTOH, on the MOOTNESS AND ACADEMICNESS of the issue, TN of the MOOTNESS DOCTRINE. As a GR when the issue becomes stale, because either it has already been granted or the matter is academic because it is overtaken by events. Example, when somebody was questioning the validity of the declaration of state of emergency, but later it was lifted, the issue was raised in the SC. There is no more national emergency because it was already lifted by the president. So the issue may become moot and academic already because it is no longer existing or the case is still pending before the courts for its determination. But according to SC, it should not be a mathematical formula to dismiss the case because it has already become moot and academic.
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As a GR, the court will no longer look into the matter if the issue has become moot and academic unless when the issues involved the four requisites. e. voter -only when it involves: 1. right to vote 2. election laws TRANSCENDENTAL IMPORTANCE Is it a necessary requisite before the courts to consider before it will take cognizance that may be complaint that may be filed relating to questions of constitutionality of any law or acts of the president? NO. There is a exception to this: when the issue involved is of transcendental importance or of paramount public interest, if not constitutional significance, the court may set aside the requisite of proper party as a mere procedural technicality and may proceed in assuming jurisdiction and take cognizance over the petition only to resolve that issue. In many cases, even if the party concerning may not be directly affected by it, but it is not pervasive, if it is not resolved, the court may still look into the matter. Again, you go into the transcendental importance in the matter of determining whether a person is a proper party. Case: Kilosbayan vs Ermita The SC took cognizance over the petition of Kilosbayan questioning the qualifications of the appointment of the justice in SC. They wanted to stop the issuance of the appointment of Ong of the Sandigan Bayan to SC because they suspected he is not a natural born citizen. Sandigan Bayan, in the event that he is disqualifies cannot assume his appointment. In civil law, they cannot be the proper party. Sc said, considering that the matter involves a constitutional significance, SC nonetheless may look into the matter. So this case is a matter of primordial importance according to the SC because it involves compliance to the constitutional mandate, specially on the qualification of the member of SC where its importance is utmost and far reaching, particularly qualification, without the citizenship of the person to be appointed to be a member of this court.
2. RAISED BY THE PROPER PARTY DIRECT INJURY TEST OR PRINCIPLE What we follow in this jurisdiction is direct injury test or principle. One has to be the person who has personal and substantial interest in the outcome of the case, stands to be injured if the case is to be decided against him or benefited if decided in his favor. PROPER PARTY A PROPER PARTY is one who has sustained injury or is imminent danger of sustaining injury. Therefore, injury could either be actual or potential. Specifically, who are considered proper party to question the validity of the law? a. ordinary citizen -if he is injured by the application of the law complained of b. taxpayer -if the law : 1. involves disbursement of pubic funds contrary to law 2. is anomalous 3. involves imposition of tax that is unreasonable or excessive c. congress -if it encroaches with the legislative imperatives -ex. Senate vs Ermita as regards to EO 464 d. minor children -Case: Oposa vs Factoram The right is potential only. Because it is imminent that if there will be no regulation in the grant of logging concession, eventually you will be destroying the land and forest. So what patrimony will these children inherit if they are all destroyed? So they are considered proper party under the PRINCIPLE OF INTEGENARTIONAL RESPONSIBILITY to preserve our timberland because of the public right of the people to a healthful and balanced ecology. -Case: del Pilaan vs Ramos As to the extent of this right, this is not the actionable right in civil law. A case may be dismissed for lack of cause of action, because the person who filed the case has no actionable right. That is not the kind of actionable right that has been referred to here as the proper party. It only refers to LOCUS STANDI that may affect public right.
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3. RAISED AT THE EARLIEST OPPORTUNITY OF TIME If it is not stated in the pleadings, at least during the trial, one cannot be able to raise the issue on constitutionality for the first time on appeal. EXCEPTIONS TN of the exceptions where it can be raised even for the first time on appeal: a. in a criminal case, when it involves constitutionality of a law as basis in the conviction of the accused b. when the issue is jurisdiction -because the proceedings is void, judgment is void as well c. in civil cases, only when it is unavoidable that they have first to resolve the issue on constitutionality before they resolving the main case itself to grant or deny the releifs of court. 4. LIS MOTA OF THE CASE (the main case cannot be decided without resolving the issue on constitutionality) Meaning if there are other ways to resolve the case without touching the constitutionality of the law, then the courts should avail of the other grounds to not violate separation of powers, and thereby accord respect to co-equal branches of government such that of congress or president. It is only when it is unavoidable that first, it has to resolve the constitutionality of the law in question before the courts can resolve the issue. So grounds like: a. lack of jurisdiction b. issue of estoppel c. lack of prerequisites So the case can be disposed of by those grounds. EFFECTS WHEN COURT DECLARES A LAW UNCONSTITUTIONAL The thing that you should TN is the consequences or the effect when the courts exercises the power and declares the law as unconstitutional. 1. traditional view 2. modern view In this jurisdiction, we follow the modern view. 1. TRADITIONAL VIEW It is void from the very conception of the law. It is as if the law never existed. It confers no rights, it poses no obligations, t creates no office and it affords no protection. It will be as if that law has never been passed. 2. MODERN VIEW OPERATIVE FACT DOCTRINE What happens to the consequences when the law was still applied for? It was not declared as unconstitutional, or still considered as valid? This is what we call the OPERATIVE FACT DOCTRINE. You cannot simply ignore that once upon a time, that law existed and has created certain rights, imposes certain obligations; and this cannot be ignored because you might prejudice substantial rights. So then how do you treat the law that has been declared as unconstitutional? In modern view, they are only considered as voidable; valid until, they are declared a nullity. Therefore, before declared a nullity, you have to recognize the operative fact as to its existence before it is declared a nullity, the consequences and the effects of that law. If it has created rights, then these rights must be respected. Case: Agbayani vs PNP Case: Flores In this jurisdiction, until it is declared as a nullity, it is applied and we have to respect the consequences and the effects of that law. But the moment it is declared unconstitutional, there will be no compromise. It imposes no obligations, confers no rights, affords no protection, creates no office. It is as if it was never passed since the time it was declared a nullity.
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LOWER COURTS VESTED JUDICIAL REVIEW POWER This judicial review power is not exclusive to the SC. This is also exercised by the lower courts. What are these courts vested with judicial review power? 1. SC and 2. such other courts that are created by statutes: a. intermediate appellate courts 1. court of appeals 2. sandigan bayan 3. court of tax appeals b. lower courts 1. first level RTC 2. second level MTC They exercise judicial review because in sec 1, it says judicial power is vested in SC and such other courts established by law. So when judicial power is defined as not just settling disputes but as well as determining abuse of discretion, then it is understood that the power is likewise by the lower courts. You also have the provisions of sec 5 art 8, under the appellate jurisdiction of SC what will the SC review on the constitutionality if in the first place the lower courts do not exercise judicial review. So you have: 1. sec 1, art 8 2. sec 5, art 8 JUDGMENT OF LOWER COURTS BINDS PARTIES OF THE CASE ONLY The only difference is that the declaration of nullity by lower courts may not be final or binding. Because even if the order is already final, it is not jurisprudential. It cannot be used to guide the judges and the lawyers as well as the public as to the constitutionality of the law. It is when only it is declared with finality by SC that the issue on constitutionality is resolved or settled. So even if RTC declares an ordinance unconstitutional, and even if the judgment becomes final, that cannot be used as basis no to apply anymore the ordinance because that binds only the parties with respect to that case It may be repeated. And then finally it reaches the SC. Only the SC can say with finality WON the ordinance or any law for that matter is in consonance with the constitution. GUARANTIES OF THE INDEPENDENCE OF SC What are the guaranties of the independence of SC? What are the factors that safeguard the independence of the judiciary particularly of SC? 1. SC is a constitutional court It cannot be abolished by congress. Even if congress and the president dislikes the chief justice of the SC, they cannot conspire in order to abolish the SC because it created by the constitution and they can only be abolished by the constitution. 2. the justices of SC are removable only through impeachment You cannot sue them for civil cases, for damages in criminal cases, for offense. Relatively they have some kind of immunity. The cannot be charged for disbarment. Because this will circumvent the law on their removal. If they are not impeached, for how long will they stay in the judiciary? All judges and justices of the SC stay in office until they reach the age of 70, unless they are dismissed from the service if they become insane or permanently disabled or have resigned. The mandatory retirement age for civil service is 65. But the justices and judges of the courts are given the option to retire at 60 for as long as they have been in service for 15 years and 5 years in the judiciary. And when they retire they continue to receive the last salary they have received including allowances. And if they die, the spouses will receive the salaries of the judges. 3. purely judicial function They are prohibited from exercising quasi judicial or administrative functions. There are exceptions to this: a. some members of SC are also members of the electoral tribunal (quasi judicial) b. chief justice of SC chairs the JBC (administrative) But as a GR, to avoid violation of separation of powers or encroaching into each others powers, thats the prohibition against The appointment for example of a justice of the SC to become a cabinet secretary to advice the president on judicial matters, that is prohibited.
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4. appointment of personnel is vested in the SC a. appointed by SC The personnel of the courts from the janitor to the clerks of courts except the judges are appointed by the SC en banc in accordance with the civil service law. Can they be dismissed by the president? NO. Can they be disciplined by the ombudsman? NO. This is exclusive to the SC to maintain independence of the SC. If you have any complaints against the court personnel or judge or justice, you do not file it with the office of the president or with the office of the ombudsman. You file it directly with the SC. Because in the manner of disciplining court personnel and judges, that is exclusive to the SC. b. not subject to the confirmation of the CoA Another point on respect to the guaranty of its independence, this is with respect to their appointments. They are not subject to the confirmation of the CoA. However, they are screened by the JBC and the appointment by the president is limited only by the list submitted by the JBC. And for every vacancy, there should be at least 3 nominees. However the president, although appoints the judges and justices, cannot remove them from office. Judges can only be removed by SC. Justices of the SC can be removed only through impeachment. 5. fiscal autonomy - budget of SC With respect to their budget, even if congress dislikes the SC, they cannot decrease the budget of SC, OW, it is unconstitutional. Automatically, the last budget of the SC will be revived without deduction. The issue on the budget of the SC on this year is not the reduction of the budget but on the proposed increase that was reduced, from 2b to 800m. The point here is, they have fiscal autonomy. Their budget cannot be reduced. 6. increase of appellate jurisdiction Jurisdiction of SC is both original and appellate. They are provided in the constitution. Can the original jurisdiction provided by constitution be reduced by SC by legislation? NO. Can the original jurisdiction provided by constitution be increased by SC by legislation? YES. They cannot divest but can be increased, even without the consent of SC. Increase by of the appellate jurisdiction, can that be done? NO. if it is without advise or concurrence by SC. 7. rules on pleadings and procedure in court How about the lower courts? Who determines the jurisdiction of the lower courts? They are created by law. But TN, under the rules of court, their jurisdiction, under sec 15, on the rule making power of SC, who promulgates rules governing pleading and procedure in courts which must be uniform? Exclusive to the SC. So they can only be the one to amend the rules of court. 8. detaining judges In the matter of detaining judges temporarily, who does that? Only the SC.
QUALIFICATIONS OF MEMBERS OF SC (JUSTICES) 1. at least 40 years old 2. with experience in the practice of law or as judge for 15 years 3. natural born citizen 4. proven competence, integrity, probity and independence
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June 27, 2011 JUDICIAL POWER What we were discussing was the extent of the judicial power of the courts particularly of the SC. We have discussed the nature of judicial power and the extent of judicial review as well as on the effects of declaration of nullity. JUDICIAL INDEPENDENCE We also explained the safeguards of judicial independence. APPOINTMENT OF COURT PERSONNEL As part of the guaranty of the independence of the courts, the matter of appointment of personnel from the court to a clerk of court or even higher position than that except for judges of the lower courts, such power is vested in SC, subject to the rules of the civil service law. DISCIPLINING COURT PERSONNEL So in the matter of dismissal from the service, that is also exclusive to the SC considering that the matter of disciplining court personnel and judges is within the power of SC under the exclusive supervision of the SC over courts and court personnel. SC EN BANC In this connection, TN, while the judges are appointed by the president, they can only be disciplined by the SC sitting en banc. So that if there are complaints filed against judges and court personnel, TN that insofar as administrative complaints is concerned, that is exclusive of the SC. REQUIREMENT OF FILING CRIMINAL CASE IN OFFICE OF OMBUDSMAN AGAINST COURT PERSONNEL Should you file a case in the office of the ombudsman, with respect to the criminal aspect of the compliant; Case: Maceda vs Ombudsman SC has emphasized that still, it should be first referred to the office of the SC to take cognizance over the complaint. and only when the SC makes a recommendation of an indictment, the conduct of the preliminary investigation, the criminal aspect that the ombudsman may take over the investigation. JURISDICTION LOWER COURTS Insofar as jurisdiction of the lower courts, these are determined by congress. You have the rules of court governing jurisdiction of the rules of court, which rules of court are subject to changes or amendments by the SC as part of its rule making power, or promulgating rules governing procedure and pleadings. SUPREME COURT Insofar as the SC OTOH, we have provisions in the constitution defining its original as well as appellate jurisdiction. ORIGINAL JURISDICTION OF SC 1. cases against foreign ambassadors stationed in the Philippines and consuls and other public ministers -concurrent with CA and RTC 2. petitions for certiorari, mandamus, prohibition, quo warranto and habeas corpus CANNOT BE REDUCED The original jurisdiction of the SC cannot be reduced. SC cannot be divested of that jurisdiction. CAN BE INCREASED Can it be increased without the consent or the concurrence of the SC? YES. APPELLATE JURISDICTION OF SC Basically you have two: 1. petition for review 2. petition for certiorari What are the cases that are heard by the SC in its appellate jurisdiction? 1. all cases involving the constitutionality of treaty, international agreement or executive agreement or law 2. constitutionality insofar as application or operation of presidential decrees, proclamations, orders, instructions, ordinances and other regulations 3. tax imposts, assessment or any other penalties imposed in relation thereto 4. all cases in which the jurisdiction of any lower court is an issue 5. criminal cases where the penalty imposed is reclusion perpetua or higher 6. cases where only errors or questions of law are involved CANNOT BE REDUCED Can they be increased or reduced? Can SC be divested of its appellate jurisdiction? NO. It is part of the guaranty of his independence.
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GR: CANNOT BE INCREASED Can it be increased? NO. If it is without the advise or the concurrence of the SC. Case: Fabian vs Disierto With respect to RA 6770 when the law provides that the decisions of the ombudsman in the criminal cases are reviewable only by the SC; on purely questions of law or abuse of discretion amounting to lack or in excess of jurisdiction. SC said, that law increasing the appellate jurisdiction of the had no prior concurrence or advise of the SC and thus the provision was declared unconstitutional. Does this mean that insofar as amending the rules of the SC, that is exclusive to SC to do so? While it is true that insofar as the power to amend the rules is vested in the SC under its rule making power, however you take note of the case of: Case: Gingoon vs Republic Where the law was passed that determines just compensation in expropriation cases involving national infrastructures which in effect amended the rules of court on the matter of determination of just compensation. Because while rule 67 of the rules of court provides that all that is needed for the writ of possession to be issued is 10% of the estimated value based on assessed value of the municipal assessor, TN that on RA 8974 on national infrastructure, just compensation in expropriation cases where SC said that that will not preclude however the power of congress to pass any law including amending the rules of court considering that the legislative power vested in congress is plenary. SC said congress has the plenary legislative power. The silence of the constitution, the subject can only be interpreted as meaning there is no intention to diminish that plenary power. RA 8974, which require full payment before the state may exercise proprietary rights, contrary to rule 67 which require only a deposit was recognized by the SC. AUTOMATIC APPEAL TO SC NOW PASS TO CA On the matter on appeals on judgment of conviction where the penalty is reclusion perpetua supposedly it is only exclusive to SC where you file an appeal by filing a notice of appeal because it is not automatic. It is only when the penalty is death when appeal is automatic even if accused does not file a notice of appeal. TN that under the new rules of the office of the SC, as it was enunciated n the case of People vs Mateo, the appeal should first pass to the CA before it goes to the SC. Case: People vs Mateo The SC said, the fundamental law requires mandatory review by SC of cases where the penalty perpetua, life imprisonment or death, nowhere has it been prohibited an intermediate review. SC deems it wise and compelling to provide in these cases a review by the CA before the case is elevated in the CA. Justification. Procedural first and foremost falls more squarely within the rules making prerogative of the SC than the law making power of congress. The rule allowing the CA, a subordinate appellate court before the case is elevated to the SC for automatic review is such a procedural matter.
TEMPORARY ASSIGNMENT OF LOWER COURT JUDGES TO OTHER STATION It need not be with the consent of the judge if the assignment is less than six months. However, if it is more than 6 months, it should be with the consent of the judge concerned. CHANGE OF VENUE OR PLACE OF TRIAL TO AVOID THE MISCARRIAGE OF JUSTICE Case: People vs Sola Then the change of venue or place of trial to avoid the miscarriage of justice, TN in case of doubt whether it can be changed, it has to be resolved in favor of the change of venue in order to prevent the miscarriage of justice. POWER OF PROMULGATING RULES This is very important. SUBJECT MATTERS WHICH CAN BE BASIS FOR PROMULGATING RULES Insofar as the procedural rule making power, sec 15, TN of the subject matters that could be the basis of the promulgation of rules: 1. protection and enforcement of constitutional rights 2. rules governing pleading, practice and procedure of all courts 3. addition to the practice of law 4. rules governing the integrated bar of the Philippines 5. rules governing the legal assistance of the under privileged WRITS ISSUED BY SC IN CONNECTION WITH RULE MAKING POWER In connection to this, TN of the writs that have been issued and justified by the rule making power of the SC 1. writ of habeas data 2. writ of amparo 3. writ of kalikasan Insofar as their issuances, they are justified under the rule making power of the SC.
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LIMITATIONS ON RULE MAKING POWER OF SC TN on the limitation of the rule making power of SC, it should be: 1. simplified and inexpensive procedure for the speedy disposition of cases 2. uniform for all courts of the same grade 3. not diminish, increase or modify substantive rights (rearranged) VOTES How many votes is required to arrive at a decision OW the appeal is dismissed? If it is a division of 7, how many votes are needed? At least 4. If there is 6? At least 4. If there are 5? At least 3. If there are 4? At least 3. If there are 3? There is no more quorum. If it is a division of 5, how many votes are needed? At least 3. If there are 4? At least 3. If there are 3? A unanimous 3. If it is a division of 3, how many votes are needed? A unanimous 3. IOW it will be not less than 3 in all divisions. If it is not obtained, then in which case, it will be held by SC sitting en banc. CASES TO BE DECIDED EN BANC What are the cases to be decided by SC sitting en banc and in division? As a GR, because there are many cases appealed to the SC, they decide cases in division of 3,5 and 7. These are the cases that are not covered by cases to be heard only by SC en banc. So better if you can memorize the cases that must be heard en banc, like: 1. all cases involving constitutionality of treaty, international agreement, executive agreement or law 2. all cases to be heard en banc under the rules of court 3. appeals from Sandiganbayan & Constitutional Commission The SB is directly to the SC because it is co-equal to CA. Insofar as Civil Service Commission, TN it must first pass through the CA, by the circular of the SC before it goes to mandatory review of SC. Insofar as Comelec, only decisions of Comelec en banc can appealed to the SC. Thus as a condition precedent to an appeal to be taken cognizance by the SC on decisions of the Comelec, a motion for reconsideration must be first filed or resolved by the Comelec en banc. Insofar as COA, it is directly appealable to SC purely on questions of law or on allegations of abuse of discretion amounting to lack or in excess of jurisdiction. IOW only through a petition for certiorari. 4. cases involving the constitutionality of application or operation of PDs, proclamation, orders, instructions, ordinances and other regulations. 5. cases where SC modifies or reverses a doctrine or a principle laid down by SC either sitting en banc or in division. That can only be done by SC sitting en banc. If there is already a principle established in the case by the SC sitting in division; if you are to reverse that decision, you file a motion for reconsideration in the SC sitting en banc because only SC en banc can reverse a decision that establish the principle either by SC sitting en banc or in division. 6. administrative cases to discipline or dismiss judges of lower courts 7. election contest for the president and VP
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DECISION OF SC PERIOD The requirement is, court should decide cases for a period of: 1. SC: 24 months 2. IAC: 12 months 3. lower courts: 3 months BOTH MANDATORY AND DIRECTORY All from the time the case is deemed submitted for decision or resolution. TN that in the requirement, is it mandatory is directory? It is DIRECTORY because even if judgment is rendered after the prescribed period, judgment is still valid. It is MANDATORY in a sense, specially for lower courts because if they fail to comply or follow the prescribed period, that would be subject to a disciplinary action against a judge. AS TO FORM AND MANNER TN of the requirement, under sec 14, it must state the past and applicable law and jurisprudence. EXCEPTIONS What is important in sec 14 are the exceptions. Insofar the SC dismissing a petition for review or certiorari by the mere statement for lack of merit, the decision is dismissed. Does this violate section 14? TN of the following cases: Case: Comacho vs CA Case: German Machineries Inc. vs Indaya Case: Solid Homes vs Lacerna Case: Aregado vs Yama Where the SC stressed that SC has discretion to decide whether a minute resolution should be used in lieu of a full blown decision in any particular case. Further, SC explained that the grant of due course to a petition for review is not a matter of right but of some judicial discretion. While if forced to find any reversible error committed by CA, there is no need to fully explain the courts denial as it means that means that the SC agrees with or adopts the findings and conclusions of the CA. There is no point in reproducing or restating in the resolution of the denial the conclusions of the appellate court affirmed. The constitutional requirement of sec 14 art 8 of a clear presentation of facts and laws applies to decisions where the petition is given due course but not where the petition is denied due course with the resolution stating the legal basis for the dismissal. IOW if the SC denies a petition for review, the SC need not explain that. But the moment the SC gives due course to the petition, even if the SC ultimately will dismiss the petition, still SC has to comply with sec 14. MEMORANDUM DECISION On memorandum decision, is that acceptable? Case: Oil and National Gas Commission SC said, sec 14 does not preclude the validity of memorandum decision where the SC makes only a referral of the decision already made by the lower court which the by the reference, the findings of facts and conclusions of law contained in the decisions of inferior tribunal. It is intended to avoid cumbersome reproduction of the decision or portions of the lower court. Also you must learn the definition of the term: Obiter dictum Pro hac vice PRO HAC VICE This was used in the case of Ampatuan as regards to the matter of having the proceedings of the case broadcast. It is only applicable with respect to this case and may not be used as a precedent. Thats a pro hac vice decision.
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CONSTITUTIONAL PROVISIONS COMMON PROVISIONS CONSTITUTIONAL COMMISSIONS Civil Service Commission is the central personnel agency. COMELEC will guaranty a clean and honest and orderly election. COA is the watchdog of Philippine funds and expenditure. SAFEGUARDS TO GUARRANTY INDEPENDENCE What are the safeguards that guaranty the independence of these constitutional commissions? 1. they are created by the constitution and therefore, they cannot be amended abolished by statute Each is expressly described as an independent body. It is conferred with powers and functions which cannot be reduced by statutes. 2. members and chairman are removable only through impeachment 3. term of office is 7 years 4. they cannot be appointed in acting capacity, permanent appointment, including ad interim appointment 5. salaries cannot be increased during the continuance of office 6. enjoy fiscal autonomy 7. may promulgate own rules PVDD that they will not diminish, increase or modify substantive rights. 8. appointment of own personnel In accordance with the Civil Service law. In the disqualification of Constitutional Commissioners, the thing that you should TN is the matter that they should not be a candidate of election immediately preceding the appointment. (!!!!!) CIVIL SERVICE COMMISSION SCOPE Memorize the scope of civil service. branches subdivisions instrumentalities agencies of the Government GOCCs with original charters GOCCs created by special laws GOCCS Those that are created with the original charters, they are governed by law. As to ordinary GOCC, they are governed by the corporation code. And in which case, they are not within the jurisdiction of the Civil service law Only those created by special law and those with original charters are under the CS. INSTRUMENTALITY VS AGENCY Case: Liberisa vs IAC SC said, AGENCY of the government refers to the various units of the government, including a department, bureau, office, instrumentality of government, GOCC, local government or any distinct unit therein, usually exercising governmental functions. INSTRUMENTALITY refers to agency of the national government not integrated with the department framework vested with special functions or jurisdiction by law, with some if not all corporate powers administering special funds and enjoying operational autonomy, usually through a charter. This includes regulatory agencies, institutes of the government or controlled corporation. WATER DISTRICTS How about water districts? Are they under CS? YES. If one is employed under the GOCC whether a regular or not, the CS law applies. It is not true either with respect to money claims that labor code applies. So TN that insofar as the water districts, they are under the CS. They are governed with an original charters. STATE UNIVERSITIES How about the state universities? Are they under the civil service? So that if there is any complaint, you should file it with the civil service or the board of trustees that elected the president of a state university or college? Case: CSC vs Sohor, May 22, 2008 SC said that a state university with a fixed term of office appointed by the governing board of trustees of the university is non carrier civil service officer.? Appointed by the chairman and members of the governing board of CVPC, it is a non carrier under the jurisdiction of the civl service commission.
SALARIES PROCEDURE QUALIFICATION PROCEDURE RELATING TO APPEALS
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Because state universities are governed by special laws or chartered by special laws. The president is non carrier within the jurisdiction o f the civil service. CLASSIFICATIONS OF THE POSITION OF THE CIVL SERVICE 1. carrier 2. non carrier C: is based on competitive examination. eligibility based on examinations. there are qualifications prescribed by law. NC: is usually entrance based on other than the usual test of merit and fitness -could be by election C: enjoys security of tenure NC: could be limited by the term prescribed by law could be coterminous to the appointing authority could be limited to the duration of the project for which he is employed or appointed to C: with opportunity of advancement NC: no opportunity of advancement no promotion SECURITY OF TENURE Who enjoys the security of tenure assuming that he is a carrier? Especially for the requirement of executive civil service eligibility that is now an issue Remember that after the change of administration, some directors are to be replaced? Although they are civil service eligible but it is not eligibility that is required of the position. What is the requirement of an executive position? You have to have an executive civil service eligibility like CESO Carrier Executive Eligibility. OW even if you are a first grade professional, civil service eligibility holder, that is not the kind of eligibility that is required of the position, you can still be removed. You dont enjoy the security of tenure. Let me explain the extent of the enjoyment of security of tenure. You have to have not only the prescribed qualification but as well as the required eligibility. For a regional director for example, what are the requirements of a bureau? Of course the qualifications needed for the position as required by law and secondly, the requisite eligibility for that position. Meaning, even if you have the qualifications, like for example, relating to the requirement that in order to acquire the position, you have to be an engineer. And you have to be a CES holder, Executive Eligibility. Even if you are an engineer but you dont have the eligibility, you dont enjoy security of tenure. You can be transferred any where else. Even if you have the civil service eligibility however not the required civil service eligibility, then you are disqualified. Or even if you have CESO, however you do not have the qualification, you still do not enjoy security of tenure. So that explains why many directors who have been holding the position for several years already, professionalized the position, they are still transferred or removed from office because these two must concur; the required qualification and the eligibility. Failure to apply for this requirement, one does not guaranty a security of tenure. But if you are a CESO, what will happen here? In case you do not have the qualifications? You may not get the position like for example, the position requires that you have to be a doctor. However you are only a nurse, but you have the eligibility of a CESO, do you enjoy security of tenure to the position? NO. Because of the lack of qualification. However your salary is not be diminished because you are a CESO. You dont enjoy security of tenure to the position. To give you concrete cases relating to this, I want you to read the following cases: Case: Alsocoso vs Macaraig SC said, permanent appointment can be issued only to a person who makes all the requirements for the position to which he is being appointed including the appropriate eligibility prescribed. The mere fact that position belongs to a carrier does not automatically confer security of tenure on its occupant even if it does not possess the required qualifications such right will have to depend on the nature of appointment which in turn depends on its eligibility or lack of it. What if for example, you are permanent appointee. You accepted an appointment that is CO-TERMINUS WITH THE APPOINTING AUTHORITY because the salary is higher. Do you enjoy security of tenure? NO. The moment you accept an appointment that is coterminus to the appointing authority, you waive your right against security of tenure.
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Of course those CONFIDENTIAL POSITION do not enjoy security of tenure. So then you have to know what are considered as confidential positions? These are primarily confidential. Case: Monticillo vs CSC SC said that the CS is expressly empowered by the Administrative Code of 1987 to declare positions of CS primarily confidential, on 2 instances: 1. president declares the position as primarily confidential upon recommendation of CSC 2. whether the nature of function exists close intimacy between the appointee and the appointing authority which ensures freedom of intercourse without embarrassment or freedom from misgiving or los of personal trust or confidential matters. How about a pre legal officer? Is that primarily confidential? YES. How about a Casino Operations Manager? Not confidential. SUSPENSION OF AN EMPLOYEE 1. preventive suspension 2. penalty REINSTATEMENT AND BACK SALARY Is he entitled to reinstatement and back salary if exonerated? In PREVENTIVE SUSPENSION, it is the temporary removal of an employee in an office while a case filed against him is pending. In the event the case is dismissed, is he entitled to backwages? If he is exonerated and reinstated to office? The rule is, NO WORK, NO PAY. If he did not render service, it is not automatic that he will be entitled to back wages unless: a. if there is a finding of abuse of discretion on the part of the disciplining committee, or b. if there is an order for the payment of backwages In SUSPENSION, is he titled to the payment of backwages when he is illegally dismissed? Case: Castillo vs CSC When the employee is illegally dismissed and his reinstatement is through order of the court, for all intents and purposes, he is considered as not having left his office, notwithstanding the silence of his decision, he is entitled the payment of backwages. Case: BOTC vs Cruz SC follows as precedent that BOTC did not effect Cruzs termination with bad faith. And consequently, no back wages can be awarded in his favor. So only when there is a finding of abuse of discretion or bad faith on the part of the authority that he be entitled to the payment of backwages. If the public official is ALREADY RETIRED, is he entitled to backwages and his retirement benefits? Case: David vs Ganas SC said, the CS officer has been found illegally dismissed or suspended is entitled to be reinstated and to backwages and other monetary benefits from the time of his illegal dismissal or suspension and up to his reinstatement. And if at the time the decision of exoneration is promulgated, he is already of retirement age, he shall be entitled nit only to back wages but also to full retirement benefits.
REMOVAL OF TEMPORARY EMPLOYEE Can you remove a temporary employee anytime? YES. With or without cause. But for those who enjoy security of tenure, they can only be removed for just or legal cause provided by law. But if your appointment is temporary, there is no such expectations because they do not enjoy security of tenure.
NEXT IN RANK RULE The appointing authority is not bound by the next in rank rule. Still he is given a wide latitude in the choice of appointee. KINDS OF POSITIONS There are positions like 1. competitive positions 2. non competitive positions a. policy determining b. confidential c. highly technical
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DOUBLE COMPENSATION This is prohibited. How about if he is retired and received pension and he is reemployed, will that be considered as double compensation? Case: Santos vs CA The rule on double compensation is not applicable to pension. A retiree receiving the pension of gratuity after retirement can continue to receive such pension or gratuity if he accepts another government position to which another compensation is attached. COMMISSION ON ELECTION APPOINTMENT OF THE COMMISSIONERS PERMANENT, NOT SUBJECT TO REAPPOINTMENT Just like the rest of the officers of the constitutional commission, appointment must be permanent and not subject to reappointment. SUBJECT TO CONFIRMATION BY CoA The appointment is subject to confirmation by the CoA. When you say not subject to reappointment, that affects only to regular appointments which had been confirmed by CoA. (Matibag vs Benipayo)
TERMINATION OF SERVICE WITH THE GOVERNMENT You have the Law on Public Officers. Case: Estrada vs Disierto As regards the form of resignation, it is not required that it is formal. But for purposes of avoiding any liability, the resignation has to accepted by the appointing authority. POWERS EXERCISED CSC exercises administrative function. But it also exercises quasi legislative and quasi judicial functions subject to review by the SC, however it must pass through the intermediate review. APPEAL BY CSC TO SC Can CS appeal the decisions of CA? Can it be an appellant of a CS case? Like for example, in case of Dacoycoy where CSC rendered a decision against a CS employee and he was dismissed from employment because of nepotism. Of course the employee appealed eh decision of the CSC to CA. Then CA reversed the CSC. Can CSC can appeal the decision of CA to SC? Yes. Because in that case the CSC was the aggrieved party. Appeal now lies from a decision exonerating CS employee of administrative charges. MAY ISSUE WRITS Can CS issue a writ of execution in order to implement its own judgment? YES. It is part of its quasi judicial function.
ISSUANCE OF WRITS IN AID OF ITS APPELLATE JURISDICTION As part of its quasi judicial function, COMELEC can issue 1. Certiorari 2. Prohibition 3. Mandamus But only in aid of its appellate jurisdiction CONTEMPT POWERS IN ADMINISTRATIVE AND QUASI JUDICIAL FUNCTIONS Do they exercise contempt powers? Yes. But only in exercise of administrative functions. Case: Bidol vs Comelec, Dec 3, 2009 Bidol said he lost the election returns in the Maguindanao elections. Zubirri was elected as senator as a result. Bdol was cited for contempt because he did not appear anymore and did not bring the other election paraphernalia. He then appealed the contempt order to the SC saying that the order was issued by the Comelec in the exercise of its administrative function and therefore, the Comelec has no authority to cite him for contempt. It was not in the exercise of its quasi judicial function. Let me clarify. On the Commission of Human Rights, as you can recall, it has no contempt power neither the power to issue restraining powers because it is merely an investigating body except when it is exercising administrative function. Insofar as the Comelec OTOH, the contempt power is execised by the Comelec is the exercise of its quasi judicial function, not administrative. So here, SC sustained the Comelec. Because according to SC, when that order was issued by the Comelec, there was an investigation conducted on Bidol as regards to those election returns. In connection to the investigation, Bidol was ordered to produce all the necessary election returns and the certificates of canvass which however he failed to do so. And thus the contempt. So it was not purely an administrative function of the
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Comelec when he was ordered but in connection with the case that was investigated by the Comelec. Therefore, the citation of contempt of Bidol was in accordance with law. As far as its quasi judicial function, the Comelec can cite for contempt. PROMULGATION OF RULES IN THE CONDUCT OF ELECTION The promulgation of rules in the conduct of election is within the powers of the Comelec. Case: Limkaichong vs Comelec The resolution issued by the Comelec, where the Comelec declares that notwithstanding the pendency of the disqualification case against the candidate, if elected, he should be proclaimed without prejudice to the continuation of the proceedings in the proper forum. In this case, resolution number 8062, according to SC is a valid exercise of Comelecs constitutionally mandated power to promulgate its own rules or procedure relative to the conduct of elections. In adopting such policy guidelines for the May 14, 2007 National and Local Elections, the Comelec had in mind the objective of upholding the sovereign will of the people and in the interest of justice and fair play according to these candidates whose disqualification cases are still pending at the time of election; should they obtain the highest number of votes from the electorate should be proclaimed. But their proclamation should be without prejudice to the continuation of the hearing and the resolution of the involved cases. CONDUCT OF PLEBISCITE AND DETERMINATION OF RESULT How about conduct of plebiscite and determination of result? Is it with the Comelec or the courts? Case: Cayetano vs Comelec The conduct of plebiscite and determination of results shall be the business of the Comelec, not the regular courts. The independent constitutional body exclusively charged with the power of enforcement and administration of laws and regulation relative to the conduct of election, plebiscite, initiative, referendum and recall; the Comelec has the indisputable expertise of election and related laws. It has therefore enjoyed the presumption of regularity in the performance of its duties.
CANNOT CALL FOR ELECTIONS Can Comelec call for elections? Case: Sema vs Comelec. NO. That is an exclusive power of congress.
JURISDICTION OVER CONFLICTS OF POLITICAL PARTIES Can the Comelec assume jurisdiction over conflicts of political parties? Case: LBP vs Comelec Case: LBP vs Atienza On the conflict of leadership in the political party, WON Gibon or Atienza is the President of LBP. Comelec assumed jurisdiction over that conflict. TN While the QUESTION OF PARTY LEADERSHIP has implication on the Comelecs performance of its functions, Comelec has jurisdiction to decide questions of leadership within a party and to ascertain its legitimate officers and leaders. The Comelec is endowed with ample, well defined and considerable latitude in adapting the means and methods that would ensure the accomplishment of the objectives of which it was created.
But if it goes to the EXPULSION of a leader of a political party or a member from a political party, does the Comelec have jurisdiction over that dispute? Case: Atienza vs Comelec, Feb 16, 2010 This is on the expulsion of Atienza from LBP. TN SC said, while on the question of party leadership has implications on the Comelecs performance of its functions under sec 2 art 9 par c of the Constitution, the same cannot be said of the issue pertaining to Atienzas expulsion from the LC. Such expulsion is for the moment an issue of party membership and discipline in which the Comelec cannot interfere given the limited scope of its power over political parties.
NO JURISDICTION OVER SK OFFICIALS What about SK officials, who has jurisdiction? DILG. Not the Comelec.
MANUAL COUNT As to the manual count, the Comelec may validly order a manual count not withstanding the automated counting of ballots in RA 8486. The law grants to the commission the use of automated election system if that is the only way to count votes. It ought to be self evident that the constitution did not envision a Comelec that cannot count a result election.
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ELECTION CONTESTS INVOLVING BARANGAYS Where do you file election contests involving barangays? File it with the MTC. Appealable to where? From MTC to Comelec. From Comelec, it is final and executory, except when there is an allegation of abuse of discretion amounting to lack or in excess of jurisdiction. You file petition for certiorari in SC. ELECTION CONTESTS INVOLVING MUNICIPAL OFFICIALS Where do you file election contests involving municipal officials? File it with RTC. Where to do you appeal? The Comelec. From Comelec, it is final and executory, except when there is an allegation of abuse of discretion. ELECTION CONTESTS INVOLVING CITY OFFICIALS Where do you file election contests involving city officials? File it with Comelec. Where do you appeal? SC. ELECTION CONTESTS INVOLVING PROVINCIAL OR ARMM OFFICIALS Where do you file election contests involving provincial or ARMM officials? File it with Comelec. Where do you appeal? SC, but only decision of the Comelec en banc. DECISION BY COMELEC IN DIVISION AND EN BANC It can be appealed to the SC. The rule is, as long as it is an adjudicatory power, in the exercise of its quasi judicial function to be exercised by the Comelec, all these cases shall be decided by the Comelec in division. They only decide matters that are purely administrative en banc. ONLY DECISIONS EN BANC IS REVIEWABLE BY SC Ro appeal therefore the decision of that division, you have to file a motion for reconsideration that has to resolved by the Comelec en banc. And that resolution now can be appealed to SC. Because the law is very clear than only decisions of constitutional bodies rendered en banc can be reviewed by the SC. PROPOSAL TO AMEND CONSTITUTION BY THE PEOPLE On the matter of proposing the people on the amendments of the Constitution; Case: Santiago vs Comelec Case: Lambino vs Comelec SC made the declaration that the provision in the RA 6735 is sufficient. However the manner of the nature of the proposal changed is not just the amendment. It is the reason why the petition was dismissed. So wala na tong insufficiency.
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COMMISSION ON AUDIT FUNCTIONS 1. administrative functions 2. quasi judicial functions JURISDICTION OVER PRIVATE CORPORATION Can private corporation be the subject of an audit? GR, it is beyond the jurisdiction of COA. EXPT: 1. when a private corporation or entity handles public funds. Example, the collection of VAT by some agencies. Thats the only amount subject to audit. 2. when they receive subsidy from the government UNANIMOUS DECISION OF COA Any decision rendered by COA has to be unanimous among the three members because the chairman is not the COA. Remember COA is a collegial body and therefore they decide the case as a collegial body. Not just by the chairman of COA. DISALLOW:EXCESSIVE, UNNECESSARY EXPENDITURES Can COA disallow the approval excess or unnecessary expenditure? YES.
PROMULGATION OF RULES PERTAINING TO AUDIT - COA In the matter of promulgating rules pertaining to audit is exclusive to the COA.
CONDUCT OF AUDIT In the matter of conducting audit, that is not exclusive to COA. Private accounting firms or auditors contracted by government to conduct audit on funds of government that were derived from the proceeds of the loan for example from an international bank or from donations made form international sources, that can also be audited by private companies. Case: DBP vs COA COA does not have the exclusive power to examine and audit government agencies. But as regards to promulgation of rules pertaining to audit of government funds and expenditures, that is exclusive to COA. IOW if the law requires that is promulgated by COA, the conduct will have to be followed. That cannot be set aside. Because the matter of promulgating the rules relating to audit or how funds should be expended is in the exclusive power of COA.
SUBJECT OF AUDIT ONLY LIQUADATED FUNDS In the conduct of audit, what can be the subject of audit? Only the liquidated funds. OW if it unliquidated, that has still to be established in the court, not COA. Case: Philippine Operations Incorporated vs Auditor General SC said, COAs power over the settlement of accounts is different from power over unliquidated claims. The latter of which is within the ambit of judicial power. COA has no jurisdiction.
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ART 10 LOCAL GOVERNMENTS This will again be discussed by Atty Largo. POLITICAL SUBDIVISIONS The political subdivisions are the 1. Autonomous regions 2. Provinces 3. Cities 4. Municipalities 5. Barangays RA 3160 - LGC They are governed by RA 3160 LGC that provides for the rules relating to 1. term of office 2. structure and organization of LGUs INTERRUPTION OF TERM The interruption of a term exempting an elective official from the three term limit is one that involves no less than INVOLUNTARY LOSS OF OFFICE. In all cases of preventive suspension, the suspended official is barred from performing the functions of his office and does not vacate or lose title of his office. Loss of office is a consequence that only results upon the eventual filing of guilt or liability. EFFECT OF SUSPENSION AS A PENALTY ON THE SUCCESSIVENESS OF THE TERM So it is preventive suspension, that will not interrupt. But if it is suspension as a penalty, then that would be a different story. If it is only preventive, it does not interrupt because precisely he was suspended because he is still connected to his office. But if it is now a penalty after filing his case, then definitely there would be an interruption. Case: Bolos vs Comelec, Mar 18, 2009 He was punong barangay at his third term. He resigned because he ran as municipal councilor as a Sanguniang Bayan member. Therafter, he resigned and ran again as Barangay Captain. So the question there is WON there has been an interruption after he resigned as Barangay Captain and ran as Sanguniang Bayan member? SC said, Bolos was serving his third term as Punong Banrangay when he ran as Sanguniang Bayan member. And upon winning, assume the position as SB member; thus voluntarily relinquishing his office as punong barangay which the court deems as volunytary renunciation and therefore not considered as an interruption. RECALL - INTERRUPTION As regards to recall, is that considered an interruption? Is it considered as your 4th election. Example. Supposedly, you had 3 terms and there was a recall election, can you run as an opponent against the barangay official? Case: Adromeo vs Comelec The winner in a recall election can be charged or credited with the full term of three years for purposes of counting the consecutiveness of an officials term in office. Thus in a situation where a candidate loses the election to gain a third consecutive term, but later wins in the recall election, the recall term cannot be stitched in his two previous consecutive terms. The period of time prior to the recall term when another public official holds the office constitutes an interruption of the continuity of his service.
TERM OF OFFICE Under the constitution, how long is the perm of office of the LG officials? 3 years, but not more that 3 consecutive terms. Can this be changed by ordinary legislation? NO. Except barangay officials. CONSECUTIVENESS OF THE TERM When would you consider it as prohibited that will disqualify an incumbent to run for reelection? th When it would be his 4 election to the same position that is successive. When is it considered SUCCESSIVE for purposes of determining disqualification? (!!!) EFFECT OF PREVENTIVE SUSPENSION ON THE SUCCESSIVENESS OF THE TERM Case: Aldovino vs Comelec, Dec 23, 2009 The question here is whether preventive suspension of a public official interrupts the consecutiveness of the term. Or if not interrupted, ay not have finished because there is a period of time where he had not served because he was placed under preventive suspension. Would that be considered an interruption? SC said, the preventive suspension of public official does not interrupt their term for the purposes of the THREE TERM LIMIT RULE under the constitution and LGC. Preventive suspension by its nature does not involve an effective interruption of its service within the term and should therefore not be a reason to avoid the three term limitation.
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TERM BY ELECTION, NOT BY SUCCESSION Case: Borja vs Comelec On consecutive terms, that must be by election, not by succession. For example. If at first by succession, and thereafter he ran for election twice which is supposedly his third term, TN you should not count that term where he merely succeeded in office. It is an interruption or not counted in the determination of continuity of the three limit rule relating to term of office. VOLUNTARY RENUNCIATION Case: Lonzanita Voluntary renunciation is not considered an interruption. Case: Ong vs Alegre Ong was considered to have fully served the three terms. MMDA MMDA is not a political subdivision, it is merely an administrative coordinating body whose purpose is to coordinate with the LGU comprising of Metropolitan Manila. The more recent cases involving MMDA in exercising police power is: Case: MMDA vs Truckworks SC said, MMDA has no authority to dismantle billboards and other forms of advertisements posted in the structures of MRT3, the latter being a private property. Because MMDAs power is limited only to the formulation, coordination, regulation, implementation, preparation, management, monitoring, settling of policies, installing a system and administration and therefore it has no power to dismantle the billboards under the guise of police and legislative powers. Case: MMDA vs MCOR Transport System This is with reference to the elimination of certain terminals in EDSA. They dont have that power because they are not vested with police power.
QUALIFICATIONS FOR CONVERSION INTO A CITY OR A PROVINCE Case: Cities of the Philippines Read the last part of the decision for the qualifications. Under the new rules now, the requirement on area and income has been increased. RA 9009 What would be the law that you should read? RA 9009 which amended sec 450 of the LGC. How much income is required? 100m. Case: Navarro vs Ermita, May 12, 2010 SC said, we declared unconstitutional the creation of the province of Dinagat Island for failing to comply with the territorial population requirements under art 261 of the LGC.
SOURCES OF REVENUE OF LGUs 1. levy of taxes This includes barangays. Even if there is no legislative enactment, do they have the taxing power? YES. That provision is self executory as provided in the constitutional as long as it is not contrary to existing laws. 2. share from the national taxes 3. mining taxes, forestry and fishery fees and charges 4. share in co-production, joint venture or production sharing agreement in utilization and development of national wealth within the territorial jurisdiction Case: There is the oil in Palawan and the company refuses to share the income to Palawan Province. TAXING POWER OF LGU This is to insure local autonomy. NATIONAL GOVERNMETN IS SUBJECT TO LOCAL TAX WON some national instrumentality are subject to taxation; unless they are expressly exempt from taxation, they are subject to tax by local government. Case: Manila International Airport vs Pasay City Case: MCIAA vs Marcos Case: PPA vs Iloilo City Case: MIAA vs CA The rule is, they are subject to tax unless they are expressly exempted. However, in case of doubt, they are exempt from taxation.
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ART 11 ACCOUNTABILITY OF PUBLIC OFFICIALS You just master impeachment. SEC 1 Memorize sec 1.
SECTION 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.
PROCESS OF IMPEACHMENT So you go through the process of who initiates the impeachment HOUSE OF REPRESENTATIVES. What are the REQUIREMENTS? 1. initiation of the proceedings a. if it is a member who initiates the complaint or files the complaint, there is no need of an endorsement b. if it is a private individual, it has to be indorsed in order that it will be take action by the Committee on Justice When is there initiation? Initiation of the proceedings (not the complaint) commences upon the filing and the referral (whatever action is to be taken by the committee at the moment). In the case of Ombudsman Merciditas Gutierrez, there were several complaints, different complainants, they were simultaneously referred at the same time to the committee in justice. Will that be taken as one initiation proceedings? YES. According to SC. Why is this important? Because you cannot initiate an proceedings more than once in a year.
IMPEACHBLE PUBLIC OFFICIALS Who are public officials that are impeachable: 1. President 2. VP 3. Justices of SC 4. Constitutional commissioners 5. Ombudsman -not the deputy ombudsman. We will tackle this issue in SC WON the president has jurisdiction. Considering that the president makes that appointment of the DO, and the Ombudsman; because the DO is not impeachable, he can be, as part of the appointing power of the president, revoked by the president. -not the special prosecutor Apparently the SP is now being investigated by the president. Apparently, they are subject to the jurisdiction of the office of the president. GROUNDS OFR IMPEACHMENT These are exclusive grounds. 1. violation of the constitution 2. bribery 3. treason 4. graft and corruption 5. betrayal of public trust These are exclusive grounds. You cannot have adultery as grounds. Now the question of plagiarism because it is now being the subject of impeachment against the Justice of SC. The ground is betrayal of public trust. This will be creating a conflict between the congress and SC because the congress has already exonerated the justice of SC.
impeachment
2. preparation of articles of impeachment In the matter of initiation, how many votes are needed in order to prepare the charge sheet or articles of impeachment? 1/3 of the members of the house. This will be for the filing of the article sof impeachment. 3. promulgation of the rules by the house concerned This is discretionary to the house. 4. forward to house of senate as the tribunal The house of senate will act as the tribunal. Who will be the presiding officer? The president of the senate. Except if it involved the president, it will be the chief justice of SC 5. voting How many votes are needed to convict or remove an official? 2/3 votes of the members of the house of senate. CONSEQUENCES OF REMOVAL THROUGH IMPEACHMENT 1. removal from office 2. no prejudice to criminal prosecution and disqualification for appointment or election in public office 3. not subject of pardon -provided in the constitution
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POWERS AND FUNCTIONS OF THE OMBUDSMAN 1. criminal cases, the Ombudsman has jurisdiction -on all public officials, temporary or permanent -except out of courtesy to SC relating to court personnel and judges -they must wait until SC makes a recommendation for the investigation in the criminal case 2. administrative cases, the Ombudsman has jurisdiction -not on all public officials like: a. impeachable officials b. members of congress c. members of the judiciary 3. preventive suspension -Ombudsman has the power to suspend an erring public officer suspensive -period: not exceeding 6 months 4. teachers, Ombudsman has jurisdiction -they are saying that magna carta exclusive jurisdiction is exclusive with DECS. Wrong. -case: Masing et al vs Office of the Ombudsman Teachers, notwithstanding the magna catra, Ombudsman has jurisdiction. POWER OF OMBUDSMAN TO SUSPEND OR IMPOSE PENALTIES Case: Ledesma vs CA Case: Ombudsman vs Valera Before they say that the power of the Ombudsman is merely recommendatory. SC said that they have the power to give it to the Office of the Ombudsman. They can impose and execute the penalties that they have recommended.
STATEMENT OF ASSETS AND LIABILITIES
CRIMINAL JURISDICTION OF THE OMBUDSMAN Is the criminal jurisdiction of the ombudsman exclusive to him? NO. LOW RANKING OFFICIAL If it is low ranking official, meaning the salary grade is 26 or lower, it is concurrent with DOJ. So if you file a malversation case against a municipal treasurer, either you file it with the DOJ, Fiscals Office or the Ofice of the Ombudsman. Do you need the approval of the Deputy Ombudsman? NO. HIGH RANKING OFFICIAL If it involves a high ranking official like a city treasurer, cam you file it with the DOJ? YES. However, if the recommendation of the filing of the case with the SB, it has to be concurrence with the DO or Ombudsman. You go back to your criminal procedure. Because insofar as jurisdiction of the SB, jurisdiction has to be approved by the DO. OW if it is only the fiscal who approves the information, that is an invalid information, because the fiscal has no authority to file the information in the SB.
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ART 12 NATIONAL ECONOMY AND PATRIMONY REGALIAN DOCTRINE (!!!) All lands and mineral resources belong to the state. Including the ancestral domain and ancestral lands? NO. Because they belong to the indigenous people or community on the basis of native title. KINDS OF LANDS Not all lands belong to the state. 1. agricultural lands 2. timber lands 3. forest lands 4. mineral lands 5. national parks Of all these lands, which is disposable and alienable? Agricultural lands. There are two kinds of lands: 1. public lands a. alienable lands (agricultural lands) b. inalienable lands 2. private lands ACQUISITION OF AGRICULTURAL LANDS Who can acquire? Only individual citizens of the country. Corporations cannot acquire agricultural lands, even if it is a Filipino qualified corporations. They can only lease. How many hectares can be acquired? Limited only to 12 hectares. Haw many hectares can be leased? 500 hectares for individual. 1000 hectares for qualified Filipino corporation. Foreigners cannot lease. ACQUISITION OF PRIVATE LANDS Who can acquire? Filipino citizens, either natural or qualified Filipino Corporation. Who can lease? Filipino citizens and foreigners. What are the instance when a foreigner may acquire public lands? a. former natural born citizens -5000 sq meters b. hereditary intestate succession -no limit on intestate succession if he is a compulsory heir AGRICULTURAL LANDS It does not mean lands devoted to agriculture. It refers to lands that is alienable like: 1. reclaimed 2. foreshores Who owns it? The state. Because the sea is inalienable. Supposedly, likewise, it is inalienable. Except when it is classified as agricultural and disposable lands of the government and of the state. Who can acquire it? Only individual citizen, not corporation. How come Amari and MOA are acquired by corporations? Because there is no prohibition against directors of Filipino corporations who are Filipino citizens to acquire. And the moment it is acquired by private individuals, it becomes a private land, and it can be sold in turn to a Filipino corporation. So this explains why some reclaimed lands are being acquired by Filipino corporations. Originally, they are agricultural lands. There has to be a classification that they are disposable. Case: Chavez vs Public Estate Authority Foreshore and submerged areas form part of public domain and are inalienable. Lands between foreshore and submerged areas also form part of the public domain unless converted into alienable or disposable lands of public domain. The prevailing rule is that, reclaimed disposable lands of public domain may also be leased and not sold to private parties. These lands remain sole generis as the only alienable or disposable lands of the public domain which the government could not sell to private parties except if the legislative passes a law authorizing sub sale. (SRP) But in this case, the classification is not a pubic domain. There was a title that was issued. It was acquired by LGU in its private capacity (proprietary). It can be sold even without the consent of congress. Reclaimed lands have maintained their inherent potential as areas for public use or service. The ownership of lands reclaimed from foreshore areas is rooted in the regalia doctrine which declares that all lands and waters of the public domain belong to the state. But notwithstanding the conversion of reclaimed lands to alienable lands of the public domain, they may not be sold to private corporations which can only lease the same. The state can only sell alienable public lands to Filipino citizens.
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But TN in this case, decision does not bar private corporation in participating in the reclamation projects and be paid for the services in reclaiming lands. What the decision prohibits following the constitutional mandate is for the private person to acquire reclaimed lands in the private domain. There is no prohibition on the directors, officers, SH of private corporations, if they are Filipino citizens from acquiring at public auction, reclaim alienable lands of the public domain. It can acquire not more than 12 hectares per individual and the lands thus acquired becomes public lands. So if you have been there since time immemorial, however the declaration that it is a patrimonial property is only 2011, prescription does not start to run. In connection with sec 14 of property registration decree, recognized those who by themselves or through their predecessors in interest have been in open, continuous and exclusive possession and occupation of alienable and disposable lands of the public domain under bona fide claim of ownership. They must have been there since June 12, 1945, have acquired ownership of and registrable title to such lands based on the length and quality of such possession. The court clarified that the public land merely requires possession since June 12, 1945 and does not require that the land should have been alienable and disposable in the entire period of possession. The possessor is not entitled to secure judicial confirmation of title as soon as the land is declared alienable and disposable. This is however subject to Dec 31, 2020 deadline. So if you are squatting a land owned by the government, all you need to prove is that you have been occupying the land since June 12 1845, even if it has been recently declared only as disposable or alienable. The 30 year period shall be reckoned from June 12, 1945. And you have until Dec 31, 2020 to apply for the registration of title over these property. ALIENABLE OR DIPOSABLE Case: Sacay vs DENR They applied for registration of title over these titles. Boracay Island is owned by the state, except for the land areas with existing titles. The continued possession and considerable possession of prior claimants do not automatically give them a vested right in Boracay, nor does this give them a right to apply a title the land they are presently occupying. The present lands traces its roots to the regalia doctrine. Because they are not timber lands and therefore they are no longer lands of public domain. SC said, except for lands already covered by existing titles, SC said that Boracay was unclassified lands of public domain prior to Proclamation 1006 which classified Boracay as 400 hectares of reserved forest lands and 628.96 hectares of agricultural lands. Such unclassified lands are considered public forests under PD 705. Forest lands do not necessarily refer to large tracks of wooded lands or expanses covered by dense trees and under brushes. For as long as it is not reclassified, it is still forest lands, not subject to alienation. It cannot be acquired even if you have lived there for a thousand years.
PATRIMINIAL PROPERTY Freedom Islands are inalienable lands of public domain. Government owned lands, as long as they are patrimonial property can be sold to private parties who are Filipino citizens or qualified private corporation. So there is a difference; owned as a public domain alienable with the consent of congress. But if patrimonial, no need for consent of congress. Now they are claiming that SRP is part of public domain. Should there be a sale, it has to be with the approval of congress, and it has to be done at public auction. But the LGU maintains that it is a patrimonial property, and therefore it can be acquired by qualified private corporation. There is no bidding required because it is a private property insofar as Cebu City Government is concerned. CA ruled sustaining the trial court that it can be acquired by a corporation.
ACQUISITION BY PRESCRIPTION Case: Malabanan vs Republic of the Philippines, April 29, 2009 (!!!) This is with reference to the acquisition of the property by prescription. They are saying that they are applying for registration of title because they have been occupying the property since time immemorial. The issue is whether it can be applied for by an individual for title. SC said, public domain lands become patrimonial or private property of the government only upon declaration that these are alienable or disposable lands together with express government manifestation that the property is already patrimonial or no longer retained for public service or the development of national wealth. Only when the property has become patrimonial can the prescriptive period for the acquisition of the property of public property domain begin to run.
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CLASSIFICATION OF LANDS Case: Dauriano vs Hermoso et al, April 24 2009 SC said, the classification of lands of public domain of 2 types: 1. primary classification a. Agricultural b. Forest c. Timber d. Mineral lands e. Natural parks 2.secondary classification The agricultural lands of public domain may further be classified by law according to the uses which they may be devoted. This further classification of agricultural lands may be referred to as SECONDARY CLASSIFICATION. Congress under existing laws, granted authority to a member of the government agency to effect the secondary classification of agricultural lands to: 1. residential 2. commercial 3. industrial 4. other urban uses So you have RA 7160 granting such authority. And I think this was the case that was invoked in the SRP case as against the Chavez case. So read Chavez vs PEA and Amari in consonance with Cavez vs NHA. Case: Chavez vs PEA (public domain) This is on public estate. So any lands that were reclaimed by PEA is part of public domain.
EXCEPTION TO LANDS AS PART OF REGALIAN DOCTRINE Ancestral lands are exluded from the regalia doctrine.
Case: Cruz vs Secretary of DENR If categorically declared ancestral lands and domain held by native title as never to have been pubic lands. Domains and lands under native title are therefore indisputably presumed to have never been public lands and are private. The right of ownership granted to indigenous people over their ancestral domains does not cover the natural resources. The right granted to IP to negotiate the terms and conditions over the natural resources covers only their exploration to ensure ecological and environmental protection. Case: Carino vs Insular Government The existence of native title to land by Filipinos by virtue of possession under claim of ownership since time immemorial is an exception to the theory of res regalia. And in recognition to that, you have the case of: Case: Alcantara vs DENR, July 31, 2008 On the matter of ancestral domain. SC has revoked the permit to logging concessions that were covered by the ancestral domain in recognition of the right of the indigenous people to the ancestral domain. SC said, a mere license or privilege granted by the state to the petitioner for the use or exploration of natural resources to public lands over which the state has sovereign ownership over the regalian doctrine, like timber or mining licenses on forest land and grazing lease agreement is a mere permit which by executive action can be removed, rescinded, cancelled or modified whenever public welfare or public interest so requires. The determination of what is in the pubic interest is necessarily vested in the state as owners of countrys natural resources. Thus, a privilege or license is not in a nature of a contract that enjoys protection. In this case, such privilege or license is not even a property or property right, nor does it create a vested right.
RECLAMATION OF LANDS In that case relating to WON reclaiming corporation can be paid by lands. Diba kung reclaimed, pubic domain, only individual citizens can acquire the land. If you pay land to the corporation that reclaimed it, is that allowed? Case: Chavez vs NHA (patrimonial property) It was allowed because the land was not considered a public domain but a patrimonial property of the government. And therefore it can be acquired by the corporation. SC said that NHA is a government agency. Its function is to distribute lands. It is not exercising public functions. NHA is a government agency not tasked to dispose of public lands under its charter. The Revised Administrative Code of 1987, the NHA is an end user agency authorized by law to administer and dispose of reclaimed lands. The moment titles over reclaimed lands based on the special patents or transferred to the NHA by the registry of deeds, they are automatically converted to a patrimonial property of the state which can be sold to Filipino citizen and private corporations, 60% of which are owned by Filipinos. The reason is obvious. If the reclaimed land is not converted to patrimonial lands, was transferred, then it would be useless to transfer it to NHA because you cannot legally transfer any lands of public domain.
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In this decision, the SC recognize the inherent right of ICC and IPs to recover their ancestral lands from outsiders and usurpers, seen by many as a victory attained by the private respondents after a long and costly effort. IOW because of this case, it was an assertion of the rights of the indigenous people over the ancestral lands and domain. There was the revocation of the license that was granted previously to private individuals as regards to pubic lands, particularly the use of public lands as a grazing lands. These agreements with foreign corporations are not limited to financial and technical assistance. The 1987 constitution allows the continued use of service corporations as contractors who would invest in and operate and manage extractive enterprises subject to the full control and supervision of the state. This is on LARGE SCALE MINING. The requirement is FULL CONTROL. REGALIAN DOCTRINE DOES NOT APPLY RETROACTIVELY. Those covered prior to regalia doctrine where they were given concession for not more than 50 years, it is still existing in the e1987 constitution. The regalian doctrine does not apply retroactively. Case: Republic vs Reservoir Mining and Development Corporation Sec 2, art 12 of the 1987 constitution does not apply retroactively to a license concession or lease granted by the government under the 1973 constitution or before the effectivity of 1987 constitution. So if the concession still is existing even beyond the 987 constitution, then it is still valid. This is on NON IMPAIRMENT CLAUSE.
EXPLORATION OF NAURAL RESOURCES Who has control over the exploration of natural resources? It is the state being the owner. How about private individuals and citizens of the country? Can they explore the natural resources by themselves? NO. Except when they enter into: 1. joint venture 2. co production 3. production sharing They may be citizens who are natural or juridical persons. How about foreign corporations? Can they enter into such agreements? NO. they can only enter into SERVICE CONTRACT. They are only to provide: 1. technical 2. financial assistance What is the extent? They will be providing for services and labor. The contractor is the state. But it does not mean that the state has to closely supervise and monitor them. There can be macro supervision through the laws passed by the state. This is in consonance to the upholding the validity of the mining laws. There are so many cases sustaining the participation of a foreign corporation into mining. Case: Republic vs Tritas Corp, sept 26, 2006 Case: Ramos vs Ramos Case: Bilaan vs Ramos Case: FUR Savers vs DENR The bottom line is that control by the state is on macro level through the establishment of policies, guidelines regulations, industries, and similar measures that would enable the government to control the conduct and the affairs of various enterprises and restrain activities deemed to be not desirable or beneficial.
PROHIBITION OF FOREIGNERS ACQUIRING LANDS They can acquire only condominiums because the prohibition covers only acquisition of lands.
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AREAS OF INVESTMENT REQUIREMENT OPERATION OF PUBLIC UTILITY How many percentage if it is a qualified Filipino corporation? 60% by a Filipino citizen. MEDIA 100% ADVERTISING 70% EDUCATIONAL INSTITUTION 60% qualified Filipino corporation. But the management and administration is all Filipino citizens in all of these corporations. Only the capital investment where there is allowing foreigners. FRANCHISE OF PUBLIC UTILITY For how many years? 25 years, renewable for another 25 years. Subject to amendments, repeal, or modifications when public interest so requires. You TN of the exceptions because while a franchise is a contract between the government and private individual citizen or corporation; because it involves public interest, the constitution no less provides for the reservation of its change. It is protected in the non impairment clause supposedly but this is an exception. FISHING ONLY INDIVIDUAL CITIZENS (specially on small scale) and cooperatives. PRACTICE OF PROFESSION Filipino citizens only. ART 13 SOCIAL JUSTICE AND HUMAN RIGHTS SOCIAL JUSTICE Briefly, it means we give those who have less in life more in law. As the rest, go over with that. You go bY the concept of SOCIAL JUSTICE. HUMAN RIGHTS What is human rights? It covers civil and political rights. It is not limited against the government, even against big companies; can be the subject of the complaint. COMMISSION ON HUMAN RIGHTS JURISDICTION OF CHR What is the jurisdiction of the Commission of Human Rights? Merely investigatory. It has no quasi judicial function or adjudicatory power. Therefore it cannot issue restraining orders neither can it cite anyone for contempt for violation of human rights. PROMULGATION OF RULES AND REGULATION But in the matter of promulgating the rules and regulations in the exercise of its administrative functions, these have not been complied with by the persons ordered by CHR, in the enforcement of the rules by said office, one may be cited for contempt. Administrative lang ha? Because they dont have any quasi judicial functions. EJECTMENT OF SQUATTERS Ejectment of squatters, is that a violation of human rights? NO. Case: People vs Lichon The constitutional requirement of the demolition being in accordance with law and be conducted in a just and humane manner does not mean validity or legality of the demolition on the existence of resettlement area that is designated or earmarked by the government. There is no requirement. NO FISCAL AUTONOMY Does the CHR enjoy fiscal autonomy? NO. COMMISSIONER NOT IMPEACHABLE Is the commissioner impeachable? NO. these is not the same as the three constitutional commissions. ABOLISHED BY ORDINARY LEGISLATION Can it be abolished by ordinary legislation? YES. It is not created by the constitution. It was created upon the mandate of the constitution. So it may be abolished.
CORPORATIONS SUBJECT TO THE REGULATION OF THE STATE MONOPOLY Is monopoly prohibited? NO. But of course there are regulations relating to protect public interest. But per se, it is not prohibited by law. RESTRAINT OF TRADE AND UNFAIR COMPETITION We have here free enterprise.
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ART 14 - EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE AND SPORTS EDUCATION ACADEMIC FREEDOM Memorize academic freedom. It is enjoyed only by institution of higher learning, not Mababag Paaralan ng Pilipinas. Example. Universities and colleges. Not high school and elementary. REVIEW CENTER Case: Review Center Association of the Philippines vs Ermita A review center is not a n institution of higher learning as contemplated in RA 7722 because it does not offer a degree program that would put it under the jurisdiction of the CHED. Moreover, review course is only intended to refresh and enhance the knowledge or competence or skills of reviewees. And it does not require enrollment, attendance, submission of theses in order to complete the review course requirement or take the licensure examination. KINDS OF ACADEMIC FREEDOM 1. From the standpoint of the institution 2. From the standpoint of the academe 3. From the standpoint of the students 1. FROM THE STANDPOINT OF THE INSTITUTION They have the right to choose their own professors and students as well. They can impose regulations on that. Case: UP et al vs CSC They cannot be told about the choice of professor; if they are going to promote a professor who has gone AWOL. AWOL is a ground for dismissal of government service and UP is under CSC. The other professors complained. CSC dismissed him from service. SC sustained UP. From the standpoint of the educational institution and members of the academe, the SC sustained the primacy of academic freedom over CS rules on AWOL stressing, when UP opted to promote him despite his absence, it is exercising his freedom to chose who may teach and continue to teach its battlefield. Case: La salle After teaching in la sale as probi, he was dismissed. SC said sec 5 par 2 of art 14 of constitution guaranties institution of higher learning academic freedom. Institutional academic freedom includes the right of the school or college to decide for itself its aims and objectives on how to attain them, free from outside coercion and interference. So they have independence on who may teach, what to teach, how to teach and who may be admitted to study. The disciplining of students is still within academic freedom.
2. FROM THE STANDPOINT OF THE ACADEME They can teach in any manner and grade you accordingly. And they are free to do their research and publish their research.
3. FROM THE STANDPOINT OF THE STUDENTS Thats not absolute. Its subject to the rules of the university and your having maintained the required classifications to maintain in the university.
TAX EXEMPTION For non stock non profit
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ART 16 GENERAL PROVISIONS What is the color of flag? How many suns and stars? Can you change the design of your flag? NO. Without amending the constitution. Can you change then name of the country by ordinary legislation, national anthem and national seal? YES. Subject to ratification in a referendum (not plebiscite). SOVEREIGNTY OF THE STATE -discussed ARMED FORCED OF THE PHILIPPINES It is a citizen armed force. That is one of the manifestation of the supremacy of the civilian authority. The chief of staff has a limited term of 3 years unless it is extended by president when there is a national emergency declared by congress. So there has to be a national emergency. Is PNP under AFP? NO. ART 17 AMENDMENTS AND REVISIONS PROPOSAL Who can propose amendments to the constitution? 1. Congress 2. Constitutional convention 3. People Who can propose revision? 1. Congress 2. Constitutional convention (people cant) Change of the system of government, is that an amendment or revision? REVISION. (Lambino vs Comelec) CONSTITUTENT POWER If it is congress exercising the power, we call it CONSTITUENT POWER. How is it different from legislative power? Of course you have number of votes, for congress proposing, 2/3 to call for a concon, majority to submit it to people. It is discretionary BTW to congress. STAGES OF CHANGING THE CONSTITUTION 1. Proposal 2. Submission of the proposal 3. Classification VOTES FOR EEFECTIVITY How many votes are needed for the effectivity of any change to the constitution? Majority votes cast during the plebiscite. EFFECTIVITY When does the change take effect? Upon the ratification by the people. JUDICIAL REVIEW PROPER PARTY Is the amendment or revision of the constitution or ratification of the constitution subject top judicial review? YES. It can be raised by any citizen. Thats an extension of proper party. So long as procedure is not followed, any person may question. Case: Province of North Cotabato vs Republic This is with reference to Bansang Moro. It was declared unconstitutional because that will allow the president to propose amendments to the constitution by allowing the establishment of a state with a state. This is prohibited by the constitution because only congress, people and concon can propose amendments to the constitution.
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ART 18 TRANSITORY PROVISION MILITARY BASES AGREEMENT That has already expired. We now have the PFA. So the question is, should it require the concurrence of the senate? Is it valid? That has already been settled, even without the concurrence of senate. Because it is an executive agreement implementing a mutual defense agreement between the president and the US. Case: Lim vs Executive Secretary SC said that sec 25 of the transitory provision shall mark antipathy towards foreign military presence in the country. The foreign troops are allowed entry in the Philippines only in a way of exception. Under the constitution, the US forces are prohibited from engaging in an offensive war in the territory. Sc however cannot accept the allegation that the Arroyo administration engaged in double ___ in trying to pass off as a mere training exercise, an offensive effort by foreign troops on native soil. Case: Bayan vs Zamora The VFA was duly concurred by the Philippine senate and was duly recognized as a treaty by the US as certified by the duly authorized representative of US government. The fact that VFA was not submitted for advise and consent of the US senate does not detract from its status as a binding international agreement. Ours was concurred. Here, even if the US does not recognize it as a treaty, as far as we are concerned, it is a treaty. Precisely you not that case of Smith who was transferred in the Embassy instead for detention. Because under the VFA, he should have been detained in our jail specially if convicted. But apparently, without our knowledge, there was an amendment thereto by a mere agreement between the ambassadors of US and Philippines. So the question is if it can be done by mere amendment of the VFA through an agreement signed between the ambassadors of these two states. Should there be any changes of the VFA because it has reference to the detention? Case: Nicholas vs Romulo Should here be any changes, you should follow the procedure in the matter of entering into negotiations with international agreements and treaties. SC said, VFA between Philippines and US entered into in Feb 10, 1998 is upheld as constitutional. But the agreements in Dec 19 and 22, 2006 are declared not in accordance with the VFA. And respondent Secretary of Foreign Affairs Romulo is hereby ordered to fore with negotiate with the US representative for the appropriate agreement on the detention facilities as provided in art 5 sec 10 of the VFA. Pending status quo shall be maintained until further orders of SC. IOW inasmuch as VFA was treated as a treaty, should there be any amendments or changes to it, it must be done in accordance with the changing of the treaty. It has to be negotiated, turned to the president and DFA, submitted to senate for concurrence. And then have it ratified. In this case, it was only between DFA Secretary and Ambassador of US. That is void foe it is contrary to what is agreed in VFA.
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CONSTITUTIONAL LAW

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over which the

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So when you connect the outermost islands, you do not

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ART 4 SEC 1 PAR 1

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ART 4 SEC 1 PAR 3

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PURELY COMMERCIAL - SUABLE Purely commercial for an unincorporated agency to be suable.

-suable, no dstinction -not suable -suable

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integrity of the national territory.

- Outside force, rather than

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ARTICLE 6 THE LEGISLATIVE DEPARTMENT SEC 1

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