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dela Banda
CITIZENSHIP
Classifications of inhabitants of the Philippines:
1. Citizens
a.
Natural-born
b.
Naturalized
c.
Repatriated
d.
Dual Citizens
2. Aliens
3. Stateless individuals
Note: All constitutional positions require that one be a naturalborn citizen of the Philippines.
Section 1. The following are citizens of the Philippines:
Take note that this is only an enumeration, not a classification of
Philippine citizens.
[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;
Two cases are important here: the case of Tecson vs. Comelec
and Republic vs. Lim
Tecson vs. COMELEC Fernando Poes father was a Filipino but
his mother was an American. The problem was he was an
illegitimate child. He decided to run for President. The case
reached the SC on whether he was a natural born citizen or not.
Here the rule now is the fact that the father is a Filipino, the child
is also a Filipino.
Facts: FPJ was born in 1939 as an illegitimate son of Bessie Kellly,
an American national, and Allan Poe, A Filipino citizen. On Dec. 1,
2003, he filed his COC for the position of President representing
himself as a natural-born citizen of the Philippines. Considering
that he is an illegitimate son of an alien woman, did he follow the
citizenship of his mother who is an American?
Held: No. Sec. 1, Art. III of the 1935 Constitution provides that
those whose fathers are citizens of the Philippines are Filipino
citizens. As pointed out by the amicus curiae, the Constitution
states that the child is a Filipino without any distinction whether
he is legitimate or illegitimate.
Republic vs. Lim The father is Chinese and the mother is
Filipina, he is also illegitimate. The issue is whether he was a
Filipino citizen. The SC said that he is a Filipino citizen.
Principles:
1. It is enough that one parent is a Filipino for the jus sanguinis
principle to operate.
2. It is immaterial whether you are legitimate or illegitimate, the
child will still be a Filipino
[3] Those born before January 17, 1973, of Filipino mothers,
who elect Philippine citizenship upon reaching the age of
majority; and
So why is the date important? Because January 17, 1973 was
the date that the 1973 was made effective. So under the 1935
Constitution, there was a still a requirement of election if your
2
mother is a Filipino and your father was an alien *. So this was
erased by the 1973 and the 1987 Constitution that is why it is
very important to remember the dates involved.
Another important principle here involves the Lim case
again. The SC said that this requirement under Sub paragraph 3
does not apply to illegitimate children. This requirement only
1
This section is the favorite of bar examiners. Almost every year there are
questions on citizenship.
2
(4) Those whose mothers are citizens of the Philippines and, upon
In Re: Ching (October 1, 1991)
reaching the age of majority, elect Philippine citizenship.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
a.
b.
c.
d.
1
e.
f.
g.
h.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
not. Some people were thinking that he is not for the reason that
he performs some act in order to perfect his Philippine
citizenship.
But now, the Constitution has done away with it. It is now
saying that if you elected Philippine citizenship, you are now
considered natural born.
The next question is this: Suppose you elect Phil. Citizenship
prior to this provision (1987), how are you regarded? Naturalborn or naturalized?
This was answered in Co vs. Electoral Tribunal (July 1991).
The SC stated that you will be considered as natural born.
Meaning that this provision will be given retroactive effect to
apply to people who have elected Philippine citizenship even
prior to the 1987 Constitution. How did the SC arrive at that
decision? It was very clear in the debate that the Constitutional
Commissioners wanted to give this provision a retroactive effect
so that everybody will be considered equal.
Natural-born citizens are those who are citizens of the
Philippines from birth without having to perform any act to
acquire or perfect their Philippine citizenship
TWO REQUISITES BEFORE ONE IS CONSIDERED NATURAL
BORN (according to the definition) :
1. Citizen from birth;
2. You did not perform any act in order to complete your
Philippine citizenship;
The problem is jurisprudence because it seems not to
comply with the definition.
3
4
BAR Q (2000)
5
This has been asked 3 times in the bar already (1999, 2000, 2003)
Citizenship retention and reacquisition act; Dual citizenship law
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
I used to be very sure, but I am not so sure now if there is a crime which
will result to loss of Philippine citizenship. Because in the old days, when
Marcos was still president, rebellion was penalized with loss of Phil. Cit.
But now, if you are natural born, there seems to be no way to remove your
Phil. Cit.
11
7
However, in the Domingo case, the SC came up with another
Retention: I lost my Phil cit but I immediately reacquired it.
decision. Marriage does not ipso facto make you a citizen.
Reacquisition: I lost it in 1940, I can reacquire it now under the law simply
by taking an oath of allegiance. I am really confused about this because the
law does not use the word repatriation. It is simply saying that taking an
So it seems to be contradictory, but if you analyze and reconcile it,
oath of allegiance. So it seems that there is a fourth way of reacquiring
even under the Moy Ya decision, if you are an alien woman who
Filipino citizenship, and that is simply by taking an oath of allegiance
under RA 9225. But take note that this applies only to people who lost Fil.
10 But do not bother with this because until now, Congress has not passed a
Cit by naturalization in a foreign country. It cannot be applied to people
who lost the Fil. Cit by some other means. So the first element is you are
law defining what are the acts or omissions that will result to loss of Filipino
natural born and the second is you lost your Fil cit because you got
citizenship.
11
naturalized in another country.
Filipino man who married Filipina and then went to Indonesia. In Indonesia,
8
I am thinking that this is the only act by which you lose your Filipino
converted into Islam and married an Indonesian woman. Went home to
citizenship. This is not under the RPC but under Articles of war.
Philippines bringing along his Indonesian wife. When Filipina wife
9
The best example I can provide is some people who went to the US
discovered the bigamous marriage, a petition for deportation was filed.
because they were enemies of Marcos. So when they returned, they were
Indonesian wife claimed that she was already a Filipino by virtue of marriage,
already naturalized.
thus cannot be deported.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
4
12
filing of the COC to show that he is renouncing his green card status.
These acts must be performed prior to the filing of the COC.
Summary: In the end therefore, filing of certificate of candidacy
results into the renunciation of alien citizenship, but it does not
result into renunciation of foreign permanent residency.
13
The Constitution is simply saying that Congress, do something about
Ever since the new constitution took effect, suffrage has never been asked
this because this is bad for national interest.
in the Bar, even in election laws.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
5
Philippines for at least one year, and in the place wherein they
propose to vote, for at least six months immediately preceding
the election. No literacy, property, or other substantive
requirement shall be imposed on the exercise of suffrage.
Try to remember the qualifications before one can vote. There
are two categories which you have to remember as applied to
local voters and as applied to national voters.
LOCAL VOTERS
1. Citizen There is no requirement that you are natural born for as long as
you are a citizen that is sufficient.
2. 18 years old on the day of the election;
3. not otherwise disqualified by law
You are 18 years of age on the day of the election and not
otherwise disqualified by law -- meaning the provisions under the
Election Code which provides for disqualifications, like those of
unsound mind.
4. resident of the Philippines for 1 year
5. resident of the place where you are voting
Try to take note of the distinction between resident in number
four and word resident in number 5. We are told that when it
comes to resident of the Philippines (number 4) that means
domicile. Meaning permanent resident of the Philippines, not
temporary. Because for local voters, if you are a green card
holder, you cannot vote. I am talking about local voters because it
will be complicated when it comes to the law.
As applied to resident of the place where you are exercising your
right to vote, we are told that it has two meanings: it can be
temporary or it can be permanent. Because of this interpretation,
the net result is this:
So 1 - 3 are the same for local voters, but SC and Congress is saying
that 4 and 5 will no longer hold. Why? Because under the law, even
if you are a green card holder, if you are a Filipino citizen, you can
vote under the Absentee voting law. In fact the law is very clear, it
can apply to immigrants and permanent citizens in the foreign
country. That means that we have to do away with the requirement
of residency in the Philippines. As a substitute for requirements 4
and 5, there is now a need to:
4. execute an affidavit promising to return to the Philippines within
3 years after the approval of your registration. Take note that it is
only a promise. What will happen if you do not return? That will not
invalidate your vote, but maybe next time you will not be allowed to
vote anymore.
If you try to analyze it, it seems to maintain number 4 requirement
(for local voters) because you are promising to return to the
Philippines. Congress seems to be thinking that in the first place, you
have intent to return. You still have your domicile in the Philippines.
But in the end, that is only an affidavit to return.
5. not applied for citizenship in another country.
Q: How do we distinguish, apart from the qualifications, local voters
from the absentee voters?
A: 1. as to whom you can vote for: Local voters participate in voting
for both local and national elections. But an absentee voter cannot
participate in local elections, meaning you cannot vote for mayor,
vice mayor, governors. (Sir dela banda thinks that for purposes of
the election, they consider the House of Representatives as local
elections).
2. where do you vote: Local voters vote in the Philippines; absentee
voters vote abroad usually in the Philippine embassy. (See law for
procedure)
So if you are asked the question: Can a green card holder vote? The
answer is yes, provided you execute an affidavit, and provided also
that you have not applied for citizenship in another country.
What about the question: can you be voted for if you are a green
card holder? We already answered that residency requirement is
intact in so far as qualifications for holding an elective office is
concerned.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
The first one is procedural - for instance, before a law can be passed,
it must go through three readings;
The second is substantive limitation which may be express or
implied. The bulk of express limitation is found in the Bill of rights.
Implied substantive limitation are those which you cannot see in the
text of the Constitution but we know that it is there.
The first set will be those which are implied from the doctrine of
separation of powers. For instance, we know that Congress cannot
pass martial law because it belongs to the president. The second one
arises from the principle of non-delagability. The idea simply is this:
Considering that legislative power came from the people, in theory,
Congress cannot be allowed to delegate it anymore.
Forty-five (45) years later, the memorial was only 1/3 complete
and the memorial site itself had long been overrun by quatters.
Congress enacted a law abolishing the MWMC and requiring that
the funds raised by it be remitted to the National Treasury. The
MWMC challenged the validity of the law, arguing that under its
charter its mandate is to complete the memorial no matter how
long it takes. Decide with reason. (6%)
I. As to who exercises:
a. original legislative power- one exericised by the people. Sec. 32
is the best example because it reserves the power to the people
to, by themselves, enact a law through initiative or referendum;
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
the governing body of NPC. Congress passed a law giving the NPB
certain powers specially involving regulation and matters about
the corporation. At one time, the NPB conducted a meeting, and
since the members of the cabinet are busy, their representatives
attended the same. And they voted to dismiss many employees
(cut out one department of NPC).
SC stated that the assistants of the heads of executive
department cannot vote on such action. Why? Because the
powers of the Secretaries were given by law. So the secretaries
cannot delegate them further. So if these people attended the
meeting, they cannot do anything that will bind the secretaries.
standards, that is not found in the law. Why is this not allowed?
because we do not know if the president relied on his own standards
alone. So there are existing standards and he has his own standards,
we do not know which one he followed. So in the end that is not
allowed.
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cannot tell how many congressmen are there. From time to time
they add one, they add two.
(2) The party-list representatives shall constitute twenty per
centum of the total number of representatives including those
under the party list. For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated to
party-list representatives shall be filled, as provided by law, by
selection or election from the labor, peasant, urban poor,
indigenous cultural communities, women, youth, and such other
sectors as may be provided by law, except the religious sector.
The 2 paragraph says that 20% should come from the party
list and 80% should come from representation of districts.
In the VETERANS case, it says that to have one seat, you
must have at least 2% of the valid votes cast. How did the
Supreme Court justify that 2% requirement because that is not
found in the Constitution? According to the SC, this will ensure
that the party list which gets the seat is significant enough and
big enough so that it can pass meaningful legislation. It is not just
anybody can be represented. There must be a threshold of 2% to
ensure that it has constituents and it can contribute something
significant to legislation.
st
ANG BAGONG BAYANI (1 case) The SC stated that even
traditional political parties can run under the party list. Just
because you are a political party does not mean that you are
prohibited because it is impliedly allowed by the Constitution and
it was allowed by the Debate.
The only requirement is that you must be marginalized and
underrepresented. This follows that these political parties who
have many representatives already will not be allowed to run
under the party list because they are not anymore
underrepresented. So, the traditional political parties can run if it
is marginalized and underreperesented.
The Supreme Court stated that you can look at the Articles
of Incorporation of this party list to find out about their program
and platform.
The Court is very clear that you cannot have an organization
of bankers (?) or sugar planters because they are very influential
people because they are not marginalized. They cannot run
under the party list.
ND
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
Term of 3 years
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
10
Q: Suppose the Senate and the House will pass a law now saying
that our salary will be increased to P 1 M every month. When will it
take effect?
A: When the term of everybody expires. The House Members
term will expire on June 30, 2010. Also for 12 Senators. The
problem is you have 12 Senators remaining. So, in the end, the
salary increase will take effect June 30, 2013, noon time.
(by: Jazzie )
SEPTEMBER 23, 2008
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
11
I. Incompatible Office
Requisites:
1. cannot hold any other office or employment
Significance of the terms: There is a difference between
holding office and employment. If you are holding an office, you
are holding it in its entire continuity. Employment can only be for
a certain job or you are holding an office and you perform some
functions.
Situation being contemplated: A Congressman was giving
lectures in a judicial academy, a school for judges. The Secretary
of Justice Stated that definitely that is not an office, but still that
Prohibited Appointments
You are not allowed to
retire/resign in order to occupy
the prohibited offices. Even if
you retire, you will still not be
able to hold the new office.
Incompatible Office
If you retired/resigned already,
you can now hold the new
position.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
12
are
the
but
any
De Guzman case
Fernandez was a lawyer and he appeared before the
Securities and Exchange Commission and somebody questioned
him. He went out and the following day he came back and he had
with him certificate of shares of stock saying that I am defending
myself because I have shares of stock, I am now part of the
corporation
The SC stated that you are not in good faith. You only
purchased your shares recently.
What is the implication of the decision? Atty. Dela Banda thinks
that the decision is still good. Remember the case of Senate vs
Macapagal wherein the Senate questioned EO 464, the prohibition
on the appearance of the Members of the Cabinet in a legislative
investigation. The lead counsel in the arguments in the SC was
actually Senator Arroyo. When Atty. Dela Banda asked him why he
was allowed to appear, he mentioned that he was appearing for the
Senate.
The idea therefore is very simple. If you have a case, you can
appear for yourself even if you are a Congressman or Senator.
Meaning, the decision in De Guzman is still good. The SC did not
allow him to appear only because he was not in good faith; he
became the owner only after the case was filed.
Conclusion: There is no prohibition from appearing if the lawyerSenator/Congressman is a party to a case.
II. Conflict of Interest
1. He cannot be, directly or indirectly, interested financially in any
contract with, or in any franchise or special privilege granted by the
Government, or any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled corporation, or its
subsidiary, during his term of office.
> This prohibition applies even to a private corporation which was
originally created under the Corporation Code but the majority of
stocks is owned by the govt
> What is prohibited only is if you enter into the contract for your
pecuniary benefit. For instance, you are a Congressman, you are a
contractor. You cannot enter into cotract with the govt. You cannot
be given a franchise by the govt. That will be conflict of interest.
BQ: Can a Congressman borrow money from the PNB? PNB is
definitely a govt corp.
Answer: It depends on the purpose. If it is not for pecuniary benefit,
like you need it to go to the hospital, there is no prohibition. If you
need the money to put a business, that will be barred. That is for
pecuniary benefit.
Take note that the prohibition regarding financial interest says
direct or indirect. There is no problem with direct (financial interest).
That is the one who enters into contract.
What about indirect? There is a problem there because
remember that a Senator/Congressman is not prohibited from
engaging in business. Atty. Dela Banda is thinking that the spouse
also cannot enter into contract with the govt. That will be indirect
because the system in the Phils is absolute community of property.
So the interest of one is also the interest of the other.
There is also a problem with the children. It became an issue
during that time regarding the son of De Venecia, because he
entered into a contract with the govt. Commentators would say that
there is no problem. That is not becoming indirectly interested. If
the children are of age, they also have to leave. That is why
commentators say they are not covered. They cannot be considered
as indirectly interested in a contract. If the son would have his own
family, he may engage in business for his own benefit. That is not
having indirect interest in the govt.
2. He cannot intervene in any matter before any office of the
Government for his pecuniary benefit or where he may be called
upon to act on account of his office.
A. He cannot intervene in any matter before any office of the
Government for his pecuniary benefit
This is like you are acting like a fixer. You have a transaction in
Manila but you cannot go there. Then another govt official says I can
go there and do it for you. Atty.
Dela Banda is thinking that
this also applies to Congressmen. You are prohibited from
intervening in any office for your pecuniary benefit. You have to pay
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
13
pension then he says I can do it for you but you have to give
me 10%. If you are a congressman, that is very easy for you to go
there at the GSIS. So that is the idea here.
B. He cannot intervene in any matter before any office of the
Government where he may be called upon to act on account of
his office.
For instance you are the chairman of the House committee
on banking, you cannot be consultant to banks. You may be
called to act on account of your office.
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.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
14
However, the SC also stated that there are 2 situations when they
cannot suspend their own rules:
1. when the rule in the rules of procedure is a rule of the
constitution
For instance it is stated in the Constitution that before a bill
may become a law there must be 3 readings. That is a rule of the
Constitution. So that cannot be set aside by the House or the
Senate for the reason that it is the rule of the Constitution.
2. when it will affect the rights of 3rd persons
If there are people who are not members of the House or
Senate, definitely they have rights that have to be respected.
II. Punishment for disorderly behavior
Number of votes required: 2/3 of all its members
Principles:
1. This is not subject to review by the court.
If a House member or Senate member is punished, you
cannot go to the SC and have it reviewed.
2. The power to suspend a member is not exclusive.
Paredes case and Santiago vs Sandiganbayan
If a Congressman, Senator or any govt official is facing an
anti-graft law charge, you have to be suspended for 90 days. So
that was questioned by Senator Santiago and Congressman
Paredes.
The SC stated that the power of Congress to suspend is not
exclusive. You can also be suspended on account of the law by
the Sandiganbayan. The Court made a distinction as to the
suspension. According to SC, the suspension here is a penalty but
the suspension under the anti-graft law is preventive. It is only
made to ensure
that you will not tamper with the evidence
but here the purpose is to punish you. They can actually go
together.
> The House or the Senate may impose a penalty lesser than
suspension or removal. If the penalty is fine, censure or
reprimand, you need not comply with the 2/3 requirement.
(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.
> The discussion under this topic is evidentiary in nature.
Important documents:
1. Record - word for word account of the proceedings
2. Journal - abbreviated content of the proceedings (summary or
minutes)
3. Enrolled Bill - bill finally approved by both Houses signed by the
3 officers (Senate President, Speaker of the House and President).
It has the force of law considering that it has already been
approved.
Principles:
1. The journal and enrolled bill are conclusive upon the courts.
This is an issue of evidence. Meaning, nobody is allowed to
present evidence in order to contradict the contents of the
journal and the enrolled bill.
US vs Pons
There was a person who was prosecuted for dangerous
drugs. He alleged that the law was null and void because when it
was passed by Congress, it was no longer in session. Meaning, it
falsified the journal that it was passed before the compulsory
recess.
The SC stated that it was stated in the journal that it was
passed on time so we cannot examine the contents of the
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
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Remedies:
1. Before proclamation
If you challenge the qualification of the other before
proclamation, you file it before the COMELEC. The COMELEC has
general jurisdiction over the enforcement of election laws.
2. Within 10 days after proclamation
After proclamation, you only have 10 days to file either an
election protest or quo warranto before the appropriate tribunal.
3. beyond 10 days
The problem arises when it is beyond 10 days because the
tribunal no longer has jurisdiction when it is already filed out of
time. The SC stated that the House or the Senate or any
parliamentary body for that matter, have the inherent authority to
inquire into the qualifications of its members. Therefore, the House
or Senate itself can inquire into its membership when the tribunal
and the COMELEC no longer has jurisdiction.
Dimaporo vs Mitra
When Dimaporo filed his CoC, he was considered resigned but
he did not resign. Mitra took(?) him from the list.
Jalosjos case
The same with the Dimaporo case. He was convicted and what
the House did was issue a resolution cutting(?) him from the list.
Sampayan vs Daza
Daza went to the US and went back to the Phils to run as
Congressman. Sampayan noticed that he was an American and so
filed a petition for quo warranto. The SC said that he cannot
question the qualification of Daza thru quo warranto. The remedy is
to go to the tribunal.
Barbers vs COMELEC
He filed a petition for annulment of proclamation before the
COMELEC. The SC said that the annulment of proclamation before
the COMELEC is not the proper remedy. The remedy is to go to the
tribunal.
Guerrero vs COMELEC
The quarrel in this case is about substitution of candidate.
When the candidate won, they questioned him before the tribunal,
or before the COMELEC or before another court. The problem was
they are not challenging him as to his qualifications under the
Constitution but under a statute. (Whether) The jurisdiction of the
tribunal pertains to the qualifications found in the statute or in the
Constitution. The SC said that it was not distinguished. The
qualifications under the statute or the Constitution has to be
brought before the tribunal, and not before any other body.
Section 18 - There shall be a Commission on Appointments
consisting of the President of the Senate, as ex officio Chairman,
twelve Senators, and twelve Members of the House of
Representatives, elected by each House on the basis of
proportional representation from the political parties and parties
or organizations registered under the party-list system represented
therein. The Chairman of the Commission shall not vote, except in
case of a tie. The Commission shall act on all appointments
submitted to it within thirty session days of the Congress from their
submission. The Commission shall rule by a majority vote of all the
Members.
Just take note of the membership of the CA - 12 in the House,
12 in the Senate. The formula in the Senate is very simple. A party
must have at least 2 Senators to be entitled to at least 1 seat. If you
have 12 seats, you must have have 2 Senators to have 1 seat. What
about fractions? Fractions are rounded off to the nearest. If you
have 3 Senators, you will be entitled to 1 seat only. 5 Senators shall
be entitled to 2 seats only. If that happens, you will not fill in the
entire seats because of the fractions. The SC said that no need
because what is required (which is the maximum) is 12 seats. Even if
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
16
less than 12, they can function for as long as there is a quorum.
So there is no need to fill it in.
The SC stated that parties can form coalitions, and they are
entitled to more seats. A party of 1 will form a coalition so there
will be 2 of us who will be entitled to 1 seat. So that is the
possibility.
What about in the House?
Commission on Appointments (2002)
No III - Suppose there are 202 members in the House of
Representatives. Of this number, 185 belong to the Progressive
Party of the Philippines or PPP, while 17 belong to the Citizens
Party or CP. How would you answer the following questions
regarding the representation of the House in the Commission on
Appointments?
A. A How many seats would the PPP be entitled to have in the
Commission on Appointments? Explain your answer fully.
(5%)
B. Suppose 15 of the CP representatives, while maintaining their
party affiliation, entered into a political alliance with the PPP in
order to form the "Rainbow Coalition'' in the House. What effect,
if any, would this have on the right of the CP to have a seat or
seats in the Commission on Appointments? Explain your answer
fully. (5%)
SUGGESTED ANSWER:
A. The 185 members of the Progressive Party of the Philippines
represent 91.58 per cent of the 202 members of the House of
Representatives. In accordance with Article VI, Section 18 of the
Constitution, it is entitled to have ten of the twelve seats in the
Commission on Appointments. Although the 185 members of
Progressive Party of the Philippines represent 10.98 seats in the
Commission on Appointments, under the ruling in Guingona v.
Gonzales, 214 SCRA 789 (1992), a fractional membership cannot
be rounded off to full membership because it will result in
overrepresentation
of
that
political
party
and
underrepresentation of the other political parties.
B. The political alliance formed by the 15 members of the Citizens
Party with the Progressive Party of the Philippines will not result
in the diminution of the number of seats in the Commission on
Appointments to which the Citizens Party is entitled. As held in
Cunanan v. Tan, 5 SCRA 1 (1962), a temporary alliance between
the members of one political party and another political party
does not authorize a change in the membership of the
Commission on Appointments, Otherwise, the Commission on
Appointments will have to be reorganized as often as votes shift
from one side to another in the House of Representatives.
Section 19 - The Electoral Tribunals and the Commission on
Appointments shall be constituted within thirty days after the
Senate and the House of Representatives shall have been
organized with the election of the President and the Speaker.
The Commission on Appointments shall meet only while the
Congress is in session, at the call of its Chairman or a majority of
all its Members, to discharge such powers and functions as are
herein conferred upon it.
Section 20 - The records and books of accounts of the Congress
shall be preserved and be open to the public in accordance with
law, and such books shall be audited by the Commission on
Audit which shall published annually an itemized list of amounts
paid to and expenses for each Member.
This has been asked twice in the Bar but usually in the form
of enumeration. What are the provisions in the Constitution that
ensure transparency? So just enumerate it.
Section 21 - The Senate or the House of Representatives or any
of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by
such inquiries shall be respected.
Section 22 - The heads of departments may upon their own
initiative, with the consent of the President, or upon the request
of either House, as the rules of each House shall provide, appear
Bengzon vs Senate
There was a civil case pending in court. The SC stated that the
investigation cannot proceed because they might come out with a
different judgment/finding. So to prevent conflicting decisions,
when a case is filed in court, do not proceed. Give priority to the
case in court.
Senate vs Majaducon
A person was charged before the OMB. So he said that they
cannot proceed now because there is a pending case. SC said NO. It
cannot apply to the OMB. This applies only to the regular courts -
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
17
RTC, MTC, SB. But this does not apply to the OMB because it is
not a court.
Can the SC find out whether an investigation is really in aid of
legislation?
YES. The SC has a right to find out whether it is really for
purposes of legislative investigation. In the Enrile case, the SC
said do not proceed because this must be in aid of legislation.
What is the consequence if the person refuses to attend or
answer a question without valid reason?
1. held in contempt
2. can be detained
2 ways of terminating detention: (when you can be released)
a. to comply (answer the question)
b. upon termination of investigation
c. at the end of 3 years (when new set of officers are
elected)
The term in Congress ends in 3 years. After the lapse of 3
years, you will have new membership. If the House is conducting
an investigation, you did not answer and so you were detained, at
the end of 3 years when there are new set of officers, you may
demand to go out.
However in the Enrile case, the SC made a distinction. In the
case of the Senate, you can be detained forever. The Senate is a
perpetual body. So you remain
forever until such time
you comply. But right now, no more. The theory is the Senate is
no longer a perpetual body. It has new membership every 3
years. You can already demand to go out.
(by: Jo Anne )
SEPTEMBER 25, 2008
I will continue discussing Sections 21 and 22. But I will backtrack a
little. Last time we said that if you refuse to answer a question in
a legislative investigation you can be detained. The question is for
how long? There are two views.
The main answer is that if the investigation is terminated you
have to be released. This means that if Congress has already
passed a law there is no point in holding on to you or detaining
you.
The second is considering that the Senate is no longer a perpetual
body you can remain detained until final adjournment. So what
does final adjournment mean? This means up to the end of the
legislative term. Not up to the end of the session. So, meaning
the longer can be three years.
Can the Committee, not the entire House or not the entire Senate
punish you for contempt of you disobeyed? The SC answered this
recently in the case of Sabio. The answer is YES because if you
look at the Constitution it is saying the Congress or any of is
Committee can subject you to contempt.
What is the status of a law which exempts a person from
attending legislative investigations? This happened in the case of
Sabio. He was a chairman of PCGG and he refused to attend
because EO No. 1 passed by Cory Aquino stated that the member
of the PCGG or any member of the staff cannot attend
investigations judicial, administrative, or legislative. So, Sabio
refused to attend. But the SC said that is unconstitutional. A law
exempting people from attending legislative investigations
directly conflicts with the power of Congress to compel
attendance in aid of legislation.
Can the President validly prohibit a military officer from attending
a legislative investigation? This was decided in the case of Gudani
vs. Senga. Ebdane, I think was the superintendent of the
Philippine Military Academy and was called to testify in a senate
investigation. But he was ordered by Senga in the name of the
President, do not attend. You have no clearance from the
President. But Ebdane refused to obey and still testified
regarding the Garcillano controversy. So he was subjected to
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
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20
First, this provision tells us on when you can validly juggle funds
from one item to another because the principle is that the
Constitution does not allow the juggling of funds. In fact juggling of
funds is considered as technical malversation. However, the
Constitution allows it in a very limited instance. So, the ff. are the
requisites before it can be allowed:
1. If done by the authorized officers;
2. If the purpose is to augment an item;
3. It must come from savings in another item;
4. It is within the same department; and
5. It is authorized by law.
So, it is not self-executing because it has to be authorized by law. So
let us explain this. The authorized officers are those officers listed in
the Constitution - the President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, and the heads of Constitutional Commissions. In
effect therefore there are only 7 officers allowed. I have a little
doubt about it so I asked Fr. Bernas last time because if your try to
look at it the CHR is an independent entity. It enjoys fiscal
autonomy. The OMB also. So I asked him can the OMB move one
item to another. He said that is not allowed. So OMB and CHR are
not allowed. So only those 7 officers are authorized.
Second, the purpose is to augment an item. Meaning, the item is
insufficient so you need to augment it so the money can only come
from number 3 savings.
Fourthly, it must be within he same department. Same department
means if executive then executive only. So if judiciary then judiciary
only. The judiciary cannot move funds to the executive. There is a
little bit difference with the legislature because there are two
Houses there. The Speaker can only move items in its own domain,
that is, within the lower house. The Senate President can only move
it within the Senate. They are not allowed to transfer funds from the
Senate to the House. Take note that this is not self-executing. It
must be authorized by law, by express command of the Constitution.
The do it actually in the budget law itself. They will say that in case
there are savings from this item it can be transferred to that item.
So, without that provision in the budget law it cannot be done.
One of the cases here is Demetriu which was asked in the bar. This
happened in the time of Marcos. The President of the Philippines is
saying that I authorize myself to transfer funds within my own
department. It cannot be challenged because it is authorized by
law. The President can pass a law at that time. But the SC is saying
that he is an authorized officer, it is also within his department, but
the problem is that it will actually authorize the movement of funds
without any restriction because he did not say that there are savings
from this or there are portions to be augmented in the other.
The main principle simply behind this is that this will stop Congress
from passing or moving appropriations without any basis.
There is a question here in the 1998 bar exams based on the PCA
case. It is easy to answer. The provision of the law states that The
Chief of Staff, Armed Forces is authorized subject to the approval of
the Sec. of National Defense. Ans. So, the Chief of Staff, Armed
Forces is not among the officers mentioned. What about the fact
that it is approved by the Sec. of National Defense? Again he is not
mentioned. What about if you put there the Sec. of National
Defense subject to the approval of the President? I think it can be
possible because the President will now have the final say. The Sec.
is just the alter-ego of the President. As long as the final say is with
the President then it can be cured.
Renewal & Power of Augmentation (1998)
No XI. - Suppose the President submits a budget which does not
contain provisions for CDF (Countrywide Development Funds),
popularly known as the pork barrel, and because of this Congress
does not pass the budget.
1. Will that mean paralization of government operations in the next
fiscal year for lack of an appropriation law? (2%) (see answer in
Subparagraph 7).
2. Suppose in the same budget, there is a special provision in the
appropriations for the Armed Forces authorizing the Chief of Staff,
AFP, subject to the approval of the Secretary of National Defense, to
use savings in the appropriations provided thereto to cover up
whatever financial losses suffered by the AFP Retirement and
Separation Benefits System (RSBS) in the last five (5) years due to
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
21
Senate
st
st
Com
Com
nd
nd
Print
rd
Section 26. (1) Every bill passed by the Congress shall embrace
only one subject which shall be expressed in the title thereof.
There are two topics here. First is saying that a bill should only
have 1 subject. Second, the subject must be expressed in the
title.
One thing that we should remember about the 1 bill 1 subject
rule is the LOG ROLLING LEGISLATION. This is actually a bill that
has more than 1 subject.
rd
3
Con Com
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22
the reading of the title of the bill. After that the bill will be
referred to the appropriate Committee. In the Committee they
will discuss it sometimes they combine it with other bills pending
and sometimes it will be the end of it. In fact if you look at the
Constitution there is no requirement that a bill will have to come
out after a specific time. So the practice now is that if a bill is not
passed they will reintroduce it at the next legislative return.
So from the Committee as long as it votes to approve it will be
forwarded to or back to the House and then there will now be the
nd
nd
2 reading. The 2 reading is now the debate. During the debate
it will go to the law provision by provision. Once the amendments
have been approved it will now undergo printing. So there is now
printing of the approved version. The printed copy has to be
rd
given to the Members 3 days before the 3 reading. During the
rd
3 reading no more amendments are allowed because the
nd
debate took place in the 2 reading.
rd
So during the 3 reading you only vote for it. No more
objections because you should have raised it before. Once it is
finished it will now be forwarded to the Senate to undergo the
same procedure.
One problem is that suppose it is a tax bill. It must originate
in the House. Suppose they are still debating it or have not yet
approved it in the third reading can you sponsor your own
version in the Senate? Yes for as long the Senate will not act as a
body. This means that even if the tax or appropriation law is still
deliberated in you can introduce something in the Senate but do
not debate on it. Do not act on it as a body. So that will be valid.
That will not destroy the idea that it must originate in the lower
house.
I think it is almost impossible to have a situation that the
version of the 2 Houses will be the same. I think it cannot happen
because there are so many people there thinking differently. So,
the result is this if the 2 versions are different they will form a
Conference Committee. There is no body called a conference
committee because this is ad hoc. This is created only when the
need arises. The usual practice is that the conference committee
takes up the sponsored bill in the House and the sponsored bill in
the Senate. What will it do? It will now come up with a
RECONCILED version. So it will reconcile the 2 versions.
Suppose they have come up with a reconciled version what
will be done with the law? Will it still undergo the three readings?
Definitely no more; otherwise, there will be no more end to it. So
what is needed only is the third reading. It will have to be
approved again by votes but no more debates.
There are 3 questions I want to remind you about.
First is what happens when the President certifies to the
necessity of its immediate enactment to meet a public calamity
or emergency. SC said that once the President certifies to the
immediate enactment of a bill 3 things will be removed:
1. There is no more need to undergo 3 readings on 3
separate days this means that you have to read the bill 3 times
but you need not do it on three separate days. So it can be done
in one day.
2. There is no more need of printing the final version.
3. There is no more need to distribute copies of the final
version three days before its passage.
Second question is can the SC inquire into the validity of the
certification made by the President that the bill is urgent? The
answer is definitely no. The reason according to the SC is
separation of powers. The President made a determination that it
is urgent and the Congress acted on it by passing it immediately.
So who are we (SC) to examine the determination made by the
President. So it is a political question which binds the judiciary.
Remember the argument of Tolentino, the constitutionalist, he
was saying before that the certification of the VAT is defective
because there was no calamity. He was saying that this problem
has long been with us so how do you call this as a calamity. But
the SC said that it is not our business to second guess the
President to find out whether there was really a calamity.
Another very important matter is that the Conference
Committee can add matters to the bill which have not been the
subject of any disagreement. So, the House comes up with its
version. The Senate comes up with its version. The Commission
said that we dont like that of the Senate or that of the House in fact
we will add provisions of our own. The SC said that we will not be
the appropriate authority to question whether insertion is done or
not. What is the reason? Because once it is approved by the two
Houses it is now considered an enrolled bill. An enrolled bill is
conclusive as to the contents.
I want to emphasize this because the challenge of Tolentino is
very _. What he is saying is that how can the conference committee
add a provision because according to the Constitution there should
nd
be no more amendments to be introduced after the 2 reading.
nd
Here you are after the 2 reading you are still introducing
amendments. What did the SC say? There is no problem because
new matters inserted by the conference committee will still be
approved again by the 2 Houses.
Take note also of the last point here. I told you before that even
if the bill is certified by the President as urgent it still subject to veto.
Because the veto power cant be limited. Because sometimes it is
not the bill certified by the President that gets approved. There are
so many changes done therefore the veto power of the President
should remain intact because he may not want the final product.
Let us go back to Taada. Only the printing is done away with.
PUBLICATION of the bill is not done away with because it is the
requirement in Taada that all bills must be published before they
become effective. The printing is different from publication because
the printing is the one were the copies are distributed.
Last thing I would like to emphasize is that even if the bill is
certified as urgent the Constitution always requires that it has to
undergo 3 readings.
(by: Karla )
SEPTEMBER 30, 2008
SECTION 27.
(1) Every bill passed by the Congress shall,
before it becomes a law, be presented to the President. If he
approves the same, he shall sign it; otherwise, he shall veto it and
return the same with his objections to the House where it
originated, which shall enter the objections at large in its Journal and
proceed to reconsider it. If, after such reconsideration, two-thirds of
all the Members of such House shall agree to pass the bill, it shall be
sent, together with the objections, to the other House by which it
shall likewise be reconsidered, and if approved by two-thirds of all
the Members of that House, it shall become a law. In all such cases,
the votes of each House shall be determined by yeas or nays, and
the names of the Members voting for or against shall be entered in
its Journal. The President shall communicate his veto of any bill to
the House where it originated within thirty days after the date of
receipt thereof; otherwise, it shall become a law as if he had signed
it.
(2) The President shall have the power to veto any particular item
or items in an appropriation, revenue, or tariff bill, but the veto shall
not affect the item or items to which he does not object.
Section 27 VETO POWER
Preliminary Matters: Bar Questions
UP: Law-Making; Passage of a Law (1988)
No. 12: - 2. A bill upon filing by a Senator or a Member of the House
of Representatives goes through specified steps before it leaves the
House of Representatives or the Senate, as the case may be. After
leaving the legislature, please name the three methods by which
said bill may become a law.
SUGGESTED ANSWER:
A bill passed by Congress may become a law in any of the following
cases:
1. If it is signed into law by the President. (Art. VI, sec. 27(1)).
2. If it is re-passed over the President's veto by the vote of two
thirds of all the members of the House of Representatives and
of the Senate.
3. If the President fails to veto it within thirty days after receipt
thereof and communicate the veto to the House from which it
originated.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
23
A:
24
SECTION 25.
xxx
(2) No provision or enactment shall be embraced in the general
appropriations bill unless it relates specifically to some particular
appropriation therein. Any such provision or enactment shall be
limited in its operation to the appropriation to which it relates.
xxx
You will notice that the 2
(19:45)
nd
rd
Q:
PROVINCE OF BATANGAS
If you look at the Local Government Code, the shares of the
provinces in IRA (Internal Revenue Allotment) are provided there.
In the case of cities and provinces, you get 30% of the IRA. As to
municipalities, they get 20%.
Over the years, Congress is complaining that too much
money goes to the local government. So, in one budget law,
Congress stated that for instance in 1995, from now on, the
shares of cities and provinces shall be reduced to 20% and the
shares of municipalities shall be reduced to 10%. It was
challenged by the Province of Batangas.
The Supreme Court answered that is an inappropriate
provision. You are amending or repealing the Local Government
Code through the budget law. The budget law must speak of
nothing else except the budget. It has no business amending or
modifying a previous law. If you want to modify the LGC, no
problem. But do it in a separate law. Do not insert the repeal in
the budget law itself. The veto is ineffective. It is null and void.
There was also another case. The budget law at that time
stated that the President is given P 20M which he will use to
retire the CAFGU.
The Supreme Court answered that it is inappropriate. Take
note how did we have the CAFGU? The CAFGU was created by
means of law way back in 1988. The Supreme Court stated that if
they want to amend the law, do not do it in the budget in the
law. Do not do it in the budget law. Pass another law. It is an
inappropriate provision. It can be done.
3.
ATITIW
In the budget law, this was inserted the amount therein
appropriated shall be used to wind up the activities of the Cordillera
Administrative Region including payment of separation pay to
affected employees.
It was challenged. You are amending a previous law by
inserting it in the budget law. That is a rider.
But the Supreme Court said NO, we will allow it. Actually, the
Cordillera Administrative Region was not abolished. In fact, only
some portions were deactivated. You must distinguish deactivation
from abolition. Since it is only deactivation, you did not really
amend the law. It continues to exist.
4.
PCA
In the budget law, they put there the amount of P 86B. What is
the use of the P 86B? They have this provision The
appropriations authorized therein shall be used for the payment of
the principal and interest of foreign indebtedness, PROVIDED that
any payment in excess of the amount therein appropriated shall be
subject to the approval of the President, PROVIDED further that in
no case shall this fund be used to pay for the liabilities of the Central
Bank Board of Liquidators.
President Ramos vetoed the entire provision and he was
challenged before the Supreme Court for making an invalid veto.
The Supreme Court made a very sharp analysis. According to
the Supreme Court, if you try to look at it, this is a provision which is
being vetoed in an appropriation law. So, we will look it according
to the doctrine of inappropriate provision.
According to the SC, there are 3 provisions here (1) the first
sentence, (2) provided and (3) provided further:
1) The appropriations authorized therein shall be used for the
payment of the principal and interest of foreign indebtedness
According to the SC, that is appropriate. It relates to an item.
The appropriation is P 86B. Therefore, it cannot be vetoed.
2) PROVIDED that any payment in excess of the amount therein
appropriated shall be subject to the approval of the PresidentThis is inappropriate. It is saying in excess of the amount. It
does not refer only to the P 86B. It extends its operation beyond an
item in excess of the P 86B. Therefore, it can be subject to veto.
3) PROVIDED further that in no case shall this fund be used to
pay for the liabilities of the Central Bank Board of LiquidatorsThis is appropriate in no case shall this fund. What does
this refer to? The P 86B. Therefore, it is an appropriate provision.
According to the SC, the veto will be valid insofar as the second
sentence.
If you try to analyze further, the SC is saying that these are
unconstitutional provisions in the budget law anyway. If the
president will veto it, no problem because it is unconstitutional. In
fact, if the president does not veto it and you go to court, the
Supreme Court will declare it unconstitutional because it does not
comply with the provisions of the Constitution on appropriations.
That is the summary of the doctrine of inappropriate provision.
It is possible that the court will later find other situations where the
court will say it is inappropriate. But for the moment, these are the
only ones.
LEGISLATIVE VETO
The Supreme Court defined legislative veto as the means
whereby the legislature can block or modify administrative actions
taken under a statute.
The concept seems to be very simple because in our
Constitution, we only have executive veto it is the President who
disapproves. But if you look at the legislative veto, it is saying that
the legislature can block administrative actions. It is now the
reverse. It is now Congress exercising a veto power.
2 cases:
1. MILLER vs. MARDO
2. PCA
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
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But take note also that the voting is very high of the local
legislative will approve the repeal of the ordinance passed
through initiative.
(Medyo nalito ako .. murag ang pasabot na what was passed
through initiative is an ordinance jud (effective within an LGU),
not a law na national in scope. Nalibog ko kay law man gud ang
gimention sa question .. hehe .. check lang )
Can the President veto a bill/law passed through an initiative?
The provision does not say it. I am thinking that this is not
subject to veto. We are a sovereign and we pass a law. And if we
allow the president to veto it, that is absurd
Can you challenge a law passed through initiative before the
Supreme Court? Can we challenge it as unconstitutional?
I believe you can because remember the principle that the
Constitution is the fundamental law of the land. So, it must
comply with the provisions of the Constitution. For instance, you
cannot violate the Bill of Rights.
For instance from now on, only one religion will be
recognized in the Philippines. That is violating the Constitution.
That is not allowed.
Do not confuse it with amending the Constitution because if
the people amend the Constitution and revoke a Constitutional
provision, you cannot do anything about it. The people are
sovereign. They can amend the Constitution but they cannot
amend the Constitution by passing an ordinary law. In amending
the Constitution, you need 12% to initiate it. In ordinary law, only
10%.
You can challenge a law actually if it is unconstitutional. The
Congress and the people cannot amend the Constitution through
initiative under Section 32. You have to do it under the article on
initiative and referendum.
INDIRECT INITIATIVE is not found in the law. This is how it is
defined a petition filed by an accredited peoples organization
with the House of Representatives for the adoption of a bill into a
law.
They are 2 things that are significant here:
1. In our system, there are only 2 types of bill the Senate Bill
(introduced by the Senate) and the House Bill (introduced by the
Congressmen). We now have a new type indirect initiative.
This is a bill introduced by an accredited peoples organization.
2. Remember that I mentioned the bills that must originate
from the Lower House appropriation, tariff, revenue, local
application, increase of public debt, private bills (Article VI,
Section 24). There is a new one indirect initiative. By its
definition, it is a petition filed by an accredited peoples
organization with the House of Representative. So, it originates
in the House of Representative. You cannot actually file (?) it
with the Senate if it is an initiative bill.
(by: Jazzie )
OCTOBER 2, 2008
Article VII Executive Department
Section 1. The executive power shall be vested in the President of
the Philippines.
UP: Presidential Immunity from Suit (1997) No. 13: Upon complaint
of the incumbent President of the Republic, "A" was charged with
libel before the Regional Trial Court. "A" moved to dismiss the
information on the ground that the Court had no jurisdiction over
the offense charged because the President, being immune from suit,
should also be disqualified from filing a case against "A" in court.
Resolve the motion.
SUGGESTED ANSWER: The motion should be denied according to
Soliven us. Makasiar, 167 SCRA 393, the immunity of the President
from suit is personal to the President. It may be invoked by the
President only and not by any other person.
Section 2. No person may be elected President unless he is a naturalborn citizen of the Philippines, a registered voter, able to read and
write, at least forty years of age on the day of the election, and a
resident of the Philippines for at least ten years immediately
preceding such election.
P/VP 40 y.o.
Senators 35 y.o.
Congressman 25 y.o.
Justice of SC 40 y.o.
Residency requirement
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
30
o
o
Take note the cut off date that it is more that four years.
Meaning if it is exactly four years you can run.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
31
Dies
Removal
o If both not available (P/VP)
o If all (Congress pass a law)
Section 8 applied during the middle of the term and interpreted
that it happened after june 30, 3 days or 2 days after. It is
considered in the middle of the term. So they started assuming
and something happens to them.
The first situation is when will the VP become P permanently?
When the P dies, becomes permanently disabled, resigned or
removed by impeachment.
In Estrada case, the supreme court stated that disability can
apply to physical, mental or moral. This moral can apply to
estrada because all the members of the cabinet resigned.
In resignation, the supreme court in the Estrada case also
qualified it saying that when we speak of resignation there is no
formalites required,. It can be oral, writing, express or implied.
If you notice, all resignation should be in writing. This is the
only instance where the supreme court came up with a new
rule.
The second situation is that when both the president or the
vice president are not available, if they die in the middle of the
term, it will be the senate president and in case of disability,
the speaker of the house. Again the constitution is very careful
to create that scenario, if all of them are not available, congress
shall pass a law to answer the problem.
Section 9. Whenever there is a vacancy in the Office of the VicePresident during the term for which he was elected, the President
shall nominate a Vice-President from among the Members of the
Senate and the House of Representatives who shall assume office
upon confirmation by a majority vote of all the Members of both
Houses of the Congress, voting separately.
o
Section 10. The Congress shall, at ten o'clock in the morning of the
third day after the vacancy in the offices of the President and VicePresident occurs, convene in accordance with its rules without need
of a call and within seven days, enact a law calling for a special
election to elect a President and a Vice-President to be held not
earlier than forty-five days nor later than sixty days from the time of
such call. The bill calling such special election shall be deemed
certified under paragraph 2, Section 26, Article V1 of this
Constitution and shall become law upon its approval on third
reading by the Congress. Appropriations for the special election shall
be charged against any current appropriations and shall be exempt
from the requirements of paragraph 4, Section 25, Article V1 of this
Constitution. The convening of the Congress cannot be suspended
nor the special election postponed. No special election shall be
called if the vacancy occurs within eighteen months before the date
of the next presidential election.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
32
(by: Anthony )
SECTION 11.
Whenever the President transmits to the
President of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable to
discharge the powers and duties of his office, and until he
transmits to them a written declaration to the contrary, such
powers and duties shall be discharged by the Vice-President as
Acting President.
Whenever a majority of all the Members of the Cabinet transmit
to the President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the VicePresident shall immediately assume the powers and duties of the
office as Acting President.
Thereafter, when the President transmits to the President of
the Senate and to the Speaker of the House of Representatives
his written declaration that no inability exists, he shall reassume
the powers and duties of his office. Meanwhile, should a majority
of all the Members of the Cabinet transmit within five days to the
President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the
Congress shall decide the issue. For that purpose, the Congress
shall convene, if it is not in session, within forty-eight hours, in
accordance with its rules and without need of call.
If the Congress, within ten days after receipt of the last
written declaration, or, if not in session, within twelve days after
it is required to assemble, determines by a two-thirds vote of
both Houses, voting separately, that the President is unable to
discharge the powers and duties of his office, the Vice-President
shall act as the President; otherwise, the President shall continue
exercising the powers and duties of his office.
Who will decide if the President is unable to discharge his
powers?
1. By the President himself
He will write a letter and transmit it to the Senate President
and Speaker of the House that he is no longer able to perform his
duties.
By the way, does this refer to permanent or temporary
disability? The answer seems to be that it applies to both. If you
try to look at it, it is saying if the president says he is able, he can
reassume. So, it indicates temporary
ESTRADA vs. DESIERTO
In the case of Estrada, in the end, the Supreme Court stated
that he was determined to be permanently disabled.
33
But here it says, you are prohibited from holding any other
office or employment. It does not distinguish whether the office is
private or public. It is broader compared to the prohition on
members of Congress.
2.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
34
th
Service Law. Under the Constitution, it says 4 civil degree but for
these positions only. But under the Civil Service Law, the concept of
rd
nepotism is covered only up to 3 civil degree. It is good to
understand also that under the Local Government Code, the concept
th
of nepotism is again broader 4 civil degree. The mayor is not
th
allowed to appoint people who are within the 4 civil degree to him.
There is no problem really. If the positions are listed in the
Constitution, we apply it. If it is a local government position, we
apply the Local Governmetn Code. For others, we apply the Civil
Service Law. There are no contradictions.
UP: AFP; limitation on accepting additional duties (1996)
No. 7: Can the Judge-Advocate General of the Armed Forces of the
Philippines be appointed a Trustee of the Government Service
Insurance System? Explain.
SUGGESTED ANSWER:
No, the Judge Advocate General of the Armed Forces of the
Philippines cannot be appointed as trustee of the Government
Service Insurance System. Under Section 5(4). Article XVI of the
Constitution, no member of the Armed Forces of the Philippines in
the active service shall at any time be appointed or designated in
any capacity to a civilian position in the Government, including
government-owned or controlled corporations.
(Sir: There has nothing to do with the main function.)
UP: Cabinet Members; limitation on accepting additional duties
(1996)
1996 No. 7: Can the Secretary of Finance be elected Chairman of the
Board of Directors of the San Miguel Corporation? Explain.
SUGGESTED ANSWER: No, the Secretary of Finance cannot be
elected Chairman of the Board of Directors of the San Miguel
Corporation. Under Section 13, Article VII of the Constitution,
members of the Cabinet cannot hold any other office or
employment during their tenure unless it is otherwise provided in
the Constitution. They shall not also during said tenure participate in
any business or be financially interested in any contract with, or in
any franchise, or special privilege granted by the Government or any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries.
They shall strictly avoid conflict of interest in the conduct of their
office.
UP: Prohibitions and Inhibitions of Public Office (2004)
(3-a) JAR faces a dilemma: should he accept a Cabinet appointment
now or run later for Senator? Having succeeded in law practice as
well as prospered in private business where he and his wife have
substantial investments, he now contemplates public service but
without losing the flexibility to engage in corporate affairs or
participate in professional activities within ethical bounds. Taking
into account the prohibitions and inhibitions of public office whether
as Senator or Secretary, he turns to you for advice to resolve his
dilemma. What is your advice? Explain briefly. (5%)
SUGGESTED ANSWER: I shall advise JAR to run for SENATOR. As a
Senator, he can retain his investments in his business, although he
must make a full disclosure of his business and financial interests
and notify the Senate of a potential conflict of interest if he authors
a bill. (Section 12, Article VI of the 1987 Constitution.) He can
continue practicing law, but he cannot personally appear as counsel
before any court of justice, the Electoral Tribunals, or quasijudicial
and other administrative bodies. (Section 14, Article VI of the 1987
Constitution.)
As a member of the Cabinet, JAR cannot directly or indirectly
practice law or participate in any business. He will have to divest
himself of his investments in his business. (Section 13, Article VII of
the 1987 Constitution.) In fact, the Constitutional prohibition
imposed on members of the Cabinet covers both public and private
office or employment. (Civil Liberties Union v. Executive Secretary,
194 SCRA 317)
Sir: As a lawyer, if you are a senator, you can still practice but you
cannot appear in court. But as a secretary of any department, you
cannot practice any profession.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
35
DE RAMA vs. CA
The Supreme Court stated that this prohibition on midnight
appointments does not apply to local executives.
VILLANUEVA
The Supreme Court stated that appointed to the judiciary, for
the members of the Supreme Court, you have to make an
appointment within 90 days from the vacancy. As to the lower
courts, you must make an appointment 90 days from the time your
name is submitted by the Judicial Bar Council to the President.
Q: What happens if the name was submitted or the vacancy
occurred within the midnight period?
A: The Supreme Court answered if there is vacancy or the name is
submitted for positions in the judiciary during the midnight period,
the president cannot appoint. It is mandated (the 90-day period )
if it is not during the midnight period.
General Rule: In the judiciary observe 90 days
Exceptions: If it falls within the midnight period
Do not confuse midnight appointment with the lame duck
provision of the Constitution. Lame duck provision states that you
cannot appoint somebody who lost in the election within 1 year
after the election.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
36
2.
Appointments
1. appointments by the acting president
2. midnight appointments
3. regular appointments
4. ad interim appointments
5. acting appointments
3.
3. REGULAR APPOINTMENTS
Section 16. The President shall nominate and, with the consent of
the Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are
vested in him in this Constitution. He shall also appoint all other
officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the
appointment of other officers lower in rank in the President
alone, in the courts, or in the heads of departments, agencies,
commissions, or boards. xxx
4.
15
ARTICLE IX. BCSC Sec. 1(2), CComelec Sec. 1(2), DCOA Sec. 1(2) The
Chairman and the Commissioners shall be appointed by the President with the consent of
the Commission on Appointments for a term of seven years without reappointment.
16
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
37
sectoral representatives
bracketed.
was
4. AD INTERIM APPOINTMENTS
Sec. 16. xxx The President shall have the power to make
appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be
effective only until disapproved by the Commission on
Appointments or until the next adjournment of the Congress.
Requisites of Ad Interim Appointments:
1. made during the recess of the Congress, whether
voluntary or compulsory
When Congress is not in session or adjourned, the
Commission on Appointments cannot also meet.
Thats why, how can they extend confirmation?
2. the position must require confirmation
Example: Appointment of the president of city,
provincial or municipal officers under the
Administrative
Code.
They
require
no
confirmation and shall be called as official
appointments.
Effects of Ad Interim Appointments
1. it is effective immediately
17
2.
3.
Non-action of the
commission
The non action of the
Commission of an
appointment of a
person to a position
means
that
the
President may still
appoint him again to
the same position. The
reason for this is
because the non-action
of the Commission
does not amount to
disapproval.
5. ACTING APPOINTMENTS
This is not in the Constitution but was discussed by the SC in the
case of Pimentel [?]. The people who were appointed by the people
could not get confirmation. So, the President only gave out acting
positions by extending appointments to people in the executive
department. The SC said that temporary appointments are allowed.
In the Administrative Code, there is a provision there that officers
may be appointed in an acting capacity. This designation in an acting
appointment may only be extended to the executive branch.
However, although the Code says the appointment cannot extend
for more than 1 year, there are still officers appointed by the
President in an acting capacity who have been holding office for
more than a year already.
1994 Bar Question: Distinguish an
interim appointment.
Ad interim appointment
Permanent
Requires confirmation of
Commission
Enjoy security of tenure
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
38
an incompatible office,
you are deemed to have
forfeited the first one.
Example: A senator was
appointed as Secretary of
the DND; that is an
incompatible office. He
can no longer go back to
the Senate anymore.
Section 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws
be faithfully executed.
Powers of the President
1. power of supervision
This power is one which allows the President to
ensure that that laws are followed.
2. power of control
This power allows the president to change, alter or
modify the acts of those under him under the
executive department.
3. the doctrine of qualified political agency
This is based on the rule that there is only one
executive. All acts of the department secretaries
shall be deemed the act of the President unless
reversed by the President himself. It only covers the
executive department. This is unlike legislature
where the act of legislation cannot be delegated.
Constitutional Powers of the President that can be Delegated
1. the power to contract foreign loans (Constantino vs.
Yap)
Constitutional Powers of the President that CANNOT be
Delegated
1. the power to declare martial law
2. the power to suspend the writ of habeas corpus
3. the power to grant parole
4. the power of executive clemency
5. the power to enter into treaties (Neri case)
The negotiation stage is usually delegated by the
President to an office but this does not mean that
the one negotiating can also enter into treaties.
Note: These powers are personal to the President alone.
Limitations:
1. it only applies to people charged with rebellion and
other crimes related to rebellion
Hence, if what was committed was but a mere
common crime, the suspension does not have
an effect with respect to the person charged.
2. the suspension may not exceed 60 days
The privilege does not apply when the person is
not charged within 8, 16 or 36 hours. In such a
case, the public officer is responsible for the
delay in the delivery of detained persons under
the RPC.
3. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special
session, may revoke such proclamation or
suspension, which revocation shall not be set aside
by the President. Upon the initiative of the President,
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
39
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
40
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
41
(a) The 1935, 1973 and 1987 Constitutions commonly provide that
"Judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law."
What is the effect of the addition in the 1987 Constitution of the
following provision: "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 grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of
the government"? Discuss briefly, citing at least one illustrative case.
(5%)
SUGGESTED ANSWER: The effect of the second paragraph of Section
1, Article VIII of the 1987 Constitution is to limit resort to the
political question doctrine and to broaden the scope of judicial
inquiry into areas which the Judiciary, under the previous
Constitutions, would have left to the political departments to
decide. If a political question is
involved, the Judiciary can determine whether or not the official
whose action is being questioned acted with grave abuse of
discretion amounting to lack or excess of jurisdiction (Marcos v.
Manglapus, 177 SCRA 668 [1989]); (Daza v. Singson, 180 SCRA 496
[1989]).
Thus, although the House of Representatives Electoral Tribunal has
exclusive jurisdiction to decide election contests involving members
of the House of Representatives, the Supreme Court nullified the
removal of one of its members for voting in favor of the protestant,
who belonged to a different party. (Bondoc v. Pineda, 201 SCRA 792
[1991]).
(Sir only mentioned those 4 questions )
SECTION 2.
The Congress shall have the power to define,
prescribe, and apportion the jurisdiction of various courts but may
not deprive the Supreme Court of its jurisdiction over cases
enumerated in Section 5 hereof.
No law shall be passed reorganizing the Judiciary when it
undermines the security of tenure of its Members.
nd
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
42
They can 5 divisions. But it has never been done. They only
have 3 divisions.
This is important regarding vacancy it is 90 days from the
occurrence thereof. There is a difference from vacancies in the
lower courts, which is 90 days from the time the list is submitted to
the Judicial and Bar Council.
(2) All cases involving the constitutionality of a treaty, international
or executive agreement, or law, which shall be heard by the
Supreme Court en banc, and all other cases which under the Rules of
Court are required to be heard en banc, including those involving
the constitutionality, application, or operation of presidential
decrees, proclamations, orders, instructions, ordinances, and other
regulations, shall be decided with the concurrence of a majority of
the Members who actually took part in the deliberations on the
issues in the case and voted thereon.
UP: Cases to be Heard En Banc; Supreme Court (1999)
No XI - Enumerate the cases required by the Constitution to be
heard en banc by the Supreme Court? (2%)
SUGGESTED ANSWER: The following are the cases required by the
Constitution to be heard en banc by the Supreme Court:
(1) Cases involving the constitutionality of a treaty, international or
executive agreement, or law;
(2) Cases which under the Rules of Court are required to be heard en
banc. (This one was not included in Sirs discussion )
(3) Cases involving the constitutionality, application, or operation of
presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations;
(4) Cases heard by a division when the required majority is not
obtained;
(5) Cases where a doctrine or principle of law previously laid down
will be modified or reversed;
(6) Administrative cases against judges when the penalty is
dismissal; and
(7) Election contests for President or Vice- President.
Even barangay ordinances can be decided by the Supreme
Court en banc because it is not distinguished. And also, regulations
of administrative bodies can be decided by the Supreme Court if the
is issue unconstitutionality.
FORTICH vs. CORONA
The Supreme Court ruled 3-1.
Upon motion for
reconsideration, they decided 2-2. Considering 2-2, will it be
referred to Supreme Court en banc? The Supreme Court said NO,
they actually voted on that matter. They must go back to the
original decision of the division.
You refer it to the Supreme Court if in the original decision,
they voted 2-2.
Take note that the dismissal of a judge is en banc. What about
lawyers? It is not en banc. It only applies to judges.
GACOTT
It refers only if the judge is dismissed. If it is suspension or the
judge is fined, there is no need for the Supreme Court to decide en
banc. Dismissal will have to be en banc. All others need not be en
banc.
But there is a Circular if the fine is more than P10,000, en
banc. If it is P10,000 or less, in division. If suspension is more than 1
year, en banc. If suspension is 1 year or less, it can be by division.
But under Constitutional law, only the dismissal will call for en
banc decision. Lesser than that, no need of an en banc.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
43
not exceed six months without the consent of the judge concerned.
(4) Order a change of venue or place of trial to avoid a miscarriage
of justice.
(5) Promulgate rules concerning the protection and enforcement
of constitutional rights, pleading, practice, and procedure in all
courts, the admission to the practice of law, the Integrated Bar, and
legal assistance to the underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall not
diminish, increase, or modify substantive rights. Rules of procedure
of special courts and quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court.
(6) Appoint all officials and employees of the Judiciary in
accordance with the Civil Service Law.
Coverage of the Supreme Court Outline
I. Judicial Power
A. Original Jurisdiction
1. Exercise original jurisdiction over cases affecting ambassadors,
other public ministers and consuls, and
2. Over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.
B. Appellate Jurisdiction
1. All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in
question.
2. All cases involving the legality of any tax, impost, assessment,
or toll, or any penalty imposed in relation thereto.
3. All cases in which the jurisdiction of any lower court is in issue.
4. All criminal cases in which the penalty imposed is reclusion
perpetua or higher.
5. All cases in which only an error or question of law is involved.
II. Administrative Power
1. Assign temporarily judges of lower courts to other stations as
public interest may require.
2. Order a change of venue or place of trial to avoid a miscarriage
of justice.
3. Promulgate rules concerning the protection and enforcement
of constitutional rights, pleading, practice, and procedure in all
courts, the admission to the practice of law, the Integrated Bar, and
legal assistance to the underprivileged.
4. Appoint all officials and employees of the Judiciary in
accordance with the Civil Service Law.
5. Administrative supervision of courts and personnel
Discussion:
A. ORIGINAL JURISDICTION
1. Exercise original jurisdiction over cases affecting ambassadors,
other public ministers and consuls
This is rare. This happens if when such foreigner commits a
crime in the Philippines who enjoys an immunity but waives such
immunity.
BP 129: Such power is also with the RTC, but not with the Court
of Appeals. The Supreme Court and RTCs have power over those.
(please verify .. I may have misunderstood this )
2. Over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.
Many lawyers file an injunction with the Supreme Court. No,
you cannot do that because that is not in the Constitution.
It is good to understand that when the Supreme Court
introduced the Writ of Amparo and Habeas Data, it granted itself
original jurisdiction.
But with Writ of Amparo and Habeas Corpus, it is concurrent
with RTC, CA, Supreme Court and Sandiganbayan.
B.
Appellate Jurisdiction
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
44
Q:
A:
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
45
Citizen
When it comes to martial law or suspension of the privilege of
the writ of habeas corpus, the Constitution itself grants standing to
all citizens.
CHAVEZ case:
Right to information on matters of public concern belongs to
the public. So, if you try to invoke that right, as a citizen, you have
standing.
MOA? Can you question it? You have standing as a citizen.
You invoke a public right.
2.
Concerned Citizen
The Supreme Court will allow if the question is of
transcendental importance. What is transcendental importance? It
is so important that it affect the life of the country.
For instance the deregulation of the oil industry (TATAD case).
It will result to change in prices, which is vital for us.
VFA, WTO these were resolved by the Supreme Court based
on transcendental importance because that will change the trade
relations with other countries.
DAVID vs. MACAPAGAL
State of emergency It was resolved because of transcendental
importance.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
46
3.
Voters
When you are challenging election laws, a voter has
standing. But it has to be emphasized because the Supreme
Court has narrowed it down. You can raise your right as a voter if
the provision of the law that you are questioning affects your
right as a voter. If it has no effect on your right as a voter, you
cannot question it.
For instance, I want to question absentee voting. But it has
nothing with you. You are not an absentee voter.
4.
Taxpayer
Legislative body/legislature
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
47
1.
or
2.
Q:
Why is it important?
Suppose I am a judge. I committed both a criminal and an
administrative offense.
Can I be charged before the Ombudsman?
A: For the administrative aspect, NO, because only the Supreme
Court has administrative jurisdiction over me.
Q: Can I be charged before the Ombudsman for purposes of
criminal investigation?
A: We have to make a distinction. If the act is related to the
performance or function, I cannot be investigated. But if the act
does not relate to performance or function, I can be investigated.
DOLALAS vs. CAOIBES
There was delay in rendering a decision and rendering an unjust
judgment. In this instance, there is a relation as to the function of a
judge. Therefore, the Ombudsman cannot conduct a preliminary
investigation.
But if the act has nothing to do for instance, rape the
Ombudsman can conduct a preliminary and charge me in court.
Earliest opportunity
There has to be distinction which you need to understand.
ESTARIJA vs. RANADA
The Ombudsman has no power to declare a law
unconstitutional. He was tried before the Ombudsman. He
forgot to raise the issue on constitutionality. At the Court of
Appeals, he remembered it. The CA said you are too late. You
should have raised it at the earliest opportunity.
The Supreme Court stated anyway, the Ombudsman has no
right to declare a law unconstitutional.
STA. ROSA vs. AMANTE
Somebody filed a case with the CAR. Then, to the CA. At the
CA, he remembered that the law is unconstitutional. So, he
raised it.
The Supreme Court said too late. You must have raised it
with the DAR.
Something seems to be wrong Can DAR declare a law
unconstitutional? If the Ombudsman cannot do it, how can DAR
do it? Maybe they forgot it.
Q: When do you raise the constitutionality of a law at the first
opportunity?
A: With the authority to declare a law unconstitutional. You do
it with the courts, not with these bodies.
SECTION 6.
The Supreme Court shall have administrative
supervision over all courts and the personnel thereof.
Nobody can discipline members of the judiciary, even the
clerk, the janitor, the stenographer, or the interpreter because
this is excluse.
It is contradictory to the Ombudsman. The Ombudman has
power, under the Constitution, to investigate all public officials.
But the court personnel and members of the judiciary, that is
exclusive with the Supreme Court. This has been asked twice.
Take note of the ruling of the Supreme Court in the cases of:
MACEDA vs. VASQUEZ
DOLALAS vs. CAOIBES
The Ombudman has 2 types of jurisdiction:
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
48
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
49
2.
3.
This only applies to the judiciary. This requirement does not apply to
CSC, Sec. of Labor, TRB, Military commission. So admin and quasijudicial bodies are not covered by this provision. There are so many
cases now, i.e. Padua. But there are one or two cases wherein the
SC forgets and it scolds the administative body for not applying
the Constitution. But the principle is: the provision does not apply
to administrative bodies.
Q: how extensive should it be? Must the decision state the facts
of both parties? The SC said no need. What is required by the
Constitution are the facts only which the judge believe to be true;
which serve as the basis for the decision.
Q: What is the only instance wherein you can write a decision
without stating the law and the facts? By way of exception, that is
20
found in BP 129 in cases of Memorandum decisions . BP 129
actually allows courts to write Memorandum decisions for
purposes of Convenience.
2.
Resolutions: Petition
reconsideration.
for
review,
Motion
for
thought that considering that the SB is a collegiate court, the cases must be
decided within 12 months. But SC decided in In Re: Sandiganbayan (?) the
CTA and the SB wiil be categorized with the MTC and the RTC. Why?
21
The problem before was that the SB is a collegiate court. So for many
Because, according to the SC, the CTA and the SB are special courts, they are
years I committed an error (he's not superhuman afterall! ;p) because I
not the ones contemplated by the Consti as regular courts
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
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3.
4.
So do not confuse this. They have asked this several times in the
Bar and even the examiners are precise about this. If they want
immunity under international law, they say it. If they say
immunity from local law, they also state it. So the examiners are
aware of these immunities that's why do not confuse them.
Doctrine of State immunity (DSI) will apply only when the suit
involves money claims against the government.
Philippine Aguila case: One department of government granted a
contract to A, X questioned it because the contract was awarded
without a bidding.So X wanted to have it annulled. The
government asked for immunity. But the said NO, X here is not
asking for any money. In fact, if you file an injunction, if you file
an annullment without asking for any money, the State has no
business invoking immunity from suit. The reason is obvious
because if the doctrine of immunity from suit can be invoked in
any situation, we will have no recourse against the government.
For example, you challenge the law for being unconstitutional.
The Government says: You cannot do that! We are immune from
suit. So that is very clear in the Aguila decision, if you are not
asking for any money, the government cannot invoke immunity
from suit.
3.
What is an example where this DSI applies? DSI also applies to high
government officials because they are indirectly benefited by it, for
as long as they do their acts in a legal manner.
Liability For Damages in Performance of Official Functions (Bar
Question: 1990)
No. 10: The Secretary of Public Works, after an investigation,
ordered the demolition of the fishpond of X as a nuisance per se on
the ground that it encroached on navigable rivers and impeded the
use of the rivers. The Secretary submitted to the President of the
Philippines a report of said investigation, which report contained
clearly libelous matters adversely affecting the reputation of X, a
well-known civic and religious leader in the community. The
Supreme Court later found that the rivers were man-made and were
constructed on private property owned by X.
(1) May X recover damages from the Secretary of Public Works for
the cost involved in rebuilding the fishponds and for lost profits?
State your reason.
Suggested Answer: No, because the Secretary is just doing his
functions. He conducted the same in a legal manner, in fact, he
conducted an investigation. While there may be a mistake, the same
will not result to liability on the government.
Well, he can sue but first ask consent from the State, because
without the State's consent, X cannot sue because the Secretary
here was acting in a lawful manner.
When Republic is sued by name EXCEPT: (meaning, even if the GRP is sued by
name, the suit will be allowed if) ultimate
liability will fall on the official responsible, not
on the Government itself.
When does ultimate liability fall on the
official responsible? So when either of the
two acts are present:
a. When the acts have no authority under law
b. When the act is with authority but performed
in illegal manner.
Outline of discussion:
1. Immunity
2. Liability
3. Enforceability
CONSENT
When is there Consent? Remember the principle that state cannot
be sued without consent. So how can the state give its consent?
A. EXPRESS CONSENT - This is the one favored. In fact, there are so
many cases that the SC is saying there is no such thing as implied
consent.
Generally, consent must be given by law; an act of
Congress. That is the idea when we say express consent.
Examples: Act 3083 - for contracts entered into by the State, it
may be sued. So this is a situation wherein there is general
consent. However, Congress can also pass a law giving consent
to be sued. So this is the case of Merit, wherein he was bumped
by an ambulance. So Congress enacted a law giving authority to
one person to sue the State which is very unusual. I doubt if this
will happen again. So in this case, this is called special consent.
Despite that general principle, there are situations where we
can consider that there is implied consent.
B. IMPLIED CONSENT 1.
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2.
3.
When the State accepts donations Before, this only applies when government accepts
conditional donation and the government does not
follow the conditions attached.
5.
Implied contract
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
53
than sixty days nor later than ninety days after the approval of
such amendment or revision.
Any amendment under Section 2 hereof shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be
held not earlier than sixty days nor later than ninety days after the
certification by the Commission on Elections of the sufficiency of
the petition.
Main principle: Amending and revising the constitution are acts of
sovereignty. Only the people can revise and amend the constitution
and no one else. All other entities can propose, but in the end, only
people can approve and ratify it. That's why they call it acts of
sovereignty.
Who can propose amendments or revision to the Constitution:
1. Congress upon votes - only instance in Constitution with
vote requirement.T What is the reason for the very high
voting requirement? The reason is that Congress is now
acting as a constituent body, that's why there has to be
3/4 majority. We call Congress as Constitutional Assembly.
Q: How does Congress convert itself to Constituent
body (hence requirement for high votes)? How
do you compute the ? Base it on the total
number of both HR and Senate (Mendoza); Base
it on separate voting, 3/4 HR, 3/4 Senate
(Bernas). Right now, the HR and the Senate is
divided. The Senate is following Bernas, the HR is
following Justice Mendoza.
2.
3.
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AMENDMENT OR REVISION TO CONSTITUTION (Article 17) Section 1. Any amendment to, or revision of, this Constitution
may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its
Members; or
(2) A constitutional convention.
Section 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a
petition of at least twelve 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 therein. No amendment under this section shall be
authorised within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the
exercise of this right.
Section 3. The Congress may, by a vote of two-thirds of all its
Members, call a constitutional convention, or by a majority vote
of all its Members, submit to the electorate the question of
calling such a convention.
Section 4. Any amendment to, or revision of, this Constitution
under Section 1 hereof shall be valid when ratified by a majority
of the votes cast in a plebiscite which shall be held not earlier
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Qualitative:
1. Revisions - implies a change that alters the basic
principle of government. So in revision, what is affected
is the basic principle of government -- republican to
parliamentary. I think it is same to assume, though the
SC did not rule on it, that removing term limits will only
involve amendments.
2. Amendment Procedural
1. Revision- may not be proposed by the people - only the
Congress can propose revision.
2. Amendment - may be proposed by the people
(by: Hanniyah )
- END -
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
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