Beruflich Dokumente
Kultur Dokumente
Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R
review materials, www.pinoylaw.net, etc.)
Ma. Luisa Angeles Ramos
POLITICAL LAW
Basis:
1. 1987 Constitution
2. 1973 and 1935 Constitutions
3. Organic laws made to apply to the Philippines
a. Philippine Bill of 1902
b. Jones Law of 1916
c. Tydings-McDuffie Law of 1934
4. Statutes, executive orders and decrees, and judicial decisions
5. US Constitution
Constitution
Statute
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say
That branch of public law which deals with the organization and operations of the
governmental organs of the State and defines the relations of the State with the
inhabitants of its territory.
intended not merely to meet existing intended primarily to meet existing conditions
conditions;
only;
it is the fundamental law of the State
it conforms to the Constitution
PHILIPPINE CONSTITUTION
1
It is the basic and paramount law to which all other laws must conform and to
which all persons, including the highest officials of the land, must defer. No act shall be
valid, however noble its intention, if it conflicts with the Constitution. The Constitution
must ever remain supreme. All must bow to the mandate of this law. Right or wrong, the
Constitution must be upheld as long as the sovereign people have not changed it.
Classification:
1. Written or unwritten
Written
Unwritten
-one whose precepts are embodied in one -consists of rules which have not been
document or set of documents
integrated into a single, concrete form but
are scattered in various sources
Examples: a. statutes of fundamental
character;
b. judicial decisions;
c. commentaries of publicists;
d. customs and traditions;
e. certain common law principles
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That written instrument enacted by direct action of the people by which the
fundamental powers of the government are established, limited and defined, and by
which those powers are distributed among the several departments for their safe and
useful exercise for the benefit of the body politic.
say
Constitutionit is the document which serves as the fundamental law of the State; that
body of rules and maxims in accordance with which the power of sovereignty are
habitually exercised.
Flexible
2
-one that can be amended only by a formal -one that can be changed by ordinary
and usually difficult process
legislation
Interpretation:
1. Verba Legiswhenever possible, the words used in the Constitution must be
given their ordinary meaning except where technical terms are employed.
2. When there is Ambiguityratio legis et anima--A doubtful provision shall be
examined in the light of the history of the times and the conditions and
circumstances under which the Constitution was framed. (Civil Liberties Union
vs. Executive Secretary, 194 SCRA 317)
say
whole. (Francisco vs. HR, G.R. No. 160261, November 10, 2003)
If the plain meaning of the word is not found to be clear, resort to other aids is
availableconstrue the Constitution from what appears upon its face. The proper
interpretation, therefore, depends more on how it was understood by the people
adopting it than in the framers understanding thereof.
In case of doubt, the provision should be considered as self-executing;
mandatory rather than directory; and prospective rather than retroactive.
Self-executing provisionone which is complete in itself and becomes operative
without the aid of supplementary or enabling legislation, or that which supplies a
sufficient rule by means of which the right it grants may be enjoyed or protected.
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the rights of the parties as if the statute had no existence. Certain legal effects
of the statute prior to its declaration of unconstitutionality may be recognized.
Thus, a public officer who implemented an unconstitutional law prior to the
declaration of unconstitutionality cannot be held liable (Ynot vs. IAC).
Partial Unconstitutionality
Requisites:
a. The legislature must be willing to retain the valid portion(s), usually shown by
the presence of a separability clause in the lawINTENT OF THE
LEGISLATIVE; and
b. The valid portion can stand independently as lawINDEPENDENCE OF
THE PROVISIONS.
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say
a. Constitution of Libertysets forth the fundamental civil and political rights of the
PREAMBLE
4
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say
ARTICLE I
NATIONAL TERRITORY
5
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say
The national territory comprises the Philippine archipelago, with all the islands
and waters embraced therein, and all other territories over which the Philippines
has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial
domains, including its territorial sea, the seabed, the subsoil, the insular shelves,
and other submarines areas. The waters around, between and connecting the
islands of the archipelago, regardless of their breadth and dimensions, form part
of the internal waters of the Philippines.
What was the basis of the Philippines claim over the Spratlys?
Through discovery of Tomas Cloma and occupation
Modes of acquiring territories:
1. Discovery and Occupationwhich are terra nullius (land belonging to no one)
Doctrine of Effective Occupationdiscovery alone is not enough. Mere discovery gives
only an inchoate right to the discoverer. For title to finally vest, discovery must be followed by
effective occupation in a reasonable time and attestation of the same.
2. Cession by Treaty. Examples are Treaty of Paris, treaty between France and US
ceding Louisiana to the latter and treaty between Russia and US ceding Alaska to
the latter;
3. Prescriptionwhich is a concept under the Civil Code. Territory may also be
acquired through continuous and uninterrupted possession over a long period of
time. However, in international law, there is no rule of thumb as to the length of time
for acquisition of territory through prescription. In this connection, consider the
Grotius Doctrine of immemorial prescription, which speaks of uninterrupted
possession going beyond memory.
4. Conquest or Subjugation (conquistadores)this is no longer recognized,
inasmuch as the UN Charter prohibits resort to threat or use of force against the
territorial integrity or political independence of any state; and
5. Accretionanother concept in the Civil Code. It is the increase in the land area of
the State, either through natural means, or artificially, through human labor.
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Do you consider the Spratlys group of Islands as part of our National Territory?
Yes. Article I of the Constitution provides: The national territory comprises the
Philippine archipelago, x x x, and all other territories over which the Philippines has
sovereignty or jurisdiction, x x x. The Spratlys Group of islands falls under the second
phrase and all other territories over which the Philippines has sovereignty or
jurisdiction. It is part of our national territory because Philippines exercise sovereignty
(through election of public officials) over Spratlys Group of Islands.
say
and effective occupation and control. Thus, in accordance with the international law, the
Spratlys Group of islands is subject to the sovereignty of the Philippines.
Philippine Archipelago:
1. Treaty of Paris, December 10, 1898Cession of the Philippine Islands by
Spain to the United States;
2. Treaty between Spain and US at Washington, November 7, 1900inclusion
of Cagayan, Sulu and Sibuto;
7
xxx The waters around, between and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form part of the internal waters of the
Philippines.
This second sentence of Article I is not the Archipelago Doctrine. This is only
our restatement/reaffirmation of our adherence to the Archipelago Doctrine
simply because we are an archipelago consisting of 7,107 islands. It is essential
for our national survival that we adhere to the archipelago principle.
Archipelago Doctrinemerely emphasizes the unity of lands and waters. It is a body
of waters interconnected with other natural features. Under the United Nation
Convention on the Law of Sea (UNCLOS), it consists of drawing imaginary baseline
connecting the outermost islands of the archipelago in which all waters, islands is
considered as one integrated whole. An archipelago is defined as group of islands,
interconnecting waters and other natural features which are so closely interrelated that
such islands, waters and natural features form an intrinsic geographical, economical
and political entity, or which historically been regarded as such.
Correlate this doctrine to right of innocent of passage, right of arrival under stress
and UNCLOS requiring the designation of archipelagic seaways so that foreign vessels
may pas through an archipelago.
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say
2 Kinds of Archipelago:
1. Coastal
2. Mid-Ocean
like Indonesia. The Philippines is not in any way connected physically with the
Asia mainland.
Components of National Territory:
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say
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say
c. Territorial Seathe belt of the sea located between the coast and the
internal waters of the coastal state on the other hand, and the high seas
on the other, extending up to 12 nautical miles from the low-water mark, or
in the case of archipelagic states, from the baselines.
10
sea; this shall not exceed 24 nautical miles from the archipelagic
baselines.
The coastal state may exercise limited jurisdiction over the
contiguous zone:
1. To prevent infringement of customs, fiscal immigration or
sanitary laws and regulations within its territory or territorial
sea; and
2. To punish infringement of the above laws and regulations
committed within its territory.
e. Exclusive Economic Zoneshall not extend beyond 200 nautical miles
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say
Baselineis a line from which the breadth of the territorial sea, the
contiguous zone and the exclusive economic zone is measured in order to
determine the maritime boundary of the coastal state.
Types of baseline:
i. Normal Baseline Method
ii. Straight Baseline method
The continental shelf does not form part of the Philippine territory. The
Philippines has the sovereign rights over the continental shelf for the purpose of
exploring it and exploiting its natural resources.
g. High Seastreated as res communes, thus, not territory of any particular
State. These are the waters which do not constitute the internal waters,
archipelagic waters, territorial sea and exclusive economic zones of a
state. They are beyond the jurisdiction and sovereign rights of States.
Freedom of navigationrefers to the right to sail ship on the high sea,
subject to international law and the laws of the flag of the state.
11
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say
12
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say
III.Aerialthis refers to the air space above the land and waters of the State.
(See Discussions under International Law)
ARTICLE II
13
Republicanism
What is a republican form of government?
It is a government of the people, by the people, and for the people, a representative
government wherein the powers and duties of government are exercised and
discharged for the common good and welfare.
Characteristics of a republican form of government:
1. The people do not govern themselves directly but through their representatives;
2. It is founded upon popular suffrage;
3. There is the tripartite system of the government, the mutual interdependence of
the three departments of the government.
STATEa community of persons, more or less numerous, permanently occupying a
definite portion of territory, independent of external control, and possessing a
government to which a great body of inhabitants render habitual obedience. (CIR vs.
Campos Rueda, 42 SCRA 23)
State
-is a legal or juristic concept
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2. Manifestations:
Ours is a government of law and not of men (Villavicencio vs. Lukban, 39
Phil 778).
Rule of the majority. (Plurality in elections)
Accountability of public officials
Bill of rights
Legislature cannot pass irrepealable laws.
Separation of powers.
say
Nation
-is an ethnic or racial concept
State
Government
-possesses a government to which a great -merely an instrumentality of the State
14
body of inhabitants
obedience
render
Elements of State:
1. Peoplethe
inhabitants of the State; the # of which is capable for selfsufficiency and self-defense; of both sexes for perpetuity.
a. Inhabitants;
b. Citizens;
c. Electors.
fixed portion of the surface of the earth inhabited by the people of
the State.
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2. Territorya
say
Republican stateone constructed on the principle that the supreme power resides in
the body of the people. Its purpose therefore is to guarantee against two (2) extremes:
1. On the one hand, monarchy and oligarchy;
2. On the other, pure democracy.
15
It embodies interdependence
separation and coordination.
Parliamentary
There is fusion of both executive and
legislative powers in Parliament,
although the actual exercise of the
executive powers is vested in a Prime
Minister who is chosen by, and
accountable to, Parliament.
by It embodies
integration.
interdependence
by
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Forcesestablished
and
maintained by the military forces
who invade and occupy a
territory of the enemy in the
course of war;
c. Independent
Government
established by the inhabitants of
the country who rise in
insurrection against the parent
State.
say
16
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say
It is the right to exercise the functions of a State to the exclusion of any other
State.
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It necessarily includes the power to alienate what is owned. It was the foundation
for the early Spanish decrees embracing the feudal theory of jura regalia that all lands
were held from the Crown.
say
Dominiumis the capacity of the State to own or acquire property such as lands and
natural resources. (Lee Hong Hok vs. David, No. L-30389, December 27, 1972;
Separate Opinion of Justice Kapunan in Cruz vs. Secretary of DENR, G.R. No.
135385, December 2000)
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Sec. 2, Article II
(Incorporation Clause)
The Philippine renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land
and adheres to the policy of peace, equality, justice, freedom, cooperation, and
amity with all nations.
say
the state even if the individual is outside the territory of the State.
c. Extraterritorialpower of the State over persons, things or acts beyond its
territorial limits by reason of their effects to its territory.
Doctrine of Autolimitation
It is the doctrine where the Philippines adheres to principles of international law
as a limitation to the exercise of its sovereignty.
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Philip Morris, Inc. vs. CA, the fact that the international law has been made part
of the law of the land does not by any means imply the primacy of international law over
national law in the municipal sphere.
say
Lex posterior derogate prioriin States where the constitution is the highest
law of the land, both statutes and treaties may be invalidated if they are in conflict with
the Constitution. (Secretary of Justice vs. Lantion, G.R. No. 139465, January 18,
2000)
Sec. 6, Article XVIThe State shall establish and maintain one police force, which
shall be national in scope and civilian in character, to be administered and controlled by
a national police commission. The authority of local executives over the police units in
their jurisdiction shall be provided by law.
IBP vs. Zamora, G.R. No. 141284, August 15, 2000, the deployment of the
20
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Marines does not constitute a breach of the civilian supremacy clause. The calling of the
marines in this case constitutes permissible use of military asset for civilian law
enforcement. x x x The limited participation of the Marines is evident in the provisions of
the Letter of Instruction (LOI) itself, which sufficiently provides the metes and bounds of
the Marines authority. It is noteworthy that the local police forces are the ones charge of
the visibility patrols at all times, the real authority belonging to the PNP. In fact, the
Metro Manila Police Chief is the overall leader of the PNP-Marines joint visibility patrols.
Under the LOI, the police forces are tasked to brief or orient the soldiers on police patrol
procedures. It is their responsibility to direct and manage the deployment of the
marines. It is, likewise, their duty to provide the necessary equipment to the Marines
and render logistic support to these soldiers. In view of the foregoing, it cannot be
properly argued that military authority is supreme over civilian authority.
It is worth mentioning that military assistance to civilian authorities in various
forms persists in Philippine jurisdiction. The Philippine experience reveals that it is not
averse to requesting the assistance of the military in the implementation and execution
of certain traditionally civil functions. x x x Some of the multifarious activities wherein
military aid has been rendered, exemplifying the activities that bring both the civilian and
the military together in a relationship of cooperation are:
1. Elections;
2. Administration of the Philippine National Red Cross;
3. Relief and rescue operations during calamities and disasters;
4. Amateur sports promotion and development;
5. Development of the culture and the arts;
6. Conservation of the natural resources;
7. Implementation of the agrarian reform program;
8. Enforcement of customs laws;
9. Composite civilian-military law enforcement activities;
10. Conduct of licensure examinations;
11. Conduct of nationwide test for elementary and high school students;
12. Anti-drug enforcement activities;
13. Sanitary inspections;
14. Conduct of census work;
15. Administration of the Civil Aeronautic Board;
16. Assistance in installation of weather forecasting devices;
17. Peace and order policy formulation in local government units.
This unquestionably constitutes a gloss on executive power resulting from a
systematic, unbroken, executive practice, long pursued to the knowledge of Congress
and, yet, never before questioned. What we have here is a mutual support and
cooperation between the military and civilian authorities, not derogation of civilian
supremacy.
say
Sec. 4, Article II
The prime duty of the Government is to serve and protect the people. The
21
Government may call upon the people to defend the State and, in the fulfillment
thereof, all citizens may be required, under conditions provided by law, to render
personal military or civil service.
In People vs. Lagman, 66 Phil. 13, the accused in this case, prosecuted for
failure to register for military service under the National Defense Act, assailed the
validity of the Act. The Supreme Court upheld the law on the basis of the compulsory
military and civil service provision of then 1935 Constitution. It said that: x x x. The duty
of the Government to defend the State cannot be performed except through an army.
To leave the organization of an army to the will of the citizens would be to make this
duty to the Government excusable should there be no sufficient men who volunteer to
enlist thereinx x x the right of the Government to require compulsory military service
is a consequence of its duty to defend the State and is reciprocal with its duty to defend
the life, liberty, and property of the citizen. x x x.
Sec. 5, Article II
The maintenance of peace and order, the protection of life, liberty, and property,
and the promotion of the general welfare are essential for the enjoyment by all
the people of the blessings of democracy.
Right to bear arms: It is statutory and not a constitutional right. The license to carry a
firearm is neither a property nor a property right. Neither does it create a vested right.
Even if it were a property right, it cannot be considered absolute as to be placed beyond
the reach of police power. The maintenance of peace and order, and the protection of
the people against violence are constitutional duties of the State, and the right to bear
firearm is to be construed in connection and in harmony with these constitutional duties.
(Chavez vs. Romulo, G.R. No. 157036, June 9, 2004)
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Posse Commitatusit is the power of the state to require all able-bodied citizens to
perform civic duty to maintain peace and order.
say
Sec. 6, Article II
The separation of Church and State shall be inviolable.
22
The State should not use its money and coercive power to establish religion. It
should not support a particular religion. The State is prohibited from interfering with
purely ecclesiastical affairs. But it does not mean that there is total or absolute
separation. The better rule is symbiotic relations between the church and State.
Austria vs. NLRC and CPU Mission Corp. of the 7th Day Adventists, G.R. No.
124382, August 16, 1999, an ecclesiastical affair involves the relationship between the
church and its members and relates to matter of faith, religious doctrines, worship and
governance of the congregation. Examples of these affairs in which the State cannot
meddle are proceedings for excommunication, ordination of religious ministers,
administration of sacraments, and other activities to which is attached religious
significance. In this case, what is involved is the relationship of the church as an
employer and the minister as an employee. It is purely secular and has no relation
whatsoever with the practice of faith, worship or doctrine of the church.
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prohibiting the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be allowed.
No religious test shall be required for the exercise of civil and political rights.
say
STATE POLICIES
23
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The word relations covers the whole gamut of treaties and international
agreements and other kinds of intercourse. This is the closest reference to military
bases.
say
Sec. 7, Article II
(Independent Foreign Policy)
The State shall pursue an independent foreign policy. In its relations with other
states the paramount consideration shall be national sovereignty, territorial
integrity, national interest, and the right to self-determination.
It reflects a preoccupation with poverty as resulting from structures that mire the
people in a life of dependence.
Sec. 10, Article II
24
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say
(Social Justice)
The State shall promote social justice in all phases of national development.
(Read Sections 1 and 2 of Article XIII)
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say
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say
policy of not accepting or considering as disqualified from work any woman worker who
contracts marriage, runs afoul of the test of, and the right against, discrimination, which
is guaranteed all women workers under the Constitution. While a requirement that a
woman employee must remain unmarried may be justified as a bona fide occupational
qualification where the particular requirements of the job would demand the same,
discrimination against married women cannot be adopted by the employer as a general
principle.
PMMS, Inc. vs. CA, 244 SCRA 770, the Court said that the requirement that a
school must first obtain government authorization before operating is based on the
State policy that educational programs and/or operations shall be of good quality and,
therefore, shall at least satisfy minimum standards with respect to curricula, teaching
staff, physical plant and facilities and administrative and management viability.
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In PRC vs. De Guzman, G.R. No. 144681, June 21, 2004, while it is true that
the SC has upheld the constitutional right of every citizen to select a profession or
course of study subject to fair, reasonable, and equitable admission and academic
requirements, the exercise of this right may be regulated pursuant to the police power of
the State to safeguard health, morals, peace, education, order, safety and general
welfare. Thus, persons who desire to engage in the learned professions requiring
scientific or technical knowledge may be required to take an examination as a
prerequisite to engaging in their chosen careers. This regulation assumes particular
pertinence in the field of medicine, in order to protect the public from the potentially
deadly effects of incompetence and ignorance.
say
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Aside from envisioning a trade policy based on equality and reciprocity, the
fundamental law encourages industries that are competitive in both domestic and
foreign markets, thereby demonstrating a clear policy against a sheltered domestic
trade environment, but one in favor of the gradual development of robust industries that
can compete with the best in the foreign markets. (Taada vs. Angara, 272 SCRA 18)
say
The Constitution does not necessarily rule out the entry of foreign investments,
goods and services. It contemplates neither economic seclusion nor mendicancy in
the international community.
Decentralization of Administration
Decentralization of Power
-delegation of administrative powers to the -abdication by the national government of
local government unit in order to broaden governmental powers
the base of governmental powers.
Page 307/12/2008
say
Lina vs. Pano, G.R. No. 129093, August 30, 2001, the Sc said that the basic
relationship between the national legislature and the local government units has not
been enfeebled by the new provisions in the Constitution strengthening the policy of
local autonomy. Without meaning to detract from that policy, Congress retains control of
the LGUs although in a significantly reduced degree now under our previous
Constitutions. The power to create still includes the power to destroy. The power to
30
Pamatong vs. COMELEC, G.R. No. 161872, April 13, 2004, the SC said that this
provision does not bestow a right to seek the Presidency; it does not contain a judicially
enforceable constitutional right and merely specifies a guideline for legislative action.
The provision is not intended to compel the State to enact positive measures that would
accommodate as many as possible into public office. The privilege may be subjected to
limitations. One such valid limitation is the provision of the Omnibus Election Code on
nuisance candidates.
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Judge Dadole vs. COA, G.R. No. 125350, December 3, 2002, even as we recognize
that the Constitution guarantees autonomy to LGUs, the exercise of local autonomy
remains subject to the power of control by Congress and the power of general
supervision by the President. xxx The President can only interfere in the affairs and
activities of a LGU if he finds that the latter had acted contrary to law. The President or
any of his alter egos, cannot interfere in local affairs as long as the concerned LGU acts
within the parameters of the law and the Constitution. Any directive, therefore, by the
President or any of his alter egos seeking to alter the wisdom of a law-conforming
judgment on local affairs of a LGU is a patent nullity, because it violates the principle of
local autonomy, as well as the doctrine of separation of powers of the executive and
legislative departments in governing municipal corporations.
say
grant still includes the power to withhold or recall. True there are notable innovations in
the Constitution, like the direct conferment on the LGUs of the power to tax which
cannot now be withdrawn by mere statute. By and large, however, the national
legislature is still the principal of LGUs, which cannot defy its will or modify or violate it.
Ours is still a unitary form of government, not a federal state. Being so, any form of
autonomy granted to local governments will necessarily be limited and confined within
the extent allowed by the central authority.
31
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say
In Maceda vs. Vasquez, 221 SCRA 464, in the absence of any administrative
action taken against the RTC Judge by the SC with regard to the formers certificate of
service, the investigation conducted by the Ombudsman encroaches into the SCs
power of administrative supervision over all courts and its personnel, in violation of the
32
Justiciable question- implies a given right, legally demandable and enforceable, an act
or omission violative of such right, and a remedy granted and sanctioned by law for said
breach of right. (Casibang vs. Aquino, 92 SCRA 642)
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say
Principle of Blending of Powers: Instances when powers are not confined exclusively
within one department but are assigned to or shared by several departments.
Taxation
affects property rights
say
government; cannot be
delegated to administrative
body
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34
POLICE POWER
It is the power of promoting public welfare by restraining and regulating the use
of liberty and property.
It is the power vested by the Constitution in the legislature to make, ordain, and
establish all manner of wholesome and reasonable laws, statutes and ordinances,
either with penalties or without, not repugnant to the Constitution, as they shall judge to
be for the good and welfare of the commonwealth, and for the subjects of the same.
The power is plenary and its scope is vast and pervasive, reaching and justifying
measures for public health, public safety, public morals, and the general welfare.
It is the power to prescribe regulations to promote the health, morals, peace,
education, good order or safety and general welfare of the people (now common good).
(Binay vs. Domingo, 201 SCRA 508)
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say
invalid, because the COMELEC would not pay for the space to be given to it by the
newspapers.
It has been described as the most essential, insistent and the least limitable of
powers, extending as it does to all the great public needs. It is the power vested in the
legislature to make, ordain, and establish all manner of wholesome and reasonable
laws, statutes and ordinances, either with penalties or without, not repugnant to the
Constitution, as they shall judge to be for the good and welfare of the commonwealth,
and for the subjects of the same. (Carlos Superdrug Corp. vs. DSWD, G.R. No.
166494, June 29, 2007)
Cabrera vs. Lapid, G.R. No. 129098, December 6, 2006, a careful reading of the
questioned Resolution reveals that the Ombudsman dismissed petitioners criminal
35
Requisites (Limitations):
1. Lawful subjectthe interests of the public in general as distinguished from
those of a particular class, require the exercise of this power.
2. Lawful meansthe means employed are reasonably for the accomplishment of
the purpose, and not unduly oppressive on individuals.
say
complaint because respondents had validly resorted to the police power of the State
when they effected the demolition of the illegal fishpond in question following the
declaration thereof as a nuisance per se. in the words of the Ombudsman, those who
participated in the blasting of the subject fishpond were only impelled by their desire to
serve the best interest of the general public; for the good and the highest good.
Construction: construed strictly and any doubt must be resolved against the grant.
Scope/Characteristics:
It is the most pervasive, least limitable, and the most demanding of the three
powers. The justification is found in: salus populi est suprema lex (the welfare of the
people is the supreme law) and sic utere tuo ut alienum non laedas (use your property
so as not to impair others).
1. It cannot be bargained away through the medium of a treaty or a contract.
2. The taxing power may be used as an implement of police power
3. Eminent domain may be used as an implement to attain the police power
objective (Association of Landowners vs. Secretary of Agrarian Reform,
175 SCRA 343).
4. In Ortigas & Co. vs. CA, G.R. No. 126102, December 4, 2000, nonimpairment of contracts or vested rights clauses will have to yield to the
superior and legitimate exercise by the State of the police power.
5. In PRC vs. De Guzman, G.R. No. 144681, June 21, 2004, the exercise of
the constitutional right of every citizen to select a profession or course of
study may be regulated pursuant to the police power of the State to safeguard
health, morals, peace, education, order, safety, and the general welfare of the
people. This regulation assumes particular pertinence in the field of medicine,
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Affected with public interestan industry is subject to control for the public
good; it has been considered as the equivalent of subject to the exercise of police
power.
36
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In Chavez vs. Romulo, 431 SCRA 534, the right to bear arms is merely
statutory privilege. The license to carry firearm is neither a property nor a property right.
Neither does it create a vested right. A permit to carry outside ones residence may be
revoked at any time. Even if it were a property right, it cannot be considered as absolute
as to be beyond the reach of the police power.
say
to protect the public from the potentially dead effects of incompetence and
ignorance.
Section 11, Article Xthe Congress may, by law, create special metropolitan
political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The
component cities and municipalities shall retain their basic autonomy and shall be
entitled to their own local executives and legislative assemblies. The jurisdiction of the
metropolitan authority that will thereby be created shall be limited to basic services
requiring coordination.
MMDA is not a special metropolitan political subdivision.
37
Page 387/12/2008
However, in MMDA vs. Garin, G.R. No. 130230, April 15, 2005, although the
law (RA 7924) does not grant the MMDA the power to confiscate and suspend or
revoke drivers licenses without need of any legislative enactment, the same law vests
the MMDA the duty to enforce existing traffic rules and regulations. Thus, where there is
a traffic law or regulation validly enacted by the legislature or those agencies to whom
legislative power has been delegated, the MMDA is not precludedand in fact is dutyboundto confiscate and suspend or revoke drivers licenses in the exercise of its
mandate of transport and traffic management, as well as the administration and
implementation of all traffic enforcement operations, traffic engineering services and
traffic education programs.
Additional Limitations (When exercised by delegate):
a. express grant by law
b. within territorial limits (for local government units, except when exercised to
protect water supply)
c. must not be contrary to law
say
Republic vs. Manila Electric Company, G.R. No. 141314, November 15,
2002, the regulation of rates to be charged by public utilities is founded upon the police
power of the State and statutes prescribing rules for the control and regulations of public
utilities are a valid exercise thereof. When a private property is used for a public
purpose and is affected with public interest, it ceases to be juris privati only and
becomes subject to regulation. The regulation is to promote the common good.
Submission to regulation may be withdrawn by the owner by discontinuing use; but as
long as the use of the property is continued, the same is subject to public regulation.
In regulating rates charged by public utilities, the State protects the public against
arbitrary and excessive rates while maintaining the efficiency and quality of services
rendered. However, the power to regulate rates does not give the State the right to
prescribe rates which are so low as to deprive the public utility of a reasonable return on
investment.
Page 397/12/2008
say
regulatory in nature. The authority, which devolved upon local government units, to
issue or grant such licenses or permits, is essentially in the exercise of the police power
of the State within the contemplation of the general welfare clause of the LGC.
Philippine Press Institute (PPI) vs. COMELEC, 244 SCRA 272, Section 2 of
COMELEC Resolution No. 2772, which mandates newspapers of general circulation in
every province or city to provide free print space of not less than page as COMELEC
space, was held to be invalid exercise of police power there being no showing of the
existence of national emergency or imperious public necessity for the taking of print
39
space, nor that the resolution was the only reasonable and calibrated response to such
necessity.
there must
compensation
be
payment
of
Page 407/12/2008
e.g. CONCERN FOR THE POORSC recognized this as one for public purpose
and use.
say
Public purpose and use has broader concept now. It now includes VICARIOUS
BENEFITS that society may derive from a particular measure.
40
In the case of Republic vs. CA, G.R. No. 146587, July 2, 2002, the power of
eminent domain must, by enabling law, be delegated to local governments by the
national legislature, and thus, can only be as broad as the real authority would want it to
be. The grant of the power to local government units under RA 7160 cannot be
understood as equal to the pervasive and all encompassing power vested in the
legislative branch of government.
JIL School Foundation vs. Municipality of Pasig, G. R. No. 152230, August
9, 2005Sec. 19, of the LGC requires the LGU to tender a prior written definite and
valid offer to acquire the property before the filing of the complaint for eminent domain.
Filstream Intl Inc. vs. CA, 284 SCRA 716the exercise of the power of
eminent domain is clearly superior to the final and executor judgment rendered by the
court in an ejectment case.
Page 417/12/2008
say
Object of Expropriation:
1. anything that comes under the dominion of man
2. real, personal, tangible and intangible
3. property right
4. churches and other religious properties
5. property already devoted to public use
41
Requisites:
1. Necessitywhen exercised by:
a. Congressit is a political question; (Municipality of Meycauayan,
Bulacan vs. IAC, 157 SCRA 640)
b. Delegatethe determination of whether there is a genuine necessity for
the exercise is a justiceable question (Republic vs. La Orden de Po.
Benedictinos, 1 SCRA 649).
say
Lagcao vs. Judge Labra, G.R. No. 155746, October 13, 2004there was no
showing at all why petitioners property was singled out for expropriation by the city
ordinance or what necessity impelled the particular choice or selection. The ordinance
stated no reason for the choice of petitioners property as the site of a socialized
housing project.
Page 427/12/2008
The RTC has the power to inquire to the legality of the exercise of the right of
eminent domain and to determine whether there is a genuine necessity for it (Bardillon
vs. Brgy. Masili of Calamba, Laguna, G.R. No. 146886, April 30, 2003).
The taking of private property may include the impairment of the use of the
property for which it was intended. In US vs. Causby, 328 US 256, the flight of planes
from a nearby military airport over plaintiffs property below the navigable airspace
resulting in the ruin of plaintiffs chicken farm was considered compensable taking. So
also were low landing and take-off flights which made nearby residential area unlivable
(Griggs vs. Allegheny County, 369 US 84). This is taking in the constitutional sense.
Page 437/12/2008
say
CANORECO vs. CA, G.R. No. 109338, November 20, 2000, The owner of the
property cut the electric lines alleging that it impaired him of the use of his property. The
SC held that the property owner was not justified in cutting the electric lines. His
property becomes the servient estate subject to the encumbrance, and the acquisition
of an easement of right of way filed by an electric power company for the construction of
transmission lines falls within the purview of the power of eminent domain. However,
43
In People vs. Fajardo, 104 Phil. 44, a municipal ordinance prohibiting a building
which would impair the view of the plaza from the highway was considered taking. The
property owner was held to be entitled to payment of just compensation.
In Velarma vs. CA, 252 SCRA 400, the owner of the property can recover
possession of the property from squatters, even if he agreed to transfer the property to
the Government, until the transfer is consummated or the expropriation case is filed.
The private property is taken in order to The purpose of taking is to destroy the
convert it to public use
property because it is harmful or
obnoxious to the public.
Page 447/12/2008
since there was an impairment of the use of the property, he is entitled to the payment
of just compensation.
The establishment of an easement is a form of compensable taking. In
NAPOCOR vs. Sps. Gutierrez, G.R. No. 60077, January 18, 1991, the owner of the
land was awarded full compensation against the NAPOCORs argument that the owners
were not totally deprived of the use of the land and could still plant the same crops as
long as they did not come into contact with the wires. The Court said: the right of way
easement perpetually deprives defendants of their proprietary rights as manifested by
the imposition by the plaintiff upon defendants that below said transmission lines no
plant higher than 3 meters is allowed. Furthermore, because of the high-tension current
conveyed through the transmission lines, danger to life and limbs that may be caused
beneath said wires cannot altogether be discounted, and to cap it all, plaintiff only pays
the fee to defendant once, while the latter shall continually pay the taxes due on said
affected portion of their property.
say
Philippine Press Institute (PPI) vs. COMELEC, 244 SCRA 272, Section 2 of
COMELEC Resolution No. 2772, which mandates newspapers of general circulation in
every province or city to provide free print space of not less than page as COMELEC
space, was held to be an exercise of power of eminent domain, albeit invalid, because
the COMELEC would not pay for the space to be given to it by the newspapers.
44
Shifting argument alleged in TELEBAP: both PPI and TELEBAP are media of communication
and information. Equal protection clause was raised as an issue. The SC ruled that equal
protection clause does not guarantee absolute equality. There may be classification. Persons or
things ostensibly similarly situated may, nonetheless, be treated differently if there is a basis for
valid classification.
Page 457/12/2008
TELEBAP, Inc. vs. COMELEC, 289 SCRA 1998, the constitutionality of Sec. 92
of BP 881 (requiring radio and television station owners and operators to give to the
COMELEC radio and television time free of charge) was challenged on the ground that
it violated the due process clause and the eminent domain provision of the Constitution
by taking airtime from radio and television broadcasting stations without payment of just
compensation. The SC held that all broadcasting, whether by radio or by television
stations, is licensed by the government. Airwaves frequencies have to be allocated as
there are more individuals who want to broadcast than there frequencies to assign. A
franchise is thus a privilege subject, among other things, to amendment by Congress in
accordance with the constitutional provision that any such franchise or right granted x x
x shall be subject to amendment, alteration or repeal by the Congress when the
common good so requires (Art. XII, Sec.11).
In the granting of the privilege to operate broadcast stations and thereafter
supervising radio and television stations, the State spends considerable public funds in
licensing and supervising such stations. It would be strange if it cannot even require the
licensees to render public service by giving free airtime. x x x As radio and television
broadcast stations do not own the airwaves, no private property is taken by the
requirement that they provide airtime to the COMELEC.
say
45
In Estate of Salud Jimenez vs. PEZA, 349 SCRA 240, public use is whatever
may be beneficially employed for the general welfare.
Page 467/12/2008
In Filstream Intl Inc. vs. CA, 284 SCRA 716, the fact that the property is less
than hectare and that only a few could actually benefit from the expropriation does
not diminish its public use character, inasmuch as public use now includes the broader
notion of indirect public benefit or advantage, including, in particular, urban land reform
and housing.
say
It has been broadened to include not only uses directly available to the public but
also those which redound to their indirect benefit; that only a few would actually benefit
from the expropriation of the property does not necessarily diminish the essence and
character of public use. (Manosca vs. CA, 252 SCRA 412)
In Francia, Jr. vs. Municipality of Meycauayan, G.R. No. 170432, March 24,
2008, the Supreme Court held that the determination of a public purpose for the
expropriated property is not a condition precedent before a court may issue a writ of
possession. Once the requisite in Sec. 19 of the Local Government Code are satisfied,
the issuance of the writ becomes a ministerial matter for the court.
5. Just Compensationthe full and fair market value of the property taken; it is
the fair market value of the property. It is settled that the market value of the
46
consequential
(CD)
Page 477/12/2008
say
property is that sum of money which a person, desirous but not compelled to
buy, and an owner, willing but not compelled to sell, would agree on a price to be
given and received therefor.
Association of Small Landowners vs. DAR, 175 SCRA 343 (1989) the power of
eminent domain could be used as an implement of police power. The expressed
objective of the law was the promotion of the welfare of the farmers, which came clearly
under the police power of the state. To achieve this purpose, the law provided for the
expropriation of agricultural lands (subject to minimum retention limits for the
landowners) to be distributed among the landless peasantry.
DARAB determines just compensation (exception to the general rule that courts decide
the value)
DAR may make initial valuation; owner goes to court if not satisfied.
Expropriation may be initiated by court action or by legislation. In both instances,
just compensation is determined by the courts.
In Republic vs. Salem Investment Corporation, et al., G.R. No. 137569, June 23,
2000, the Supreme Court held that it is only upon payment of just compensation that
title over the property passes to the government. Therefore, until the action for
expropriation has been completed and terminated, ownership over the property being
expropriated remains with the registered owner. Consequently, the latter can exercise
all rights pertaining to an owner, including the right to dispose of his property, subject to
the power of the State ultimately to acquire it through expropriation.
Page 487/12/2008
say
The Dela Ramas make much of the fact that ownership of the land was
transferred to the government because the equitable and the beneficial title were
already acquired by it in 1983, leaving them with only the naked title. However, xxx the
recognized rule, indeed, is that title to the property expropriated shall pass from the
owner to the expropriator only upon full payment of just compensation.
48
Page 497/12/2008
Genuine Necessity
National legislationquestion of necessity is POLITICAL; judiciary has no power
to inquire.
Delegateliberally in favor of the private property owner; judiciary can inquire
into whether the authority conferred upon such delegate correctly and properly
exercised/ whether expropriation contemplated by the delegate necessary or wise.
say
Title to the property shall not be transferred until after actual payment of just
compensation is made to the owner.
49
Page 507/12/2008
When may the property owner be entitled to the return of the expropriated
property in eminent domain cases?
In Provincial Government of Sorsogon vs. Villaroya, the unpaid landowners were
allowed the alternative remedy of recovery of the property. The Court ruled that under
ordinary circumstances, immediate return to the owners of the unpaid property is the
obvious remedy.
However, in cases where land is taken for public use, public interest must be
considered. (Estate of Salud Jimenez vs. PEZA, 349 SCRA 240)
say
Page 517/12/2008
Republic vs. CA, G.R. No. 146587, July 2, 2002, in arguing for the return of
their property on the basis of non-payment, respondents ignored the fact that the right of
the expropriatory authority is far from that of an unpaid seller in ordinary sales to which
the remedy is rescission may perhaps apply. Expropriation is an in rem proceeding, and
after condemnation, the paramount title is in the public under a new and independent
title.
say
property shall revert to the former owner, then the former owner can re-acquire the
property. In this case, the terms of the judgment in the expropriation case were very
clear and unequivocal, granting title to the lot in fee simple to the Republic. No condition
on the right to repurchase was imposed. (Mactan-Cebu International Airport
Authority vs. CA, G.R. No. 139495, Novermber 27, 2000)
POWER OF TAXATIONis the power to demand from the members of society their
proportionate share/contribution in the maintenance of the government.
51
It is the power by which the State raises revenue to defray the necessary
expenses of the Government.
Importance of Taxation:
1. No constitutional government can exist without it;
2. It is one great power upon which the whole national fabric is based;
3. It is necessary for the existence and prosperity of the nation; and
4. It is the lifeblood of the nation.
Who may exercise? Generally, the legislature, but also upon valid delegation:
1. Lawmaking bodies of LGUs (Sec. 5, Art. X);
2. President (limited extent-delegated tariff powers), under Sec. 28 (2), Art. VI of
the Constitution or as an incident of emergency powers that Congress may
grant to him under Sec. 23 (2), art. VI.
Purpose: unavoidable obligation of the government to protect the people and extend
them benefits in the form of public projects and services.
Public purposeproceeds must be devoted to public use. It includes INDIRECT
public advantage/benefits. The mere fact that the tax will be directly enjoyed by private
individual does not make it INVALID so long as the same link to public welfare is
established.
Page 527/12/2008
say
Scope: covers persons, property or occupation to be taxed within the taxing jurisdiction.
It is so pervasive; it reaches even the citizens abroad and their income outside the
Philippines; all the income earned in the Philippines by a citizen or alien.
Requisites:
1. It must be for public purpose;
2. It shall be uniform;
3. Person or property taxed shall be within the jurisdiction of the taxing authority;
4. In assessment & collection, notice and hearing shall be provided.
Limitations on the Power of Taxation
Inherent limitations:
1. Public purpose;
52
Constitutional limitations:
1. Due process of lawtax should not be confiscatory.
Due process does not require previous notice and hearing before a law
prescribing fixed/specific taxes on certain articles may be enacted.
If the tax to be collected is to be based on the value of the taxable propertyad
valorem taxthe taxpayer is entitled to be notified of the assessment proceeding
and to be heard on the correct valuation.
2. Equal protection of lawtaxes should be uniform and equitable.
3. Uniformitypersons/things belonging to the same class shall be taxed at the
same rate
Equitabilitytaxes should be apportioned among the people according to their
capacity to pay
Progressivity
4. Non-impairment of contracts
5. Non-imprisonment for non-payment of poll tax
6. Revenue and tariff bills must originate in the HOR
7. Non-infringement of religious freedom
8. Delegation of legislative authority to the President to fix tariff rates, import and
export quotas, tonnage and wharfage dues
9. Tax exemption of properties actually, directly and exclusively used for religious,
charitable and educational purposes
10. Majority vote of all the members of Congress required in case of legislative
grant of tax exemptions
11. Non-impairment of the SCs jurisdiction in tax cases
12. Tax exemption of revenues and assets of, including grants, endowments,
donations, or contributions to, educational institutions.
say
Non-delegability of power;
Territoriality or Situs of taxation;
Exemption of government from taxation;
International comitygenerally accepted principles of international law
Page 537/12/2008
2.
3.
4.
5.
Double taxation is allowed by law. However, it will not be allowed if the same will
result in violation of the equal protection clause. What is prohibited is direct double
taxation.
Taxesthe enforced proportional contributions from persons and property levied by the
State by virtue of its sovereignty for the support of the government and for all public
needs.
LICENSE
Police powerto regulate
Rate or amount to be collected is unlimited Amount is limited to cost of: a)issuing the
provided it is not confiscatory
license; and b)necessary inspection of
police surveillance
3. AS TO OBJECT
Imposed on persons or property
4. AS TO EFFECT OF NON-PAYMENT
Business or activity does not become Business becomes illegal
illegal
Tax
Debt
due to the government in its sovereign due to the government in its corporate
capacity
capacity
Page 547/12/2008
TAX
1. AS TO BASIS
say
Taxes cannot be subject to off-setting or compensation for the simple reason that the
government and the taxpayers are not creditors and debtors of each other.
(Philex Mining Corp. vs. CIR, 294 SCRA 687)
Tax exemptions:
-discretion of the legislature
1. Sec. 28 (4), Art. VI
2. Sec. 28 (3), Art. VI
54
Page 557/12/2008
In Lladoc vs. CIR, 14 SCRA 292, a parish priest accepted a donation to be used
for the construction of a church. The money was spent for the purpose. The CIR
imposed tax. The objection was based on constitutional exemption of church properties
from taxes. The SC rejected. Exemption referred only to property taxes imposed on
lands, buildings and improvements used for religious purposes. The tax in this case is
not an ad valorem tax on the church itself but an excise tax imposed on the priest (not
on the properties) for his exercise of the privilege to accept the donation.
say
Article III
BILL OF RIGHTS
Significance. Government is powerful. When limited, it becomes tyrannical. It is a
guarantee that there are certain areas of persons life, liberty or property which
55
Classification of Rights:
1. Political Rightsgranted by law to members of a community in relation to their
direct or indirect participation in the establishment or administration of
government.
2. Civil Rightsrights which municipal law will enforce at the instance of private
individuals for the purpose of securing them the enjoyment of their means of
happiness.
3. Social and Economic Rightsthese are the rights which generally require
implementing legislation. (Article XIII)
say
All the powers of the government (police power, power of eminent domain and power
of taxation) are limited by the Bill of Rights.
Property and property rights can be lost thru prescription; but human rights are
imprescriptible.
In the hierarchy of civil liberties, the rights of free expression and of assembly
occupy a preferred position as they are essential to the preservation and vitality of our
civil and political institutions; and such priority gives these liberties the sanctity and the
sanction not permitting dubious intrusions.
Page 567/12/2008
The superiority of these freedoms over property rights is underscored by the fact
that a mere reasonable or rational relation between the means employed by the
law and its object or purposethat the law is neither arbitrary nor discriminatory
nor oppressivewould suffice to validate a law which restricts or impairs
property rights.
On the other hand, a constitutional or valid infringement of human rights requires a
more stringent criterion, namely existence of a grave and immediate danger of a
substantive evil which the State has the right to prevent.
No person shall be deprived of life, liberty or property without due process of law
nor shall any person be denied the equal protection of the laws.
Page 577/12/2008
say
LIMITATIONS OF SOVEREIGNTY
Libertyincludes the right to exist and the right to be free from arbitrary personal
restraint or servitude. x x x It includes the right of the citizen to be free to use his
faculties in all lawful ways. (Rubi vs. Provincial Board of Mindoro, 39 Phil 660)
Propertyis anything that come under the right of ownership and be the subject of
contract. It represents more than the things a person owns; it includes the right to
secure, use and dispose of them.
Public office is not a property which one may acquire a vested right, it is
nevertheless a protected right. (Bince vs. COMELEC, 218 SCRA 782)
Scope/Aspects of Due Process:
57
Impartial Court or TribunalJudges must not only be impartial but must also
appear to be impartial as an added assurance to the parties that his decision will
be just.
In Anzaldo vs. ClaveJacobo Clave, acting as Chairman of CSC, rendered a
decision against petitioner. When petitioner appealed to the Office of the President, the
same Jacobo Clave, but this time acting as Presidential Executive Assistant, upheld his
own earlier decision. The SC held that this violates fundamental fairness required by
due process. A public officer who decided the case should not be the same person to
decide it on appeal because he cannot be an impartial judge.
People vs. Mendenilla (2001), judges have as much interest as counsel in the
orderly and expeditious presentation of evidence, and have the duty to ask questions
that would elicit the facts on the issues involved, clarify ambiguous remarks by
witnesses and address the points overlooked by counsel.
Questions which merely clear up dubious points and elicit relevant evidence are
within the prerogative of a judge to ask.
Sec. 14 (1), Art. IIINo person shall be held to answer for a criminal offense
without due process of law. ---This is procedural due process in criminal cases
Page 587/12/2008
say
2. Substantive Due Processit requires that the law itself, not merely the
procedures by which the law would be enforced, is fair, reasonable and just.
This serves as a restriction on the governments law and rule-making powers; a
prohibition of arbitrary laws.
Requisites:
a. Interest of the public;
b. Means employed are reasonably necessary for accomplishment of purpose
and not unduly oppressive.
The legislature may not, under the guise of protecting the public interest,
arbitrarily interfere with private business or impose unusual and unnecessary
restrictions upon lawful occupations.
Void-for-vagueness Rulea criminal statute that fails to give a person of
ordinary intelligence fair notice that his contemplated conduct is forbidden by the
statute, or is so indefinite that it encourages arbitrary and erratic arrests and convictions
is void for vagueness. The constitutional vice in a vague or indefinite statute is the
injustice to the accused in placing him on trial for an offense, the nature of which he is
given no fair warning.
A law is vague as not to satisfy the due process need for notice when it lacks
comprehensible standards that men of common intelligence must necessarily guess as
to its meaning and differ as to its application or is so indefinite that it encourages
arbitrary and erratic arrests and convictions.
It is injustice to the accused in placing him on trial for an offense, the nature of
which he is given no fair warning.
Page 597/12/2008
As a general rule, when the State acts to interfere with life, liberty, or property,
the presumption is that the action is valid. In rare cases, as in prior restraint,
there is a presumption of invalidity.
say
achieved by means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms.
Tanada vs. Tuvera, 146 SCRA 446 (1986), Motion for reconsideration. xxx
[T]he clause "unless it is otherwise provided" refers to the date of effectivity and not to
the requirement of publication itself, w/c cannot in any event be omitted. This clause
does not mean that the legislature may make the law effective immediately upon
approval, or on any other date, w/o its previous publication.
Publication is indispensable in every case, but the legislature may in its discretion
provide that the usual 15-day period shall be shortened or extended.
It is not correct to say that under the disputed clause publication may be
dispensed w/ altogether. The reason is that such omission would offend due process
insofar as it would deny the public knowledge of the laws that are supposed to govern
it.
Conclusive presumption of knowledge of the law.-- The conclusive presumption that
every person knows the law presupposes that the law has been published if the
presumption is to have any legal justification at all.
The term laws should refer to all laws and not only to those of general
application, for strictly speaking all laws relate to the people in general albeit there are
some that do not apply to them directly. An example is a law granting citizenship to a
particular individual, like a relative of Pres. Marcos who was decreed instant
naturalization.
Page 607/12/2008
On its face invalidation of statutes results in striking them down entirely on the
ground that they might be applied to parties not before the Court whose activities are
constitutionally protected. It constitutes a departure from the case and controversy
requirement of the Constitution and permits decisions to be made without concrete
factual settings and in sterile abstract contexts.
say
RULE: All statutes, including those of local application and private laws, shall
be published as a condition for their effectivity, w/c shall begin 15 days after publication
unless a different effectivity date is fixed by the legislature.
Coverage: Covered by this rule are PDs and EOs promulgated by the Pres. in
the exercise of legislative powers. Administrative rules and regulations must also be
published if their purpose is to enforce or implement existing law pursuant to a valid
delegation.
60
Secretary of Justice vs. Lantion (2000), an extraditee is not entitled to notice and
hearing during the evaluation stage of the extradition process. PD 1069 affords an
extraditee sufficient opportunity to meet the evidence against him once the petition is
filed in court. During the evaluation stage, right to know is withheld to accommodate the
more compelling interest of the Stateto prevent escape of potential extradite which
may be precipitated by premature information on the basis of the request for extradition.
Roxas vs. Vasquez (2001), lack of notice to, participation of complainants at the
REINVESTIGATION does not render the resolution of the Ombudsman null and void.
(But in preliminary investigation, their participation is needed.)
Page 617/12/2008
Interpretative regulations and those merely internal in nature, i.e., regulating only
the personnel of the administrative agency and not the public, need not be published.
Neither is publication required of the so-called letters of instructions issued by
administrative superiors concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties.
Publication must be in full or it is no publication at all since its purpose is
to inform the public of the contents of the laws. The mere mention of the number
of the PD, the title of such decree, its whereabouts, the supposed date of
effectivity, and in a mere supplement of the OG cannot satisfy the publication
requirement. This is not even substantial compliance.
say
BUT, in Radio Communications vs. NTC (1990)the Court upheld the temporary
rates granted by the NTC asserting that the law allows the NTC to approve temporary
rate requested by public service agency provided hearings are held within 30 days
thereafter.
As a general rule, notice and hearing, as the fundamental requirements of procedural
due process, are essential only when an administrative body exercises its QUASIJUDICIAL function.
say
hearing. NTC replied that the order was merely interlocutory. The SC held that fixing
rates is quasi-judicial in nature. Hence, unlike in the exercise of quasi-legislative power,
it must be preceded by a hearing. The fact of the order being merely interlocutory does
not alter the situation because for all practical purposes it is final as to the period
covered.
Suntay vs. People (1957)the passport of a person sought for the commission of a
crime may be cancelled without notice and hearing.
Equitable Banking Corp. vs. Calderon, G.R. No. 156168, December 14, 2004, the Sc
ruled that no malice or bad faith attended the Banks dishonor of Calderons credit card,
inasmuch as the dishonor was justified under its Credit Card Agreement which provided
that the cardholder agreed not to exceed his approved credit limit, otherwise the card
privilege would be automatically suspended without notice to the cardholder.
Appeal and due process
Appeal is not a natural right nor is it a part of due process; generally, it may be
allowed or denied by the legislature in its discretion. But where the Constitution gives a
person the right to appeal, denial of the right to appeal constitutes a violation of due
process. Where there is statutory grant of the right to appeal, denial of that remedy also
constitutes a denial of due process.
Preliminary Investigation and due process
Preliminary investigation is not a constitutional right, but is merely a right
conferred by statute (Serapio vs. Sandiganbayan, G.R. No. 148468, January 28,
2003). It may be waived expressly or by failure to invoke it (Benedicto vs. CA, G.R.
No. 125359, September 4, 2001). The right may be forfeited by inaction, and cannot be
invoked for the first time on appeal (People vs. Lagao, G.R. No. 118457, April 8,
1997).
Page 627/12/2008
In the exercise of its EXECUTIVE or LEGISLATIVE functions, such as issuing rules and
regulations, an administrative body need not comply with the requirements of notice and
hearing.
Go vs. CA, 206 SCRA 138, when there is statutory grant of the right to
preliminary investigation, denial of the same is an infringement of the due process
clause. The right to preliminary investigation is substantive, not merely formal or
62
Does the due process clause encompass the right to be assisted by counsel
during an administrative inquiry?
No. The right to counsel, which cannot be waived unless the waiver is in writing and
in the presence of counsel, is a right afforded a suspect or an accused during custodial
investigation. It is not an absolute right and may, thus, be invoked or rejected in a
criminal proceeding and, with more reason, in an administrative inquiry.
While investigations conducted by an administrative body may at times be akin to
a criminal proceeding, the fact remains that under existing laws, a party in an
administrative inquiry may or may not be assisted by counsel, irrespective of the nature
of charges and of the respondents capacity to represent himself, and no duty rests on
such body to furnish the person being investigated with counsel. In an administrative
proceeding, a respondent has the option of engaging the services of counsel or not.
Thus, the right to counsel is not imperative in administrative investigations because
such inquiries are conducted merely to determine whether there are facts that merit
disciplinary measures against erring public officers and employees, with the purpose of
maintain the dignity of government service.
The right to counsel is not indispensable to due process unless required by the
Constitution or law. (Lumiqued vs. Exevea, 282 SCRA 125)
Is an extraditee entitled to notice and hearing before the issuance of a warrant
of arrest once the petition for extradition is filed in court?
Both on statutory and constitutional grounds, the answer is no. In Government of
USA vs. Hon. Puruganan, G.R. No. 148571, September 24, 2002:
Page 637/12/2008
Prejudicial Publicity
To warrant a finding of prejudicial publicity there must be allegation and proof
that the judges have been unduly influenced, not simply that they might be, by the
barrage of publicity. Petitioners cannot just rely on the subliminal effects of publicity
because these are basically unbeknown and beyond knowing. (Webb vs. De Leon,
1995)
say
technical. To deny it to the petitioner would deprive him of the full measure of his right to
due process. (Yusop vs. Sandiganbayan, G.R. No. 138859-60, February 22, 2001)
The equal protection of the law is embraced in the concept of due process, as
every unfair discrimination offends the requirements of justice and fair play. It has
nonetheless been embodied in a separate clause in Section 1 of Article III to provide for
a more specific guaranty against any form of undue favoritism or hostility from the
government. Arbitrariness in general may be challenged on the basis of the due process
clause. But if the particular act assailed partakes of an unwarranted partiality or
prejudice, the sharper weapon to cut it down is the equal protection clause.
It simply requires that all persons or things, similarly situated should be treated
alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other
words, should not be treated differently, so as to give undue favor to some and unjustly
discriminate against others.
Page 647/12/2008
By using the phrase if it appears, the law further conveys that accuracy is not
as important as speed at such an early stage. The trial court is not expected to
make an exhaustive determination to ferret out the true and actual situation,
immediately upon the filing of the petition. From the knowledge and the material
then available to it, the court is expected merely to get a good first impressiona
prima facie findingsufficient to make a speedy initial determination as regards
the arrest and detention of the accused.
say
It does not require the universal application of the laws on all persons or things
without distinction. This might in fact sometimes result in unequal protection, as where,
for example, a law prohibiting mature books to all persons, regardless of age, would
benefit the morals of the youth but violate the liberty of adults. What the clause requires
is equality among equals as determined according to a valid classification. By
classification is meant the grouping of persons or things similar to each other in certain
particulars and different from all others in these same particulars. (Philippine Judges
Association vs. Prado, 227 SCRA 703)
64
Page 657/12/2008
Scope:
Political, Economic and Social Equality
say
Who are protectedall persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed. Natural and juridical persons
are entitled to this guarantee; but with respect to artificial persons, they enjoy the
protection only insofar as their property is concerned.
Page 667/12/2008
Art. VIII, Sec. 5(5) (legal aid to the poor)xxx 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 IBP, 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.
say
Valid Classification:
Persons or things ostensibly similarly situated may, nonetheless, be treated
differently if there is a basis for valid classification. The requisites are:
1. Classification must be based on substantial distinctions which make for real
differences;
66
2. The distinction must be germane to the purpose of the lawthe distinctions which
are the bases for the classification should have a reasonable relation to the purpose of
the law;
Villegas vs. Hui Chiong, the ordinance imposing a work permit fee of P50.00 upon all
aliens desirous of obtaining employment in the City of Manila was declared
unconstitutional, because the fee imposed was unreasonable and excessive, and it
failed to consider valid substantial differences in situation among individual aliens who
were required to pay it.
Sexual Discrimination
Phil. Association of Service Exporters vs. Drilon, 163 SCRA 386, female domestic
working abroad were in a class by themselves because of the special risks to which
their class was exposed.
Administration of Justice
Chavez vs. PCGG, G.R. No. 130716, December 9, 1988, Special grant of exemption in
favor of the Marcoses as contained in the agreement entered into by PCGG with
Marcos Family to compromise the ill-gotten wealth cases (exempt from all taxes) filed
by the former against the latter is a CLASS LEGISLATION, vilative of the equal
protection clause.
Lacson vs. Executive Secretary, G.R. No. 128096, January 20, 1999, petitioners and
intervenors right to equal protection was not violated by the enactment of RA 8249
because the law was not directed only to Kuratong Baleleng cases. Every classification
made by law is presumed reasonable, and the party who challenges the law must
present proof of arbitrariness.
Page 677/12/2008
Philippine Judges Association vs. Prado, 227 SCRA 703, The withdrawal of franking
privileges formerly granted to the judiciary but remained with the executive and
legislative departments, was declared unconstitutional, because the three branches of
government are similarly situated.
say
Public Policy
Ceniza vs. COMELEC, 95 SCRA 763, The law excluding residents of Mandaue City
from voting for provincial candidates was justified as a matter of legislative discretion
and that equal protection would be violated only if group within the city were allowed to
vote while others were not.
67
Classification based on valid and reasonable standards does not violate the
equal protection clause.
International School Alliance of Educators vs. Quisumbing, G.R. No. 128845,
June 1, 2000, there were no reasonable distinctions between the services rendered by
foreign-hires and local-hires as to justify the disparity in salaries paid to those
teachers.
Relative Constitutionality:
Central Bank Employees Association vs. BSP, G.R. No. 148208, December 15,
2004, the constitutionality of a statute cannot, in every instance, be determined by a
mere comparison of its provisions of the Constitution since the statute may be
constitutionally valid as applied to one set of facts and invalid in application to another.
A statute valid at one time may become void at another time because of altered
circumstances. Thus, if a statute in its practical operation becomes arbitrary or
confiscatory, its validity, even though affirmed by a former adjudication, is open to
inquiry and investigation in the light of changed conditions.
Page 687/12/2008
The Constitution does not require absolute equality among residents. It is enough
that all persons under like circumstances or conditions are given the same privileges
and required to follow the same obligations.
say
Olivares vs. Sandiganbayan, 248 SCRA 700, when the mayor issued permit in favor
of unidentified vendors while imposing numerous requirements upon Baclaran Credit
Cooperatives, he violated the equal protection clause when failed to show that the two
were not similarly situated.
Tiu vs. CA, G.R. No. 127410, January 20, 1999, the executive order granting tax and
duty incentives only to business and residents within the secured area of Subic
Special Economic Zone and denying them to those who live within the zone but outside
such fenced in territory is VALID.
In Dumlao v. Comelec, 95 SCRA 392 (1980), the SC upheld the validity of sec. 4 of
Batas Blg. 52 disqualifying retired elective local officials who have received retirement
benefits and would have been 65 years old at the start of the term. It does not violate
equal protection, for it gives younger blood the opportunity to run the local government.
In Igot v. Comelec, 95 SCRA 392 (1980), however, the disqualification of candidates
convicted or simply charged with national security offenses was struck down as
unconstitutional, for violating the presumption of innocence and thus ultimately the
equal political protection.
68
Scope: The protection is available to all persons, including aliens, whether accused of
crime or not. Artificial persons are also entitled to the guarantee, although they may be
required to open their books of accounts for examination by the State in the exercise of
police and taxing powers.
The right is personal; it may be invoked only by the person entitled to it
(Stonehill vs. Diokno, 20 SCRA 383). As such, the right may be waived either
expressly or impliedly, but the waiver must be made by the person whose right is
invaded, not by one who is not duly authorized to effect such waiver. (People vs.
Damaso, 212 SCRA 457)
SEARCH WARRANTmay be said to particularly describe the things to be seized
when the description therein is as specific as the circumstances will ordinarily allow; or
when the description expresses a conclusion of fact, not of law, by which the warrant
officer may be guided in making the search and seizure; or when the things described
are limited to those which bear direct relation to the offense for which the warrant is
being issued.
WARRANT OFARRESTsaid to particularly describe the person to be seized if it
contains the name of the person to be arrested.
Page 697/12/2008
say
Page 707/12/2008
say
Warrant of arrest
It is not necessary that the judge
should
personally
examine
the
complainant and his witnesses; the
judge would simply personally review
the initial determination of the
prosecutor to see if it is supported by
substantial evidence.
The requirement that the judge must personally examine the complainant
and his witnesses means that the actual examination cannot be delegated to someone
else, like the clerk of court.
So said the Court in Bache and Co. (Phil) v. Ruiz, 37 SCRA 823 (1971).
In this case, when the BIR agent and his witnesses arrived in court in the middle of a
hearing, the judge suspended the hearing and directed the branch clerk to examine and
take the testimony of the witnesses in his chambers. After he was through with the
hearing, he went back to his chambers and finding that the examination was finished,
asked the BIR agent and his witnesses if they affirmed what they what they testified to,
after which he issued the search warrant in question.
The determination of the reasonableness of the judicial warrant must be based
on the affidavit of one who has personal knowledge of the facts to which he testifies.
The testimony cannot be based on mere belief. Neither can it be based on a report.
Otherwise, the warrant is void.
Thus, in Burgos v. Chief of Staff, (1984), reiterating the 1937 case of
Rodriguez v. Villamiel, the testimony based on a military report that the newspaper We
Forum was used for subversive were held to be not a personal knowledge and so was
inadmissible.
Likewise, in Corro v. Lising, 137 SCRA 541 (1985), the testimony based on
investigation reports that certain items in the Philippine Times were subversive were
held to be not personal knowledge, and thus the search warrant issued was not valid.
Page 717/12/2008
say
4. It must particularly describe the place to be searched and the persons or things
to be seized.
Search warrant
The description of the property to be
seized need not be technically accurate
nor necessarily precise, and its nature will
necessarily vary according to whether the
identity of the property or its character is a
matter of concern; the description is
Warrant of arrest
General warrants are proscribed and
unconstitutional. However, a John Doe
Warrant (a warrant for the apprehension
of a person whose true name is unknown)
satisfies the constitutional requireme3nt of
particularity if there is some descriptio
71
required to be specific only insofar as the personae which will enable the officer to
circumstances will allow.
identify the accused.
In Corro v. Lising, the search and seizure of "printed copies and dummies of
Philippine Times, subversive documents, articles, printed matters, handbills, leaflets,
banners, and typewriters, tape recorders, etc." was again invalidated for the description
was not at all particular or specific, thus making the warrants general warrants.
When it comes to printed matters, the offensive material need not be set out in
full. It is enough if it specifies the issues and the title of the articles. The instruction to
seize "subversive materials" is not valid because the determination of whether a
material is subversive or not is not for the police officer to decide; no unfettered
discretion must be granted to him.
The matter is different if goods were searched and seized because of their
intrinsic quality (as when they are stolen or smuggled), than if the goods were searched
for the ideas they contain (as when a "subversive newspaper is sought). In the latter
case, a more detailed description of the physical features of the item is required to avoid
delegating the appreciation of ideas, and thus threaten free expression.
Properties subject to Seizure:
1. Property subject of the offense;
2. Property stolen or embezzled and other proceeds or fruits of the offense; and
3. Property used or intended to be used as the means of committing an offense.
Page 727/12/2008
say
Failure to state with particularity the place to be searched and items to be seized
makes the warrant used for fishing evidence (a general warrant) which is void.
It has also been held that where the accused did not raise the issue of the
admissibility of the evidence against him on the ground that it had been illegally seized,
such omission constitutes a waiver of the protection granted by Section 3, and the
illegally seized evidence could then be admitted against him. (People vs. Exala, 221
SCRA 494)
WARRANTLESS ARREST
1. When a person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
say
shall be inadmissible for any purpose in any proceeding. Such evidence is the fruit of
the poisonous tree. However, it is submitted that it may nonetheless be used in the
judicial or administrative action that may be filed against the officer responsible for its
illegal seizure.
Page 737/12/2008
2. When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be
arrested has committed it; and
The reason is the person may escape easily if a warrant has to be applied for
the mean time. In the Tariff and Customs Code, customs agents are specifically
authorized to search and seize vehicles even without a warrant.
Checkpoints are valid in some instances depending on the purpose (e.g.
apprehend a suspected criminal) and the circumstances (e.g. probable cause that the
criminal is inside the car). There is no question that when a child has been reported
kidnapped in a community, the police can stop all cars and check if the detained child is
in any one of them.
(b) When search is an incident to a valid arrest.
73
Rule 126, Sec. 12. Search incident to lawful arrest-- A person lawfully
arrested may be searched for dangerous weapons or anything which may be used as
proof of the commission of an offense, without a search warrant.
The law allows the arresting officer to search a person validly arrested (by
frisking him for instance) because (1) a weapon held by the arrested person may be
turned against his captor and (2) he may destroy the proof of the crime, if the arrested
officer has to first apply for a search warrant from a judge.
If, in the Nolasco case, the search was conducted 30 minutes after the arrest,
there is no longer any danger that the captured may turn against the captor; and if the
documents in the apartment were 2 blocks away, the search would no longer be
justified since there is no way for Roque to go back to the apartment and destroy the
documents, having been arrested already.
Page 747/12/2008
In Nolasco v. Cruz Pano, 139 SCRA 152 (1985), Milagros Roque and Cynthia
Nolasco were arrested at the intersection of Mayon and Margal Streets in QC at 11:30
a.m., having been wanted as high officers of the CPP. At 12:00 noon, Roque's
apartment located 2 blocks away, was searched and some documents seized. The SC
at first held that the search was valid even if the warrant issued was void for failing to
describe with particularity the things to be seized, because it was an incident of a valid
arrest.
But after the EDSA revolution, the reconstituted SC granted the motion for
reconsideration and held that just because there was a valid arrest did not mean that
the search was likewise valid. To be valid, the search must be "incidental" to the arrest,
i.e., not separated by time or place from the arrest. If the basis for allowing incidental
searches is looked into, one can see that this situation is not one involving a valid
incidental search.
say
In People vs. Chua Ho San, 308 SCRA 432, while a contemporaneous search
of a person arrested may be effected to discover dangerous weapons or proofs or
implements used in the commission of the crime and which search may extend to the
area within his immediate control where he might gain possession of a weapon or
evidence he can destroy, a valid arrest must precede the search. The process cannot
be reversed.
In a search incidental to a lawful arrest, as the precedent arrest determines the
validity of the incidental search, the legality of the arrest is questioned in a large majority
of these cases, e.g., whether an arrest was merely used as a pretext for conducting a
74
Page 757/12/2008
In the case of People vs. Go, 354 SCRA 338 (2001), the police saw the gun
tucked in appellants waist when he stood up. The gun was plainly visible. No search
was conducted as none was necessary. Accused-appellant could not show any license
for the firearm, whether at the time of his arrest or thereafter. Thus, he was in effect
committing a crime in the presence of the police officers. No warrant of arrest was
necessary in such a situation, it being one of the recognized exceptions under the
Rules.
say
search. In this instance, the law requires that there be first a lawful arrest before a
search can be madethe process cannot be reversed.
The search, however, must be contemporaneous to the arrest and made within a
permissible area of search.
Requisite: the apprehending officer must have been spurred by probable cause in
effecting the arrest which could be considered as one in cadence with the instances of
permissible arrest enumerated in Section 5(a), Rule 113 of the Rules of Court.
75
In the case of People vs. Montilla, G.R. No. 123872, January 30, 1998, the
officer could reasonably assumesince the informant was by their side and had so
informed them and pointed out the culpritthat the drugs were in the appellants
luggage, and it would have been irresponsible, if not downright absurd, for them to
adopt a wait-and-see attitude at the risk of eventually losing their quarry.
People vs. Hedishi Suzuki, G.R. No. 120670, October 23, 2003, whenever the right
against unreasonable search and seizure is challenged, an individual may choose
between invoking the constitutional protection or waiving his right by giving consent to
the search and seizure. A reasonable search is not to be determined by any fixed
formula but is to be resolved according to the facts of the case.
say
(c) When things seized are within plain view of a searching party
Page 767/12/2008
Plain View Doctrinefinds application only when the incriminating nature of the object
is in the plain view of the police officer.
Requisites:
1. Valid intrusion based on a valid warrantless arrest in which the police are
legally present in the pursuit of their official duties;
2. The evidence was inadvertently discovered by the police who have the right
to be where they are;
3. The evidence must be immediately apparent; and
4. Plain view justified mere seizure of evidence without further search.
(d) Stop-and-Frisk
It is defined as the vernacular designation of the right of a police officer to stop a
76
The interest of effective crime prevention and detection allows a police officer to
approach a person, in appropriate circumstances and manner, for purposes of
investigating possible criminal behavior even though there is insufficient probable cause
to make an actual arrest.
Requisites for Stop-and-Frisk
1. The police officer should properly introduce himself and make the initial inquiries,
approach and restrain a person who manifests unusual and suspicious conduct,
in order to check the latters outer clothing for possibly concealed weapons.
2. The apprehending officer must have a genuine reason to warrant the belief that
the person to be held has weapons or contraband concealed about him.
It should, therefore, be emphasized that a search and seizure should precede the
arrest for the principle of stop-and-frisk to apply.
(e) When there is a valid express waiver made voluntarily and intelligently.
Waiver cannot be implied from the fact that the person consented or did not
object to the search, for it many happen that he did so only out of respect for the
authorities. The waiver must be expressly made. It must be given by the person whose
right is violated.
Page 777/12/2008
citizen on the street, interrogate him, and pat him for weapons where a police officer
observes an unusual conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the persons with whom he is
dealing may be armed and presently dangerous, where in the course of investigating
this behavior he identified himself as a policeman and make reasonable inquiries, and
where nothing in the initial stages of the encounter serves to dispel his reasonable fear
for his own or others safety, he is entitled for the protection of himself or others in the
area to conduct a carefully limited search of the outer clothing of such persons in an
attempt to discover weapons which might be used to assault him.
say
In People vs. Bongcarawan, G.R. No. 143944, July 11, 2002, the shabu in the
baggage of the accused was found by (private) security officers of the interisland
passenger vessel who then reported the matter to the Philippine Coast Guard. The
search and seizure of the suitcase and contraband items were carried out without
government intervention. Accordingly, the exclusionary rule may not be invoked.
(f) Searches of vessel and aircraft for violation of fishery, immigration and customs law
(g) Searches of automobiles at borders or constructive borders for violation of
immigration and smuggling laws
77
(h) Inspection of buildings and other premises for the enforcement of fire, sanitary and
building regulations
(i) Conduct of areal target zoning and saturation drive in the exercise of military
powers of the President
The checkpoint herein conducted was in pursuance of the gun ban enforced by
the COMELEC. The COMELEC would be hard put to implement the ban if its deputized
agents were limited to a visual search of pedestrians. It would also defeat the purpose
for which such ban was instituted. Those who intend to bring a gun during said period
would know that they only need a car to be able to easily perpetrate their malicious
designs.
Page 787/12/2008
say
1. A party whose premises or is entitled to the possession thereof refuses, upon demand,
to open it;
2. When such person already knew of the identity of the officers and of their authority and
persons;
3. When the officers are justified in the honest belief that there is an imminent peril to life or
limb;
4. When those in the premises, aware of the presence of someone outside, are then
engaged in an activity which justifies the officers to believe that an escape or the
destruction of evidence is being attempted. (People vs. Huang Zhen Hua and Lee,
say
In the case of People vs. Leila Johnson, G.R. No. 138881, December 18,
2000, persons may lose the protection of the search and seizure clause by exposure of
their persons or property to the public in a manner reflecting a lack of subjective
expectation of privacy, which expectation society is prepared to recognize as
reasonable. Such recognition is implicit in airport security procedures. With increased
concern over airplane hijacking and terrorism has come increased security at the
nations airports. Passengers attempting to board an aircraft routinely pass through
metal detectors; their carry-on baggage as well as checked luggage, are routinely
subjected to x-ray scans. Should these procedures suggest the presence of suspicious
objects, physical searches are conducted to determine what the objects are. There is
little question that such searches are reasonable, given their minimal intrusiveness, the
gravity of the safety interests involved, and the reduced privacy expectations associated
with airline travel. Indeed, travelers are often notified through airport public address
systems, signs, and notices in their airline tickets that they are subject to search and, if
any prohibited materials or substances are found, such would be subject to seizure.
These announcements place passengers on notice that ordinary constitutional
protection against warrantless searches and seizures do not apply to routine airport
procedures.
Page 797/12/2008
Do the ordinary right against unreasonable searches and seizures apply to searches
conducted at the airport pursuant to routine airport security procedures?
People vs. Susan Canton, G.R. No. 148825, December 27, 2002, a search made
pursuant to a routine airport security procedure is allowed under RA 6235, which
provides that every airline ticket shall contain a condition that hand-carried luggage,
etc., shall be subject to search, and this condition shall form part of the contract
between the passenger and the air carrier. To limit the action of the airport security
personnel to simply refusing the passenger entry into the aircraft and sending her home
(as suggested by the appellant), and thereby depriving the security personnel of ability
and facility to act accordingly, including to further search without warrant, in light of such
circumstances, would be sanctioned impotence and ineffectiveness in law enforcement,
79
Page 807/12/2008
say
to the detriment of the society. The strip search in the ladies room was justified under
the circumstances.
privacy and peace of mind of his neighbors and other persons and punishes as
80
actionable torts several acts by a person of meddling and prying into the privacy
of another. It also holds a public officer or employee or any private individual
liable for damages for any violation of the rights and liberties of another person,
and recognizes the privacy of letters and other private communications.
2. The Revised Penal Code makes a crime the violation of secrets by an officer, the
Page 817/12/2008
say
Any evidence obtained in violation of this law is not admissible in any proceeding.
RA 4200 clearly and unequivocally makes it illegal for any person, not authorized
by all parties to any private communication, to secretly record such communications by
means of a tape recorder. The law does not make any distinction. A telephone
extension is not among the devices covered by this law. (Gaanan vs. IAC, 145 SCRA
112)
Navarro vs. CA, G.R. No. 121087, August 26, 1999, two local media men in Lucena
City went to the police station to report alleged indecent show in one night
establishment in the City. At the station, there was a heated argument between police
81
B. Any peace officer, who is authorized by the written order of the Court (RTC
within whose territorial jurisdiction the acts for which authority is applied for are to be
executed), to execute any of the acts declared to be unlawful in cases involving the
crimes of: [Sec. 3, par. 1]
1. treason
2. espionage
3. provoking war and disloyalty in case of war
4. piracy
5. mutiny in the high seas
6. rebellion
7. conspiracy and proposal to commit rebellion
8. inciting rebellion
9. sedition
10. conspiracy to commit sedition
11. inciting to sedition
12 kidnapping as defined by the RPC
13. violations of CA 616, punishing espionage and other offenses against
national security
Page 827/12/2008
officer Navarro and Lingan, one of the two media men, which led to fisticuffs. Lingan fell
and his head hit the pavement which caused his death. During the trial, Jalbuena, the
other media man, testified. Presented in evidence to confirm his testimony was a voice
recording he had made of the heated discussion at the police station between accused
police officer Navarro and the deceased, Lingan, which was taken without the
knowledge of the two. The SC held that Jalbuenas testimony is confirmed by the voice
recording he had made. It may be asked whether the tape is admissible in view of RA
4200, which prohibits wire tapping. The answer is in the affirmative. The law prohibits
the overhearing, intercepting or recording of private communications. Since the
exchange between petitioner Navarro and Lingan was not private, its tape recording is
not prohibited.
Exempted acts:
A. Use of such record or any copies thereof as evidence in any civil, criminal
investigation or trial of offenses mentioned below: [Secs. 1, par. 2]
say
The WRITTEN ORDER shall only be issued or granted upon written application
with the examination under oath or affirmation of the applicant and the witnesses he
may produce and must show:
a) That there are reasonable grounds to believe that any of the crimes
enumerated herein has been committed or is being committed provided, that in cases
involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting
to rebellion, sedition, conspiracy to commit sedition, such authority shall be granted only
upon prior proof that a rebellion or acts of sedition, as the case may be, have actually
been or are being committed;
82
Effectivity: The authorization shall be effective for the period specified in the order
which shall not exceed 60 days from the date of issuance of the order, unless extended
or renewed by the court upon being satisfied that such extension or renewal is in the
public interest.
Procedure: All recordings made under court authorization within 48 hours after the
expiration of the period fixed in the order:
1. Shall be deposited with the court in a sealed envelope or sealed package;
2. shall be accompanied by an affidavit of the peace officer granted such
authority stating the number of recordings made, the dates and times covered by each
recording, the number of tapes, discs, or records included in the deposit and certifying
that no duplicates or copies are included in the envelope or package deposited with the
court;
3. shall not be opened, or the recordings replayed, or used in evidence or their
contents revealed, except upon order of the court, which shall not be granted except
upon motion, with due notice and opportunity to be heard to the person or persons
whose conversations or communications have been recorded.
Page 837/12/2008
Contents:
1. The identity of the person or persons whose communications, conversations,
discussions, or spoken words are to be overheard, intercepted, or recorded and, in the
case of telegraphic or telephonic communications, the telegraph line and the telephone
number involved and its location;
2. The identity of the peace officer authorized to overhear, intercept, or record
the communications, conversations, discussions, or spoken words;
3. The offense or offenses sought to be committed or prevented; and
4. The period of the authorization.
say
b) That there are reasonable grounds to believe that evidence may be obtained
essential to the conviction of any person for, or to the solution of, or to the prevention of,
any of such crimes;
c) That there are no other means readily available for obtaining such evidence.
PENALTY
Any person who violates the provisions of this Act, shall, upon conviction, be
punished by:
1. imprisonment for not less than 6 months or more than 6 years; and
2. with the accessory penalty of perpetual absolute disqualification from public
office if the offender be a public official at the time of the commission of the
offense; and
83
Exclusionary Rule
Art. III, Sec. 3. xxx
(2) Any evidence obtained in violation of this (privacy of communication and
correspondence) or the preceding section (unreasonable searches and seizures) shall
be inadmissible for any purpose in any proceeding.
One of the remedies of one who was victimized by an illegal search is to ask for
the suppression of the things seized and the evidence illegally taken.
The exclusionary rule prohibits the use of any evidence obtained in violation of
Sections 2 and 3 (1), Art. III for "any purpose" and in "any proceeding." The evidence is
absolutely useless. This has not always been the case.
In Moncado v. People's Court (1948), the SC, following the U.S. case of Wolf
V. Colorado, rules that evidence illegally obtained is not necessarily excluded if is
otherwise admissible under the rules of evidence. In such case, the evidence admitted,
without prejudice to any criminal, civil or administrative liability of the officer who illegally
seized it. In other words, the admissibility of the evidence is not effected by the illegality
of the means by which it was acquired.
It was in Stonehill v. Diokno, supra, following the U.S. case of Maop v. Ohio
1969, when the exclusionary rule was first adopted in the Philippines, the SC noting that
the total suppression of the thing seized is the only effective means of ensuring the
constitutional right which it seeks to preserve. The Court noted, the insufficiency of the
other remedies (e.g. action for damages, criminal punishment, resistance), especially in
the Philippines where violations were committed by those in power and were thus
equipped with the pardoning power to water down the gravity of the other penalties
imposed to violators of those constitutional rights.
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ADMISSIBILITY
Any communication or spoken word, or the existence contents, substance,
purport, effect or meaning of the same or any part thereof, or any information therein
contained, obtained or secured by any person in violation of this Act shall not be
admissible in evidence in any judicial, quasi-judicial, or administrative hearing or
investigation.
say
The victim may or may not get back the thing seized, depending on whether it is
contraband or not. It the thing is contraband, it would not be returned, and only its
suppression can be asked for. But if the thing is legal, the party can ask for its return,
even if no criminal prosecution has yet been filed, as in the Stonehill case.
84
Zulueta vs. CA, 253 SCRA 699, the right may be invoked against the wife who went to
the clinic of her husband and there took documents consisting of private
communications between her husband and his alleged paramour.
Should in camera inspection of bank accounts be allowed?
Before an in camera inspection may be allowed, there must be a pending case before
a court of competent jurisdiction. Further, the account must be clearly identified, the
inspection limited to the subject matter of the pending case before the court of
competent jurisdiction. The bank personnel and the account holder must be notified to
be present during the inspection, and such inspection may cover only the account
identified in the pending case.
In Union Bank vs. CA, Section 2 of the Law on Secrecy of Bank Deposits, as
amended, declares bank deposit to be absolutely confidential except:
1. In an examination made in the course of special or general examination of a
bank that is specifically authorized by the Monetary Board after being satisfied
that there is reasonable ground to believe that a bank fraud or serious irregularity
has been or is being committed and that it is necessary to look into deposit to
establish such fraud or irregularity;
2. In an examination made by an independent auditor hired by the bank to conduct
its regular audit provided that the examination is for audit purposes only and the
results thereof shall be for the exclusive use of the bank;
3. Upon written permission of the depositor;
4. In case of impeachment;
5. Upon order of a competent court in cases of bribery or dereliction of duty of
public officials; or
6. In cases where the money deposited or invested is the subject matter of the
litigation.
In the case of Marquez vs. Desierto, G.R. No. 135882, June 27, 2001, there is
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In Aberca v. Ver, the SC held that even if the privilege of the writ is suspended,
the court can nevertheless entertain an action not only against the task force but even
against the top ranking officials who ordered the seizure, to recover damages for the
illegal searches and seizures made in a despotic manner. By so doing, one can
indirectly inquire into the validity of the suspension of the privilege.
Ramirez vs. CA, 248 SCRA 590, RA 4200 clearly and unequivocally makes it illegal for
any person, not authorized by all parties to any private communication, to secretly
record such communications by means of a tape recorder. The law does not make a
distinction.
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yet no pending litigation before any court of competent authority. What is existing is an
investigation by the Office of the Ombudsman. In short, what the Office of the
Ombudsman would wish to do is to fish for additional evidence to formally charge
Amado Lagdameo, et al., with the Sandiganbayan. Clearly, there was no pending case
in court which would warrant the opening of the bank account for inspection.
The freedom to speak includes the right to be silent. This freedom includes also
includes the right to an audience, in the sense that the State cannot prohibit the people
from hearing what a person has to say, whatever be the quality of his thoughts. This
right, however, is not demandable against those unwilling to listen, who may not be
herded by the government into a captive audience.
Types of Privileged Communications:
1. Absolutely privileged communicationsthose which are not actionable even
if the author acted in bad faith. An example is found in Article VI, Section 11
which exempts a member of Congress from liability for any speech or debate in
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Freedom of Expression
Aspect:
1. Freedom from censorship or prior restraint; and
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2. Qualifiedly
1. Clear and Present Danger Rulewhen words are used in such circumstance
and of such nature as to create a clear and present danger that will bring about
substantive evil that state has the right to prevent.
2. Dangerous Tendency Rulewords uttered create a dangerous tendency of an
In the case of Adiong vs. COMELEC, 207 SCRA 713, the SC held that the
posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving
vehicles needs the consent of the owner of the vehicle. Hence, the preference of the
citizens becomes crucial in this kind of propaganda, not the financial resources of the
candidate. The owner can even prepare his own decals or stickers for posting on his
personal property. To strike down this right and enjoin it is impermissible encroachment
of his liberties. The prohibition on posting of decals and stickers on mobile places
whether public or private except in authorized areas designated by the COMELEC
becomes censorship which cannot be justified by the Constitution.
Doctrine of Fair Comment
Fair commentaries on matters of public interest are privileged and constitute a
valid defense in an action for libel or slander. It means that while in general every
discreditable imputation publicly made is deemed false, because every man is
presumed innocent until his guilt is judicially proved, and every false imputation is
deemed malicious, nevertheless, when the discreditable imputation is directed against a
public person in his public capacity, it is not necessarily actionable. In order that such
discreditable imputation to a public official may be actionable, it must either be a false
allegation of fact or a comment based on a false supposition. If the comment is an
expression of opinion, based on established facts, it is immaterial that the opinion
happens to be mistaken, as long as it might reasonably inferred from the facts. (Borjal
vs. CA, 301 SCRA 1)
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not for the assembly itself may be validly required. Power of local officials is merely for
regulation and not for prohibition. (Primicias vs. Fugoso, L-1800, January 27, 1948)
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The provisions of BP 880 (Public Assembly Act of 1985) are not absolute ban on
public assemblies but a restriction that simply regulates the time, place and manner of
the assemblies. The Court referred to it as content-neutral regulation.
say
89
Benevolent Neutralityrecognizes that government must pursue its secular goals and
interest but at the same time strive to uphold religious liberty to the greatest extent
possible within flexible constitutional limits. Thus, although the morality contemplated by
laws is secular, benevolent neutrality could allow for accommodation of morality based
on religion, provided it does not offend compelling state interests.
T
hree (3)-Step process of the compelling State Interest Test
1. Has the statute or government action created a burden on the free exercise of
religion?
2. Is there a sufficiently compelling state interest to justify this infringement of
religious liberty?
3. Has the state in achieving its legitimate purposes used the least intrusive means
possible so that the free exercise is not infringed any more than necessary to
achieve the legitimate goal of the state? (Estrada vs. Escritor, A.M. No. P-021651, June 22, 2006)
Ebralinag vs. Division Superintendent, 219 SCRA 256, to compel students to take
part in a flag ceremony when it is against their religious beliefs will violate their religious
freedom. Petitioners have the right to refuse to salute to the Philippine flag on account
of their religious freedom.
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Ecclesiastical Affairit involves the relationship between the church and its members
and relates to matters of faith, religious doctrines, worship and governance of the
congregation to which the state cannot meddle.
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Iglesia ni Cristo vs. CA, 259 SCRA 529, the INCs postulate that its religious freedom
is per se beyond review of the MTRCB should be rejected. Its public broadcast on TV of
its religious programs brings it out of the bosom of internal belief. Television is a
medium that reaches even the eyes and ears of children. The exercise of religious
freedom can be regulated by the State when it will bring about the clear and present
danger of a substantive evil which the State is duty-bound to prevent, i.e., serious
detriment to the more overriding interest of public health, public morals, or public
welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal
mind but history counsels the Court against its blind adoption as religion is and
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Religious Tests
The constitutional prohibition against religious tests is aimed against clandestine
attempts on the part of the government to prevent a person from exercising his civil or
political rights because of his religious beliefs.
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Taruc vs. Bishop Dela Cruz, G.R. No. 144801, March 10, 2005,
expulsion/excommunication of members of a religious institution/organization is a matter
best left to the discretion of the officials, and the laws and canons, of said
institution/organization. It is not for the courts to exercise control over church authorities
in the performance of their discretionary and official functions. Rather, it is for the
members of the religious institution/organization to conform to just church regulations.
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continues to be a volatile area of concern in our society today. For sure, we shall
continue to subject any act pinching the space for the free exercise of religion to a
heightened scrutiny but we shall not leave its rational exercise to the irrationality of a
man. For when religion divides and its exercise destroys, the State should not stand
still.
Lorenzo vs. Director of Health, 50 Phil 595, health officers may restrict access to
contaminated areas and also quarantine those already exposed to the disease sought
to be contained.
Zemel vs. Rusk, 381 US 1, the Secretary of State may regulate or even prohibit the
travel of citizens to hostile countries to prevent possible international misunderstanding
and conflict.
Section 26 of HAS of 2007cases where evidence of guilt is not strong, and the
person charged with the crime of terrorism as therein defined is entitled to bail and if
granted the same, the court, upon application by the prosecutor, shall limit the right to
travel of the accused to within the municipality or city where he resides or where the
case is pending, in the interest of national security and public safety.
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Rubi vs. Board of Mindoro, 39 Phil 660, the respondents were justified in requiring the
members of certain non-Christian tribes to reside in a reservation, for their better
education, advancement and protection. The measure was held to be a legitimate
exercise of police power.
say
Villavicencio vs. Lukban, 39 Phil 778, the Mayor of Manila was not sustained by the
SC when he deported some 170 women of ill-repute to Davao, for the admittedly
commendable purpose of ridding the city for serious moral and health problems. These
women are nevertheless not chattels but Philippine citizens protected by the same
constitutional guarantees as are other citizensto change their domicile from Manila to
another locality.
Recognized restrictions:
1. National security matters and intelligence informationthis jurisdiction
recognizes the common law holding that there is a governmental privilege
against public disclosure with respect to state secrets regarding military,
diplomatic and other national security matters;
say
government so he can express his views thereon knowledgeably and intelligently. One
cannot question the extravagance of the government, for example, if is denied
examination of official vouchers. A citizen may not expose anomaly if those responsible
for it may validly prevent him from investigating their activities. In the interest of truth
and fairness, the citizen should not be made to guess only at what is being done by
public functionaries and to base his views and conclusions on mere rumors, half-truths,
conjectures and even canards.
8293 and other related laws and banking transactionspursuant to the Secrecy
of Bank Deposits Act, RA 1405);
3. Criminal matters, such as those relating to the apprehension, the prosecution
and the detention of criminals, which courts may not inquire into prior to such
arrest, detention and prosecution; and
4. Other confidential information. The Ethical Standards Act further prohibits
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BA-RA 7941 vs. COMELEC, G.R. Nos. 177271 and 177314, May 4, 2007, the right to
information is a public right where the real parties in interest are the public, or the
citizens to be precise. The peoples right to know is limited to matters of public concern
and is further subject to such limitation as may be provided by law. Similarly, the policy
of full disclosure is confined to transactions involving public interest and is subject to
reasonable conditions prescribed by law.
Valmonte vs. Belmonte, Jr., 170 SCRa 256the information sought must be matters
of public concern, access to which may be limited by law. The information sought by
petitioners is the truth of reports that certain Members of the Batasan Pambansa
93
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Legaspi vs. Civil Service Commission, the SC affirmed the right of the petitioner to
secure from the Civil Service Commission information regarding the civil service
eligibility of certain persons employed in the health department of the Cebu City
government.
say
belonging to the opposition were able to secure clean loans from the GSIS immediately
before the February 7, 1986 election through the intercession of the former First Lady
Imelda Marcos. x x x The public nature of the loanable funds of the GSIS and the public
office held by the alleged borrowers make the information sought clearly a matter of
public interest and concern.
In the case of Jacinto vs. CA, 281 SCRA 657, the SC held that petitioners were
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not penalized for the exercise of their right to assemble peacefully and to petition the
government for a redress of grievances. Rather, the Civil Service Commission found
them guilty of conduct prejudicial to the best interest of the service for having absented
themselves without proper authority, from their school during regular school days, in
order to participate in the mass protest, their absence ineluctably resulting in the nonholding of classes and in the deprivation of students of education, for which they were
responsible. Had petitioners availed themselves of their free timerecess, after
classes, weekends or holidaysto dramatize their grievances and to dialogue with the
proper authorities within the bounds of law, no onenot the DECS, the CSC or even
the SCcould have held them liable for the valid exercise of their constitutionally
guaranteed rights. As it was, the temporary stoppage of classes resulting from their
activity necessarily disrupted public services, the very evil sought to be forestalled by
the prohibition against strikes by government workers. Their act by their nature was
enjoined by the Civil Service Law, rules and regulations, for which they must, therefore,
be made answerable.
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The freedom to contract is not absolute; all contracts and all rights are subject to
the police power of the State and not only may regulations which affect them be
established by the State, but all such regulations must be subject to change from time to
time, as the general well-being of the community may require, or the circumstances may
change, or as experience may demonstrate the necessity.
The purpose of the impairment clause is to safeguard the integrity of valid
contractual agreements against unwarranted interference by the State. As a rule, they
should be respected by the legislature and not tampered with by subsequent laws that
will change the intention of the parties or modify their rights and obligations. The will of
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Limitations:
1. Police powerprevails over contracts;
2. Eminent domainmay impair obligation of contracts; and
3. Taxationcannot impair obligation of contracts.
say
the obligor and the obligee must be observed; the obligation of their contract must not
be impaired.
However, the protection of the impairment clause is not absolute. There are
instances when contracts valid at the time of their conclusion may become invalid, or
some of their provisions may be rendered inoperative or illegal, by virtue of supervening
legislation.
96
say
Available when the investigation is no longer a general inquiry into an unsolved crime
but has begun to focus on a particular suspect, the suspect has been taken into police
custody, the police carry out a process of interrogation that tend to elicit incriminating
statements.
Custodial Investigation
Any questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any significant way.
It shall include the practice of issuing invitation to a person who is investigated
in connection with an offense he is suspected to have committed, without prejudice to
the liability of the inviting officer for any violation of the law. (RA 7438)
People vs. Lugod, G.R. No. 136253, February 21, 2001, the accused should
have been entitled to Miranda rights, because even assuming that he was not yet under
interrogation at the time he was brought to the police station, his confession was elicited
by a police officer who promised to help him if he told the truth. Furthermore, when he
allegedly pointed out the body of the victim, the atmosphere was highly intimidating and
not conducive to a spontaneous response as the whole police force and nearly 100
townspeople escorted him there. Not having the benefit of counsel and not having been
informed of his rights, the confession is inadmissible.
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Miranda rights
(Miranda vs. Arizona, 384 US 436)
x x x The prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates the use of
97
say
People vs. Baloloy, G.R. No. 140740, April 12, 2002, it was held that this guarantee
does not apply to spontaneous statement, not elicited through questioning by the
authorities but given in an ordinary manner whereby the suspect orally admitted having
committed the offense. Neither can it apply to admissions or confessions made by a
suspect before he was placed under custodial investigation. In this case, the narration
before the Barangay Captain prior to custodial investigation was admissible in
evidence, but not the admissions made before Judge Dicon, inasmuch as the
questioning by the judge was done after the suspect had been arrested and such
questioning already constituted custodial investigation.
Rights guaranteed:
1. Right to remain silent;
2. Right to have a competent and independent counsel preferably of his own choice
at all stages of the investigation;
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Applies only from the moment the investigating officer begins to ask questions for the
purpose of eliciting admissions, confessions or any information from the accused.
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3. Express; and
4. In writing.
Ladiana vs. People, G.R. No. 144293, December 24, 2002, the counter-affidavit
submitted by the respondent during preliminary investigation is admissible because
preliminary investigation is not part of custodial investigation. The interrogation by the
police, if any would already have been ended at the time of the filing of the criminal case
in court or in the public prosecutors office.
Spontaneous statementsthose elicited through questioning by law enforcement
officers, but given in an ordinary manner where the appellant verbally admits to having
committed the offense, are admissible. (People vs. Guillermo, G.R. No. 147786,
January 20, 2004)
WAIVER
It must be in writing and made in the presence of the counsel. The burden of
proving that there was a valid waiver rests on the prosecution. The presumption of
official duty has been regularly performed cannot prevail over the presumption of
innocence.
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However, in the case of People vs. Salonga, G.R. No. 131131, June 21, 2001, after an
audit, the accused was summoned to appear before the Assistant Accountant of
MetroBank and, in the course of the interview, accused admitted having issued the
subject cashiers checks without any legitimate transaction, the written confession was
held admissible in evidence inasmuch as the interview did not constitute custodial
investigation.
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Right to Bail
Bailthe security given for the release of a person in custody of the law, furnished by
him or a bondsman, conditioned upon his appearance before any court as may be
required.
The right to bail may be invoked by any person once detention commences even
if no formal charges have yet to be filed;
It can availed of by a person who is in custody of law or otherwise deprived of his
liberty;
Suspension of the writ of the privilege of habeas corpus does not suspend the
right to bail;
Even when the accused has previously jumped bail, still he cannot be denied bail
before conviction if it is a matter of right. The remedy is to increase the amount of
bail;
Right to bail has not been recognized and is not available to the military.
Standards for fixing amount of bail:
1. Financial ability of the accused;
2. Nature and circumstances of the offense;
3. Penalty for the offense charged;
4. Character and reputation of the accused;
5. Age and health of the accused;
6. Weight of evidence against the accused;
7. Probability of appearance at trial;
8. Forfeiture of other bonds by him;
9. He was a fugitive from justice when arrested; and
10. Pendency of other cases where he is also under bail.
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evidence because the originally obtained evidence taints all evidence subsequently
obtained.
2. The court, in its discretion, may allow the accused to continue on provisional
liberty after the same bail bond during the period to appeal subject to the consent
of the bondsman.
3. If the court imposed a penalty of imprisonment exceeding 6 years but not more
than 20 years, the accused shall be denied bail, or his bail previously granted
shall be cancelled, upon showing by the following or other similar circumstances:
a. That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or
has committed the crime aggravated by the circumstance of reiteracion;
b. That the accused is found to have previously escaped from legal
confinement, evaded sentence, or has violated the conditions of his bail
without valid justification;
c. That the accused committed the offense while on probation, parole, or
under conditional pardon;
d. That the circumstances of the accused or his case indicates the probability
of flight if released on bail; or
e. That there is undue risk that during the pendency of the appeal, the
accused may commit another crime.
Whether bail is a matter of right or discretionreasonable notice of hearing is
required to be given to the prosecutor, or at least he must be asked for his
recommendation, because in fixing the amount of bail, the judge is required to take into
account a number of factors.
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Without a hearing, the judge could not possibly asses the weight of the evidence
against the accused before granting the latters application for bail.
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4. Right to be informed of the nature and cause of the accusation against him
Objectives:
a. To furnish the accused with such a description of the charge against him
as will enable him to make the defense;
b. To avail himself of his conviction or acquittal for protection against a
further prosecution for the same cause; and
c. To inform the court of the facts alleged, so that it may decide whether they
are sufficient in law to support a conviction, if one should be had.
103
Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001, every
legislative measure is presumed constitutional. Petitioner failed to discharge the
burden to overcome the presumption of constitutionality.
5. Right to speedy, impartial and public trial
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Impartialthe judge must not be bias and not motivated by malice or bad faith
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A petition for habeas corpus will be given due course only if it shows that
petitioner is being detained or restrained of his liberty unlawfully. A restrictive custody
and monitoring of movements or whereabouts of police officers under investigation by
their superiors is not a form of illegal detention or restraint of liberty. (SP02 Manalo vs.
PNP Chief Calderon, G.R. No. 178920, October 15, 2007)
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provides for it. Any death penalty already imposed shall be reduced to
reclusion perpetua.
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Prohibited Punishments
Mere severity does not constitute cruel or unusual punishment. To violate
constitutional guarantee, penalty must be flagrant and plainly oppressive,
disproportionate to nature of offense as to shock senses of community.
say
General Rule: Dismissal of action, when made at the instance of the accused, does not
put the accused in first jeopardy.
Exceptions:
1. When ground for dismissal is insufficiency of evidence; or
2. When the proceedings have been unreasonably prolonged as to violate the right
of the accused of a speedy trial.
Crimes covered:
1. Same offense; or attempt to commit or frustration thereof or for any offense
which necessarily includes or is necessarily included in the offense charged in
original complaint or information; and
2. When an act is punishable by a law and an ordinance, conviction or acquittal
under either shall bar another prosecution for the same act.
Doctrine of Supervening Eventprosecution for another offense if subsequent
development changes the character of the first indictment under which he may have
already been charged or convicted.
Conviction of accused shall not bar another prosecution for an offense which
necessarily includes the offense originally charged when:
1. Graver offense developed due to supervening facts arising from the same act
or omission;
2. Facts constituting graver offense arose or discovered only after filing of
former complaint or information; and
3. Plea of guilty to lesser offense was made without the consent of prosecutor or
offended party.
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Cabo vs. Sandiganbayan, G.R. No. 169509, June 16, 2006, for double jeopardy to
attach, the case against the accused must have been dismissed or otherwise
terminated without his express consent by a court of competent jurisdiction, upon a valid
information sufficient in form and substance and the accused pleaded to the said
charge.
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People vs. Perlita J. Tria-Tirona, et al., G.R. No. 130106, July 15, 2006, after trial on
the merits, an acquittal is immediately final and cannot be appealed on the ground of
double jeopardy. The only exception where double jeopardy cannot be invoked is where
there is finding of mistrial resulting in a denial of due process.
109
Bill of Attainder
It is a legislative act that inflicts punishment without trial
It is a legislative declaration of guilt
Essential:
1. Specification of certain individuals or a group of individuals;
2. The imposition of a punishment, penal or otherwise; and
3. Lack of judicial trial.
It substitute legislative fiat for a judicial determination of guilt. Thus, it is only
when a statute applies either to named individuals or to easily ascertainable members
of a group in such a way as to inflict punishment on them without judicial trial that it
becomes a bill of attainder.
Article IV
CITIZENSHIP
Citizenship- is membership in a political community which is personal and more
or less permanent in character.
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In the case of US vs. Gomez Colonel, 12 Phil 279, an information for adultery
filed by the prosecutor was dismissed by the SC on the ground that at the time of the
alleged commission of the offense, prosecution could be commenced only on complaint
of the offended spouse. It was held that the amendatory law permitting the prosecutor to
initiate the charge was ex post facto.
say
Characteristics:
1. It refers to criminal matters;
2. It is retroactive in application; and
3. It works to the prejudice of the accused.
Jus Sanguinis. All inhabitants of the islands who were Spanish subjects on
April 11, 1899, and residing in the islands who did not declare their
intention of preserving Spanish nationality between said date and October
11, 1900, were declared citizens of the Philippines [Sec. 4, Philippine Bill
of 1902; Sec. 2, Jones Law of 1916], and their children born after April 11,
1899. (en masse Filipinization)
ii.
Jus Soli. Those declared as Filipino citizens by the courts are recognized
as such today, not because of the application of the jus soli principle, but
principally because of the doctrine of res judicata.
B. After the adoption of the 1935 Constitution: Only the Jus Sanguinis doctrine.
Section 1, Article IV The following are citizens of the Philippines:
1. Those who are citizens of the Philippines at the time of the adoption of this
Constitution; (February 2, 1987)
2. Those whose fathers or mothers are citizens of the Philippines; (jus sanguinis)
3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority;
4. Those who are naturalized in accordance with law.
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ii.
Jus soli-by birth
b. By Naturalization
c. By Marriage
Section 2, Article IV 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. Those who elect Philippine citizenship in accordance with
paragraph (3), Section 1 hereof shall be deemed natural-born citizens.
Rosalind Ybasco Lopez was born on May 16, 1934 in Australia, to spouses
Telesforo Ybasco, a Filipino citizen and native of Daet, Camarines Norte, and Theresa
Marquez, an Australian. Is she a Filipino citizen and, therefore, qualified to run for
Governor of her province?
111
The signing into law of the 1935 Constitution has established the principle of jus
sanguinis as basis for the acquisition of Philippine citizenship xxx. This principle confers
citizenship by virtue of blood relationship. It was subsequently retained under the 1973
and 1987 Constitutions.
Thus, herein private respondent, Rosalind Ybasco Lopez, is a Filipino citizen,
having been born to a Filipino father. The fact of her being born in Australia is not
tantamount to her losing her Philippine citizenship. If Australia follows the principle of
jus soli, then at most, private respondent can also claim Australian citizenship resulting
to her possession of dual citizenship. (Valles vs. COMELEC, 337 SCRA 543, August
9, 2000)
Maria Jeanette Tecson vs. COMELEC, G.R. No. 161434, March 3, 2004 (on the
controversy surrounding the citizenship of FPJ) The Court took note of the fact that
Lorenzo Pou (grandfather of FPJ), who died in 1954 at the age of 84 years of age,
would have been born sometime in 1870, when the Philippines was under the Spanish
rule, and that San Carlos, pangasinan, his place of residence upon his death in 1954, in
the absence of any other evidence, could have well been his place of residence before
death, such that Lorenzo Pou would have benefited from the en masse Filipinization
that the Philippine Bill of 1902 effected. That Filipino citizenship of Lorenzo Pou, if
acquired, would thereby extend to his son, Allan F. Poe (father of FPJ). The 1935
Constitution, during which regime FPJ has seen first light, confers citizenship to
all persons whose fathers are Filipino citizens regardless of whether such
children are legitimate or illegitimate.
Page 1127/12/2008
These laws defined who were deemed to be citizens of the Philippine Islands.
Xxx Under both organic acts, all inhabitants of the Philippines who were Spanish
subjects on April 11, 1899 and resided therein including their children are deemed to be
Philippine citizens. Private respondents father, Telesforo, was born on January 5, 1879
in Daet, Camarines Norte, a fact duly evidenced by a certified true copy of an entry in
the registry of Births. Thus, under the Philippine Bill of 1902 and the Jones Law,
Telesforo Ybasco was deemed to be a Philippine citizen. By virtue of the same laws,
which were the law in force at the time of her birth, Rosalind Ybasco Lopez is likewise a
citizen of the Philippines.
say
Historically, she was born a year before the 1935 Constitution took into effect
and at that time, what served as the Constitution of the Philippines were the organic
acts by which the US governed the country. These were the Philippine Bill of July 1,
1902 and the Philippine Autonomy Act of August 29, 1916, also known as the Jones
Law.
Marriage by Filipino to an alien: Citizens of the Philippines who marry aliens shall
retain their citizenship, unless by their act or omission they are deemed, under the law,
to have renounced it [Sec.4, Art. IV].
112
The span of 14 years that lapsed from the time he reached 21 until he finally
expressed his intention to elect Philippine citizenship is clearly way beyond the
contemplation of the requirement of electing upon reaching the age of majority.
(If his parents were not married, he will follow the citizenship of his mother and he need not elect Philippine citizenship. )
Caram provision. Those born in the Philippines of foreign parents who, before the
adoption of the 1935 Constitution, had been elected to public office in the Islands are
considered citizens of the Philippines. In Chiongbian vs. de Leon, the SC held that the
right acquired by virtue of this provision is transmissible.
Re: 1973 Constitution: Those whose mothers are citizens of the Philippines. Provision is
prospective in application; to benefit only those born on or after January 17, 1973 (date
of effectivity of 1973 Constitution).
If born before January 17, 1973, of Filipino mothers, the person must elect Philippine
citizenship upon reaching the age of majority. [Within reasonable time=3 years except
when there is justifiable reason to delay]
Page 1137/12/2008
Re: Application for Admission to the Philippine Bar, Vicente D. Ching, Bar Matter
No. 914, October 1, 1999 Vicente Ching, a legitimate child, having been born on
April 11, 1964 of Filipino mother and an alien father, was already 35 years old when he
complied with the requirements of CA 625 on June 15, 1999, or over 14 years after he
had reached the age of majority. By any reasonable yardstick, Chings election was
clearly beyond the allowable period within which to exercise the privilege. All his acts
(passing the CPA and Bar Exams) cannot vest in him citizenship as the law gives him
the requirement for election of Filipino citizenship which he did not comply with. (He was
not allowed to take the Lawyers Oath)
The proper period for electing Philippine citizenship was, in turn, based on the
pronouncements of the Department of State of the US government to the effect that the
election should be made within a reasonable time after attaining the age of majority.
The phrase reasonable time has been interpreted to mean that the election should be
made within three (3) years from reaching the age of majority except when there is
justifiable reason to delay.
say
Naturalized citizens are those who have become Filipino citizens through
naturalization, generally under CA No. 473, otherwise known as the Revised
Naturalization Law, which repealed the former Naturalization Law (Act No. 2927), and
by RA 530.
To be naturalized, an applicant has to prove that he possesses all the qualifications and
none of the disqualifications provided by law to become a Filipino citizen. The decision
granting Philippine citizenship becomes executor only after 2 years from its
promulgation when the court is satisfied that during the intervening period, the applicant:
1. Has not left the Philippines;
2. Has dedicated himself to a lawful calling or profession;
3. Has not been convicted of any offense or violation of government
promulgated rules; or
4. Has not committed any act prejudicial to the interest of the nation or contrary
to any government announced policies. [Sec. 1, RA 530] (Bengzon III vs.
HRET, G.R. No. 142840, may 7, 2001)
Qualifications that must be possessed by an applicant:
1. He must be not less than 21 years of age on the day of the hearing of petition;
2. He must have resided in the Philippines for a continuous period of not less than
10 years; may be reduced to 5 years if:
a. he honorably held office in Government;
b. He established a new industry or introduced a useful invention in the
Philippines;
c. He is married to a Filipino woman;
d. Has been engaged as a teacher in the Philippines (in a public or private
school not established for the exclusive instruction of persons of a
particular nationality or race) or in any of the branches of education or
industry for a period of not less than 2 year; or
Page 1147/12/2008
The constitutional and statutory requirements of electing Filipino citizenship apply only
to legitimate children. In Republic vs. Chule Lim, G.R. No. 153883, January 13, 2004,
it was held that the respondent, who was concededly an illegitimate child considering
that her Chinese father and Filipino mother were never married, is not required to
comply with said constitutional and statutory requirements. Being an illegitimate child of
a Filipino mother, respondent became a Filipino upon birth. Record shows that
respondent elected Filipino citizenship when she reached the age of majority. She
registered as a voter in Misamis Oriental when she was 18 years old. The exercise of
the right of suffrage and the participation in election exercises constitute a positive act
of electing Philippine citizenship.
say
The right to elect Philippine citizenship is an inchoate right; during his minority, the
child is an alien [Villahermosa vs. Commissioner of Immigration 80 Phil. 541].
114
4.
5.
6.
Disqualifications:
1. Those opposed to organized government or affiliated with any association or
group of persons who uphold and teach doctrines opposing all organized
governments;
2. Those defending or teaching the necessity or propriety of violence, personal
assault or assassination for the success of predominance of their ideas;
3. Polygamists or believers of polygamy;
4. Those convicted of a crime involving moral turpitude;
5. Those suffering from mental alienation or incurable contagious disease;
6. Those who, during the period of their residence in the Philippines have not
mingled socially with the Filipinos, or who have not evinced a sincere desire to
learn and embrace the customs, traditions and ideals of Filipinos;
7. Those citizens or subjects of nations with whom the Philippines is at war, during
the period of such war;
8. Those citizens or subjects of a foreign country whose laws do not grant Filipinos
the right to become naturalized citizens or subjects thereof.
Page 1157/12/2008
3.
say
Procedure:
1. Filing of declaration of intention- 1 year prior to the filing of the Petition with the
OSG
Persons exempt from filing declaration of intention:
a. Those born in the Philippines and received their primary and secondary
education in public or private schools recognized by the Government and
not limited to any race or nationality;
115
once a week for 3 consecutive weeks. Failure to comply is fatal. (Po Yo Bi vs.
Republic, 205 SCRA 400)
say
b. Those resided in the Philippines for 30 years or more before the filing of
the petition, and enrolled their children in elementary and HS recognized
by the government and not limited to any race or nationality;
c. Those widows and minor children of aliens who have declared their
intention to become citizens of the Philippines and die before they are
actually naturalized.
Page 1167/12/2008
It is the burden of the applicant to prove not only his own good moral character
but also the good moral character of his/her witnesses, who must be credible persons.
A naturalization proceeding is nota judicial adversary proceeding, and the decision
rendered therein does not constitute res judicata. A certificate of naturalization may be
cancelled if it is subsequently discovered that the applicant obtained it by misleadintg
the court upon any material fact.
RA 9139not all aliens may avail of this remedy. Only native born aliens who have
been residing here in the Philippines all their lives, who never saw any other country
and all along thought that they were Filipinos; who have demonstrated love and loyalty
to the Philippines, and affinity to the customs and traditions of the Filipinos.
Naturalization
Repatriation
-mode
for
both
acquisition
and -mode for reacquisition for those who lost
reacquisition of citizenship
their citizenship
-governed by CA 473 (for acquisition) and -governed by various statutes
CA 63 (for reacquisition)
-consists a lengthy process
-consists of taking of an oath of allegiance
to the RP and registering said oath in the
LCR of the place where the person
concerned resides or last resided
Effects of Naturalization:
1. Vests citizenship on wife if she herself may be lawfully naturalized; (She need not
Page 1177/12/2008
Edison So vs. RP, G.R. No. 170603, January 29, 2007Naturalization signifies the
act of formally adopting a foreigner into the political body of a nation by clothing him or
her with privileges of a citizen. Under current and existing laws, there are 3 ways by
which an alien may become a citizen by naturalization:
a. Administrative naturalization pursuant to RA 9139;
b. Judicial naturalization pursuant to CA No. 473, as amendedcovers all aliens
regardless of class; and
c. Legislative naturalization in the form of a law enacted by Congress bestowing
Philippine citizenship to an alien.
say
go through the naturalization process; if she doesnt suffer from any disqualification, no need to
prove the qualifications)
Page 1187/12/2008
Denaturalization
Grounds:
1. Naturalization certificate was obtained fraudulently or illegally;
2. Within 5 years, he returns to his native country or to some foreign country and
establishes residence there;
say
Section 5, Article IVDual allegiance of citizens is inimical to the national interest and
shall be dealt with by law.
This section is not a self-executing law. It needs an implementing law.
Section 40 (d), LGCDisqualifications.The following persons are disqualified from
running from any elective local election:
xxx
(d) Those with dual citizenship.
x x x.
The provision prohibits dual citizenship but the Supreme Court ruled that it refers to
prohibition on dual allegiance.
Doctrine of INDELIBLE ALLEGIANCE: an individual may be compelled to retain his
original nationality even if he has already renounced or forfeited it under the laws of the
second State whose nationality he has acquired.
Dual Citizenship
arises as a result of the concurrent
application of the different laws of 2 or
more states, a person is simultaneously
considered as a national of said states
involuntary
Dual Allegiance
refers to a situation in which a person
simultaneously owes, by some positive
act, loyalty to 2 or more states
Page 1197/12/2008
and of its laws, such an individual has not effectively renounced his foreign citizenship.
That is of no moment.
The filing of a COC suffices to renounce foreign citizenship, effectively removing
any disqualification as dual citizen. This is so because in the COC, one declares that he
is a Filipino citizen and that he will support and defend the Constitution and will maintain
true faith and allegiance to the same. Such declaration under oath operates as an
effective renunciation of foreign citizenship. In this case, the Court adopted the liberal
interpretation of the rule. Manzano is not really prohibited to run due to dual citizenship.
Dual allegiance is the one prohibited. Dual citizenship referred to under Section 40 (d)
of the Local Government Code refers to dual allegiance under Section 5 of Article IV of
the 1987 Constitution.[Mercado vs. Manzano, 307 SCRA 630, May 26, 1999]
say
voluntary
Calilung vs. Datumanong, G.R. No. 160869, May 11, 2007, what RA 9225 does is
allow dual citizenship to natural-born citizens who have lost their Philippine citizenship
by reason of their naturalization as citizens of a foreign country. On its face, it does not
recognize dual allegiance. By swearing to the supreme authority of the Republic, the
person implicitly renounces its foreign citizenship. Plainly, from Section 3, RA 9225
stayed clear out of the problem of dual allegiance and shifted the burden of confronting
119
Page 1207/12/2008
say
the issue of whether or not there is dual allegiance to the concerned foreign country.
What happens to the other citizenship was not made a concern of RA 9225.
120
foreign country upon attaining the age of 21; provided, however, that a Filipino
may not divest himself of Philippine citizenship in this manner while RP is at war
with any country. an application of the principle of Indelible Allegiance.by
virtue of RA 9225
Page 1217/12/2008
say
Effect of repatriation:
It allows the person to recover or return to, his original status before he lost his
Philippine citizenship. Thus, the respondent, a former natural-born Filipino citizen who
lost his Philippine citizenship when he enlisted in the US Marine Corps, was deemed to
have recovered his natural-born status when he reacquired Filipino citizenship through
repatriation. (Bengzon III vs. HRET, G.R. No. 142840, May 7, 2001)
Joevanie Arellano Tabasa vs. CA, G.R. No. 125793, August 29, 2006, the only
persons entitled to repatriation under RA 8171 are the following: a) Filipino women who
lost their Philippine citizenship by marriage to aliens; and b) Natural-born Filipinos
including their minor children who lost their Philippine citizenship on account of political
or economic necessity.
Page 1227/12/2008
B. Reacquisition of citizenship:
1. Under RA 9225, by taking an oath of allegiance
2. By naturalization
3. By repatriation
4. By direct act of Congress
say
122
say
Section 1
Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen (18) years of age, and who shall
have resided in the 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.
Section 2
The Congress shall provide a system for securing the secrecy and sanctity of the
ballots as well as a system for absentee voting by qualified Filipinos abroad.
The Congress shall also design a procedure for the disabled and illiterates to
vote without the assistance of other persons. Until then, they shall be allowed to
vote under existing laws and such rules as the Commission on Elections may
promulgate to protect the secrecy of the ballot.
Page 1237/12/2008
Article V
SUFFRAGE
Right of Suffrage
Right to vote in election of officers chosen by people and in the determination of
questions submitted to people.
123
Kinds:
1. REGULAR ELECTIONrefers to an election participated in by those who
possess the right of suffrage and not disqualified by law and who are registered
voters. It is the election of officers either nationwide or in certain subdivisions
thereof, after expiration of full term of the former members.
say
ELECTIONis the embodiment of the popular will, the expression of the sovereign
power of the people.
It is the means by which the people choose their officials for a definite and fixed
period and to whom they entrust for the time being the exercise of the powers of
government.
a. National Election
Paras vs. COMELEC, G.R. No. 123169, November 4, 1996, the SK Election is
not a regular election because the latter is participated in by youth with ages ranging
from 15-18, as per RA 9164, some of whom are not qualified voters to elect local or
national elective officials.
b. Local Elections
Page 1247/12/2008
124
Components:
Choice or selection of candidates to public office by popular vote
Conduct of the polls
Listing of voters
Holding of electoral campaign
Act of casting and receiving the ballots from the voters
Counting he ballots
Making election returns
Proclaiming the winning candidates
Page 1257/12/2008
say
125
Page 1267/12/2008
say
126
Page 1277/12/2008
POLITICAL PARTY
A political party is any organized group of citizens advocating an ideology or
platform, principles and policies for the general conduct of government and which, as
the most immediate means of securing their adoption, regularly nominates and supports
certain of its leaders and members as candidate in public office.
To acquire juridical personality and to entitle it to rights and privileges granted to
political arties, it must be registered with COMELEC.
say
Aquino vs. COMELEC, 248 SCRA 400, the meaning and purpose of residency
requirementthe place where a party actually or constructively has his permanent
home, where he, no matter where he may be found at any given time, eventually
intends to return and remain, i.e., his domicile, is that to which the constitution refers
when it speaks of residence for the purposes of election law.
127
REGISTRATION
It refers to the act of accomplishing and filing a sworn application for registration
by a qualified voter before the election officer of the city or municipality wherein he
resides and including the same in the book of registered voters upon approval of the
Election Registration Board (ERB).
Registration does not confer the right to vote; it is but a condition precedent to
the exercise of the right. Registration is a regulation, not a qualification. (Yra vs. Abano, 52
Page 1287/12/2008
Disqualifications:
1. Sentence by final judgment to suffer imprisonment for not less than one year,
unless pardoned or granted amnesty; but right is reacquired before expiration of
5 years after service of sentence
2. Conviction by final judgment of any of the following crimes:
a. Crime involving disloyalty to the government
b. any crime against national security
c. Firearms laws
But right is reacquired before expiration of 5 years after service of sentence.
3. Insanity or incompetence declared by competent authority (Section 18, OEC)
say
In Marcita Mamba Perez vs. COMELEC, G.R. No. 133944, October 28, 1999, the fact
that a person is registered as a voter in one district is not proof that he is not domiciled
in another district. Thus, in Faypon vs. Quirino, the SC held that the registration of a
voter in a place other than his residence of origin is not sufficient to consider him to
have abandoned or lost his residence.
Phil 380)
128
Petition for Inclusion (Sec. 34, RA 8189) and Exclusion (Sec. 35, RA 8189) of Voters in
the List
1. Jurisdiction
a. MTCoriginal and exclusive
b. RTCappellate jurisdiction
c. SCappellate jurisdiction over RTC on question of law
2. Petitioner
a. Inclusion
Private person whose application was disapproved by the ERB or
whose name was stricken out from the list of voters
COMELEC
b. Exclusion
Any registered voter in the city or municipality
Representative of political party
Election officer
COMELEC
3. Period of Filing
a. Inclusionany day except 105 days before regular election or 75 days
before a special election
b. Exclusionanytime except 100 days before a regular election or 65 days
before a special election
Page 1297/12/2008
In the case of Akbayan Youth vs. COMELEC, G.R. No. 147066, March 26,
2001, the SC upheld the COMELECs denial of the request for two (2) additional
registration days in order to enfranchise more than 4 million youth who failed to register
on or before December 27, 2000. It is an accepted doctrine in administrative law that
the determination of administrative agencies as to the operation, implementation and
application of law is accorded great weight, considering that these specialized
government bodies are, by their nature and functions, in the best position to know what
they can possibly do or not do under prevailing circumstances.
say
Page 1307/12/2008
say
Ututalum vs. COMELEC, 181 SCRA 335, annulment of the list of voters shall
not constitute a ground for a pre-proclamation contest.
130
Makalintal vs. COMELEC, G.R. No. 157013, July 10, 2003, Section 18.5 of RA
9189, insofar as it grants sweeping authority to the COMELEC to proclaim all winning
candidates, it is unconstitutional as it is repugnant to Section 4 of Article VII of the
Constitution, which vest in Congress the authority to proclaim the winning Presidential
or Vice-Presidential candidates.
CANDIDATES
Page 1317/12/2008
say
COMELEC declaring that he shall resume actual physical residence not later
than 3 years from approval of his registration. Such affidavit shall also state that
he has not applied for citizenship in another country; and
5. Any citizen of the Philippines abroad previously declared insane or incompetent
by competent authority in the Philippines or abroad, as verified by Philippine
embassies, consulate or foreign service establishment concerned.
Dela Torre vs. COMELEC, 258 SCRA 483, violation of the Anti-Fencing Law
involves moral turpitude, and the only legal effect of probation is to suspend the
implementation of the sentence. Thus, the disqualification still subsists.
Removal of DQ: plenary pardon, amnesty, lapse of 5 years after service of
sentence
3. A permanent resident to or immigrant to a foreign country unless he waives such
status (OEC, Sections 12 and 68)
In the case of Caasi vs. COMELEC, 191 SCRA 229, the SC said that a green
card is ample proof that the holder thereof is a permanent resident of, or immigrant to,
the United States.
4. One who has violated provisions on:
a. Campaign period;
b. Removal, destruction of lawful election propaganda;
c. Prohibited forms of propaganda;
d. Regulation of propaganda through mass media; and
e. Election offenses.
Page 1327/12/2008
Villaber vs. COMELEC, G.R. No. 148326, November 15, 2001, violation of BP
22 is a crime involving moral turpitude, because the accused knows at the time of the
issuance of the check that he does not have sufficient funds in, or credit with, the
drawee bank for the payment of the check in full upon presentment. A conviction thereof
shows that the accused is guilty of deceit, and certainly relates to and affects the good
moral character of the person.
say
2. Any person sentenced by final judgment for any of the following offenses:
a. Subversion, insurrection or rebellion
b. Offense for which he was sentenced to penalty of more than 18 months
c. Crime involving moral turpitude
In Pangkat Laguna vs. COMELEC, G.R. No. 148075, February 4, 2002, the
acts of Laguna Governor Lazaro in ordering the purchase of trophies, basketballs,
volleyballs, chessboard sets, and the distribution of medals and pins to various schools,
did not constitute a violation of Section 80 on premature campaigning. Respondent
Lazaro was not in any way directly or indirectly soliciting votes; she was merely
132
Page 1337/12/2008
Codilla vs. De Venecia, G.R. No. 150605, December 10, 2002, when a
candidate has not yet been disqualified by final judgment during the election day and
was voted for, the votes cast in his favor cannot be declared stray. To do so would
amount to disenfranchising the electorate in whom sovereignty resides.
Under Local Government Code (RA 7160)
1. Those sentenced by final judgment for an offense involving moral turpitude or an
offense punishable by imprisonment for at least 1 year, within 2 years after
service of sentence;
say
performing the duties and tasks imposed upon her by law, which duties she had sworn
to perform as Governor of Laguna.
6. Permanent residents in foreign country or those who have acquired the right to
reside abroad and continue to avail of the same right after the effectivity of this
Code.
See Caasi vs. COMELEC, 191 SCRA 229.
7. The insane or feeble-minded. (Sec. 40, LGC)
133
Ocampo vs. Crespo, G.R. No. 158466, June 15, 2004, there must be final judgment
before the election in order that the votes of a disqualified candidate can be considered
stray.
The subsequent disqualification of a candidate who obtained the highest number
of votes does not entitle the candidate who garnered the second highest number of
votes to be declared the winner.
Page 1347/12/2008
say
134
Page 1357/12/2008
say
Cipriano vs. COMELEC, G.R. No. 158830, August 10, 2004, the COMELEC
may not, by itself, without proper proceedings, deny due course to or cancel a COC filed
in due form. Section 78 of OEC, which treats of a petition to deny due course to or
cancel a COC on the ground that any material representation therein is false, requires
that the candidate must be notified of the petition against him, and he should be given
the opportunity to present evidence in his behalf.
135
(Section 73,
Page 1367/12/2008
say
OEC)
136
The affidavit of withdrawal can be filed directly with the main office of the
COMELEC, the office of the Regional Election Director concerned, office of the
provincial election supervisor of the province to which the municipality belongs, or the
office of the municipal election officer of the municipality.
Nuisance Candidates
They are candidates who have no bona fide intention to run for the office for
which the COC has been filed and would thus prevent a faithful election.
COMELEC may refuse to give due course to or cancel a COC of a nuisance
candidate. This can be done motu proprio or upon verified petition of an interested
party.
There should be a showing that:
1. The COC has been filed to put the election process in mockery/dispute;
2. The intent for filing is to cause confusion among the voters by the similarity of
the names of the registered candidates;
3. There are other circumstances which clearly demonstrate that the candidate
has no bona fide intention to run for the office.
Page 1377/12/2008
say
In Fr. Cayat vs. COMELEC, G.R. Nos. 163776 and 165736, April 24, 2007, the
law expressly declares that a candidate disqualified by final judgment before an election
cannot be voted for, and votes cast for him shall not be counted. This is a mandatory
provision of law under Section 6 of RA 6646, the Electoral Reforms Law of 1987. The
SC did not apply this doctrine of the rejection of second placer which triggers the rule on
succession. There was no second placer because Palileng is not a second-placer but
the only placer. There is only one candidate.
Garcia vs. COMELEC, G.R. No. 121139, July 12, 1996, proclamation of the
winning candidate renders moot and academic a motion for reconsideration filed by a
candidate who had been earlier declared by the COMELEC as nuisance candidate.
137
Salcedo vs. COMELEC, G.R. No. 135886, August 16, 1999, material
misrepresentation contemplated in Section 78, OEC refers to qualifications for elective
office. Aside from that, false representation must consist of a deliberate attempt to
mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. It
must be made with an intention to deceive the electorate as to ones qualifications for
public office. The use of surname, when not intended to mislead or deceive the public
as to ones identity, is not within the scope of the provision.
Lone Candidate Law (RA 8295)
Upon expiration of the deadline for filing of COC in a special election called to fill
a vacancy in an elective position other that for President and VP, when there is only one
qualified candidate for such position, the lone candidate3 shall be proclaimed elected to
the position by proper proclaiming body of the COMELEC without holding the special
election upon certification by the COMELEC that he is the only candidate for the office
and is thereby deemed elected.
The lone candidate so proclaimed shall assume office not earlier than the
scheduled election day, in the absence of any lawful ground to deny due course or
cancel the COC in order to prevent such proclamation, as provided for under Section 69
and 78 of OEC.
Page 1387/12/2008
Petition to Deny Due Course to or Cancel COC (Sec. 78, OEC)a verified petition
seeking to deny due course or to cancel a COC may be field by any person exclusively
on the ground that any material representation contained therein as required in Section
74 hereof is false. The petition may be filed at any time not later than 25 days from the
time of filing the COC and shall be decided, after due notice and hearing, not later than
15 days before the election.
Jurisdiction over a petition to cancel a COC lies with the COMELEC in division, not
with the COMELEC en banc. (Garvida vs. Sales, G.R. No. 122872, September 10,
1997)
say
Loong vs. COMELEC, 216 SCRA 760, the petition for cancellation of the COC of
Loong for alleged misrepresentation as to his age, filed by Ututalum beyond the 25-day
period from the last day for filing COC cannot be given due course. Neither can it be
treated as quo warranto petition since there has been no proclamation yet.
The evident purpose of the law in requiring the filing of the certificate of
candidacy, and in fixing the time limit therefor are:
138
CAMPAIGN
Election and Campaign Periods (Sec. 3, OEC)
Election period begins 90 days before the day of election and ends 30 days
thereafterperiod of time with respect to a scheduled date of election when the conduct
of certain political activities are regulated by election laws, and the violation of which
constitutes election offense subject to penalties.
Campaign Periods:
1. President and VP90 days before the day of election
2. Members of Congress, Senatorial, Provincial and City/Municipal45 days
3. Barangay Election15 days
4. Special Election45 days (Section 5, paragraph 2, Article VIII)
The campaign period shall no include the day before and the day of the election.
Period of time within the election period specified by law when bona fide candidates
can legally conduct campaign activities and other election propaganda in relation to the
scheduled date of election.
Page 1397/12/2008
1. To enable the voters to know, at least 60 days before the regular election, the
candidates among whom they are to make the choice; and
2. To avoid confusion and inconvenience in the tabulation of the votes cats. For if
the law did not confine the choice or election by the voters to the duly registered
candidates, there might be as many persons voted for as there are voters, and
votes might be cast even for unknown or fictitious persons as a mark to identify
the votes in favor of a candidate for another office in the same election. (Miranda
vs. Abaya, G.R. No. 136351, July 28, 1999)
say
Limitation on Expenses
Candidates:
1. President and VPP10/voter
2. Other candidate with partyP3/voter
3. Other candidate without partyP5/voter
Statement of Contribution and Expenses
Every candidate and treasurer of a political party shall, within 30 days after the
day of election, file with the COMELEC the full, true and itemized statement of all
contribution and expenditures in connection with the election.
Election Surveys
Sec. 5.4 of RA 9006surveys affecting national candidates shall not be
published within 15 days before an election and surveys affecting local candidates shall
not be published 7 days before an election. This section was declared unconstitutional
in the case of Social Weather Station vs. COMELEC, G.R. No. 147571, May 5, 2001,
for it violated the constitutional rights of speech, expression and the press.
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Prohibited Campaign:
1. Public exhibition of movie, cinematograph or documentary portraying the life or
biography of a candidate during the campaign period.
2. Public exhibition of a movie, cinematograph or documentary portrayed by an
actor or media personality who is himself a candidate.
3. Use of airtime for campaign of a media practitioner who is official of any party or
member of the campaign staff of a candidate of political party.
say
(See the cases of PPI vs. COMELEC, G.R. No. 119694, May 22, 1995 and TELEBAP vs.
COMELEC, G.R. No. 132922, April 21, 1998page 45 of this review notes)payment of just
compensation is now expressly provided under Section 7 of RA 9006; payment of just
compensation is not necessary since it is a valid exercise of police power.
Reasons:
1. It imposes a prior restraint on the freedom of expression
2. It is direct and total suppression of a category of expression even though such
suppression is only for a limited period.
3. The government interest sought to be promoted can be achieved by means other
than the suppression of freedom of expression.
140
CASTING OF VOTES
(Read Sections 190-198 of OEC)
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say
Substitution of Candidates
In case of valid substitution after the official ballots have been printed, the votes
cast for the substituted candidates shall be considered as stray votes but shall not
invalidate the whole ballot. This rule shall not apply if the substitute candidate is of the
same family name. (Section 12, RA 9006) See the case of Luna vs. COMELEC
COMELEC shall call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date reasonably close to the date
of the election not held, suspended or which resulted in a failure to elect but not later
than 30 days after the cessation of the cause of such postponement or suspension of
the election or failure to elect.
The cause for the declaration of a failure of election may occur before or after the
casting of votes or on the day of the election. (RA 7166, Synchronized National and
Local Elections Act)
Page 1427/12/2008
say
1. Motu proprio; or
2. Upon a verified petition by any interested party, after due notice and hearing.
COMELEC shall call for the holding of the election on a date reasonably close to the
date of the election not held, suspended or which resulted in a failure to elect but not
later than 30 days after the cessation of the cause for such postponement or
suspension of the election or failure to elect.
Banaga, Jr. vs. COMELEC, 336 SCRA 701, the circumstances in the above
case are not present in this case so that reliance in Loong by petitioner Banaga is
misplaced. A prayer to declare failure of election and a prayer to annul the election
results are actually of the same nature. Whether an action is for the declaration of
failure of elections or for annulment of election results, based on allegations of fraud,
terrorism, violence or analogous cases, the OEC denominates them similarly.
Petition to Declare Failure of Election
Election Protest
A special action under Rule 26, Comelec An ordinary action under
Rules of Procedure
Comelec Rules of Procedure
Rule
20,
Page 1437/12/2008
and massive fraud was granted by the COMELEC. Even before the technical
examination of election documents was conducted, the cOMELEC already observed
badges of fraud just by looking at the election results in Parang. Nevertheless, the
COMELEC dismissed the petition for annulment of election results or to declare failure
of elections in the municipalities of Tapul, Panglima Estino, Pata, Siasi and
Kalinggalang Calauag. The dismissal was on the ground of untimeliness of the petition,
despite a finding that the same badges of fraud evident from the results of the election
based on the certificates of canvass of votes in Parang, are also evident in the election
results of the five (5) mentioned municipalities. The SC ruled that the COMELEC
committed grave abused of discretion in dismissing the petition as there is no law which
provides a reglementary period to file annulment of elections when there is yet no
proclamation. The election resulted in a failure to elect on account of fraud. Accordingly,
the Court ordered the COMELEC to reinstate the aforesaid petition.
say
COUNTING OF VOTES
143
Principle of Ballot Secrecyvoters are prohibited from exhibiting the contents of their
official ballots to other persons, from making copies thereof, or from putting
distinguishing marks thereon so as to be identified. The reason behind this is to avoid
vote buying through voter identification.
A ballot which has been cast carries the presumption that it reflects the will of the
voter. And the purpose of the election law is to give effect, rather than frustrate, that will.
For this reason, extreme caution should be observed before a ballot is invalidated and
doubts are to be resolved in favor of their validity.
1. Where only first name or surname is writtenthe vote for such candidate is
valid, if there is no other with the same name or surname for the same office.
Gonzaga vs. Seo, 7 SCRA 741, where there are 2 or more candidates having
the same first name or the same surname, writing only the first name or the surname is
not a valid vote for either of the candidates. In order that his vote may be counted, the
voter should add the correct name, surname, or middle initial that will identify the
candidate for whom he is voting.
2. Where only first name is surname of another, or where incumbents full
name, first name or surname is same as anotherthe first part of the rule, the
vote is counted in favor of the candidate whose surname corresponds to the
word. The second part refers to a situation where there are 2 or more candidates,
one of whom is an incumbent or re-electionist whose full name, first name, or
surname is the same as the full name, first name, or surname of the other
candidate or candidates.
Page 1447/12/2008
In reading and appreciation of ballots, every ballot shall be presumed valid unless
there is clear and good reason to justify its rejection. In the appreciation of the ballots,
the object should be to ascertain and carry into effect the intention of the voter, if it could
be determined with reasonable certainty. (Ferin vs. Gonzales, 53 SCRA 237)
say
Rules for the Appreciation of Ballots: (Section 211, OEC)a function of the Board
of Election Inspectors
Example: the incumbents name is Jose Santos, while the others candidates name
is Jose Santos, or Jose Cruz, or Ronaldo Santos. A vote for Jose Santos will be
144
Page 1457/12/2008
say
counted for the incumbent candidate; a vote for Jose will be counted in favor of the
incumbent; or a vote for Santos will be counted in favor of the incumbent candidate.
5. Where single word is first name of candidate and surname of his opponent
the vote shall be counted in favor of the latter (surname of the opponent).
(Corpus vs. Ibay, 84 Phil. 184)
6. Where 2 words are written, one of which is the first name of the candidate
and the other is the surname of his opponentthe vote shall not be counted
for either.
145
Page 1467/12/2008
say
7. Idem sonama name or surname incorrectly written which, when read, has a
sound similar to the name or surname of a candidate when correctly written shall
be counted in his favor. It is based on the principle that the misspelling of a name
or lack of skill in writing it, should not be taken as a ground for rejecting the votes
apparently intended for a candidate, so long as the intention of the voter appears
to be clear. This rule is liberally construed.]
Garay vs. COMELEC, 261 SCRA 222, the CV can never be a valid basis for
canvass; it can only be evidence to prove tampering, alteration, falsification or any other
anomaly in the preparation of the election returns concerned, when duly authenticated.
A CV does not constitute sufficient evidence of the true and genuine results of the
elections; only election returns are. In like manner, neither is the tally board sufficient
evidence of the real results of the election.
CANVASSING
Canvassing Bodies:
1. Congressfor President and VP
2. COMELECSenators and Regional Officials
3. Provincial Board of Canvassersfor Congressmen, Municipal Officials
4. District Board of CanvassersCongressmen, Municipal officials
5. City and Municipal BOCCongressmen, City and Municipal officials
6. Barangay Board of CanvassersBarangay officials
COMELEC has direct control and supervision over the Board of Canvassers
except Congress. It may motu proprio relieve at any time and substitute any member of
the board of canvassers. (Section 227, OEC)
Page 1477/12/2008
Certificate of Votes
Balindong vs. COMELEC, 27 SCRA 567, the Certificate of Votes (CV) is
evidenced not only of tampering, alteration, falsification or any other anomaly in the
preparation of the election returns but also of the votes obtained by the candidates.
say
Prohibited Relationship: Related within the 4th civil degree by consanguinity or affinity
to any of the candidates whose votes will be canvassed by the Board, or to any member
of the same Board
Agujetas vs. CA, 261 SCRA 17, petitioners, members of the Board of Canvassers,
who proclaimed as the 8th winning candidate one who did not obtain the 8 th highest
number of votes, may be criminally prosecuted for violation of Section 231 of the OEC,
failure to proclaim the winning candidate.
147
jurisdiction
over
all
pre-proclamation
Belac vs. COMELEC, G.R. No. 145802, April 24, 2001, Section 241 of the OEC
provides that a pre-proclamation controversy refers to any question pertaining to or
affecting the proceedings of the Board of Canvassers which may be raised by any
candidate or by any registered political party or coalition of political parties before the
Board or directly with the COMELEC.
In a pre-proclamation controversy, the COMELEC, as a rule, is restricted to an
examination of the election returns and is without jurisdiction to go beyond or behind
them and investigate election irregularities.
The policy consideration underlying the delimitation of both substantive ground
and procedure is the policy to determine as quickly as possible the result of the election
on the basis of the canvass.
It is for this reason that pre-proclamation controversies are mandated by law to
be summarily disposed of.
Page 1487/12/2008
say
3. The ERs were prepared under duress, threats, coercion, or intimidation, or they
are obviously manufacture, or not authentic.
4. When substitute and fraudulent returns in controverted polling places were
canvassed, the results of which materially affected the standing of the aggrieved
candidates. (Section 243, OEC)
Exception: Pre-proclamation cases are not allowed in elections for President, VP,
Senators, and Members of the HOR. However, this does not preclude the authority of
the appropriate canvassing body motu proprio or upon written complaint of an interested
person to correct manifest errors, question the composition or proceeding of the board
of canvassers and to determine the authenticity and due execution of certificates of
canvass as provided in Section 30 of RA 7166, as amended by RA 9369. (Pimentel III
vs. COMELEC, G.R. No. 178413, March 13, 2008)
manifest errorsthe error must appear on the face of the Certificates of Canvass or
Election Returns sought to be corrected. It is one that is visible to the eye or obvious to
the understanding; that which is open, palpable, incontrovertible, needing no evidence
to make it more clear. (OHara vs. COMELEC, G.R. No. 148941-42, March 12, 2002)
Correction of manifest errors has reference to errors in the election returns, in the
entries of the statement of votes by precinct per municipality, or in the certificate of
canvass. Some of the definition given for the word manifest are that it is evident to the
eye and understanding, visible to the eye, that which is open, palpable, and
incontrovertible, needing no evidence to make it more clear, not obscure or hidden.
(Dela Llana vs. COMELEC, G.R. No. 152080)
Page 1497/12/2008
General Rule: Candidates and registered political parties involve in an election are
allowed to file a pre-proclamation cases before the COMELEC.
say
Issues #s 2, 3 and 4 are not applicable to election of President, VP, Senators and Members of the House of
Representatives. Only #1 is applicable to them.
Espidol vs. COMELEC, G.R. No. 164922, October 11, 2005, COMELEC is with
authority to annul any canvass and proclamation illegally made. The fact that a
candidate illegally proclaimed has assumed office is not a bar to the exercise of such
power. It is also true that as a general rule, the proper remedy after proclamation of the
winning candidate for the position contested would be to file a regular election protest or
quo warranto except where the proclamation is null and void, the proclaimed
candidates assumption of office cannot deprive the COMELEC of the power to declare
such proclamation a nullity.
149
Pre-Proclamation Controversy
There was election
Page 1507/12/2008
Sandoval vs. COMELEC, G.R. No. 133842, January 26, 2000, the authority to rule on
petitions for correction of manifest error is vested in the COMELEC EN BANC. Section
7 of Rule 27 of the 1993 COMELEC Rules of Procedure provides that if the error is
discovered before proclamation, the board of canvassers may motu proprio, or upon
verified petition by any candidate, political party, organization or coalition of political
parties, after due notice and hearing, correct the errors committed. The aggrieved party
may appeal the decision of the board to the COMELEC and said appeal shall be heard
and decided by the COMELEC EN BANC. Section 5, however, of the same rule states
that a petition for correction of manifest errors may be filed directly with the Commission
en banc provided that such errors could not have been discovered during the
canvassing despite the exercise of due diligence and proclamation of the winning
candidate had already been made.
say
The doctrine applies only when the improbability is shown on the face of the ER itself
and without regard to evidence aliunde or to evidence outside of the return.
150
Page 1517/12/2008
say
PROCLAMATION
In the absence of an appeal, the Board of Canvassers shall proclaim the winner.
ELECTION OFFENSES
Prohibited Acts: (Sections 261, 262, OEC)
1. Vote buying and vote selling;
2. Conspiracy to bribe voters;
3. Wagering upon result of election;
151
Good faith is not a defense. Election offenses are generally mala prohibita. Proof of
criminal intent is necessary. Good faith, ignorance or lack of malice is not a defense; the
commission of the prohibited act is sufficient.
Jurisdiction:
1. Investigation and prosecutionCOMELECthe investigating officer shall
resolve the case within five (5) days from submission.
2. Trial and decisions:
RTCexclusive original jurisdiction any criminal action or proceedings for
violation of OEC
Exception: offenses relating to failure to register or failure to vote (MTC)
Prescription: 5 years from the date of their commission
ELECTION CONTEST
Nature: special summary proceedingto expedite the settlement of controversies
between candidates as to who receive the majority of legal votes.
Purpose: to ascertain the true will of the people
Election Laws, how Construedlaws governing election contests must be liberally
construed to the end that the will of the people in the choice of public officials may not
be defeated by mere technical objections. In an election case, the court has the
imperative duty to ascertain by all means within its command who is the real candidate
elected by the electorate. (Dela Llana vs. COMELEC, G.R. No. 152080)
say
Coercion of subordinates;
Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion;
Coercion of election officials and employees;
Appointment of new employees, creation of new position, promotion, giving of salary increases;
Intervention of public officers and employees;
Undue influence;
Unlawful electioneering;
Others.
Page 1527/12/2008
4.
5.
6.
7.
8.
9.
10.
11.
3.
4.
5.
6.
HRET Rules of Procedure shall prevail over the provisions of the Omnibus Election
Code. (Lazatin vs. HRET, 168 SCRA 391)
Pimentel III vs. COMELEC, G.R. No. 178413, March 13, 2008, the SC has no
jurisdiction to entertain a petition for certiorari and mandamus on matters which may be
threshed out in an election contest. It is the SET which has exclusive jurisdiction to act
on the complaint involving, as it does, a contest relating to the election of a now
member of the Senate.
Appellate Jurisdiction
1. For decisions of RTC and MTCappeal to COMELEC whose decision shall be
final and executor
2. For decisions of COMELECPetition for Review on Certiorari with SC within 30
days from receipt of decision on ground of grave abuse of discretion amounting
to lack or excess of jurisdiction or violation of due process
3. For decisions of Electoral TribunalPetition for Review on Certiorari with SC on
ground of grave abuse of discretion amounting to lack or excess of jurisdiction or
violation of due process
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2.
(2) distinct post-election remedies. They have one objective, i.e., to unseat
the winning candidate.
Senate Electoral Tribunal (SET)
Senators
House of Representatives Electoral Tribunal (HRET)
Congressmen
COMELEC
Regional officials
Provincial officials
City officials
Regional Trial Court
Municipal officials
Metropolitan Trial court, Municipal Circuit Trial Court, and Municipal Trial Court
Barangay officials
Sangguniang Kabataan
say
1. ELECTION PROTESTfiled by any candidate who has filed a COC and has
Page 1547/12/2008
say
been voted upon for the same office on the grounds of:
Fraud;
Terrorism;
Irregularities; or
Illegal acts, committed before, during or after casting and counting of
votes
ELECTION PROTEST
A contest between the defeated and
winning candidates, based on grounds
of election frauds or irregularities, as
to who actually obtained the majority of
QUO WARRANTO
Refers to questions of disloyalty and
ineligibility of the winning candidates.
It is a proceeding to unseat the
ineligible person from office, but not to
154
COUNTER-PROTEST
A protestee may incorporate in his answer a counter-protest. It is tantamount to a
counterclaim in a civil action and may be presented as a part of the answer within the
time he is required to answer the protest, i.e., within five (5) days upon receipt of the
protest, unless a motion for extension is granted, in which case it must be filed before
the expiration of the extended time.
The counter-protest must be filed within the period provided by law, otherwise,
the forum loses its jurisdiction to entertain the belatedly filed counter-protest. The period
to be observed is within five (5) days from the time of the receipt of the copy of the
protest. The 5-day period is not only mandatory requirement of the law but also
jurisdictional so that the court is ousted to entertain counter-protest belatedly filed.
(Kho vs. COMELEC, 279 SCRA 463, September 25, 1997)
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Filed by filed by any candidate who Filed by any registered voter in the
has filed a COC and has been voted constituency.
for.
The respondent may be unseated but
A protestee may be ousted and the the petitioner will not be seated.
protestant may seat in the office
vacated.
(Dumayas, Jr. vs. COMELEC, G.R. Nos. 141952-53, April 20, 2001)
say
the legal votes and therefore is entitled install the protestant in his place.
to hold the office.
155
Gementiza vs. COMELEC, 353 SCRA 724, March 6, 2001, the COMELEC EN BANC
shall decide motions for reconsideration only for decisions of a Division, meaning
those acts of final character. The interlocutory order ruled by the Division of
COMELEC should be brought up to the Supreme Court thru Certiorari.
Rule 3, Section 5c of COMELEC Rules of ProceduresAny motion to
reconsider a decision, resolution, order or ruling of a Division shall be resolved by the
Commission en banc except motions on interlocutory orders of the division, which shall
be resolved by the divisions which issued the order.
Only final orders of a Division may be raised before the COMELEC en banc is in
accordance with Article IX-C, Section 3 of the Constitution which mandates that only
motions for reconsideration of final decisions shall be decided by the COMELEC en
banc.
Counter-Protest erroneously filed and accepted by the COMELECremedy:
1. Erase from the record;
2. Certiorari.
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Francis King Marquez vs. COMELEC, G.R. No. 127318, August 25, 1999, any
contest relating to the election of members of the Sangguniang Kabataan (SK),
including the Chairmanwhether pertaining to their eligibility or the manner of their
electionis cognizable by MTCs, MCTCs, and MeTCs. Section 6 of COMELEC
Resolution No. 2824 which provides that cases involving the eligibility or qualification of
SK candidates shall be decided by the City/Municipal Election Officers whose decision
shall be final, applies only to proceedings before the election. Before proclamation,
cases concerning the eligibility of SK Officers and members are cognizable by the
Election Officer. But after the election and proclamation, the same cases become quo
warranto cases cognizable by MTCs, MCTCs, and MeTCs. The distinction is based on
the principle that it is the proclamation which marks off the jurisdiction of the courts from
the jurisdiction of election officials.
say
Execution Pending Appealthe trial court may grant a motion for execution pending
appeal because the mere filing of an appeal does not divest the trial court of its
jurisdiction over a case and to resolve pending incidents. Since the court and jurisdiction
to act on the motion at the time it was filed, that jurisdiction continued until the matter
was resolved, and was not lost by the subsequent action of the opposing party.
(Edding vs. COMELEC, 246 SCRA 502)
156
Dulce Ann Hofer vs. HRET, G.R. No. 158833, May 12, 2004, by the very nature and
given the public interest involved in the determination of the result of an election, the
controversies arising from the canvassing must be resolved speedily, otherwise, the will
of the electorate will be frustrated.
Article VI
LEGISLATIVE DEPARTMENT
Legislative Power
It is the power or competence of the legislative to propose, enact, ordain,
amend/alter, modify, abrogate or repeal laws. It is vested in the Congress which shall
consist of a Senate and a House of Representatives, except to the extent reserved to
the people by the provision on initiative and referendum.
Page 1577/12/2008
say
Procedural rules in election cases are designed to achieve not only a correct but
also an expeditious determination of the popular will of the electorate.
SENATE
HOUSE OF REPRESENTATIVES
Composition:
Twenty-four
(24), Composition: not more than 250 members,
elected at large by the qualified voters unless otherwise provided by law, consisting
of the Philippines, as may be provided of:
by law.
a. District
Representatives
elected from legislative districts
apportioned
among
the
Qualifications:
157
Disqualifications:
a. No Senator shall serve for
more than 2 consecutive
terms.
Voluntary
renunciation of the office for
any length of time shall not
be
considered
as
an
interruption in the continuity
of his service for the full term
for which he was elected.
(Section 4, Article VI)
b. One who has been declared
by competent authority as
insane or incompetent
c. One
who
has
been
sentenced by final judgment
for:
i. Subversion;
ii. Insurrection;
iii. Rebellion;
iv. Any offense for which
he has been sentenced
to a penalty of not more
than 18 months; or
b.
Party-List Representatives
constitutes 20% of the total
number
of
representatives
elected through a party-list
system of registered national,
regional and sectoral parties or
organization.
c. Sectoral Representatives1/2
vii.
Labor;
Peasant;
Urban poor;
Indigenous
cultural
communities;
Women;
Youth; and
Such other sectors as may be
provided by law, except the
religious sector.
say
provinces,
cities
and
the
Metropolitan Manila area. (Sec.
5, par. 1, Article VI)
Page 1587/12/2008
a. Natural-born citizen of
the Philippines;
b. At least thirty-five (35)
years of age on the day
of the election;
c. Able to read and write;
d. Registered voter;
e. Resident
of
the
Philippines for not less
than 2 years immediately
preceding the day of the
election.
158
Electoral
Tribunal:
Senate
Electoral Tribunal (SET)composed
of three (3) Supreme Court Justices
and six (6) Senatorsto act as sole
judge of all contest relating to election
returns and qualifications of their
respective members.
Removal: Thru EXPULSION by
the Senate with the concurrence of
two-thirds (2/3) of all its members
(Section 16, par. 3, Article VI)
Page 1597/12/2008
say
159
Page 1607/12/2008
say
160
Page 1617/12/2008
881Omnibus
Election
Code)
d. For Party-List Representatives:
i. It is a religious sect or
denomination,
organization
or
association organized for
religious purposes;
ii. It advocates violence or
unlawful means to seek its
goal;
iii. It is a foreign party or
organization;
iv. It is receiving support from
any foreign government,
foreign political party,
foundation, organization,
whether
directly
or
through any of its officers
or members or indirectly
through third parties for
partisan
election
purposes;
v. It violates or fails to
comply with laws, rules or
regulations relating to
elections;
vi. It
declares
untruthful
statement in its petition;
vii. It has ceased to exist for
at least one (1) year;
viii. It fails to participate in the
last
two
preceding
elections or fails to obtain
at least 2% of the votes
cast under the party-list
system
in
the
two
preceding elections for the
constituency in which it
had registered. (Section 6, RA
say
7941)
SalariesSection 10, Article VIThe salaries of Senators and Members of the House
of Representatives shall be determined by law. No increase in said compensation shall
take effect until after the expiration of the full term of all the Members of the Senate and
the House of Representatives approving such increase.
Inhibitions and Prohibitions:
a. Incompatible officemay not hold office or employment in government
during his term without forfeiting his seat;
b. Forbidden officemay not be appointed to any office created or
compensation thereof increased during the term for which he was elected.
(Sec. 13, Article VI)
c. Cannot appear as counsel before any court or before the Electoral Tribunals,
quasi-judicial or other administrative bodies;
d. Shall not, directly or indirectly, be financially interested in any contract with,
franchise or special privilege granted by the government;
e. Shall not intervene in any matter before any office in government for his
pecuniary benefit or where he may be called upon to act on account of his
office (Sec. 14, Article VI).
Page 1627/12/2008
say
CONFLICT OF INTERESTall members of the Senate and the HOR shall, upon
assumption of office, make a full disclosure of their financial and business interests.
They shall notify the House concerned of a potential conflict of interest that may arise
from the filing of a proposed legislation of which they are author.
162
The purpose is to prevent him from owing loyalty to another branch of the
government, to the detriment of the independence of the legislature and the doctrine of
separation of powers.
The prohibition is not absolute, what is not allowed is the simultaneous holding of
that office and the seat in the Congress. Any legislator may hold another office or
employment in the government provided he forfeits his position in the Congress.
say
Page 1637/12/2008
Privileges:
a. Freedom from arrestwhile Congress is in session for offense punished by
not more than 6 years imprisonment (Article 145, RPC; Sec. 11, Art. VI)
b. Speech and Debate clausenot to be questioned nor held liable in any
other place for any speech or debate in Congress or in any committee
thereof. (Section 11, Article VI)
(See discussion under Parliamentary Immunity)
163
Coquilla vs. COMELEC, G.R. No. 151914, July 31, 2002, the SC ruled that he
petitioner had not been a resident of Oras, Eastern Samar, for at least one year prior to
the May 14, 2001 elections. Although Oras was his domicile of origin, petitioner lost the
same when he became a US citizen after enlisting in the US Navy. From then on, until
November 10, 2000, when he re-acquired Philippine citizenship through repatriation,
petitioner was an alien without any right to reside in the Philippines.
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In Marcos vs. COMELEC, 248 SCRA 300, the Court upheld the qualification of
Imelda Marcos, despite her own declaration in her certificate of candidacy that she had
resided in the district for only seven (7) months, because of the following:
a. A minor follows the domicile of his parents; Tacloban became her domicile of
origin by operation of law when her father brought their family to Leyte;
b. Domicile of origin is lost only when there is actual removal or change of
domicile, a bona fide intention of abandoning the former residence and
establishing a new one, and acts which correspond with the purpose; in the
absence of clear and positive proof of the concurrence of all these, the
domicile of origin should be deemed to continue;
c. The wife does not automatically gain the husbands domicile because the
term residence in Civil Law does not mean the same thing in Political Law;
when Mrs. Marcos married Ferdinand Marcos in 1954, she kept her domicile
of origin and merely gained a new home, not a domicilium necessarium;
d. Even assuming that she gained a new domicile after her marriage and
acquired the right to choose a new one only after her husband died, her acts
following her return to the country clearly indicate that she chose Tacloban,
her domicile of origin, as her domicile of choice.
say
In Caasi vs. COMELEC, it was held that the immigration to the US by virtue of the
acquisition of a green card constitutes abandonment of domicile in the Philippines.
164
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say
2. Crucial to the resolution of this case is the fundamental social justice principle that
those who have less in life should have more in law. The party-list system is one
such tool intended to benefit those who have less in life. It gives the great masses of
our people genuine hope and genuine power. It is a message to the destitute and
the prejudiced, and even those in the underground, that change is possible. It is an
invitation for them to come out of their limbo and seize the opportunity.
Clearly, therefore, the Court cannot accept the submissions xxx that the party-list
system is, without any qualification, open to all. Such position does not only weaken
the electoral chances of the marginalized and underrepresented; it also prejudices
165
the total valid votes cast for the party-list system are qualified to have a seat in
the HOR;
say
them. It would gut the substance of the party-list system. Instead of generating hope,
it would create a mirage. Instead of enabling the marginalized, it would further
weaken them and aggravate their marginalization. (Ang Bagong Bayani-OFW
Labor Party vs. COMELEC, G.R. No. 147589, June 26, 2001)
votes it actually obtained, is entitled to a maximum of 3 seats; that is, one (1)
qualifying and two (2) additional seats.
4. The Proportional Representationthe additional seats which a qualified party
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3. The Three (3) Seat Limiteach qualified party, regardless of the number of
2. They must comply with the declared statutory policy of enabling Filipino citizens
belonging to marginalized and underrepresented sectors x x x to be elected to
the House of Representatives. In other words, while they are not disqualified
166
merely on the ground that they are political parties, they must show, however,
that they represent the interests of the marginalized and underrepresented.
enactment of appropriate legislation that will benefit the nation as a whole. (Ang
Bagong BayaniOFW Labor Party vs. COMELEC, G.R. No. 147589, June
26, 2001)
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Yumabong, which is allegedly a religious group, the Court notes the express
constitutional provision that the religious sector may not be represented in the
party-list system. The prohibition is on any religious organization registering as
political party not against a priest running as a candidate.
say
3. In view of the objections directed against the registration of Ang Buhay Hayaang
Aklat vs. COMELEC, G.R. No. 162203, April 24, 2004, the COMELEC has the
power to promulgate the necessary rules and regulations to enforce and administer
election laws. This power includes the determination, within the parameters fixed by
law, of appropriate periods for the accomplishment of certain pre-election acts like filing
petitions for registration under the party-list system. This is exactly what the COMELEC
did when it issued its Resolution No. 6320 declaring September 30, 2003, as the
deadline for filing petitions for registration under the party-list system.
167
Citizens Battle Against Corruption (CIBAC) vs. COMELEC, G.R. No. 172103, April
13, 2007, the correct formula in ascertaining the entitlement to additional seats of the
first party and other qualified party-list groups was clearly explicated in Veterans
wherein the multiplier used was the number of additional seats allocated to the first
party.
LABO DOCTRINEdoctrine of the rejection of the second placernot applicable in
Party-List System
Apportionment of legislative Districts: (Section 5, paragraphs 3 and 4, Article VI)
Each legislative district shall comprise, as far as practicable, contiguous,
compact, and adjacent territory. Each city with a population of at least two hundred
fifty thousand (250,000), or each province, shall have at least one representative. This
is intended to prevent gerrymandering.
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say
168
In Montejo vs. COMELEC, it was held that while concededly the conversion of Biliran
into a regular province brought about an imbalance in the distribution of voters and
inhabitants in the 5 districts of Leyte, the issue involves reapportionment of legislative
districts, and Petitioners remedy lies with Congress. This Court cannot itself make the
reapportionment as petitioner would want.
SESSIONS (Section 14, Article VI)
1. Regularconvene once every year. The 4th Monday of July until 30 days before
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Mariano vs. COMELEC, G.R. No. 118627, March 7, 1995, the Court held that the
Constitution does not preclude Congress from increasing its membership by passing a
law other than a general apportionment law. In fact, in Tobias vs. Abalos, 239 SCRA
106, the case involved the division of San Juan and Mandaluyong into two (2)
representative districts. With the elevation of Mandaluyong from municipality into a
highly urbanized city, both Mandaluyong and San Juan were recognized by RA 7675 as
distinct representative districts. This was challenged on the ground that RA 7675 did not
mention any census indicating that San Juan and Mandaluyong had the minimal
requirement of 250,000 inhabitants needed to constitute a district. Neither did the
challengers, however, give any evidence that the respective populations of each of the
two political units were less than the number required. Hence the court presumed that
Congress had made due consideration of the minimum requirement. It ruled that
reapportionment of legislative districts may be made through a special law. To hold that
reapportionment can be made only through a general law would create an inequitable
situation where a new city or province created by Congress will be denied legislative
representation for an indeterminate period of time. That intolerable situation would
deprive the people in the city or province a particle of that sovereignty. Sovereignty
cannot admit subtraction; it is indivisible. It must be forever whole or it is not
sovereignty.
say
the start of new regular session (Section 14, Article VI)adjournment is allowed
30 days before the opening of its next regular sessionthis is compulsory;
2. Special
a. Called by the President (Sec. 15, Article VI)the President has the power
the 3rd day after the vacancies (Sec. 10, Article VII)
a. Voting separately
say
c. Decide on the disability of the President because the majority of all the
members of the Cabinet has disputed his assertion that he is able to
discharge the powers and duties of his office (Section 11, par. 3, Article
VII)
Page 1707/12/2008
adjourn for more than 3 days, nor any other place than that in which the two
Chambers shall be sitting (Section 16, par. 5, Article VI)
Adjournment Sine Diethe interval between the session of one Congress and that of
another; congress must stop the clock at midnight of the last day of session in order to
validly pass a law
170
In Osmea vs. Pendatun, 109 Phil 863, the determination of the acts which
constitutes disorderly behavior is within the full discretionary authority of the House
concerned, and the Court will not review such determination, the same being a political
question.
Members of Congress may also be suspended by the Sandiganbayan or by the
Office of the Ombudsman. (Paredes vs. SAndiganbayan, G. R. No. 118364, August
10, 1995; Santiago vs. Sandiganbayan, G.R. No. 128055, April 18, 2001)
The suspension in the Constitution is different from the suspension prescribed in
RA 3019, Anti-Graft and Corrupt Practices Act. The latter is not a penalty but a
preliminary preventive measure and is not imposed upon the petitioner for misbehavior
as a member of Congress. (Paredes vs. Sandiganbayan, G.R. No. 118364, August
10, 1995)
In Miriam Defensor-Santiago vs. Sandiganbayan, G.R. No. 128055, April 18,
2001, Section 13 of RA 3019 (where it appears to be a ministerial duty of the court to
issue the order of suspension upon a determination of the validity of the criminal
information filed before it) does not state that the public officer should be suspended
only in the office where he is alleged to have committed the acts charged. Furthermore,
the order of suspension provided in RA 3019 is distinct from the power of Congress to
discipline its own ranks. Neither does the order of suspension encroach upon the power
of Congress. The doctrine of separation of powers, by itself, is not deemed to have
effectively excluded the members of Congress from RA 3019 or its sanctions.
Page 1717/12/2008
say
PARLIAMENTARY IMMUNITY
171
in sessionnot day to day; refers to the entire duration of the session from
its opening until its adjournment.
b. Speech and Debate clausenot to be questioned nor held liable in any
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say
A Senator or member of the HOR shall, in all offenses punishable by not more
than 6 years imprisonment, be privileged from arrest while the Congress is in session.
No member shall be questioned nor be held liable in any other place for any speech or
debate in the Congress or in any other committee thereof.
Section 16, par. 3, Article VIEach House may determine the rules of its
proceedings, punish its Members for disorderly behavior, and, with the
concurrence of 2/3 of all its members, suspend or expel a Member. A penalty of
suspension, when imposed, shall not exceed 60 days.
People vs. Jalosjos, 324 SCRA 689, the immunity from arrest or detention of
Senators and Members of the HOR arises from a provision of the Constitution. The
history of the provision shows that the privilege has always been granted in a restrictive
sense. The provision granting an exemption as a special privilege cannot be extended
172
The present Constitution adheres to the same restrictive rule minus the obligation
of Congress to surrender the subject Congressman to the custody of law. The
requirement that he should be attending sessions or committee meetings has also been
removed. For relatively minor offenses, it is enough that Congress is in session.
Accused-appellant argues that a member of Congress function to attend
sessions is underscored by Section 16 (2), Article VI of the Constitution which states
that
(2) A majority of each House shall constitute a quorum to do business, but
a smaller number may adjourn from day to day and may compel the
attendance of absent Members in such manner, and under such
penalties, as such House may provide.
However, the accused-appellant has not given any reason why he should be
exempted from the operation of Section 11, Article VI. The members of Congress
cannot compel absent members to attend sessions if the reason for absence is
legitimate a one. The confinement of a Congressman charged with a crime punishable
by imprisonment of more than 6 years is not merely authorized by law, it has
constitutional foundations.
When the voters of his district elected the accused-appellant to Congress, they
did so with full awareness of the limitations on his freedom of action. They did so with
the knowledge that he could achieve only such legislative results which he could
accomplish within the confines of prison. To give a more drastic illustration, if voters
elect a person with full knowledge that he is suffering from a terminal illness, they do so
knowing that any time, he may no longer serve his full term in office.
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Because of the broad coverage of felony and breach of the peace, the exemption
applied only to civil arrests. A congressman like the accused-appellant, convicted under
Title 11 of the Revised Penal Code could not claim parliament immunity from arrest. He
was subject to the same general laws governing all persons still to be tried or whose
convictions were pending appeal.
say
beyond the ordinary meaning of its term. It may not be extended by intendment,
implication or equitable considerations. x x x
It is also the right of the President and high-level executive branch officers to
withhold information from Congress, the courts, and ultimately the public. (Rozell)
In determining the validity of a claim of privilege, the question that must be asked
is not only whether the requested information falls within one of the traditional privileges,
but also whether that privilege should be honored in a given procedural setting.
Senate vs. Ermita, G.R. No. 169777, April 20, 2006, executive privilege,
whether asserted against Congress, the courts, or the public, is recognized only in
relation to certain types of information of a sensitive character. While executive privilege
is a constitutional concept, a claim thereof may be valid or not depending on the ground
invoked to justify it and the context in which it is made. Noticeably absent is any
recognition that executive officials are exempt from the duty to disclose information by
the mere fact of being executive officials. Indeed, the extraordinary character of the
exemptions indicates that the presumption inclines heavily against executive secrecy
and in favor of disclosure.
Page 1747/12/2008
say
174
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say
POWERS OF CONGRESS
Classification:
175
1. LEGISLATIVE
Page 1767/12/2008
say
b. Implied:
i. Prohibition against irrepealable laws;
ii. Non-delegation of powers.
2. PROCEDURAL
a. Only one subject, to be stated in the title of the bill (Sec. 26, par. 1, Article VI);
176
Page 1777/12/2008
say
b. Three (3) readings on separate days; printed copies of the bill in its final form
distributed to members 3 days before its passage, except if President certifies to
its immediate enactment to meet a public calamity or emergency; upon its last
reading, no amendment allowed and the vote thereon taken immediately and the
yeas and nays entered into the Journal (Section 26, paragraph 2, Article VI;
c. Appropriation, revenue and tariff bills shall originate exclusively in the House of
Representatives.
177
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say
Except: when the President certifies to the necessity of the immediate enactment of
the bill to meet the public calamity and emergency political questionnot subject to
judicial review
Section 26 (par. 1), Article VIevery bill passed by the Congress shall embrace only
one subject which shall be expressed in the title thereof.
178
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say
Once the bill becomes an enrolled bill, it is conclusive upon the court of its due
enactment. Courts may no longer validly inquire into the bill because of the doctrine of
separation of powers.
Casco (Phil) Chemical Co. vs. Gimenez, 7 SCRA 347, if a mistake was made
in the printing of the bill before it was certified by Congress and approved by the
President, the remedy is amendment or corrective legislation, not a judicial decree.
179
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say
180
Avelino vs. Cuenco, 83 Phil 17, the basis in determining the existence of a
quorum in the Senate shall be the total number of Senators who are in the country and
within the coercive jurisdiction of the Senate.
Page 1817/12/2008
say
Arroyo vs. De Venecia, G.R. No. 127255, June 26, 1998, the SC declared that
the question of quorum cannot be raised repeatedly, especially when a quorum is
obviously present for the purpose of delaying the business of the House.
Presidents Options:
1. Sign and the bill becomes a law.
2. Vetoes the bill, it does not become a law.
2/3 votes of all its Members (for Congress to override)
3. Inactionthe bill automatically becomes a law within 30 days upon receipt of the
bill from Congress.
181
PRESIDENTIAL VETO
VETOSection 27, Article VI
1. General veto of the Presidentparagraph 1 of Section 27, Article VI
2. Item/Line veto of the Presidentparagraph 2 of Section 27, Article VI
The act of the Executive in vetoing the particular provisions is an exercise of a
constitutionally vested power. But even as the Constitution grants the power, it also
provides limitations to its exercise. The veto power is not absolute.
xxx
The OSG is correct when it states that the Executive must veto a bill in its
entirety or not at all. He or she cannot act like an editor crossing out specific lines,
provisions, or paragraphs in a bill that he or she dislikes. In the exercise of the veto
power, it is generally veto, however, when it comes to appropriation, revenue or tariff
bills, the Administration needs the money to run the machinery of the government and it
can not veto the entire bill even if it may contain objectionable features. The President
is, therefore, compelled to approve into law the entire bill, including its undesirable
parts. It is for this reason that the Constitution has wisely provided the item veto power
to avoid inexpedient riders being attached to an indispensable appropriation or revenue
measures.
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say
There is no such thing as pocket veto here in the Philippines because inaction by
the President for 30 days never produces a veto even if Congress is in recess. The
President must still act to veto the bill and communicate his veto to the Congress
without need of returning the vetoed bill with his veto message.
The Constitution provides that only a particular item or items may be vetoed. The
power to disapprove any item or items in an appropriation bill does not grant the
authority to veto a part of an item and to approve the remaining portion of the same
item. (Bengzon vs. Drilon, 208 SCRA 133, April 15, 1992)
182
General rule: Selective/partial veto is not allowed. The President may not veto a
provision of the bill without vetoing the whole/entire bill itself.
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ItemRefers to the particulars, the details, the distinct and severable parts of the bill. It
is an indivisible sum of money dedicated to a stated purpose.
say
183
POWER OF APPROPRIATION
The spending power, called the power of purse belongs to the Congress,
subject only to the veto power of the President. it carries with it a power to specify the
project or activity to be funded under the appropriation law.
Appropriations LawA statute, the primary and specific purpose of which is to
authorize release of public funds from the treasury.
The existence of appropriations and the availability of funds are indispensable
pre-requisites to or conditions sine qua non for the execution of government contracts.
(COMELEC vs. Judge Quijano Padilla and Photokina Marketing Corp., G.R. No.
151992, September 18, 2000)
Classification:
1. General Appropriation Lawpassed annually, intended to provide for the
financial operations of the entire government during one fiscal period.
2. Special Appropriation Lawdesigned for a specific purpose.
Implied (Extra-Constitutional) Limitations on Appropriation Power:
1. Must specify public purpose; and
2. Sum authorized for release must be determinate, or at least determinable.
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Local Chief Executives have veto power except the Punong Barangay.
say
POWER OF TAXATION
Limitations:
1. Rule of taxation shall be uniform and equitable and Congress shall evolve a
progressive system of taxation.
2. Charitable institutions, etc., and all lands, buildings and improvements
actually, directly and exclusively used for religious, charitable or educational
purposes shall be exempt from taxation.
3. All revenues and assets of non-stock, non-profit educational institutions used
actually, directly and exclusively for educational purposes shall be exempt
from taxes and duties.
4. Law granting tax exemption shall be passed only with the concurrence of a
majority of all the members of Congress.
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say
Pimentel vs. HRET, G.R. No. 141489, November 29, 2002, the SC said that even
assuming that the party-list representatives comprise a sufficient number and have
agreed to designate common nominees to the HRET and Commission on
Appointments, their primary recourse clearly rests with the House of Representatives
and not with the Court. Only if the House fails to comply with the directive of the
Constitution on proportional representation of political parties in the HRET and
Commission on Appointments can the party-list representatives seek recourse from this
Court through judicial review. Under the doctrine of primary administrative jurisdiction,
prior recourse to the House is necessary before the petitioners may bring the case to
Court.
Imelda Romualdez-Marcos vs. COMELEC, 248 SCRA 300As to the HRETs
supposed assumption of jurisdiction over the issue of petitioners qualifications after the
May 8, 1995 elections, suffice it to say that HRETs jurisdiction as the sole judge of all
contests relating to the elections, returns and qualifications of members of Congress
begins only after a candidate has become a member of the House of Representatives
(Article VI, Section 17 1987 Constitution). Petitioner not being a member of the House
of Representatives, it is obvious that HRET at this point has no jurisdiction over the
question. COMELEC is not ousted of jurisdiction. See also Section 6 of RA 6646.
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Bondoc vs. Pineda, 201 SCRA 792, Disloyalty to the party and Breach of party
discipline are not valid grounds for the expulsion of a member. HRET members enjoy
security of tenure; their membership may not be terminated except for a just cause such
as the expiration of congressional term, death, resignation from the political party,
formal affiliation with another political party, or removal for other valid causes.
say
HRETalthough attached to the Congress, has separate and distinct personality. It was
created as a non-partisan court. It must be independent of Congress and devoid of
partisan influence and consideration. Members of HRET, once appointed thereto, they
shall be accorded thereto of security of tenure to ensure their impartiality and
independence.
Guerrero vs. COMELEC, 336 SCRA 458 (July 26, 2000) While the Congress is
vested with the power to declare valid or invalid certificate of candidacy, its refusal to
exercise the power following the proclamation and assumption of Farias is a
recognition of the jurisdictional boundaries separating the COMELEC and the HRET.
Under Article VI, Section 17 of the Constitution, the HRET has the sole and exclusive
186
The Court has stressed that so long as the Constitution grants the HRET the
power to be the sole judge of all contests relating to the elections, returns and
qualifications of members of the House of Representatives, any final action taken by the
HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by the Supreme
Court. The power granted to the Electoral Tribunal excludes the exercise of any
authority on the part of this Court that would in any wise restricts it or curtail it or even
affect the same.
In Robles vs. HRET, the Court has explained that while the judgments of the
Tribunal are beyond judicial interference, the Court may do so, however, but only in the
exercise of the SCs so-called extraordinary jurisdiction upon determination that the
Tribunals decision or resolution was rendered without or in excess of its jurisdiction, or
with grave abuse of discretion, or upon a clear showing of such arbitrary and
improvident use by the Tribunal of its power as constitutes a denial of due process of
law, or upon demonstration of a very clear unmitigated error, manifestly constituting
such grave abuse of discretion that there has to be remedy for such abuse.
Page 1877/12/2008
say
jurisdiction over all contests relative to the elections, returns and qualifications of
members of the House of Representatives. Thus, once a winning candidate has been
proclaimed, taken his oath, and assumed office as a member of the HOR, COMELECs
jurisdiction over election contests relating to his elections, returns and qualifications
ends, and the HRETs own jurisdiction begins. Thus, the COMELECs decision to
discontinue exercising jurisdiction over the case is justifiable, in deference to the
HRETs own jurisdiction and functions.
The Court does not venture into the perilous area of correcting perceived errors
of independent branches of government; it comes in only when it has to vindicate a
denial of due process or correct an abuse of discretion so grave or glaring that no less
than the Constitution itself calls for remedial action. (Libanan vs. HRET, 283 SCRA
520)
187
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say
Section 21, Article VIThe Senate or the HOR or any of its respective committees
may conduct inquiries in aid of legislation in accordance with its duly published rules
and procedure. The right of persons appearing in or affected by such inquiries shall be
respected.
Constitutional limitation on inquiries in aid of legislation
These two (2) sections should not be considered as pertaining to the same
power of Congress. One specifically relates to the power to conduct inquiry in aid of
legislation, the aim of which is to elicit information that may be used for legislation,
while the other pertains to the power to conduct a question hour, the objective of
which is to obtain information in pursuit of Congress oversight function.
Section 21 (Legislative
investigation)
Senate vs. Ermita, G.R. No., 169777, April 20, 2006, while attendance to
Congressional hearings is discretionary on the part of the department heads during
question hour, such is not in the case in inquiries in aid of legislation, except upon a
valid and express claim of executive privilege.
The principle of separation of powers is the reason why executive officials may
not be compelled to attend hearings when Congress exercises its oversight functions.
Though, this is not the case when the Congress exercises its power of inquiry in aid of
legislation. Sections 21 and 22 of Article VI, therefore, while closely related and
complementary to each other, should not be considered as pertaining to the same
power of Congress. one specifically relates to the power to conduct an inquiry in aid of
legislation, the aim of which is to elicit information that may be used for legislation, while
the other pertains to the power to conduct a question hour, the object of which is to
obtain information in pursuit of Congress oversight function.
Sabio vs. Sen. Gordon, G.R. No. 174340, October 17, 2006, the Congress power of
inquiry, being broad, encompasses everything that concerns the administration of
existing laws as well as proposed or possibly needed statutes. It even extends to
government agencies created by Congress and officers whose positions are within the
power of Congress to regulate or even abolish. A mere provision of law cannot pose a
limitation to the broad power of Congress, in the absence of any constitutional basis.
say
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Standard Chartered Bank vs. Senate Committee on Banks, G.R. No. 167173,
December 27, 2007, the mere filing of a criminal or an administrative complaint before
a court or a quasi-judicial body should not automatically bar the conduct of legislative
investigation. Otherwise, it would be extremely easy to subvert any intended inquiry by
Congress through the convenient ploy of instituting a criminal or administrative
complaint.
Page 1907/12/2008
Arnault vs. Nazareno, 87 Phil. 29the inquiry, to be within the jurisdiction of the
legislative body making it, must be material or necessary to the exercise of a power in it
vested by the Constitution, such as to legislate or to expel a member.
(The power to conduct Inquiry is integral and implied of legislative power)
say
questions, but may cover matters related thereto. When the scrutiny of the State or the
public interest so requires, the appearance shall be conducted in executive session
The power of oversight has been held to be intrinsic in the grant of legislative
power itself and integral to the checks and balances inherent in a democratic system of
government.
The oversight power has also been used to ensure the accountability of
regulatory commissions like the SEC. Unlike other ordinary administrative agencies,
these bodies are independent from the executive branch and are outside the executive
department in the discharge of their functions.
190
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say
191
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say
POWER OF CONCURRENCE
The Constitution requires the concurrence of the Congress to an amnesty and to
a treaty.
Article VII
EXECUTIVE DEPARTMENT
EXECUTIVE POWER
It is the legal and political functions of the President involving the exercise of
discretion. It is vested in the President of the Philippines. It is the power to enforce and
administer laws.
192
The President may not veto a law enacted thirty-five (35) years before his or her
term of office. Neither may the President set aside or reverse a final and executory
judgment of the Supreme Court through the exercise of veto power. (Bengzon vs.
Drilon, 208 SCRA 133, April 15, 1992)
VICE-PRESIDENT
Q U A L I F IC A T I O NS
1.
2.
3.
4.
5.
Natural-born citizen;
Registered voter;
Able to read and write;
At least 40 years of age on the day of election; and
Resident of the Philippines for at least 10 years immediately preceding the
election.
TERM OF OFFICE
Six (6) years
DISQUALIFICATIONS
1. Not eligible for any re-election;
1. Shall not serve for more than two (2)
2. No person who has succeeded as
consecutive terms (Sec. 4, Art. VII)
President and has served as such
for more than 4 years shall be
qualified for election to the same
office at any time (Sec. 4, Art. VII);
General Disqualifications*
Page 1937/12/2008
PRESIDENT
say
The executive power shall be vested in the President of the Philippines. (Section
1, Article VII) In National Electrification Administration vs. CA, G.R. No. 143481,
February 15, 2002, the President is vested with the power to execute, administer, and
carry out laws into practical operation. Executive power, then, is the power of carrying
out the laws into practical operation and enforcing their due observance.
2.
3.
4.
5.
6.
7.
1.
2.
3.
ELECTION
(Section 4, Article VII) Unless otherwise provided by law, the regular election for
President and Vice-President shall be held on the second Monday of May.
Page 1947/12/2008
1.
say
Even after Congress has adjourned its regular session, it may continue to
perform this constitutional duty of canvassing the presidential and vice-presidential
election results without need of any call for special session by the President. The joint
public session of both Houses of Congress convened by express directive of Section 4,
Article VII of the Constitution to canvass the votes for and proclaim the newly-elected
President and Vice-President has not, and cannot, adjourn sine die until it has
accomplished its constitutionally mandated tasks. For only when a board of canvassers
194
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say
has completed its functions it is rendered functus officio. (Pimentel, Jr. vs. Joint
Committee of Congress to Canvass the votes cast for President and VP, G.R. No.
163783, June 22, 2004)
195
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At 10 oclock in the morning of the 3rd day after the vacancy occurs, Congress
shall convene without need of a call, and within 7 days enact a law calling for
a special election to elect a President and a VP to be held not earlier than 45
nor later than 60 days from the time of such call. The bill shall be deemed
certified and shall become a law upon its approval on 3rd reading by
Congress. The convening of the Congress cannot be suspended nor the
special election postponed. No special election shall be called if the vacancy
occurs within 18 months before the date of the next presidential election.
say
196
4. Calling-out power, power to place the Philippines under martial law and power to
suspend the privilege of the writ of habeas corpus (Section 18, Article VII)
5. Pardoning power, reprieves, commutations, amnesty, remit fines and forfeitures
(Section 19, Article VII)
6. Borrowing power (Section 20, Article VII)
7. Diplomatic/Treaty-making power (Section 21, Article VII)
8. Budgetary power (Section 22, Article VII)
9. Informing powerState of the Nation Address (Section 23, Article VII)
10. Veto power (Article VI)
11. Power of general supervision over local governments (Section 4, Article X)
12. Power to call special session (Section 15, Article VI)
13. Unstated Residual Powernot found in the Constitution
14. Power to Reorganize the Office of the President (Administrative Code)
15. Power of Impoundment
Page 1977/12/2008
say
5. All other officers of the government whose appointments are not otherwise
provided by law
6. Those whom he may be authorized by law to appoint.
Sarmiento vs. Mison, 156 SCRA 549, not all appointments made by the President
need CA confirmation. Only those enumerated in paragraph 1 of Section 16, Article VII
need confirmation of the Commission on Appointments. The appointment of Salvador
Mison as Commissioner of Customs needs no confirmation by the CA, because the
Commissioner of Customs is not among the officers mentioned in the 1st paragraph of
Section 16, Article VII.
Page 1987/12/2008
Binamira vs. Garrucho, 188 SCRA 154, when a person is merely designated
and not appointed, the implication is that he shall hold office in a temporary capacity
and may be replaced at will of the appointing authority. In this sense, a designation is
considered only an acting or temporary appointment which does not confer security of
tenure on the person named.
say
Officers of the armed forces from the rank of colonel or naval captainrefers to
military officers alone
PNP is now under the DILG (civilian in character, national in scope)no longer part of
the AFP, therefore, no need for CA confirmation
198
Manalo vs. Sistoza, 312 SCRA 239a law was enacted creating the PNP, RA 6795. It
provides that the Director, Deputy Director General, and other top officials of the PNP
shall be confirmed by the Commission on Appointments. The SC declared it as
unconstitutional.
In the above two cases, Congress cannot add/remove anything from the list of
officers to be appointed by the President that require confirmation of the CA. The list is
exclusive. The Congress cannot add or remove anything by a mere legislative act.
Officials subject to the Appointment of the President:
A. With the confirmation by the Commission on Appointments
1. Heads of the executive department
2. Ambassadors, other public ministers and consuls
3. Officers of the armed forces from the rank of colonel or naval captain
4. Other officers whose appointments are vested in him in the Constitution
B. Prior recommendation or nomination by the Judicial and Bar Council (JBC)
1. Members of the Supreme Court and all lower courts
2. Ombudsman and hid 5 Deputies
C. Appointment of VP as Member of the Cabinet
D. Appointment solely by the President
1. Those vested by the Constitution on the President alone
2. Those whose appointments are not otherwise provided for by law
3. Those who may be authorized by law to appoint;
4. Those other officers lower in rank whose appointment is vested by law in the
President alone
Page 1997/12/2008
Calderon vs. Carale, 208 SCRA 254, Article 215 of the Labor Code as amended by RA
6715, insofar as it requires the confirmation by the CA of the appointment of the NLRC
Chairman and commissioners, is unconstitutional because it violates Section 16 of
Article VII. The Congress, when they enacted the law, added to the exclusive list
another category of officers to be appointed by the President that need the confirmation
of the CA.
say
Soriano vs. Lista, G.R. No. 153881, March 24, 2003, the Philippine Coast Guard
(PCG) is no longer part of the Philippine Navy or the AFP but is not under the DOTC, a
civilian agency, the promotion and appointment of respondent officers of the PCG will
not require confirmation by the CA.
199
Classifications:
1. Permanentthose extended to persons possessing the requisite eligibility and
are thus protected by the constitutional guarantee of security of tenure.
2. Temporarythose given to persons without such eligibility, revocable at will and
without necessity of just cause or a valid investigation, made on the
understanding that the appointing power has not yet decided on a permanent
appointee and that the temporary appointee may be replaced at any time a
permanent choice is made.
Temporary appointment and Designation are not subject to confirmation by the
Commission on Appointments. Such confirmation, if given erroneously, will not
make the incumbent permanent appointee. (Valencia vs. Peralta, 8 SCRA 692)
3. RegularAppointment by the President when Congress is in session. It takes
effect only after confirmation by the CA, and once approved, continues until the
end of the term of the appointee.
4. Ad Interim(2nd paragraph of Section 16, Article VII)Appointment by the
Page 2007/12/2008
Appointing Procedure:
1. Nomination by the President;
2. Confirmation by the Commission on Appointments;
3. Issuance of commission; and
4. Acceptance by appointee. Deemed complete upon acceptance. Pending such
acceptance, which is optional to the appointee, the appointment may still be
validly withdrawn. Appointment to a public office cannot be forced upon citizen
except for purposes of defense of the State under Section 4, Article II of the
Constitution, as an exception to the rule against involuntary servitude.
say
it is confirmed by the CA
Page 2017/12/2008
say
201
Ad Interim
Takes effect immediately
regular
Does not take effect immediately
Ad interim appointee by-passed by the CA is no longer subject to reappointment. He is deemed to have vacated the office.
Case of First Impression
2nd issue in the case of Matibag vs. Benipayowhether ad interim appointees
by-passed by Commission on Appointments may be subject to re-appointment?
The SC held that an ad interim appointment that is by-passed by the
Commission on Appointments because of lack of time or failure of the latter to
organize is another matter. A by-passed appointment is one that has not been
finally acted upon on the merits by the CA at the close of the session of
Congress. There is no final decision by the Commission on Appointments to give
or withhold its consent to the appointment as required by the Constitution. Absent
such decision, the President is free to renew the ad interim appointment of a bypassed appointee. This is recognized in Section 17 of the Rules of the
Commission on Appointments. Hence, under the Rules, a by-passed
appointment can be considered again if the President renews the appointment.
The ad interim appointments and subsequent renewals of appointments of
Benipayo, Borra and Tuason do not violate the prohibition on reappointments
because there were no previous appointments that were confirmed by the
Commission on Appointments. A reappointment presupposes a previous
confirmed appointment. The same ad interim appointments and renewal of
appointments will also not breach the 7-year term limit because all the
appointments and renewals of appointments of Benipayo, Borra and Tuason are
for a fixed term expiring on February 2, 2008. Any delay in their confirmation will
not extend the expiry date of their terms of office. Consequently, there is no
danger whatsoever that the renewal of the ad interim appointments of these
Page 2027/12/2008
say
202
the CA, serves his full 7-year term. Such person cannot be reappointed to
the COMELEC, whether as a member or as a chairman, because he will then
be actually serving more than 7 years.
2. Where the appointee, after confirmation, serves a part of his term and
then resigns before his 7-year term of office ends. Such person cannot be
reappointed. Whether as a member or as a chairman, to a vacancy arising
from retirement because a reappointment will result in the appointee also
serving more than seven years.
3. Where the appointee is confirmed to serve the unexpired term of
someone who died or resigned, and the appointee completes the
unexpired term. Such person cannot be reappointed, whether as member or
chair, to a vacancy arising from retirement because a reappointment will
result in the appointee also serving more than seven years.
4. Where the appointee has previously served a term less than seven
years, and a vacancy arises from death or resignation. Even if it will not
result in his serving more than 7 years, a reappointment of such person to
serve an unexpired term is also prohibited because his situation will be similar
to those appointed under the second sentence of Section 1 (2), Article IX-C of
the Constitution. This provision refers to the 1st appointees under the
Constitution, whose terms of office are less than 7 years, but are barred from
ever being reappointed under any situation.
Page 2037/12/2008
Four (4) Situations where Section 1 (2), Article IX-C will apply:
Section 1 (2), Article IX-C of the Constitution provides: The Chairman and the
Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment.
Of those first appointed, three Members shall hold office for seven years, two
Members for five years, and the last Member for three years, without
reappointment. Appointment to any vacancy shall be only for the unexpired term
of the predecessor. In no case shall any Member be appointed or designated in
a temporary or acting capacity.
say
three respondents will result in any of the evils intended to be exorcised by the
twin prohibition of the Constitution. The continuing renewal of the ad interim
appointment of these three respondents for so long as their term of office expires
on February 2, 2008 does not violate the prohibition on reappointments in
Section 1 (2), Article IX-C of the Constitution.
203
Ad interim appointment
Made if congress is not in session
Page 2047/12/2008
In Pimentel, Jr. vs. Ermita, G.R. No. 164798, October 13, 2005,
Congress commenced their regular session on July 26, 2004, the Commission
on Appointments was constituted on August 25, 2004. Meanwhile, President
Arroyo issued appointments to respondents as acting secretaries of their
respective departments. Respondents took their oath and assume duties as
acting secretaries. Congress adjourned on September 22, 2004. On September
23, 2004, President Arroyo issued ad interim appointments to respondents as
secretaries of the departments to which they were previously appointed in an
acting capacity. A petition was filed to declare unconstitutional the appointments
issued by the President to the respondents as acting secretaries of their
respective departments without the consent of the Commission on Appointments
while Congress is in session. The SC held that as a rule, the writ of prohibition
will not lie to enjoin acts already done. However, an exception to the rule on
mootness, courts will decide a question otherwise moot if it is capable of
repetition yet evading review. In the present case, the mootness of the petition
does not bar its resolution. The question of constitutionality of the Presidents
appointment of department secretaries in an acting capacity while Congress is in
session will arise in every such appointment. The office of a department
secretary may become vacant while Congress is in session. Since a department
secretary is an alter ego of the President, the acting appointee to the office must
necessarily have the Presidents confidence. Thus, by the very nature of the
office of a department secretary, the President must appoint in an acting capacity
a person of her own choice even while Congress is in session. The person may
or may not be the permanent appointee, but practical reasons may make it
expedient that the acting appointee will also be the permanent appointee. The
law expressly allows the President to make such acting appointment. Section
17, Chapter 5, Title I, Book III of EO 292 (Administrative Code of 1987) states
that: The President may temporarily designate an officer already in the
government service or any competent person to perform the functions of an
office in the executive branch. Thus, the President may even appoint in an acting
capacity a person not yet in the government service, as long as the President
deems that person competent.
say
204
Permanent in nature
Temporary in nature
the next presidential elections and up to the end of his term, a President or
Acting President shall not make appointments, except temporary appointments
to executive positions when continued vacancies therein will prejudice public
service or endanger public safety.
Page 2057/12/2008
Requires confirmation of CA
say
In Re: Hon. Mateo Valenzuela and Hon. Placido Vallarta, 298 SCRA 409, Section
15, Article VII is directed against two (2) types of appointment:
1. Those made for buying votesthose appointments made within 2 months
preceding the Presidential election and are similar to those which are declared
election offenses in the Omnibus Election Code;
205
De Rama vs. Court of Appeals, 353 SCRA, 94, Mayor Evelyn Abeja run for reelection
but lost. Before she vacated her office, though, she extended permanent appointments
to 14 new employees of the municipal government. The incoming mayor, upon
assuming office, recalled said appointments contending that these were midnight
appointments and, therefore, prohibited under Section 15, Article VII of the
Constitution. The SC held that the records reveal that when the petitioner brought the
matter of recalling the appointments of the 14 private respondents before the Civil
Service Commission, the only reason he cited to justify his actions was that these were
midnight appointments that are forbidden by the Constitution. However, the CSC
ruled, and correctly so, that the said prohibition applies only to presidential
appointments. In truth and in fact, there is no law that prohibits local elective officials
from making appointments during the last days of his or her tenure.
Rufino vs. Endriga, G.R. Nos. 139554 and 139565, July 21, 2006, a statute cannot
circumvent the constitutional limitations on the power to appoint by filling vacancies in a
public office through election by the co-workers in that office. Such manner of filling
vacancies in a public office has no constitutional basis. And since the pertinent section
is unconstitutional, the President has the power to appoint the trustees by virtue of
Section 16, Article VII which gives the President the power to appoint officers whose
appointments are not provided for by the law.
Page 2067/12/2008
say
appointments and those presumed made for the purpose of influencing the
outcome of the presidential election.
POWER OF REMOVAL
General Rule: This power is implied from the power to appoint.
Exceptions: Those appointed by him where the Constitution prescribes certain
methods for separation from public services.
Example: Members of the Constitutional Commissions, Justices of the SCmay
only be removed through impeachment
206
POWER OF CONTROL
Sec. 17, Article VII: The President shall have control of all the executive departments,
bureaus and offices. He shall ensure that the laws be faithfully executed.
Faithful Execution Clause
As Chief Executive, the President holds the steering wheel that controls the
course of her governmentshe lays down policies in the execution of her plans and
programs, and whatever policy, she chooses, she has her subordinates to implement
them. (Chavez vs. Romulo, G.R. No. 157036, June 9, 2004)
Controlis the power to alter or modify or nullify or set aside what a subordinate had
done in the performance of his duties and to substitute the judgment of the former for
that of the latter.
Supervisionmeans overseeing, or the power or authority of an officer to see that
subordinate officers perform their duties, and if the latter fail or neglect to fulfill them,
then the former may take such action or steps as prescribed by law to make them
perform these duties.
Doctrine of Qualified Political Agency or the Alter Ego Doctrine
Acts of the Secretaries of executive departments when performed and promulgated in
the regular course of business or unless disapproved or reprobated by the Chief
Executive, are presumptively the acts of the Chief executive.
Page 2077/12/2008
Members of the career service of the Civil Service who are appointed by the
President may be directly disciplined provided that the same is for cause and in
accordance with the procedure prescribed by law.
Members of the Cabinet and such officers whose continuity in office depends
upon the pleasure of the President may be replaced at any time, but legally speaking,
their separation is effected not by removal but by expiration of their term. (Aparri vs.
Court of Appeals, 127 SCRA 231)
say
In the case of DENR vs. DENR Region XII Employees, G.R. No. 149724,
August 19, 2003, the power of the President to reorganize the National Government
may validly be delegated to his Cabinet members exercising control over a particular
executive department. Accordingly, in this case, the DENR Secretary can validly
reorganize the DENR by ordering the transfer of the DENR Regional Offices from
207
MILITARY POWERS
Page 2087/12/2008
The power of control may be exercised by the President only over the acts not
over the actor (Angangco vs. Castillo, 9 SCRA 619)
say
Cotabato City Koronadal, South Cotabato. The exercise of this authority by the DENR
Secretary, as an alter ego of the President, is presumed to be the act of the President
because the latter had not expressly repudiated the same.
However, in the case of Gloria vs. Court of Appeals, G.R. No. 119903, August
15, 2000, the SC held that even if the DECS Secretary is an alter ego of the President,
he cannot invoke the Presidents immunity from suit in a case filed against him,
inasmuch as the questioned acts are not those of the President.
Invasion
rebellion
so requires
Duration: not to exceed 60 days, following which it shall be lifted unless extended
by Congress
Duty of the President: To report action to Congress within 48 hours, personally or
in writing
The Congress may revoke or extend, on request of the President, the effectivity
of proclamation by a majority vote of all its Members, voting jointly.
The suspension applies only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ of habeas corpus, any person
thus arrested or detained shall be judicially charged within three (3) days, otherwise he
shall be released.
Page 2097/12/2008
say
Gudani vs. Senga, G.R. No. 170165, August 15, 2006 (Tinga), the ability of the
Page 2107/12/2008
d. Congress may, by majority vote of all its members voting jointly, revoke
the proclamation, and the President cannot set aside the revocation;
e. By the same vote and in the same manner, upon initiative of the
President, Congress may extend the proclamation if the invasion or
rebellion continues and public safety requires it;
f. The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus or the
extension thereof, and must promulgate its decision thereon within 30
days from its filing;
g. It does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the
confinement of jurisdiction on military courts and agencies over civilians
where civil courts are able to function, nor automatically suspend the
privilege of the writ.
say
Section 19, Article VII is simply the source of power of the President to grant
reprieves, commutations, and pardons and remit fines and forfeitures after conviction by
final judgment. This provision, however, cannot be interpreted as denying the power of
courts to control the enforcement of their decisions after the finality. In truth, an accused
that has been convicted by final judgment still possesses collateral rights and these
rights can be claimed in the appropriate courts. For instance, a death convict who
becomes insane after his final conviction cannot be executed while in the state of
insanity. (See Article 79 of the Revised Penal Code)
210
Page 2117/12/2008
Article 81 of the Revised Penal code, as amended, which provides that the
death sentence shall be carried out without prejudice to the exercise by the President of
his executive clemency powers at all times. For instance, the President cannot grant
reprieve, i.e., postpone the execution of a sentence to a day certain in the absence of a
precise date to reckon with. The exercise of such clemency power, at this time, might
even work to the prejudice of the convict and defeat the purpose of the Constitution, and
the applicable statute as when the date of execution set by the President would be
earlier than that designated by court. (Echegaray vs. Secretary of Justice, 301 SCRA
96)
say
211
granted to individuals
it must be accepted
it is a public act
it looks backward and puts the offense it looks forward and relieves the pardonee
into oblivion
of the consequences of the offense
Judicial admissions
Matters of judicial notice
no need of proof
Judicial presumptions
In Llamas vs. Orbos, pardon is available also to one found guilty of administrative
offense.
Section 19 of Article VII did not distinguish between a criminal and administrative
offense.
Effect of grant of pardon:
In the case of Monsanto vs. Factoran, the accused was convicted of
malversation thru falsification of official documents. She was granted absolute pardon.
She demanded for reinstatement and back salaries. The SC held that pardon may
mean forgiveness but not forgetfulness. What was remitted is the penalty and not the
fact of ones guilt. In the eyes of law, she was still a convict.
Exceptions:
1. Unless the grant expressly so provides for her reinstatement and payment of
back salaries.
2. If the grant of pardon was based on the fact of the innocence of the one charged
of the crime.
Page 2127/12/2008
say
ordinary offenses
BORROWING POWER
The President may contract or guarantee foreign loans on behalf of the Republic
with the concurrence of the Monetary Board, subject to such limitations as may be
212
provided by law. The Monetary Board shall submit to the Congress report on loans
within 30 days from end of every quarter.
In our jurisdiction, the power to ratify is vested in the President and not, as
commonly believed, in the legislature. The role of the Senate is limited only to giving or
withholding its consent, or concurrence, to the ratification. (Bayan vs. Zamora, G.R.
No. 138570, October 10, 2000)
This provision lays down the general rule on treaties or international agreements
and applies to any form of treaty with a wide variety of subject matter. All treaties or
international agreements entered into by the Philippines, regardless of subject matter,
coverage, or particular designation or appellation, requires the concurrence of the
Senate to be valid and effective.
But see Section 25 of Article XVIII. Under this provision, the concurrence of the
Senate is only one of the requisites to render compliance with the constitutional
requirements and to consider the agreement binding on the Philippines.
BUDGETARY POWER
Within 30 days from opening of every regular session, President shall submit to
Congress a budget of expenditures and sources of financing, including receipts from
existing and proposed revenue measures.
The Congress may not increase the appropriation recommended by the
President. However, its form, content, manner of preparation of the budget shall be
prescribed by Congress.
Page 2137/12/2008
say
Limitations:
1. There must be prior concurrence of the Monetary Board
2. It is subject to such other limitations
OTHER POWERS
1. Power to call special session (Section 15, Article VI)
2. Power to deport aliens
3. Consent to deputization of government personnel by COMELEC
say
RESIDUAL POWER
Whatever is not judicial, whatever is not legislative, is
residual power exercised by the President.
Page 2147/12/2008
IMPOUNDMENT POWER
Impoundment refers to the refusal of the President, for whatever reason, to
spend funds made available by Congress. It is the failure to spend or obligate budget
authority of any type.
Proponents of impoundment have invoked at least three (3) principal sources of
the authority of the President.
1. authority to impound given to him either expressly or impliedly by Congress
2. the executive power drawn from the Presidents role as Commander-in-Chief
3. Faithful Execution Clause
The proponents insist that a faithful execution of the laws requires that the
President desist from implementing the law if doing so would prejudice public interest.
An example given is when through efficient and prudent management of a project,
substantial savings are made. In such a case, it is sheer folly to expect the President to
spend the entire amount budgeted in the law. (PHILCONSA vs. Enriquez, 235 SCRA
506)
Page 2157/12/2008
say
215
Page 2167/12/2008
Article VIII
JUDICIAL DEPARTMENT
say
4. The SC has administrative supervision over all inferior courts and personnel;
5. The SC has the exclusive power to discipline judges/justices of inferior courts;
6. The members of the Judiciary have security of tenure;
say
8. Salaries of judges may not be reduced; the Judiciary enjoys fiscal autonomy;
9. The SC alone may initiate Rules of Court;
10. The SC alone may order temporary detail of judges;
11. The SC can appoint all officials and employees of the Judiciary.
Fiscal Autonomymeans freedom from outside control. The Judiciary, the
Constitutional Commissions, and the Ombudsman must have the independence and
flexibility needed in the discharge of their constitutional duties. The imposition of
restrictions and constraints on the manner the independent constitutional offices
allocate and utilize the funds appropriated for their operations is anathema to fiscal
autonomy and violative not only of the express mandate of the Constitution but
especially as regards the SC, of the independence and separation of powers upon
which the entire fabric of our constitutional system is based. (Bengzon vs. Drilon, 208
SCRA 133, April 15, 1992)
Page 2177/12/2008
7. The members of the SC may not be designated to any agency, performing quasijudicial or administrative functions;
Page 2187/12/2008
C. RTC Judges
a. Citizen of the Philippines;
b. At least 35 years of age;
c. Has been engaged in the practice of law for at least 5 years or has held
public office in the Philippines requiring admission to the practice of law as
an indispensable requisite
say
B. Lower CourtsHold office during good behavior until they reach the age of 70 or
218
Appointment:
The President shall appoint regular members for a 4-year term with the consent
of the Commission on Appointments
Powers and Functions:
1. Recommend appointees to the Judiciary;
2. Recommend appointees to the Office of the Ombudsman and his 5 Deputies;
3. May exercise such other functions as may be assigned by the Supreme Court.
SUPREME COURT
Composition:
Chief Justice and 14 Associates Justices
May sit:
o En Banc; or
o In its discretion, in divisions of 3, 5, or 7 members
Any vacancy shall be filled within 90 days from occurrence thereof.
Powers of the Supreme Court
A. Original Jurisdiction
1. Over cases affecting ambassadors, other public ministers and consuls;
2. Over petition for Certiorari, Prohibition, mandamus, Quo Warranto, and
Habeas Corpus;
Page 2197/12/2008
say
B. Appellate Jurisdiction
Over final judgments and orders of lower courts in:
a. All cases in which constitutionality or validity of any treaty international
or executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question;
b. All cases involving the legality of any tax impost, assessment, or toll, or
any penalty imposed in relation thereto;
c. All cases in which the jurisdiction of any lower courts is in issue;
d. All criminal cases in which the penalty imposed is reclusion perpetua
or higher; and
e. All cases in which only a question of law is involved.
C. Electoral Tribunal for Presidential and Vice-Presidential Contests, over all
say
Page 2207/12/2008
contests relating to the election, return and qualification of the President or VicePresident.
Page 2217/12/2008
say
The conclusions of the SC in any case submitted to it for decision en banc or in division
shall be reached in consultation before the case is assigned to a Member for the writing of the
221
Section 14, Article VIIINo decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on which it is based.
It does not apply to a minute resolution dismissing a petition for habeas corpus, certiorari and
mandamus, provided a legal basis is given therein. Neither will it apply to administrative
cases.
say
opinion of the Court. A certification to this effect signed by the Chief Justice shall be issued and
a copy thereof attached to the record of the case and served upon the parties. Any Member
who took no part, or dissented, or abstained from a decision or resolution must state the reason
therefor. The same requirements shall observe by all lower collegiate courts. Section 13,
Article VIII
This requirement does not apply to administrative cases
1.
2.
3.
4.
the trial courts failure to fully explain the correlation of the facts;
the weight of the admissibility of the evidence;
the assessments made from the evidence; and
The conclusion drawn therefrom, after applying the pertinent law as basis of the
decision.
Tichangco vs. Enriquez, G.R. No. 150629, June 30, 2004, when the Court, after
deliberating on a petition and any subsequent pleadings, manifestations, comments or
motions, decides to deny due course to a petition, and statesin a minute resolution
that the questions raised are factual or no reversible error in the respondent courts
decision is shown or some other legal basis stated in the resolution, there is sufficient
compliance with the constitutional requirement.
Page 2227/12/2008
People vs. Baring, G.R. No. 137933, January 28, 2002, the trial courts
decision may cast doubt on the guilt of the accused, not by the lack of direct evidence
against the accused but by:
222
WRIT OF AMPAROit is a remedy available to any person whose right to life, liberty,
and security has been violated or is threatened with violation by an unlawful act or
omission of a public official or office, or of a private individual or entity. The writ covers
extralegal killings and enforced disappearances or threats thereof.
It is a writ which may be issued by the courts based on this constitutional power
of the SC to promulgate rules for the protection and enforcement of constitutional
rights. It is a remedy to enforce fundamental rights.
It would compel state agents to look for the missing person and the agents would
be held liable if they did not exert adequate effort in finding the person.
amparomeans protection, from amparar meaning to protect
Who may file?
The petition may be filed by the aggrieved party or by any qualified person or
entitiy in the following order:
Any member of the immediate family, namely:
i. Spouse
ii. Children
iii. Parents of the aggrieved party
Page 2237/12/2008
say
WRIT OF AMPARO
The filing of a petition by the aggrieved party suspends the right of all other authorized
parties to file similar petitions. Likewise, the filing of the petition by an authorized party
on behalf of the aggrieved party suspends the rights of all others, observing the order
established by the law.
223
In case the writ cannot be served personally on the respondent, the rules on
substituted service shall apply.
A clerk of court who refuses to issue the writ after its allowance, or a deputized
person who refuses to serve the same, shall be punished by the court, justice or judge
for contempt without prejudice to other disciplinary actions.
Return of the Writthe respondent shall file a verified written return together with the
supporting affidavits within seventy-two (72) hours.
If he fails to file a return, the court, justice or judge shall proceed to hear the
petition ex parte or even without the appearance of the respondent.
RTCreturnable before such court or judge
Returnable before such court or any justice thereof; or
SB/CA To any RTC of the place where the threat, act or omission was
committed or any of its elements occurred
Page 2247/12/2008
The writ shall be enforceable anywhere in the Philippines. The court, justice or judge
shall immediately order the issuance of the writ if on the face of the petition it ought to
issue. It is served on the respondent by a judicial officer or by a person deputized by the
court, justice or judge who shall retain a copy on which to make a return of service.
say
say
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Does the filing of the petition preclude the filing of separate criminal, civil or
administrative actions?
No. However, when a criminal action has been commenced, no separate petition for
the writ shall be filed, but the reliefs under the writ shall be available by motion in the
criminal case, and the procedure under this rule shall govern the disposition of the
reliefs available under the writ of amparo.
225
When a criminal action is filed subsequent to the filing of a petition for the writ,
the latter shall be consolidated with the criminal action.
say
When a criminal action and a separate civil action are filed subsequent to a
petition for a writ of amparo, the latter shall be consolidated with the criminal action.
After consolidation, the procedure under this Rule shall continue to apply to the
disposition of the reliefs in the petition.
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RECALL- a mode of removing a local official from his post even before his term ends
due to lack of confidence. It is a political question which can not be intruded by the
courts.
Ybardone vs. COMELEC- lack of confidence is to be decided by the people thru a
special recall election
226
The case at bar pose legal and not political questions. The principal issues for
resolution require the proper interpretation of certain provisions in the 1987 Constitution,
notably Sec. 1 of Article II and Sec. 8 of Article VI, and the allocation of governmental
powers under Section 11 of Article VII. The issues likewise call for a ruling on the scope
of presidential immunity from suit. They also involve the correct calibration of the right of
petitioner against prejudicial publicity. Thus, respondent's invocation of the doctrine of
political question is but a foray in the dark.
EDSA I
EDSA II
-involves the exercise of people power of -involves the exercise of people power of
revolution which overthrows the whole freedom of speech and freedom of
government
assembly to petition the government for
redress of grievances which only affected
the office of the President
Page 2277/12/2008
say
-extra constitutional and the legitimacy of -intra constitutional and the resignation
the new government that resulted from it of the sitting President that it caused and
cannot be the subject of judicial review the succession of the VP as President are
subject to judicial review
227
say
Page 2287/12/2008
General Rule: Calling out power is not subject to judicial review and is
considered a political question.
Exception: When there has been a GAD.
#s 2 and 3- are not political questions. They are subject to judicial review as
expressly provided in Sec. 18 (3), Article VII:
xxx
The SC may review, in an appropriate proceeding filed by
228
Page 2297/12/2008
say
prescribe
(4) The emergency power must be exercised to carry out a national policy
declared by Congress
Let it be emphasized that while the President alone can declare a state of
national emergency, however, without legislation, he has no power to take over
privately-owned public utility or business affected with public interest. The President
cannot decide whether exceptional circumstances exist warranting the take over of
privately-owned public utility or business affected with public interest. Nor can he
determine when such exceptional circumstances have ceased. Likewise, without
legislation, the President has no power to point out the types of businesses affected
with public interest that should be taken over. In short, the President has no absolute
authority to exercise all the powers of the State under Section 17, Article XII in the
absence of an emergency powers act passed by Congress.
say
General rule: POTESTA DELEGATA NON DELEGARE POTEST- what has been
delegated cannot be re-delegated. It is based on ethical principle that delegated
powers constitutes not only a right but a duty to be performed by the delegate through
the instrumentality of his own judgment and not through the intervening mind of another.
While PAGCOR is allowed under its charter to enter into operators and/or
management contracts, it is not allowed to relinquish or share its franchise, much less
grant a veritable franchise to another entity such as SAGE. In Lim vs. Pacquing, 240
SCRA 649, the Court clarified that since ADC has no franchise from Congress to
operate jai-alai, it cannot, even if it has license or permit from the City Mayor, operate
jai-alai in the City of Manila. By the same token, SAGE has to obtain a separate
legislative franchise, and not ride on PAGCORs franchise if it were to legally operate
on-line internet gambling (Jaworski vs. PAGCOR, G.R. No. 144463, January 14,
2004).
Page 2307/12/2008
authority by defining the legislative policy and indicating the circumstances under
which it is to be pursued and effected. This is intended to prevent a total
transference of legislative power from the legislature to the delegate.
Three (3) Important Functions of Judicial Review
1. Checking
2. Legitimating
Rule on Double Negativeuses the term not unconstitutional; the court
cannot declare a law constitutional because it already enjoys a presumption of
constitutionality
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L-ocal government. (RA 7160) Such legislation (by LG) is not regarded as a transfer of
general legislative power, but rather as the grant of the authority to prescribe
local regulations, according to immemorial practice, subject, of course, to the
interposition of the superior in cases of necessity (People vs. Vera). This
recognizes the fact that local legislatures are more knowledgeable than the
national lawmaking body on matters of purely local concern, and are in better
position to enact appropriate legislative measures thereon.
say
3. Symbolic - educating the bar and bench and the people on the extent of protection
given by the constitutional guarantees
Proclamation No. 1021 was issued lifting PP 1017- it becomes moot and academic but
SC did not agree as the case is capable of repetition.
Requisites for the proper exercise of Power of Judicial Review
1. Actual case or controversy- must be definite, concrete, bearing upon the legal
relations of parties who are pitted against each other due to their adverse legal
interests.
-susceptible of judicial determination
231
The issue raised in the case must not be moot and academic, or because of
subsequent developments, have become moot and academic.
MOOT and ACADEMIC PRINCIPLE
General Rule: Court will have to dismiss the case. There is no more actual case to be
resolved.
Exceptions: (David vs. GMA)
a. Grave violation of the Constitution
b. The exceptional character of the situation and the paramount public interest is
involved
c. Constitutional issue raised requires formulation of guiding and controlling
constitutional principles, precepts, doctrines or rules and the symbolic function to
educate the bar and bench and the people on the extent of protection given by the
constitutional guarantees
d. Case is capable of repetition yet evading reviewit presupposes that:
i. The life of the controversy is too short to be fully litigated prior to its termination,
and
ii. That there is a reasonable expectation that the plaintiff will again be subjected
to the same problem
Page 2327/12/2008
A request for an advisory is not an actual case or controversy. But an action for
declaratory relief is proper for judicial determination.
say
Philippine courts may not render advisory opinion. There must always be an
actual case or controversy EXCEPT: Int'l Court of Justice-principal judicial organ of the
United Nations- ICJ may render advisory opinions. Its 2 main functions are: (a) to
decide contentious cases; and (b) to render advisory opinions upon request of the
General Assembly, or the Security Council, or the other organs of the UN when
authorized by the General Assembly.
2. The constitutional question must be raised by the proper partyA proper party
is one who has sustained or is in imminent danger of sustaining an injury as a result of
the act complained of. (LOCUS STANDI)
"Legal Standing"- personal and substantial interest in the case such that the party has
sustained or will sustain direct injury as a result of governmental act.
A party's standing in court is a procedural technicality which may be set aside by the
232
In IBP vs. Zamora, G.R. No. 141284, August 15, 2000, the petition seeking to nullify
the order of Pres. Estrada for the deployment of the Philippine Marines to join the PNP
in visibility patrols around Metro Manila area, was dismissed on the ground that the IBP
had no legal standing to question the presidential act.
Lim vs. Executive Secretary (2002)Because of the paramount importance and the
constitutional significance of the issues raised in the Petition, the Court, in the exercise
of its sound discretion, brushed aside the procedural barrier and took cognizance of the
petitions.
Information Technology Foundation vs. COMELEC (2004) the subject matter of
the case is a matter of public concern and imbued with public interest; it is of paramount
public interest and of transcendental importance.
Kilosbayan vs. Morato, 246 SCRA 540, the petitioners do not posses the legal
capacity to institute the action for annulment of the Equipment Lease Agreement (ELA)
because they are without a present substantial interest, as distinguished from mere
expectancy, or future, contingent, subordinate or consequential interest.
present substantial interest means such interest of a party in the subject
matter of the action as will entitle him, under substantive law, to recover if the evidence
is sufficient, or that he has a legal title to defend and the defendant will be protected in
payment to or recovery from him.
Page 2337/12/2008
In Sanlakas vs. Executive Secretary, G.R. No. 159085, February 3, 2004, Rep.
Suplico, et al., and Senator Pimentel were considered as proper parties to contest the
constitutionality of Pres. Arroyos proclamation of a state of rebellion after the
Oakwood incident.
say
Court in view of the importance of the issues involved. Thus, where the issues raised by
the petitioners are of paramount public interest, the Court may, in the exercise of its
discretion, brush aside the procedural barrier. (Kilosbayan vs. Guingona, 232 SCRA
110)
In Domingo vs. Carague, G.R. No. 161065, April 15, 2005, the petitioners failed to
show any direct and personal interest in the COA Organizational Restructuring Plan;
there was no indication that they have sustained or are in imminent danger of sustaining
some direct injury as a result of its implementation; and they admitted that they do not
seek any affirmative relief nor impute any improper or improvident act against the
respondents. Clearly, then, they do not have any legal standing to file the instant suit.
In Cutaran vs. DENR, G.R. No. 134958, January 31, 2001, the SC refused to give due
233
Page 2347/12/2008
General rule: A party can question the validity of a statute only if, as applied to him, it
is unconstitutional.
say
course to a petition seeking to enjoin the DENR from processing the ancestral land
claim of private respondent over a property located at Camp John Hay reservation in
Baguio, on the ground that there is no actual or imminent violation of the petitioners
asserted right. Court will not touch an issue involving the validity of a law unless there
has been a governmental act accomplished or performed that has a direct adverse
effect on the legal right of the person contesting its legality. Until such time, petitioners
are simply speculating that they might be evicted from the premises at a future time.
4. The decision on the constitutional question must constitute the very LIS MOTA
234
(3) Upon the expiration of the corresponding period, a certification to this effect signed
by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof
attached to the record of the case or matter, and served upon the parties. The
certification shall state why decision or resolution has not been rendered or issued
within said period.
(4) Despite the expiration of the applicable mandatory period, the court, without
prejudice to such responsibility as may have been incurred in consequence thereof,
shall decide or resolve the case or matter submitted thereto for determination, without
further delay.
The above provision does not apply to Sandiganbayan. The provision refers to
regular courts of lower collegiate level that in the present hierarchy applies only to the
Court of Appeals.
Page 2357/12/2008
say
In Arceta vs. Judge Mangrobang, G.R. No. 152895, June 15, 2004, in a new
challenge to the constitutionality of B.P. 22, the SC did not find the constitutional
question to be the very lis mota presented in the controversy. Every law has in its favour
the presumption of constitutionality, and to justify its nullification, there must be a clear
and unequivocal breach of the Constitution, and not one that is doubtful, speculative or
argumentative.
The Sandiganbayan is a special court of the same level as the Court of Appeals
and possessing all the inherent powers of a court of justice, with functions of a trial
court.
Thus, the Sandiganbayan is not a regular court but a special one. (Re: Problem
of Delays in Cases Before the Sandiganbayan, A.M. 00-8-05-SC, November 28,
2001)
MEMORANDUM DECISIONS
235
Page 2367/12/2008
To be valid, it cannot incorporate the findings of fact and the conclusions of law
of the lower court only by remote reference, which is to say that the challenged decision
is not easily and immediately available to the person reading the memorandum
decision. For the incorporation by reference to be allowed, it must provide for direct
access to the facts and the law being adopted, which must be contained in a statement
attached to the said decision. In other words, the memorandum decision authorized
under Section 40 of BP 129 should actually embody the findings of fact and conclusions
of law of the lower court in an annex attached to and made an indispensable part of the
decision.
say
Article IX
CONSTITUTIONAL COMMISSIONS
Independent Constitutional Commissions:
1. Civil Service Commission
2. Commission on Elections
3. Commission on Audit
Safeguards that guarantee the independence of the Commissions:
236
Page 2377/12/2008
say
237
say
year.
Qualifications:
1. Natural-born citizen;
2. At least 35 years of age at the time of appointment;
3. With proven capacity for public administration; and
4. Not a candidate for any elective position in the election immediately preceding
the appointment.
Term: Seven (7) years without reappointment
Scope of the Civil Service: Embraces all branches, subdivisions, instrumentalities and
agencies of the Government, including government-owned and controlled corporations
with original charters [Section 2(1), Article IX-B]
Classes of Service:
Career Servicecharacterized by:
a. Entrance based on merit and fitness to be determined by competitive
examination or based on highly technical qualification;
b. Opportunity for advancement; and
c. Security of tenure.
Page 2387/12/2008
Composition:
1 Chairman;
2 Commissioners
or
Kinds of Non-Career:
Elective official and their personal or confidential staff;
Department heads and other officials of Cabinet rank who hold
positions at the pleasure of the President and their personal or
confidential staff;
Chairmen and members of commissions and boards with fixed terms
of office and their personal or confidential staff;
Contractual personnel or those whose employment in the government
is in accordance with a special contract to undertake a specific work or
job; and
Emergency and seasonal personnel.
Page 2397/12/2008
a. Entrance on bases other than those of the usual tests of merits and fitness
utilized for the career service; and
b. Tenure which is limited to a period specified by law, which is co-terminus
with that of the appointing authority or subject to his pleasure, or which is
limited to the duration of a particular project for which purpose
employment was made.
say
CSC vs. Engr. Darangina, G.R. No. 167472, January 31, 2007, where a non-eligible
holds a temporary appointment, his replacement by another non-eligible is not
prohibited. When a temporary appointee is required to relinquish his office, he is being
separated precisely because his term has expired.
239
In the case of Lopez vs. CSC, 194 SCRA 269, the SC held that the CSC has no power
to revoke an appointment simply because it believes that the person protesting the
appointment or somebody is better qualified, for that will constitute an encroachment of
the discretion vested solely in the appointing authority.
COMMISSION ON ELECTION
Composition:
One (1) Chairman
Six (6) Commissioners
Page 2407/12/2008
say
Tanjay Water District vs. Quinit, Jr. G.R. No. 160502, April 27, 2007, it is an
established rule that the tenure of office of those holding primarily confidential positions
ends upon loss of confidence, because their term of office lasts only as longs as
confidence in them endures. Their termination can be justified on the ground of loss of
confidence, in which case, their cessation from office involves no removal but the
expiration of their term of office.
Qualifications:
1. Natural-born citizen;
2. At least 35 years of age at the time of appointment;
3. With proven capacity for public administration; and
4. Not a candidate for any elective position in the election immediately preceding
the appointment.
5. Majority, including the Chairman, must be members of the Philippine Bar who
have been engaged in the practice of law for at least ten (10) years.
240
Page 2417/12/2008
The COMELECs exercise of its quasi-judicial powers is subject to Section 3, Article IXC which expressly requires that:
1. All elections cases, including pre-proclamation controversies, shall be
decided by the COMELEC in division, and
2. The motion for reconsideration shall be decided by the COMELEC en banc.
say
2. Exclusive original jurisdiction over all contests relating to election, returns and
qualifications of all elective regional, provincial, and city officials;
3. Exclusive appellate jurisdiction over all contests involving elective municipal
say
COMMISSION ON AUDIT
Composition:
One (1) Chairman
Two (2) Commissioners
Qualifications:
1. Natural-born citizen;
2. At least 35 years of age at the time of appointment;
3. CPA with at least ten (10) years auditing experience or members of the
Philippine Bar with at least ten (10) years practice of law; at no time shall all
members belong to the same position; and
4. Not a candidate for any elective position in the election immediately preceding
the appointment.
Page 2427/12/2008
Jurisdiction of the Commission: No law shall be passed exempting any entity of the
Government, or any investment of public funds, from the jurisdiction of the COA. (Sec.
3, Article IX-C)
Temporary or Acting capacity appointment by the President to the COMELEC, COA,
CSC is prohibited by the Constitution.
In Brillantes vs. Yorac, 192 SCRA 358, the designation of Commissioner Yorac as
Acting Commissioner of the COMELEC was a violation of Section 1, paragraph 1 of Article IX-C.
Fiscal Autonomy
The 1987 Constitution expressly and unambiguously grants fiscal autonomy only
to Judiciary, the constitutional commissions, and the Office of Ombudsman. The
Commission on Human Rights has no fiscal autonomy. (CHR Employees Association vs.
CHR, G.R. No. 155336, July 21, 2006)
Article X
LOCAL GOVERNMENT
(In relation to Republic Act No. 7160Local Government Code)
Public Corporationone created by the state either by general or special act for
purposes of administration of local government or rendering service in the public
interest.
Page 2437/12/2008
say
say
Page 2447/12/2008
Section 8 cannot be more clear and explicitthe term of office of elected local
officials, shall be 3 years and no such officials shall serve for more than 3 consecutive
terms. Upon the other hand, Section 43 (d) of the Local Government Code clearly
provides than no local official shall serve for more than three (3) consecutive terms in
the same position. (Atty. Rivera III vs. COMELEC, G.R. Nos. 167591 and 170577,
May 9, 2007)
Section 10Creation, division, merger, abolition, substantial change of boundaries are
not only subject to the criteria established in the local government code but also subject
to approval by a majority of the votes cast in a plebiscite in the political units directly
affected.
Authority to Create Local Government
A local government unit may be created, divided, merged, abolished, or its
boundaries substantially altered:
1. Province, City, Municipality or any other political subdivisiononly by Act of
Congress
2. Barangaysordinance passed by the Sangguniang Panlalawigan or
Panglungsod concerned in the case of any barangay within its territorial
jurisdiction
Page 2457/12/2008
Section 7, Article XAnother source of revenue for local governments is the share in
the proceeds from the exploitation and development of natural resources found within
the locality. This can take the form of financial benefits for the local units coming from a
share in fees, charges, and other incomes coming from development, and it can also
take the form of direct benefit for the population coming in the form, for instance, of
cheaper electric power rates of energy sourced in the locality, or priority in employment.
This can be effected either through national or local laws.
Section 8, Article Xthe term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years and no such officials
shall serve for more than three consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected.
say
might impose.
The creation or conversion of an LGU from one level to another level shall be based on
verifiable indicators:
a. Incomemust be sufficient, to provide for all essential facilities and
services commensurate with the size of its population;
b. Populationbased on total number of inhabitants within the territorial
jurisdiction of the LGU;
c. Land areamust be contiguous, unless it comprises two or more islands
or is separated by an LGU; properly identified by metes and bounds; and
245
P20,000,000.00
Municipality
P2,500,000.00
250,000
25,000
50 sq. kms.
(not applicable
if proposed
municipality to
be created
composed of 2
or more
islands)
City
Highly
urbanized
As to Income
P100,000,000.00 P50,000,000.00
As to Population
150,000
As to Land Area
100 sq. kms.
(not applicable if
proposed city to
be created
composed of 2
or more islands)
200,000
Barangay
2,000 (except
Metro Manila
or in HUCs,
5,000)
Page 2467/12/2008
Province
say
Division and MergerLGU shall comply with the same requirements for their creation,
provided it shall not reduce the income, population and land area of LGUs concerned to
less than the minimum requirements prescribed; plebiscite be held in LGU affected; and
the assets and liabilities of creation shall be equitably distributed between the LGUs
affected and the new LGU.
Classification of Cities:
1. Highly urbanized cities as determined by law;
2. Cities not raised to the highly urbanized category but whose existing charters
prohibit their voters from voting in provincial elections; and
3. Component citiescities which still are under a province in some way. They
cannot be denied a vote in the election of provincial officials.
Those in numbers 1 and 2 do not vote in provincial elections, they are independent of
the province. Residents are not qualified to run for provincial positions.
246
Abolitionwhen the income, population or land area has been irreversibly reduced to
less than the minimum standards prescribed for its creation, the LGU, thru a law or
ordinance, may be abolished.
QUALIFICATIONS:
1. Citizens of the Philippines;
2. Registered voter in the barangay, municipality, city or province, or in the case of
a member of the SG Panlalawigan, Panlungsod, or Bayan, in the district where
he intends to be elected;
3. Resident therein for at least 1 year immediately preceding election;
4. Able to read and write Filipino or any other local language or dialect;
5. On election day, age must at least be:
a. 23 yearsfor governor, vice-governor, member of the SG panlalawigan,
mayor, vice-mayor, or member of the SG panlungsod of HUC;
b. 21 yearsfor mayor, vice-mayor of independent component cities (ICC),
component cities (CC), or municipalities;
c. 18 yearmembers of the SG panlungsod or SG Bayan, Punong
Barangay, member of the Sangguniang Pambarangay
d. 15 years but not more than 18 yearsfor SK
Page 2477/12/2008
1. Governor
2. Vice-Governor
3. Members of the Sangguniang Panlalawigan
4. Members of the Sangguniang Panlungsod
5. Mayor
6. Vice-Mayor
7. Members of the Sangguniang Bayan
8. Punong Barangay
9. Members of the Sangguniang barangay
10. Sangguniang Kabataan
say
LOCAL OFFICIALS
decentralization. It does not make local governments sovereign within the state
or an imperium in imperio. Remaining to be an intra sovereign subdivision of
one sovereign nation; but not intended, however, to be an imperium in imperio,
the LGU is autonomous in the sense that it is given more power, authority,
responsibilities and resources. Power which used to be highly centralized in
Manila, is thereby deconcentrated, enabling especially the peripheral LGUs to
develop not only at their own pace and discretion but also with their own
resources and assets. (Alvarez vs. Guingona, Jr. 252 SCRA 695)
Page 2487/12/2008
say
Batangas CATV, Inc. vs. CA, G.R. No. 138810, September 29, 2004, an ordinance
enacted by virtue of the general welfare clause is valid, unless it contravenes the
fundamental law of the Philippines, or an act of the Legislature, or unless it is against
public policy, or is unreasonable, oppressive, partial, discriminating, or in derogation of
common right.
A local government unit cannot enact an ordinance or approve a resolution in
violation of a general law. Municipal authorities, under a general grant of power, cannot
adopt ordinances which infringe the spirit of a state law or repugnant to the general
policy of the state. It is clear that in the absence of constitutional or legislative
authorization, municipalities have no power to grant franchises.
SJS vs. Atienza, Jr. G.R. No. 156052, March 7, 2007, the Sangguniang Panlungsod
shall enact such ordinances as may be necessary to carry into effect and discharge the
responsibilities conferred upon it by law, and such as shall be necessary and proper to
provide for the health and safety, comfort and convenience, maintain peace and order
and promote the general welfare of the community and inhabitants. There is a duty to
enforce the Ordinance
as long as it has not been repealed by the Sanggunian or
annulled by the courts.
Page 2497/12/2008
The dynamic and more important aspect of local autonomy must be measured in
terms of the scope of the powers given to the local units.
say
DAR vs. Saranggani Agricultural Co., January 24, 2007, while the DAR retains the
responsibility for approving or disapproving applications for land use conversion filed by
individual landowners on their landholdings, the exercise of such authority should be
confined to compliance with the requirements and limitations under existing laws and
regulations. The DARs power in such cases may not be exercised in such a manner as
to defeat the very purpose of the LGU concerned in reclassifying certain area to achieve
social and economic benefits in pursuit of its mandate towards the general welfare.
Police power of the Local Government
A local government is considered to have properly exercised its police powers
249
Have the powers of LTO to register motor vehicles and to issue drivers
licenses for the operation thereof been devolved to local governments under the
Local Government Code?
No. The only powers of the Land Transportation Franchising Regulatory Board
(LTFRB) to regulate the operation of tricycles-for-hire and to grant franchises for the
operation thereof had been devolved to local governments under the Local Government
Code (RA 7160). Clearly unaffected by the LGC are the powers of the LTO under RA
4136 requiring the registration of all kinds of motor vehicles used or operated on or
upon any public highway in the country. (LTO vs. City of Butuan, G.R. No. 131512,
January 20, 2000)
Is the MMDA a local government unit or public corporation endowed with
legislative power? Is it a special metropolitan subdivision contemplated by
Section 11, Article X of the Constitution? May it validly exercise police power?
May it validly order the opening or closure of private subdivision streets to public
vehicular traffic?
The MMDA is not a political unit of government. The power delegated to the
MMDA is given to the Metro Manila Council to promulgate administrative rules and
regulations in the implementation of the MMDAs function. There is no grant of authority
to enact ordinances and regulations for the general welfare of the inhabitants of the
metropolis.
Page 2507/12/2008
say
It is thus beyond doubt that the MMDA is not a local government unit or a public
corporation endowed with legislative power. It is not even a special metropolitan
political subdivision as contemplated in Section 11, Article X of the Constitution. The
250
Page 2517/12/2008
The MMDA has no power to enact ordinances for the welfare of the community. It
is the LGUs, acting through their respective legislative councils, which possesses
legislative power and police power. In the case at bar, the Sangguniang Panlungsod of
Makati City did not pass any ordinance or resolution ordering the opening of Neptune
Street, hence, its proposed opening by petitioner MMDA is illegal. (MMDA vs. Bel-Air
Village Association, Inc. 328 SCRA 836)
say
251
and demands that he takes no advantage of his position for his personal benefit or to
the prejudice of the public.
Characteristics:
1. Public office is a public trust;
2. Public office is not a property and is outside the commerce of man. It cannot be
subject of a contract.
PUBLIC OFFICERSindividuals vested with public office.
Under RPC, Art. 203any person who, by direct provision of law, popular
election or appointment by competent authority, shall take part in the performance of
public functions in the Government of the Philippine Islands, or shall perform in said
Government or in any of its branches, public duties as an employee, agent or
subordinate official, of any rank or class, shall be deemed to be a public officer.
Page 2527/12/2008
say
Created by:
1. The Constitutione.g. Office of the President;
2. Valid statutory amendments;
3. By authority of law.
Under Sec. 2, RA 3019the term includes elective and appointive officials and
employees, permanent or temporary, whether in the classified, unclassified or exempt
service, receiving compensation, even nominal, from the government.
Khan, Jr. vs. Office of the Ombudsman, G.R. No. 125296, July 20, 2006, in the case
of officers/employees in GOCCs, they are deemed public officers if their corporations
are tasked to carry out governmental functions.
252
Sec. 2 (14), Administrative Codeofficer refers to a person whose duties not being
a clerical or manual nature, involve the exercise of discretion in the performance of the
functions of government. When used with reference to a person having authority to do a
particular act or perform a particular function in the exercise of governmental power,
officer includes any government employee, agent or body having authority to do the
act or exercise that function.
say
Page 2537/12/2008
253
Page 2547/12/2008
say
c. Age
d. Political Affiliationas a rule, it is not a qualification.
Exceptions: in Party-List, Membership in the Electoral Tribunal, Commission
on appointment
In Lecaroz vs. Sandiganbayan, G.R. No. 130872, March 25, 1999, an oath of
office is a qualifying requirement for public office. Only when the public officer has
satisfied this prerequisite can his right to enter into the position be considered plenary
and complete. Until then, he has none at all, and for as long as he has not qualified, the
holdover officer is the rightful occupant. An oath of office taken before one who has no
authority to administer is no oath at all.
However, in Mendoza vs. Laxina, G. R. No. 146875, July 14, 2003, once
proclaimed and duly sworn in office, a public officer is entitled to assume office and to
254
exercise the functions thereof. The pendency of an election protest is not sufficient
basis to enjoin him from assuming office or from discharging his functions.
Q: A was elected/appointed to public office. He assumed office without taking the oath
of office as prescribed by the Constitution and relevant CSC rules and regulations. Are
his acts valid?
A: Yes, As acts are considered valid, insofar as third parties and the general public are
concerned/rely on his actsacts of a De Facto officer.
say
Sec. 5 (1), Art. XVIAll members of the armed forces shall take an oath or
affirmation to uphold and defend this Constitution.
DISQUALIFICATIONS
The legislature has the right to prescribe disqualifications in the same manner
that it can prescribe qualifications, provided that the prescribed disqualifications do not
violate the Constitution.
General Disqualifications under the Constitution
1. Sec. 6, Art. IX-B No candidate who has lost in any election shall, within one
year after such election, be appointed to any office in the Government or any
GOCCs or in any of its subsidiaries.
2. Sec. 7 (1), Art. IX-Brefers to elective officialsNo elective official shall be
Page 2557/12/2008
(See the case of Office of the Ombudsman vs. CSC, G.R. No. 162215, July 30, 2007)
Forbidden Office
- Neither, shall he be appointed to any
office that has been created or the
emoluments
thereof
have
been
increased during the term for which he
was elected.
Page 2567/12/2008
National Amnesty Commission vs. COA, G.R. No. 156982, September 8, 2004,
when another office is held by a public officer in an ex-officio capacity, as provided by
law and as required by the primary functions of his office, there is no violation, because
such other office does not comprise any other position. The ex-officio position is
actually and, in legal contemplation, part of the principal office. But the official
concerned is not entitled to receive additional compensation for his services in the said
position because his services are already paid for and covered by the compensation
attached to his principal office.
say
functions of his position, no appointive officials shall hold any other office or
employment in the Government or any subdivision, agency or instrumentality
thereof, including GOCCs or their subsidiaries.
Congress. Any legislator may hold he was elected, when such office was
another office or employment in the created or its emoluments were
government provided he forfeits his increased.
seat in the Congress.
law shall not be designated to any agency performing quasi-judicial or
administrative functions.
4. Sec. 2, Art. IX-ANo Member of a Constitutional Commission shall, during his
tenure, hold any other office or employment. The same disqualification applies to
the Ombudsman and his DeputiesSec. 8, Art. XI.
5. Sec. 11, Art. XIThe Ombudsman and his Deputies shall not be qualified to run
for any office in the election immediately succeeding their cessation from office.
say
3. Sec. 12, Art. VIIIThe Members of the SC and of other courts established by
Constitutional Commissions, the Ombudsman and his Deputies must not have
been candidates for any elective position in the elections immediately preceding
their appointment.
7. Sec. 1 (2), Art. IX-B; Sec. 1 (2), Art. IX-C; Sec. 1 (2), Art. IX-D; Sec. 11, Art.
fourth civil degree of the President shall not, during his tenure, be appointed as
Members of the Constitutional Commissions, or the Office of the Ombudsman, or
as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices,
including GOCCs.
Public Interest Center, Inc. vs. Magdangal Elma, G.R. No. 138965, March 5, 2007,
the concurrent appointments of respondent as PCGG Chairman and Chief Presidential
Legal Counsel (CPLC) are unconstitutional. The concurrent appointment to these
offices is in violation of Section 7 (2), Article IX-B of the Constitution, since these are
incompatible offices. The duties of the CPLC include giving independent and impartial
legal advice on the actions of the heads of various executive departments and agencies
and reviewing investigations involving heads of executive departments. Since the
actions of the PCGG Chairman, a head of an executive agency, are subject to the
review of the CPLC, such appointments would be incompatible.
Page 2577/12/2008
6. Sec. 1, Art. IX-B; Art. IX-C; Sec. 1, Art. IX-D; Sec. 8, art. XIMembers of the
Caasi vs. COMELEC, 191 SCRA 229, to be qualified to run for elective office, the law
requires that the candidate who is a green card holder must have waived his status as a
permanent resident or immigrant of a foreign country. The waiver should be manifested
by some act or acts independent of and done prior to filing his certificate of candidacy
for elective office. The reason is that residence in the municipality where he intends to
run for elective office which is at least one (1) year at the time of the filing of his
certificate of candidacy, is one of the qualifications that a candidate must possess. The
mere filing of his COC for elective office in the country is not sufficient. The election of a
candidate who is a green card holder or who has not validly waived his status as a
green card holder is null and void.
Rodriguez vs. COMELEC, 259 SCRA 296, the term fugitive from justice includes not
only those who flee after conviction to avoid punishment but likewise those who, after
being charged in the Philippines or abroad, flee to avoid prosecution. Intent to evade on
the part of a candidate must be established by proof that there has already been a
conviction or at least, a charge has already been filed, at the time of flight. He is not a
fugitive from justice when, at the time of departure from abroad to the Philippines, there
is yet no complaint filed against him abroad. In this case, it was established that the
case was filed against Rodriguez five (5) months after he had returned to the
Philippines. What is controlling is the intent to evade the California court.
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1. Those sentenced by final judgment for an offense involving moral turpitude or for
an offense punishable by one year or more of imprisonment, within two (2) years
after serving sentence;
2. Those removed from office as a result of an administrative case;
3. Those convicted by final judgment for violating the oath of allegiance to the
Republic;
4. Those with dual citizenship;
5. Fugitive from justice in criminal or non-political cases here or abroad;
6. Permanent residents in a foreign country or those who have acquired the right to
reside abroad and continue to avail of the same right after the effectivity of this
Code;
7. The insane or feeble-minded.
say
DE FACTO OFFICERS
258
One who has reputation of being an officer that he assumes to be, and yet is not
an officer in point of law.
Requisites:
say
De Facto Officer
the person is in actual
possession of office but he
merely has a color of title
De Jure Officer
he has lawful title to hold
office although he may be
unlawfully deprived of his
office
Usurper/Intruder
he is in actual possession
of the office without title or
colorable title
challenged in a direct
proceeding where the title
can be attacked
collaterally
challenged in a direct
proceeding thru quo
Page 2597/12/2008
259
say
warranto; cannot be
attacked collaterally
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260
Page 2617/12/2008
say
Prohibitions:
1. Engaging in partisan political party except to vote
2. Additional or double compensation
3. Prohibition against loans
4. Laborersshall not be assigned to perform clerical duties
5. Detail or reassignment
6. Nepotism
Bermudez vs. Torres, 311 SCRA 733, the right of choice is the heart of the
power to appoint. In the exercise of power to appoint, discretion is an integral thereof.
Commissionis the written evidence of appointment.
Designationis the imposition of additional duties, usually by law, on a person
already in public office.
It presupposes that the person has already been appointed and merely given
additional function/tasks.
261
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Classification of appointments:
2. Permanentextended to a person possessing the requisite qualification for the
position and thus enjoys security of tenure.
3. Temporaryacting appointment given to a non-civil service eligible; is without a
definite tenure and is dependent upon the pleasure of the appointing power;
4. Provisionalone which may be issued upon:
say
General Manager, PPA vs. Monsarate, G.R. No. 129616, April 17, 2002, once an
appointment is issued and the moment the appointee assumes a position in the civil
service under a complete appointment, he acquires legal, not merely equitable, right to
the position which is protected not only by statute, but also by the Constitution, and
cannot be taken away from him either by revocation of the appointment, or by removal,
except for cause, and with previous notice and hearing.
Acceptance by appointeepending such acceptance, which is optional to the
appointee, the appointment may still be validly withdrawn. Appointment to a public office
cannot be forced upon citizen except for purposes of defense of the State under Section
4, Article II of the Constitution, as an exception to the rule against involuntary servitude.
262
Page 2637/12/2008
say
The next-in-rank rule neither grants a vested right to the holder nor imposes a
ministerial duty on the appointing authority.
The next-in-rank rule applies only if the vacancy is filled by promotion
Transfera lateral movement in the same position
Promotionis a vertical movement of position
263
Elective local official3 years and may serve only for 3 consecutive terms
---------------------1988Capco was a Vice-Mayor
1989the Mayor (Borja, Sr.) died, Capco succeeded as Mayor
1992Capco ran for Mayor and won
1995he ran for re-election and won again
1998Is he still qualified to run?
The SC held that Mayor Capco is still qualified in 1998 local election. The right to
be elected for 3 consecutive times for the same position was not present in this case.
Mayor Capco did not fully serve his term in 1989. He became a mayor thru succession
and not election. (Borja, jr. vs. COMELEC & Mayor Capco of Pateros)
----------------------1992
1995
X was elected Mayor
1998
However, in December 1, 2000, before his 3rd term ends, he resigned. Is he still
qualified to run as mayor for the next election?
No, he is no longer allowed to run. Resignation is not considered as an
interruption in the continuity of his service of office for which he was elected.
Page 2647/12/2008
say
---------------------1992
1995
1998
On December 1, 2000, before his 3rd term ends, he was removed for misconduct.
He did not appeal the case. The administrative case attained finality. Is he qualified to
run again for mayor in the 2001 election?
264
Page 2657/12/2008
say
No. he has been elected for 3 consecutive times for the same position. Section
40 (b) of the LGC provides for his disqualificationremoved as a result of administrative
case. However, if he appealed, he is still qualified because there is no finality of
judgment yet.
---------------------1992
1995
X was elected as Mayor
1998
In 2001, Hagedorn ran for governor but lost. Socrates was elected as mayor.
265
Held: the three (3)-term limit rule found in Sec. 43-b, LGC has two (2) parts:
1. Three (3) consecutive terms
2. Any length of time will interrupt
The provision speaks of a regular election and not a special one. In this case, recall is
a special election. It is not considered as immediate election. The immediate election
that prohibits Hagedorn from running for mayor is the next regular election after his 3
consecutive terms has ended, the 2001 election.
say
He won in the September 2002 recall election. He will continue the term of Socrates.
His term will end on June 30, 2004a term which is less than 3 years.
What if in:
2004
2007
The above hypothetical problem was only an obiter dictum in the case of Socrates vs.
COMELEC.
Page 2667/12/2008
The rule is, service of the recall term will not interrupt the 3-consecutive term rule. In the
case of Mendoza vs. COMELEC, the SC did not abandon the ruling in Socrates
because it was merely an obiter dictum.
--------------------------1995Francis Ong ran for mayor, he won
1998He ran and won again. Alegre filed a protest.
2001Ong ran and won again. The protest in 1998 was decided by the RTC on July 4,
2001 that it was Alegre who won in 1998 election.
266
Page 2677/12/2008
Held: The assumption of office from July 1, 1998 to June 30, 2001 constitutes service
for the full term and should be counted as a full term served in contemplation of the 3term limit prescribed by the Constitution and LGC, barring local elective officials from
being elected and serving more than 3-consecutive term for the same position. x x x His
proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected
mayor in the 1998 mayoralty election coupled by his assumption of office and his
continuous exercise of the functions thereof from start to finish of the term, should
legally be taken as service for a full term in contemplation of the 3-term rule.
say
2004Ong ran again. Alegre questioned. Ong alleged that his proclamation as mayorelect in the May 1998 election was contested and eventually nullified by the RTC of
Daet.
Issue: Whether or not Ongs assumption of office as Mayor from July 1, 1998 to June
30, 2001 may be considered as one full term service in the context of the consecutive 3term limit rule?
Ranking in the Sanggunian shall be determined on the basis of the proportion of votes
obtained by each winning candidate to the total number of registered voters in each
district in the immediately preceding local election.
Governor
Mayor
Vice Governor
Vice Mayor
Punong Barangay
In Case of tie between or among the highest ranking sanggunian membersit shall
be resolved by the drawing of lots.
The successors shall serve only the unexpired terms of their predecessors.
Section 44, LGCFilling the vacancy
Last-in-rankthe one who will replace him must come from the same political party of
the one who caused the vacancy, upon nomination of the party.
Page 2687/12/2008
1. One who illegally terminated, by legal fiction, is deemed not to have vacated his
position
2. One, no matter how qualified, may not filled a position which is not vacant
Rule on Automatic Succession (Section 44, LGC)
A permanent vacancy arises when an elective local official:
1. Fills a higher vacant office;
2. Refuses to assume office;
3. Fails to qualify;
4. Dies;
5. Is removed from office;
6. Voluntarily resigns;
7. Or is otherwise permanently incapacitated to discharge the functions of his office.
say
Farias vs. Barba, the last-in-rank sangguniang bayan member resigned. Mayor
Barba, upon recommendation of the Sangguniang Bayan, appointed somebody.
However, Gov. Farias also appointed somebody, upon recommendation of the
Sangguniang Panlalawigan. The SC held that neither is entitled to occupy the vacancy.
It should have been Gov. Farias who should appoint but the sanggunian who
recommended should be the Sangguniang Bayan where the vacancy took place.
Navarro vs. CA, March 2001
Mayor
V-Mayor
1.
2.
3.
4.
5.
6.
7.
8.
Lakas-NUCD
Lakas-NUCD
SB Member
SB Member
SB Member
came from Reforma Party
SB Member
SB Member
SB MemberLakas NUCD
SB MemberReforma Party
SB MemberLakas NUCD
Page 2697/12/2008
No political party, how shall the vacancy be filled? (Section 45-c, LGC)
The local chief executive shall appoint, upon recommendation of the sanggunian
concern, a qualified person to fill the vacancy.
say
A nomination and a certificate of membership of the appointee from the highest official
of the political party concerned are conditions sine qua non. Any appointment without
such nomination and certification shall be null and void ab initio and shall be a ground
for administrative action against the official responsible therefor.
The Mayor died. Vice Mayor succeeded. The #1 SB Member became the Vice Mayor.
The #8 slot became vacant. The Governor appointed somebody from Reforma Party.
The SC held that the appointment made by the governor is valid. The last ranking shall
be filled by Reforma Party to maintain party representation in the Sanggunian as willed
by the electorate.
269
Page 2707/12/2008
The Vice-Governor acted as Governor. Can he (V-Governor) preside over the sessions
of Sangguniang Panlalawigan?
No. The creation of temporary vacancy in the office of the governor creates a
corresponding vacancy in the office of the vice-governor. Section 49-d, LGC, the
members present and constituting a quorum shall elect from among themselves a
temporary presiding officer.
The rule on permanent vacancy should not be applied to temporary vacancy.
say
In Section 79 of the Local Government Code, the prohibition is up to the 4th civil
degree of consanguinity or affinity.
270
Debulgado vs. CSC, it was alleged that the law applies only to original appointment
and not to promotional appointment. The SC did not agree. The law applies to all kinds
of appointment. The law does not distinguish.
TERMINATION OF OFFICIAL RELATIONSHIP:
1. Expiration of term or tenure
2. Reaching the age limitcompulsory retirement age: 70 years of age for members of the
say
Laurel V vs. CSC, Governor Laurel appointed his brother as Civilian Security
Officer, hence it is exempted, no violation as it is primarily confidential in character.
However, the governor subsequently designated the same brother as Acting Provincial
Administrator. The SC ruled that appointment and designation are two different matters.
But for purposes of the law on nepotism, the two are now the same. Hence, there is
now a violation of the law on nepotism.
Termthe period of time during which a public officer has the right to hold the public
office
Tenurethe period of time during which the public officer actually held office
Page 2717/12/2008
3. Resignation
4. Recall
5. Removal
6. Abandonment
7. Acceptance of an incompatible office
8. Abolition of office
9. Prescription of the right to office
10. Impeachment
11. Death
12. Failure to assume elective office within 6 months from proclamation
13. Conviction of a crime
14. Filing a certificate of candidacy
Hold-over principle[See the case of Lecaroz vs. SB (1999)]in the absence of any
express or implied constitutional or statutory provision to the contrary, the public officer
is entitled to hold his office until his successor shall have been duly chosen and shall
have qualified. The purpose is to prevent a hiatus in public office.
It implies that the office has a fixed term and the incumbent is holding onto the
succeeding term. Where this provision is found, the office does not become vacant
upon the expiration of the term if there is no successor elected and qualified to assume
it, but the present incumbent will carry over until his successor is elected and qualified,
even though it be beyond the term fixed by law.
271
Page 2727/12/2008
Indeed, the law abhors a vacuum in public offices, and courts generally indulge in
the strong presumption against a legislative intent to create, by statute, a condition
which may result in an executive or administrative office becoming, for any period of
time, wholly vacant or unoccupied by one lawfully authorized to exercise its functions.
This is founded on obvious considerations of public policy, for the principle of holdover
is specifically intended to prevent public convenience from suffering of a vacancy and to
avoid a hiatus in the performance of government functions. (Lecaroz vs.
Sandiganbayan, 305 SCRA 397, March 25, 1999)
say
Page 2737/12/2008
Estrada vs. Desierto, G.R. Nos. 146710-15, March 2, 2001, resignation is a factual
question and its elements are beyond quibble: there must be an intent to resign and the
intent must be coupled by acts of relinquishment. The validity of a resignation is not
governed by any formal requirement as to for. It can be oral. It can be written. It can be
express. It can be implied. As long as the resignation is clear, it must be given legal
effect.
say
The last one is required by reason of Article 238 of the revised Penal Code.
(Sanggguniang Bayan of San Andres, Catanduanes vs. CA, 284 SCRA 276)
Canonizado vs. Aguirre, G.R. No. 133132, January 25, 2000, the substantial identity
in the functions between the two offices was indicia of bad faith in the removal of
petitioner pursuant to a re-organization.
REORGANIZATIONtakes place when there is alteration of the existing structure of
government offices or units therein, including the lines of control, authority and
responsibility between them. It involves a reduction of personnel, consolidation of
offices, or abolition thereof by reason of economy or redundancy of functions. Naturally,
it may result in the loss of ones position through removal or abolition of an office.
273
say
1. Grave Offenses
2. Less Grave offenses
3. Light Offenses
Preventive Suspension
It is not a penalty itself. It is merely a measure of precaution so that the employee
who is charged may be separated, for obvious reasons, from the scene of his alleged
misfeasance while the same is being investigated. It is not an action by itself but merely
an incident in an action.
It is different from administrative penalty of suspension from office. The latter is
the penalty which may only be meted upon the respondent at the termination of the
investigation or the final disposition of the case. Preventive suspension is imposed on
the respondent during the investigation of charges against him.
Page 2747/12/2008
GROUNDS FOR REMOVAL AND SUSPENSION(Section 23, Rule XIV, Omnibus Rules
Governing Laws:
1. Preventive Suspension in Administrative Cases
a. Civil Service Law
Pending investigation
(Respondent is not entitled
to back wages)
Pending Appeal
Gov. Plaza vs. CA, G.R. No. 138464, January 18, 2008, the law provides for
preventive suspension of appointive local official and employees pending investigation
of the charges against them. The suspension given to private respondents, cannot,
therefore, be considered unjustified for it is one of those sacrifices which holding a
public office requires for the public good. To be entitled to back salaries, private
respondents must not only be found innocent of the charges, but their suspension must
likewise be unjustified.
b. Local Government Code
i. Sec. 63those holding local elective office
3. President
Page 2757/12/2008
say
Gloria vs. CA (199), there are two (2) kinds of preventive suspension under
CSC:
i. Pending investigation
ii. Pending appeal & the respondent is exonerated on appeal
Provincial officials
Authority to impose:
i. Court where the information was filed
Luciano vs. Provincial Governor, since the law is silent, the court where the
information was filed shall impose the preventive suspension
ii. Salary Grade 27 or overSandiganbayan
iii. Below Salary Grade 27RTC
It is mandatory for the court to impose the preventive suspension. However, it
is not automatic. In the case of Socrates vs. Sandiganbayan, it was held that
the court must conduct first a pre-suspension hearing to determine the validity
of criminal information filed against the public officer
Duration: the law is silent
In the case of Gonzaga vs. Sandiganbayan, since the law is silent, apply
by analogy the Civil Service Law, the maximum duration would be 90 days.
Deloso vs. SB
Bayot vs. SB
Segovia vs. SB
Santiago vs. SB
Paredes vs. SB
Santiago vs. SB
Page 2767/12/2008
say
276
Page 2777/12/2008
say
Article XI
ACCOUNTABILITY OF PUBLIC OFFICERS
Section 1, Article XI
Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency, act with patriotism and justice, and lead modest lives.
277
Impeachment of Presidentthe Chief Justice of the Supreme Court will preside; the
Page 2787/12/2008
say
Public office is a public trust, and as such, the same is governed by law, and
cannot be made the subject of personal promises or negotiations by private persons.
Security of tenure of employees in the career executive service (except first and second
level employees in the civil service), pertains only to rank and not to the office or to the
position to which they may be appointed. (Collantes vs. CA, G.R. No. 169604, March
6, 2007)
Process:
1. Verified complaint filed by any member of the House or any citizen upon
resolution of endorsement by any member thereof;
2. Included in the order of business within ten (10) session days;
3. Referred to the proper committee within three (3) session days of its inclusion.
If the verified complaint is filed by at least 1/3 of all its members, the same shall
constitute the Articles of Impeachment, and trial by the Senate shall forthwith
278
5.
6.
7.
Page 2797/12/2008
4.
proceed.
The Committee, after hearing, and by majority vote of all its members, shall
submit its report to the House together with the corresponding resolution;
Placing on calendar the Committee resolution within ten (10) days from
submission;
Discussion on the floor of the report;
A vote of at least 1/3 of all the members of the House shall be necessary either
to affirm a favorable resolution with the Articles of Impeachment of the
Committee or override its contrary resolution.
say
SANDIGANBAYAN
The anti-graft court shall continue to function and exercise its jurisdiction as now
and hereafter may be provided by law.
Composition:
One (1) Presiding Justice
Fourteen (14) Associate Justices with the rank of Justice of the Court of Appeals
Sits in five (5) Divisions of three (3) members each
Decision and Review
Unanimous vote of all three (3) members shall be required for the
pronouncement of judgment by a division. Decision shall be reviewable by the SC on
petition for certiorari.
Jurisdiction:
Original Jurisdiction
B. Violation of RA 3019; RA 1379; and Chapter II, Section 2, Title VII of the
RPC where one or more of the accused are officials occupying the following
positions in the government, whether in a permanent, acting or interim
capacity at the time of the commission of the offense:
Page 2807/12/2008
say
in this instance, BP 195, providing for a 15-year prescriptive period and thereby
modifying to the above extent the 10-year prescriptive period under RA 3019.
9.
RTC whether in the exercise of their own original jurisdiction or their appellate
jurisdiction. (RA 8249)
THE OMBUDSMAN
Page 2817/12/2008
6.
7.
8.
say
Composition:
An Ombudsman known as the Tanodbayan
One (1) Overall Deputy;
At least one (1) Deputy e3ach for Luzon, Visayas and Mindanao;
One (1) separate Deputy for the military establishment may likewise be
281
Page 2827/12/2008
Qualifications:
1. Natural-born citizen;
2. At least 40 years of age;
3. Of recognized probity and independence;
4. Member of the Philippine Bar; and
5. Must not have been candidates for any elective office in the immediately
preceding election.
say
appointed
Perez vs. Sandiganbayan, G. R. No. 166062, September 26, 2006, the incumbent
Tanodbayan (called Special Prosecutor under the 1987 Constitution and who is
supposed to retain powers and duties NOT GIVEN to the Ombudsman) is clearly
without authority to conduct preliminary investigations and to direct the filing of criminal
cases with the Sandiganbayan, except upon orders of the Ombudsman.
Suspension under the Ombudsman Act vis--vis the Local Government Code:
o In order to justify the preventive suspension of a public official under Section 24
of RA 6770, the evidence of guilt should be strong, and:
The charge against the officer or employee should involve dishonesty,
oppression or grave misconduct or neglect in the performance of duty;
The charges should warrant removal from the service; or
The respondents continued stay in the office would prejudice the case
filed against him.
o The Ombudsman can impose the 6-month preventive suspension to all public
officials, whether elective or appointive, who are under investigation.
Page 2837/12/2008
Office of the Ombudsman vs. CSC, G.R. No. 162215, July 30, 2007, since the
responsibility for the establishment, administration and maintenance of qualification
standards lies with the concerned department or agency, the role of the CSC is limited
to assisting the department or agency with respect to these qualification standards and
approving them. The CSC cannot substitute its own standards for those of the
department or agency, specially in a case like this in which an independent
constitutional body is involved.
say
and prosecute all criminal cases involving public officers and employees, not only
those within the jurisdiction of the Sandiganbayan but those within the jurisdiction
of the regular courts as well. (Uy vs. Sandiganbayan, G.R. No. 105965-70,
March 20, 2001)
o On the other hand, in imposing the shorter period of sixty (60) days of preventive
suspension prescribed under the LGC of 1991 on an elective local official (at any
time after the issues are joined), it would be enough that:
d. There is a reasonable ground to believe that the respondent has
committed the act or acts complained of;
e. The evidence of culpability is strong;
f. The gravity of the offense so warrants; or
g. The continuance in the office of the respondent could influence the
witnesses or pose a threat to the safety and integrity of the records and
283
Article XII
NATIONAL ECONOMY AND PATRIMONY
Section 1, Article XIIGoals:
1. More equitable distribution of wealth
2. Increased wealth for the benefit of the people
3. Increased productivity.
Page 2847/12/2008
Office of the Ombudsman vs. CA, G.R. No. 168079, July 17, 2007, the SC upheld
the constitutionality of Sections 15, 21 and 25 of RA 6770, thus affirming that the
powers of the Office of the Ombudsman are not merely recommendatory. The Court
ruled in Estarija case that under RA 6770 and the 1987 Constitution, the Ombudsman
has the constitutional power to directly remove from the government service an erring
public official, other than a member of Congress and the Judiciary.
say
Private Lands
General Rule: No private land shall be transferred or conveyed except to individuals,
corporations or associations qualified to acquire or hold lands of the public domain.
Exceptions:
1. Foreigners who inherit through intestate succession;
2. Former natural-born citizen may be a transferee of private lands subject to
limitations provided by law;
3. Ownership in condominium units;
4. Parity right agreement, under 1935 Constitution.
Stewardship Doctrineprivate property is supposed to be held by the individual only
as a trustee for the people in general, who are its real owner.
Filipino First Policyin the grant of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give preference to qualified Filipinos.
(2nd paragraph, Section 10, Article XII)
Page 2857/12/2008
say
Page 2867/12/2008
some commercial enterprise with all of them generally contributing assets and sharing
risks. Considering more of a partnership, a joint venture is governed by the laws on
contracts and on partnership. The joint venture created between National Investment
and Development Corporation (NIDC) and Kawasaki falls within the purview of an
association pursuant to Section 5 of Article XIV of the 1973 Constitution and Section
11 of Article XII of the 1987 Constitution. Consequently, a joint venture that would
engage in the business of operating a public utility, such as shipyard, must observe the
proportion of 60%-40% Filipino-Foreign capitalization. (JG Summit Holdings, Inc. vs.
CA, 345 SCRA 143)
say
and national development policies and programs, shall protect the rights of
indigenous cultural communities to their ancestral lands to ensure their
economic, social, and cultural well-being.
The Congress may provide for the applicability of customary laws
governing property rights or relations in determining the ownership and extent of
ancestral domain.
3. Section 1, Article XIII
286
4. Section 6, Article XIIIthe State shall apply the principles of agrarian reform
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5. Section 17, Article XIVthe State shall recognize, respect, and protect the
say
Ancestral Landsare lands held by the ICCs/IPs under the same conditions as
ancestral domains except that these are limited to lands and that these lands are not
merely occupied and possessed but are also utilized by the ICCs/IPs under claims of
individual or traditional group ownership. These lands include but are not limited to
residential lots, rice terraces or paddies, private forests, swidden farms and tree lots.
Section 3(b), IPRA
The right of the ICCs/IPs to their ancestral domains and ancestral lands may be
acquired in two modes:
1. Native title over both ancestral domains and lands;
2. Torrens title under the Public Land Act and the Land Registration Act with
respect to ancestral lands only.
Native Titlerefers to ICCs/IPs pre-conquest rights to lands and domains held under a
claim of private ownership as far back as memory reaches. These lands are deemed
never to have been public lands and are indisputably presumed to have been held that
way since before the Spanish conquest. The rights of ICCs/IPs to their ancestral
domains (which also include ancestral lands) by virtue of native title shall be recognized
and respected (Section 11, IPRA). Formal recognition, when solicited by ICCs/IPs
concerned, shall be embodied in a Certificate of Ancestral Domain Title (CADT), which
shall recognize the title of the concerned ICCs/IPs over the territories identified and
delineated.
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say
Ownership by virtue of native titlepresupposes that the land has been held by its
possessor and his predecessor-in-interest in the concept of an owner since time
immemorial. The land is not acquired from the State, that is, Spain or its successor-ininterest, the US and the Philippines Government. There has been no transfer of title
from the State as the lands has been regarded as private in character as far back as
memory goes.
Ownership of the land by acquisitive prescriptionagainst the State involves a
conversion of the character of the property from alienable public land to private land,
which presupposes a transfer of title from the State to a private person.
Jus Regaliaprivate title to the land must be traced to some grant, express or implied,
from the Spanish Crown or its successors, the American Colonial government and
thereafter, the Philippine Republic. The belief that the Spanish Crown is the origin of all
land titles in the Philippines has persisted because title to land must emanate from
some source for it cannot issue forth from nowhere.
It refers to royal grants, or those rights which the King has by virtue of his prerogatives.
[Isagani Cruz vs. Secretary of DENR, et al., G.R. No. 135385, December 6, 2000,
En banc, (Puno and Kapunan, Separate Opinions)]
Lands
Public domain
1. Forest/timber
2. Mineral lands
3. National parks
4. agricultural
The only land (Public Domain)
which may be alienated
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The concept of native title to natural resources, unlike native title to land, has
not been recognized in the Philippines. In the case of Reavies vs. Fianza, 40 Phil
1017, the Court merely upheld the right of the indigenous peoples to claim ownership of
minerals under the Philippine Bill of 1902.
say
The concept of native title in the IPRA was taken from the 1909 case of Cario
vs. Insular Government, 41 Phil 935. Cario firmly established a concept of private
land title that existed irrespective of any royal grant from the State.
Private Lands
(A certificate of title had been
issued to a Filipino individual)
289
--by lease
(Purchase homestead
Grant)
2) Leasenot more than
500 ha.
Except:
1) hereditary succession
2) former natural born
3) Americans holding valid title
to private lands as against private
persons. Titles to private lands
acquired by Americans before
July 3, 1974 shall be valid as
against private persons
only
Article XIII
SOCIAL JUSTICE AND HUMAN RIGHTS
1.
2.
3.
4.
5.
6.
7.
8.
Social Justice
Labor
Agrarian and Natural Resources Reform
Urban Land Reform and Housing
Health
Women
Role and Rights of Peoples Organization
Human Rights
say
Private Corporations
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Filipino Citizens
Section 1
The Congress shall give highest priority to the enactment of measures that
protect and enhance the right of all the people to human dignity, reduce social,
economic, and political inequities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and
disposition of property and its increments.
290
Section 3
The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment
opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective
bargaining and negotiations, and peaceful concerted activities, including the
right to strike in accordance with law. They shall be entitled to security of tenure,
humane conditions of work, and a living wage. They shall also participate in
policy and decision-making processes affecting their rights and benefits as may
be provided by law.
The State shall promote the principle of shared responsibility between workers
and employers and the preferential use of voluntary modes in settling disputes,
including conciliation, and shall enforce their mutual compliance therewith to
foster industrial peace.
The State shall regulate the relations between workers and employers,
recognizing the right of labor to its just share in the fruits of production and the
right of enterprises to reasonable returns on investments, and to expansion and
growth.
Page 2917/12/2008
Labor
say
Section 2
The promotion of social justice shall include the commitment to create economic
opportunities based on freedom of initiative and self-reliance.
291
Article XIV
EDUCATION, SCIENCE AND TECHNOLOGY, ARTS,
CULTURE, AND SPORTS
Section 4 (1), Article XIV of the Constitution recognizes the States power to regulate
educational institutions:
The State recognizes the complementary roles of public and
private institutions in the educational system and shall exercise
reasonable supervision and regulation of all educational institutions.
As may be gleaned from the above provision, such power to regulate is subject
to the requirements of reasonableness. Moreover, the Constitution allows merely the
regulation and supervision of educational institutions, not the deprivation of their rights.
(Miriam College Foundation, Inc. vs. CA, 348 SCRA 265)
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Section 5 (2), Article XIV provides that: Academic freedom shall be enjoyed in all
institutions of higher learning.
Academic Freedom
The right of the school or college to decide for itself, its aims and objectives, and
how best to attain themfree from outside coercion or interference save possibly when
292
The right of a school to discipline its students is at once apparent in the third
freedom, i.e., how it shall be taught. A school certainly cannot function in an
atmosphere of anarchy.
Incidentally, the school not only has the right but the duty to develop discipline in
its students. The Constitution no less imposes such duty. Section 3 (2), Article XIV:
All educational institutions shall inculcate patriotism and
nationalism, foster love of humanity, respect for human rights, appreciation of the
role of national heroes in the historical development of the country, teach the
rights and duties of citizenship, strengthen ethical and spiritual values, develop
moral character and personal discipline, encourage critical and creative thinking,
broaden scientific and technological knowledge, and promote vocational
efficiency.
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say
the overriding public welfare calls for some restraint. It has a wide sphere of autonomy
certainly extending to the choice of students. Said constitutional provision is not to be
construed in a niggardly manner or in a grudging fashion. That would be to frustrate its
purpose and nullify its intent.
guaranteed by the Bill of Rights (Non vs. Dames, May 20, 1990)
Page 2947/12/2008
say
294
Article XV
THE FAMILY
Familyis the basic social institution. The State recognizes the Filipino family as the
foundation of the nation.
Care for the elderly
The duty to care for the elderly is given to both the family and the State. An
effective social security system is an indispensable component of any effective caring
for the elderly.
Article XVI
GENERAL PROVISIONS
Flag
The design of our flag may be changed only by constitutional amendment.
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say
USA vs. Guinto, 182 SCRA 644 Fabian Genove filed a complaint for damages
against petitioners Lamachia, Belsa, Cartalla and Orascion for his dismissal as cook in
the US Air Force Recreation Center at Camp John Hay Air Station in Baguio City. It had
been ascertained after investigation, from the testimony of Belsa, Cartalla and Orascion
that Genove had poured urine into the soup stock used in cooking the vegetables
served to the club customers. Lamachia, as club manager, suspended him and
thereafter referred the case to a board of arbitrators conformably to the collective
bargaining agreement between the center and its employees. The board unanimously
found him guilty and recommended his dismissal. Genoves reaction was to file his
complaint against the individual petitioners.
SC: The rule that a State may not be sued without its consent is one of the generally
accepted principles of international law that we have adopted as part of our law. Even
without such affirmation, we would still be bound by the generally accepted principles of
international law under the doctrine of incorporation. Under this doctrine, as accepted by
the majority of states, such principles are deemed incorporated in the law of every
civilized state as a condition and consequence of its membership in the society of
nations. All states are sovereign equals and cannot assert jurisdiction over one another.
When the government enters into a contract, it is deemed to have descended to
the level of the other contracting party and divested of its sovereign immunity is
expressed with more specificity in the RP-US Bases Treaty. There is no question that
the US, like any other state, will be deemed to have impliedly waived its non-suability if
it has entered into a contract in its proprietary or private capacity. It is only when the
contract involves its sovereign or governmental capacity that no such waiver may be
implied.
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Does this doctrine apply as well to foreign government? YES, because of the
sovereign equality of all the state. Immunity is enjoyed by other States, consonant with
the public international law principle of PAR IN PAREM NON HABET IMPERIUM. The
head of State, who is deemed the personification of the State, is inviolable, and thus,
enjoys immunity from suit.
say
There can be no legal right against the authority which makes the law on which
the right depends (Republic vs. Villasor, 54 SCRA 83). However, it may be sued if it
gives consent, whether express or implied.
Department of Agriculture vs. NLRC, 227 SCRA 693, DA may be sued for
money claims based on a contract entered into in its governmental capacity, because of
the express consent contained in Act 3083 provided that the claim be first brought to the
COA in accordance with CA 327, as amended.
Ministerio vs. City of Cebu, 40 SCRA 464, Suit may lie because the doctrine of
State immunity cannot be used to perpetrate an injustice.
Delos Santos vs. IAC, 223 SCRA 11, public respondents belief that the
property is public, even if buttressed by statements of other public officials, is no reason
for the unjust taking of the petitioners property; after all, the TCT was in the name of the
petitioner.
USA vs. Ruiz, 136 SCRA 487, where the questioned transaction dealt with the
improvements on the wharves in the naval installation at Subic Bay, SC held that the
traditional rule of immunity exempts a state from being sued in the courts of another
state without its consent or waiver. This rule is a necessary consequence of the
principle of independence and equality of states. However, the rules of International
Law are not petrified; they are constantly developing and evolving.
Page 2977/12/2008
say
General Law
e.g. Act No. 3083 where the Philippine government consents and submits to be
sued upon any money claim involving liability arising from contract, express or implied,
which could serve as a basis of a civil action between the private parties.
(correlate Act 3083 with CA 327 as amended by PD 1445)
USA vs. Guinto, 182 SCRA 644, a contract for restaurant services within the Camp
John Hay Air Station was held commercial in character. The case should not be
dismissed. The cafeteria caters not only Americans but also the general public. There is
waiver of State Immunity from suit. This is a case of Acta Jure Gestionis.
Republic vs. Sandiganbayan, 204 SCRA 212, Even if, in exercising the power of
eminent domain, the State exercises a power jus imperii, as distinguished from its
proprietary right of jus gestionis, where property has been taken without just
compensation being paid, the defense of immunity from suit cannot be set up in an
action for payment by the owner.
Special Law
This form of consent must be embodied in a statute and cannot be given by a
mere counsel.
e.g. Articles 2180 and 2189 of the Civil Code
Article 2180 of the Civil Code(paragraph 6) The State is responsible in like
manner when it acts through a special agent; but not when the damage has been
caused by the official to whom the task done properly pertains, in which case what is
provided in Article 2176 shall be applicable.
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The contract for the repair of wharves was a contract in JUS IMPERII because
the wharves were to be used in national defense, a governmental function. There is no
waiver. Only the American government can waived. Act 3083 is not applicable. The
remedy is to convince the Department of Foreign Affairs to take up the claim to the US
government (state to state).
say
arise out of commercial transactions of the foreign sovereign, its commercial activities or
economic affairs. Stated differently, a state may be said to have descended to the level
of an individual and can thus be deemed to have tacitly given its consent to be sued
only when it enters into business contracts. It does not apply where the contracts relate
to the exercise of its sovereign functions. In this case, the projects are integral parts of
the naval base which is devoted to the defense of both US and Philippines, indisputably
a function of the government of the highest order; they are not utilized for nor dedicated
to commercial or business purposes.
Article 2189: Provinces, cities and municipalities shall be liable for damages for
the death of, or injuries suffered by, any person by reason of the defective condition of
roads, streets, bridges, public buildings, and other public works under their control and
supervision.
Teotico vs. City of Manila, a man fell in a manhole. Sec. 24, Local
Government Code:
Local government units and their officials are not exempt from liability for death or
injury to persons or damage to property.
298
Mun. of San Fernando, La Union vs. Judge Firme,195 SCRA 692, the dump truck,
owned by the municipality, was driven by its official driver. It was used for hauling gravel
for the repair/construction of the municipal road. The truck collided with a jeepney. The
heirs of the jeepney driver sued the Municipality of San Fernando, La Union. The SC
held that municipal corporations are agencies of the State when they are engaged in
governmental functions. Repair of municipal road is a governmental function. Therefore,
should enjoy the immunity from suit. However, they are subject to suit even in the
performance of such functions because their respective charters provide that they can
sue and be sued.
Sec. 22 (a2) of the Local Government Code- To sue and be sued;
SUABILITY vs. LIABILTY
SUABILITY
State waiving the immunity
LIABILTY
-gives the claimant the opportunity to prove a
claim against the State for a possible liability
-will have to be determined by the court on the
basis of evidence and the applicable laws
Page 2997/12/2008
IMPLIED CONSENT1. When the State commences the litigation. It becomes vulnerable to a
counterclaim. Intervention by the State would constitute commencement of
litigation EXCEPT: when the State intervenes not for the purpose of asking for
any affirmative relief, but only for the purpose of resisting the claim precisely
because of immunity from suit. (Lim vs. Brownell, 107 Phil 345)
2. When the State enters into a business contract. (See USA vs. Guinto & USA vs.
Ruiz)
(This is the RESTRICTIVE DOCTRINE OF STATE IMMUNITY)
say
Q. When is a suit against a public official deemed to be a suit against the State?
A. The doctrine of State Immunity from suit applies to complaints filed against public
officials for acts done in the performance of their duties within the scope of their
authority.
The rule is that the suit must be regarded as one against the state where the
satisfaction of the judgment against the public official concerned will require the state to
perform a positive act, such as appropriation of the amount necessary to pay the
damages awarded to the plaintiff.
299
Larkins vs. NLRC, 241 SCRA 598, private respondents were dismissed from
their employment by Lt. Col. Frankhauser acting for and in behalf of the US government
which, by right of sovereign power, operated and maintained the dormitories at the
Clark Airbase for USAF Members.
Instances when a suit against a State is proper:
1. When the Republic is sued by name
2. When the suit is against an unincorporated government agency--inquire into the
principal functions of the agency
a. if governmental, NO SUIT WITHOUT CONSENT
b. if proprietary, SUIT WILL LIE.
3. When the suit is on its face against a government officer but the case is such that
ultimate liability will belong not to the officer but to the government.
Republic vs. Sandoval, 220 SCRA 124, this is not a suit against the state with its
consent. Even as the SC dismissed the suit against the RP, the action for the damages
against the military personnel and the policemen responsible for the 1989 Mendiola
Massacre was upheld inasmuch as the initial findings of the Davide Commission
showed that there was, at least, negligence on their part when they fired their guns.
They exceeded their authority. The military personnel and the policemen were held to
be liable in their individual capacity.
Page 3007/12/2008
Neither does it apply where the public official is clearly being sued not in his
official capacity but in his personal capacity, although the acts complained of may have
been committed while he occupied a public position. (Llansang vs. CA, Feb. 23, 2000)
In this case, petitioner was sued for allegedly personal motives in ordering the
ejectment of the general Assembly of the Blinds, Inc. (GABI) from the Rizal Park; thus,
the case was not deemed a suit against the state.
say
The rule does not apply where the public official is charged in his official
capacity for acts that are unlawful and injurious to the rights of others. Public officials
are not exempt, in their personal capacity, from liability arising from acts committed in
bad faith.
*hauling lumber for the repair of the public marketbusiness enterprise of the
government (local government)
*celebration of town fiestaTorio vs. Fontanillanot a governmental function but a
proprietary function
300
SCOPE OF CONSENT
Consent to be sued does not include consent to the execution of judgment
against it.
a. Such execution will require another waiver, because the power of the court
ends when the judgment is rendered.
b. But funds belonging to government corporations (whose charters provide that
they can sue and be sued) that are deposited with a bank are not exempt
from garnishment.
Exceptions: Municipality of San Miguel, Bulacan vs. Fernandez, 130
SCRA 56, funds of a municipality are public in character and may not be
garnished UNLESS there is a corresponding appropriation ordinance duly
passed by the Sangguniang Bayan.
PNB vs. Pabalan, 83 SCRA 595, funds belonging to
government corporations which can sue and be sued that are deposited with
a bank.
Page 3017/12/2008
say
The doctrine of State immunity from suit extends only up to rendition of the judgment.
When it comes to execution to satisfy the judgment, it will require another waiver. The
remedy is to make the necessary representation with the lawmaking authority.
Unincorporated Agency
Incorporated Agency
-it has no legal personality separate and -It has a personality separate and distinct
distinct from the government. When sued, from the government
it is deemed a suit against the State, there
is no waiver of State immunity.
-it does not have its own charter like -it has its own charter such as SSS, GSIS,
Bureau of Customs, BIR, DA, NBI
Land Bank, DBP
-performs
governmental
functions:
Page 3027/12/2008
-if performing proprietary functions: suable -if its charter is silent, inquire into its
(Civil Aeronautics Administration vs. function based on the purpose for which it
CA, 167 SCRA 28).
was created (Malong vs. PNR, 138 SCRA
63)
say
ARTICLE XVII
AMENDMENTS OR REVISIONS
Amendment vs. Revision
say
1. Proposal (Secs. 1-3, Art. XVII)-the adoption of the suggested change in the
Constitution. A proposed amendment may come from(3 ways of proposing
amendments to, or revision of, the Constitution under Article XVII):
(a) Congress
i. (Sec. 1, Art. XVII) Acting as Constitutional Assembly and not as a
legislative body. -One of the non-legislative powers;
ii. By a vote of 3/4 of all its members. (3/4 of the Senate, 3/4 of the House
of Representatives
Page 3037/12/2008
Amendment
Revision
-piecemeal or isolated change in the - revamp or rewriting of the entire
Constitution. It is the generic term used to Constitution. It means overhauling of the
denote change in the Constitution.
government.
Page 3047/12/2008
Occena vs. COMELEC 104 SCRA 1, the choice of method of proposal, i.e.,
whether made directly by Congress or through a Constitutional Convention, is within the
full discretion of the legislature.
(c) People, through the Power of Initiative (Sec.2, Art. XVII)- A petition of at
least 12% of the total number of registered voters, of which every legislative district
must be represented by at least 3% of the registered voters therein
--This is not a self-executing provision, it will require an enactment of law.
say
2. Ratification- (Sec. 4, Art. XVII) The proposed amendment shall become part of
the Constitution when ratified by a majority of the votes cast in a plebiscite held not
earlier than 60 nor later than 90 days after the approval of the proposal by Congress or
the Constitutional Convention, or after the certification by the COMELEC of the
304
say
Page 3057/12/2008
In the case of Lambino vs. COMELEC, G.R. No. 174153, October 25, 2006,
the SC held that a peoples initiative to change the Constitution applies only to an
amendment of the Constitution and not to its revision. Certainly, the Lambino Groups
initiative is a revision and not merely an amendment. Quantitatively, the Lambino
Groups proposed changes overhaul two articlesArticle VI on the Legislature and
Article VII on the Executiveaffecting a total of 105 provisions in the entire Constitution.
Qualitatively, the proposed changes alter substantially the basic plan of government,
from presidential to parliamentary, and from a bicameral to a unicameral legislature.
Page 3067/12/2008
Revision
say
306
Page 3077/12/2008
say
Article XVIII
TRANSITORY PROVISIONS
The requisites under the Constitution before foreign military bases, troops, or
facilities shall be allowed in the Philippines are:
1. There must be a treaty duly concurred in by the Senate;
2. When Congress so requires, said treaty must be ratified by a majority of the
307
votes cast by the pe0ple in a national referendum held for the purpose; and
3. Said treaty should be recognized as a treaty also by the other contracting
State. (Section 25, Article XVIII)
ADMINISTRATIVE LAW
Kinds:
1. Statutes setting up administrative authorities.
2. Rules, regulations, or orders of such administrative authorities promulgated
pursuant to the purposes for which they were created.
3. Determinations, decisions and orders of such administrative authorities made in
the settlement of controversies arising in their particular fields.
4. Body of doctrines and decisions dealing with the creation, operation and effect of
determinations and regulations of such administrative authorities.
Administrative Code of 1987
The Code is a general law and incorporates in a unified document the major
structural, functional and procedural principles of governance and embodies changes in
administrative structures and procedures designed to serve the people. It covers the
internal administration, i.e., internal organization, personnel and recruitment,
supervision and discipline, and the effects of the functions performed by administrative
officials on private individuals or parties outside government.
Administrative Power
It is concerned with the work of applying policies and enforcing orders as
determined by proper governmental organs. It enables the President to fix a uniform
standard of administrative efficiency and check the official conduct of his agents. To this
end, he can issue administrative orders, rules and regulations.
Page 3087/12/2008
That branch of public law which fixes the organization, determines the
competence of administrative authorities who executes the law, and indicates to the
individual remedies for the violation of his right.
say
E.O. 292
Administrative Order
It is an ordinance issued by the President which relates to specific aspects in the
administrative operation of government. It must be in harmony with the law and should
be for the sole purpose of implementing the law and carrying out the legislative policy.
Administration
a. As a Function
308
Kinds of government:
1. INTERNALlegal side of public administration, e.g., matters concerning
personnel, fiscal and planning activities.
2. EXTERNALdeals with problems of government regulations, e.g., regulation
of lawful calling of profession, industries or businesses.
Government Instrumentality
It refers to any agency of the national government, not integrated within the
department framework, vested with special functions or jurisdiction by law, endowed
with some, if not all, corporate powers, administering special funds, enjoying operational
autonomy, usually through a charter. It includes regulatory agencies, chartered
institutions and GOCCs.
Government-Owned or Controlled Corporations (GOCCs)
It refers to any agency organized as a stock or non-stock corporation, vested with
functions relating to public needs whether governmental or proprietary in nature, and
owned by the Government directly or through its instrumentalities either wholly, or
where applicable as in the case of stock corporations, to the extent of at least fifty-one
percent (51%) of its capital stock.
Page 3097/12/2008
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pecuniary profit
b. Governmentalif it is in the interest of health, safety and for the
Organ of government, other than a court, and other than a legislature, which
affects the rights of private parties either through adjudication or rule-making.
They are created either by:
1. Constitutional provisions;
2. Legislative enactments; or
3. Authority of law.
A body or agency is administrative where its function is primarily regulatory even
if it conducts hearings and determines controversies to carry out its regulatory duty. On
its rule-making authority, it is administrative when it does not have discretion to
determine what the law shall be but merely prescribes details for the enforcement of the
law.
Administrative Regulationsalso known as PIECES OF SUBORDINATE
LEGISLATION, QUASI-LEGISLATIVE POWERS
It cannot extend the law or amend a legislative enactment, for settled is the rule
that administrative regulations must be in harmony with the provisions of the law. (Land
Bank vs. CA, 249 SCRA 149)
Kinds of Administrative Rules/Regulations
a. Supplementary or detailed legislationto fix the details in the execution and
enforcement of a policy set out in the law
b. Interpretative legislationconstruing or interpreting the provisions of a statute to
be enforced
c. Contingent legislationmade by administrative authority on the existence of
certain facts or things upon which the enforcement of the law depends
Page 3107/12/2008
say
Quasi-Judicial function
and refers to its end product called order,
reward or decision
applies to specific situation
prospective;
it
envisages
the present determination of rights, privileges
promulgation of a rule or regulation or duties as of previous or present time or
generally applicable in the future
occurrence
Holy Spirit Homeowners Association vs. Secretary Defensor, G.R. No. 163980,
August 3, 2006, prohibition lies against judicial or ministerial functions, but not against
legislative or quasi-legislative functions. In subordinate legislation, as long as the
passage of the rule or regulation had the benefit of a hearing, the procedural due
process requirement is deemed complied with.
Quasi-Legislative Power
This is the exercise of delegated legislative power, involving no discretion as to
what the law shall be, but merely the authority to fix the details in the execution or
enforcement of a policy set out in the law itself.
Page 3117/12/2008
say
Under the law, it is the DOTC which is authorized to administer and enforced all
laws, rules and regulations in the field of transportation and to regulate related activities.
Since the DPWH has no authority to regulate activities related to transportation, the
Tollways Regulatory Board cannot derive its power from the DPWH to issue regulations
governing limited access facilities. (Ames Mirasol vs. DPWH, G.R. No. 158793, 2006)
Necessity of Notice and Hearing
There is no constitutional requirement for a hearing in the promulgation of a
general regulation by an administrative body.
In Corona vs. United Harbor Pilots Association of the Philippines, G.R. No.
111953, December 12, 1997, the SC reiterated the rule that prior hearing is not
necessary for the issuance of an ARR.
Doctrine of Legislative Approval by Re-Enactmentthe rules and regulations
promulgated by the proper administrative agency implementing the law are deemed
confirmed and approved by the Legislature when said law was re-enacted by later
legislation or through codification. The Legislature is presumed to have full knowledge
of the contents of the regulations then at the time of re-enactment.
Determinative Powers
1. Enablingto permit or allow something which the law undertakes to regulate
2. Directingillustrated by the power of assessment of the BIR or Bureau of
Customs
3. Dispensingto exempt from a general prohibition, or relieve an individual or
corporation from an affirmative duty
4. Examininginvestigatory powerconsists in requiring production of books,
papers, etc.
5. Summarypower to apply compulsion or force against persons or property to
effectuate a legal purpose without a judicial warrant to authorize such action
Page 3127/12/2008
PSDSA vs. Sec. De Jesus, G.R. No. 157286, June 16, 2006, it must be
stressed that the power of administrative officials to promulgate rules in implementation
of a statute is necessarily limited to what is provided for in the legislative enactment.
The implementing rules and regulations of a law cannot extend the law or expand its
coverage, as the power to amend or repeal a statute is vested in the legislature. It bears
stressing, however, that the administrative bodies are allowed under their power of
subordinate legislation to implement the broad policies laid down in a statute by filling
in the details. All that is required is that the regulation be germane to the objectives and
purposes of the law; that the regulation does not contradict but conforms with the
standards prescribed by law.
say
Power to adjudicate
The faculty of receiving evidence and
make factual conclusions in a controversy
accompanied by the authority of applying
the law to those factual conclusions to the
end that the controversy may be decided
or determined authoritatively, finally and
definitely, subject to appeals or modes of
review as may be provided by law.
Page 3137/12/2008
say
Sec. 1(1), Article VIIIThe judicial power shall be vested in one SC and in such lower
courts as may be established by law. outside of this, they refer to the administrative
agency performing quasi-judicial functions.
313
Page 3147/12/2008
say
administrative due process, as enumerated in Ang Tibay vs. CIR, 40 O.G. 7th
Supp. 128 are:
In Gonzales vs. NLRC and Ateneo de Davao University, G.R. No. 125735,
August 26, 1999, the SC held that there was a violation of administrative due process
314
where the teacher was dismissed by the university without having been given full
opportunity to confront the witnesses against her.
CSC vs. CA, G.R. No. 161086, November 24, 2006, in administrative
proceedings, the filing of charges and giving reasonable opportunity for the person so
charged to answer the accusations against him constitute the minimum requirements of
due process. As long as a party was given opportunity to defend his interests in due
course, he was not denied due process.
Power of Contemptjudicial; inherent power of the court. It must be used on
the preservative not on the vindictive principle. An administrative body may exercise the
power of contempt if expressly granted/vested by law to the administrative agency. The
doctrine of necessary implication cannot be applied here.
In Guevarra vs. COMELEC, 104 Phil. 268, the power to punish contempt must
be expressly granted to the administrative body; and when so granted, may be
exercised only when the administrative body is actually performing quasi-judicial
functions.
In Simon, Jr. vs. CHR, 229 SCRA 117, the CHR is constitutionally authorized to
adopt its operational guidelines and rules of procedure, and cite for contempt for
violations thereof in accordance with the Rules of Court. Accordingly, the CHR acted
within its authority in providing in its revised rules, its power to cite or hold any person
in direct or indirect contempt, and to impose the appropriate penalties in accordance
with the procedure and sanctions provided for in the Rules of Court. That power to cite
for contempt, however, should be understood to apply only to violations of its adopted
operational guidelines and rules of procedure essential to carry out its investigatorial
powers. To exemplify, the power to cite for contempt could be exercised against
persons who refuse to cooperate with the said body, or who unduly withhold relevant
information, or who decline to honor summons, and the like, in pursuing its investigative
work. The order to desist (a semantic interplay for a restraining order) is not
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say
315
In PBC vs. CIR, G.R. No. 112024, January 28, 1999, Article 8 of the Civil Code
recognizes judicial decisions applying or interpreting statutes as part of the legal
system of the country. But administrative decisions do not enjoy that level of
recognition. A memorandum-circular of a bureau head could not operate to vest a
taxpayer with a shield against judicial action. For there are no vested rights to speak of
respecting a wrong construction of the law by administrative officials and such wrong
interpretation could not place the Government in estoppel to correct or overrule the
same.
Administrative Appeal and Review
a. Where provided by law, appeal from an administrative determination may be
made to a higher or superior administrative officer or body.
b. By virtue of the power of control by which the President exercises over all
executive departments, the Presidentby himselfor through the Department
Secretaries (pursuant to the Alter-Ego Doctrine), may affirm, modify, alter, or
reverse the administrative decision of subordinate officials and employees.
(Araneta vs. Gatmaitan, 101 Phil. 328).
c. The appellate administrative agency may conduct additional hearings in he
appealed case, if deemed necessary. (Reyes vs. Zamora, 90 SCRA 92).
Page 3167/12/2008
Administrative determinations where notice and hearing are not necessary for
due process:
1. Grant of provisional authority for increased rates, or to engage in a particular line
of business
2. Summary proceedings of distraint and levy upon the property of a delinquent
taxpayer
3. Cancellation of a passport where no abuse of discretion is committed by the
Secretary of Foreign Affairs
4. Summary abatement of a nuisance per se which affects the immediate safety of
persons or property
5. Preventive suspension of a public officer or employee pending investigation of
administrative charges filed against him
say
investigatorial in character but prescinds from an adjudicative power that it does not
possess.
In this case, the power of contempt arose from an erroneous assumption of
jurisdiction. It is not valid. There is grave abuse of discretion to both issues.
In cases where the doctrine of primary jurisdiction is clearly applicable, the court
cannot arrogate unto itself the authority to resolve a controversy, the jurisdiction over
which is lodged with an administrative body of special competence. (Villaflor vs. CA,
280 SCRA 287)
Doctrine of Exhaustion of Administrative Remedies
Before a party is allowed to seek the intervention of the court, it is a pre-condition
that he should have availed of all the means of administrative processes afforded him.
Hence, if a remedy within the administrative machinery can still be resorted to by giving
the administrative officer concerned every opportunity to decide on a matter that comes
within his jurisdiction then such remedy should be exhausted first before the courts
judicial power can be sought. The premature invocation of courts jurisdiction is fatal to
ones cause of action.
Sec. 187, LGCexpressly provides that administrative remedies must be
exhausted first before the constitutionality or legality of a tax ordinance may be
challenged in court.
Page 3177/12/2008
In recent years, it has been applied to matters that demand the special
competence of administrative agencies even if the question involved is also judicial in
character. It applies where a claim is originally cognizable in the courts, and comes into
play whenever enforcement of the claim requires the resolution of issues which, under a
regulatory scheme, have been placed within the special competence of an
administrative body; in such case, the judicial process is suspended pending referral of
such issues to the administrative body for its view.
say
Exceptions:
1. If the issue involves a pure question of lawuseless to exhaust. Only the courts
can declare with finality what are purely legal question.
In Castro vs. Secretary Gloria, G.R. No. 132174, August 20, 2001, the SC said
that there is a question of law when the doubts or differences arise as to what the law is
on a certain state of facts. There is question of fact when the doubts or differences arise
as to the truth or falsity of alleged facts.
2. If the law does not provide for an administrative remedyjust go to the regular
courts. In Estuerte vs. CA, 193 SCRA 541, the SC said that in a civil action for
damages, the courts concern is whether or not damages, personal to the
plaintiff, were caused by the acts of the defendants; it can proceed independently
of the administrative action. Accordingly, the doctrine of exhaustion of
administrative remedy does not apply.
3. Doctrine of Qualified Political AgencyALTER EGO DOCTRINE. In Nazareno
vs. CA, 267 SCRA 589, the SC held that when the Undersecretary of DENR
denied the motion for reconsideration, he was acting on behalf of the Secretary
of DENR; accordingly, administrative remedies had been exhausted.
Page 3187/12/2008
say
patently illegal manner, because only the Secretary of DILG could act on the appeal
and the NAPOLCOM, being a collegial body, cannot be bound by the act of an
individual Commissioner.
6. When there is irreparable injury or threat thereof, unless judicial recourse is
immediately made.
say
In Vda de Tan vs. Veterans Backpay Commission, 105 Phil. 377, petitioner,
as widow of a Chinese guerilla veteran who rendered military service during the
Japanese occupation, filed an application for back pay before the Veterans Back Pay
Commissions. xxx The respondent Commission is in estoppel considering that in its
resolution: The opinions promulgated by the Secretary of Justice are advisory in
nature, which may either be accepted or ignored by the office seeking the opinion, and
any aggrieved party has the court for recourse xxx. thereby leading the petitioner to
conclude that only final judicial ruling in her favor would be accepted by the
Commission.
Non-exhaustion of administrative remedies is not jurisdictional. It only renders the action
premature, i.e., claimed cause of action is not ripe for judicial determination and for that
reason a party has no cause of action to ventilate in court. (Carale vs. Abarintos, 269
SCRA 132)
The doctrine of exhaustion of administrative remedies and the corollary doctrine
of primary jurisdiction, which are based on sound policy and practical considerations,
are not inflexible rules. There are many accepted exceptions such as unreasonable
delay or official inaction that will irretrievably prejudice the complainant and when the
question involved is purely legal and will ultimately have to be decided by the courts of
justice. (RP ETC vs. Lacap, G.R. No. 158253, March 2, 2007)
Page 3197/12/2008
Exceptions:
1. Factual finding is not supported by evidence;
2. Findings are vitiated by fraud, imposition or collusion;
3. Procedure which led to factual findings is irregular;
4. Palpable errors are committed;
5. Grave abuse of discretion, arbitrariness or capriciousness is manifest.
NHA vs. Pascual, G.R. No. 158364, November 28, 2007, the decisions and orders of
administrative agencies, rendered pursuant to their quasi-judicial authority, have upon
their finality, the force and binding effect of a final judgment within the purview of the
doctrine of res judicata.
BRANDEIS DOCTRINE OF ASSIMILATION OF FACTSwhere what purports to be a
finding upon a question of fact is so involved with and dependent upon a question of law
as to be in substance and effect decision on the latter, the Court will, in order to decide
the legal question, examine the entire record including the evidence if necessary.
Page 3207/12/2008
say
Page 3217/12/2008
say
321
Making:
limited
(Note: Subsequent confirmation of acts of representatives
without full powers validates action on behalf of state)
Adoption:
Page 3227/12/2008
say
3. The duty of States not to intervene in matters within the domestic jurisdiction of
any State.
4. The duty of States to cooperate with one another.
5. The principle of equal rights and self-determination of peoples.
6. The principle of sovereign equality of States.
7. States shall fulfill in good faith the obligations assumed by them.
322
d. Judicial decisions and the teachings and writings of the most highly qualified
publicists of the various nations and advisory opinions of the ICJ, as subsidiary
means for the determination of rules of law.
e. EquityArticle 38 (2) provides that the ICJ may decide cases ex a quo et bono
(by what is fair and good)
Sources of law refer to norms derived from international conventions or treaties,
custom, and general principles of law. The distinctive character of these norms is that
they are created, or they acquire binding effect, through the methods pointed out above.
Formal Sources
Material Sources
consists of the methods and procedures are the substantive evidence of the
for the creation of norms;
existence of norms;
Page 3237/12/2008
say
JUS COGENSa (peremptory) norm which States cannot derogate or deviate from in
their agreements. It is therefore a mandatory norm and stands on a higher category
than a jus dispositivum norm which states can set aside or modify by agreement.
323
International Law
Law of coordination
regulates relation of states and other
international persons
derived
principally
from
treaties,
international
customs
and
general
principles of law
resolved thru state-to-state transactions
collective responsibility because it
attaches directly to the state and not to its
nationals
Municipal Law
Law of subordination (issued by political
superior)
regulates relations of individuals among
themselves or with their own states
consists mainly of statutory enactments,
and to a lesser extent executive orders
and judicial pronouncements
redressed thru local administrative and
judicial processes
breach of which entails individual
responsibility
Page 3247/12/2008
say
General Rule:
Parties cannot enter into a treaty contrary to jus cogens or norms
recognized and accepted by international community; non-derogable
Examples: unlawful use of force, commission of a criminal act, trade in slaves, piracy,
genocide, human rights violations, equality of states, and self-determinations
324
Page 3257/12/2008
say
If conflict is with the Constitution, the latter prevails. Sec. 5(2a), Article VIII of
the Constitution provides that the SC has the power to declare a treaty or executive
agreement unconstitutional.
If conflict is with a statute, IL should be given equal standing with, but not
superior to, national legislative enactments.
325
It creates legal rights and obligations within Philippine territory and regulates the
conduct of government official and organs as well as the relations of individual citizens
with each other and with the government. Questions of international law may be
submitted to Philippine courts for decision. The outcome of litigation, however, does not
affect the binding nature of international law in the relation of the Philippines with other
States and other international persons.
Judicial notice dispenses with the burden of proving generally accepted
principles of international law. Theoretically at least, its cumulative effect as combined
with the incorporation clause is to require no proof at all for the application of generally
accepted principles of international law to become operative as Philippine law in a case
before a Philippine court. In short, it is as good as statutory law in terms of probative
value.
Page 3267/12/2008
The incorporation clause assumes the existence of international law which binds
the Philippines as a State. It thus becomes a method by which the Philippines can carry
out its obligations under international law within its territorial jurisdiction.
say
decrees that rules of international law are given equal standing with, but are not
superior to, national legislative enactments. Accordingly, the principle of lex posterior
derogate priori takes effecta treaty may repeal a statute and a statute may repeal a
treaty. In states where the Constitution is the highest law of the land, such as the
Republic of the Philippines, both statutes and treaties may be invalidated if they are in
conflict with the Constitution. (Secretary of Justice vs. Hon. Ralph Lantion, G.R. No.
139465, January 18, 2000)
326
Holy See vs. del Rosario, the Court has declared in an obiter dictum that even without
affirmation in the incorporation clause of the Constitution, such principles of
international law are deemed as part of the law of the land as a condition and
consequence of our admission in the society of nations, under the doctrine of
incorporation. And upon admission in the international society, the state is automatically
obligated to comply with these principles.
DOCTRINE OF TRANSFORMATIONrequires the enactment by the legislative body
of such international law principles as are sought to be part of municipal law.
In the case of Laguna Lake Development Authority vs. CA, 231, SCRA 292, it
was held that Section 6, Article II of the Constitution was taken from the Universal
Declaration of Human Rights and the Alma Conference Declaration of 1978 recognizing
health as a fundamental human right. Thus, the authority of the LLDA to issue a cease
and desist order to prevent pollution of Marilao River was upheld on the basis of the
principle of necessary implication.
Page 3277/12/2008
say
Page 3287/12/2008
say
If an entity is not a subject of international law as such, it may still assume certain
characteristics of international personality but in a special or restricted context such as
that defined by agreement, recognition or acquiescence.
An individual may be a subject of international law (independently of his State, an
individual may be tried for terrorism (Bin Laden), war crimes. The Rome Statute has
created a permanent international criminal court.
May individuals assume the status of subjects of international law?
Yes, but on the basis of agreement or in specific context, and not in accordance with
general or customary international law.
Page 3297/12/2008
say
Government of Hong Kong Special Administrative Region vs. Hon. Olalia, Jr. G.R.
No. 153675, April 19, 2007 (See Atty. Sandovals 2008 handouts in International Law, page 1)
Are international organizations considered subjects of international law?
Yes, their status is determined by agreement and not by general or customary
international law. The criteria of a legal personality have to be met.
1. A permanent association of states, with lawful subjects, equipped with organs;
2. A distinction, in term of legal powers and purposes, between the organization
and its member states;
329
say
3. The existence of legal powers exercisable on the international plane and not
solely within the national systems of one or more states.
other suggested/additional
elements
Page 3307/12/2008
Creation of State:
1. By revolution;
2. Unification;
3. Secession;
4. Assertion of independence;
5. Agreement; and
6. Attainment of civilization.
Extinction of States:
330
Succession of Governments:
The integrity of the State is not affected. The State continues as the same
international person except that its lawful representative is changed.
Consequences:
1. All rights of the predecessor government are inherited by the
successor;
2. Where the new government was organized by virtue of constitutional
reform duly ratified in a plebiscite, all obligations of the predecessor
are likewise assumed; however,
3. Where the new government is established through violence, the new
government may lawfully reject purely personal or political obligations
of the predecessor, but not those obligations contracted by it in the
ordinary course of official business.
Page 3317/12/2008
say
Principle of State Continuityas long as the elements of the State are present, the
State shall continue in existence.
Classes of States:
A. INDEPENDENThas freedom to direct and control foreign relations without
restraint from others states. It may be:
a. Simplesingle central government with power over internal and external
affairs.
b. Composite2 or more sovereign states joined together to constitute one
international person which may be:
331
that they form a single international person through which they act
as one entity. The states retain their separate identities, but their
respective international personalities are extinguished and blended
in the new international person.
ii. Federal Unioncombination of 2 or more states which, upon
merger, ceased to be states, resulting in the creation of new state
with full international personality to represent them in their external
relations as well as a certain degree of power over their domestic
affairs and their inhabitants.
Authority over internal affairs: divided between federal authorities
and the member-states;
Authority over external affairs: handled solely by federal authorities.
say
international treaty on the condition that such state obligates itself never to take
up arms against other state (except in self-defense), or to enter into an
international obligation as would indirectly involved it in war. e.g. Switzerland
and Austria
Page 3327/12/2008
332
Page 3337/12/2008
say
State Sovereigntyis the right to exercise in a definite portion of the globe the
functions of a State to the exclusion of any other State.
333
RecognitionThe act by which the state acknowledges the existence of another state,
a government or a belligerent community, and indicates its willingness to deal with the
entity as such under international law.
Theories on Recognition:
1. Constitutive (Minority View)recognition is the act which constitutes the
entity to an international person. Recognition is compulsory and legal; it may
be compelled once the elements of a state are established.
2. Declarative (Majority View)recognition merely affirms an existing fact, like
the possession by the State of the essential elements. It is discretionary and
political.
Basic Rules on Recognition:
It is a political act and mainly a matter of policy on the part of each State; it is
discretionary on the part of the recognizing authority; and it is exercised by the political
(executive) department of the state. Thus, the legality and wisdom of recognition is not
subject to judicial review.
Page 3347/12/2008
say
334
Estrada Doctrineit provides that if a state will deal with representatives of the
government in actual control of another country for the protection of its citizens in the
territory of the later state, this does not necessarily mean recognition of the said
government.
Page 3357/12/2008
Kinds of Recognition:
1. De Facto(of fact) extended by the recognizing state which believes that
some of the requirements for recognition are absent. The recognition is
generally provisional and limited to certain juridical relations; it does not bring
about full diplomatic intercourse and does not give title to assets of the state
held/situated abroad.
2. De Jure(of Law) extended to a government fulfilling the requirements for
recognition. When there is no specific indication, recognition is generally de
jure. The recognition is relatively permanent; bring about full diplomatic
intercourse and observance of diplomatic immunities; and confers title to
assets abroad.
Effects of Recognition:
1. Diplomatic relations;
2. Right to sue in the courts of recognizing state;
In the case of Banco Nacional de Cuba vs. Sabattino, 376 US 398, unfriendly
relations or the lack of reciprocity was held immaterial.
3. Immunity from jurisdiction;
4. Entitlement to property within the recognizing state; and
5. Retroactive validation of the acts of the recognized sate/government.
say
335
Page 3367/12/2008
say
336
Page 3377/12/2008
a.
b.
c.
d.
e.
say
Outer space, including the moon and other celestial bodies, shall be free
for exploration and use by all states without discrimination of any kind, on the
basis of equality and in accordance with international law.
Spatial test96 up to 110 kms.
Modes of Acquiring Territory
(See page 7 of this review notes)
Page 3387/12/2008
say
Generally, a state has no jurisdiction over its nationals residing abroad except in
nationality law theory, i.e., Article 15 of the Civil Code; Article 2 of the Revised Penal
Code; taxation of citizens abroad.
338
Page 3397/12/2008
say
339
Page 3407/12/2008
say
The Philippines is not liable for death or injury to alien hostages of the abu
sayyaf, unless it is shown to have participated directly or was remiss or negligent in
taking measures to prevent injury, investigating the case, punishing the guilty, or to
enable the victim or his heirs to pursue civil remedies.
The right of asylum is not a right possessed by an alien to demand that a State
protect him and grant him asylum. At present, it is just a privilege granted by a State to
allow an alien escaping from the persecution of his country for political reasons.
Who is a Refugee?
A refugee is a person who is outside the country of his nationality, or if he has no
nationality, the country of his former habitual residence, because he has or had wellfounded fear of persecution by reason of his race, religion, nationality or political opinion
and is unable or, because of such fear, is unwilling to avail himself of the protection of
the government of the country of his nationality, or, if he has no nationality, to return to
the country of his former habitual residence.
To be considered a refugee, the person:
1. Is outside the country of his nationality, or, in the case of stateless persons,
outside the country of habitual residence;
2. Lacks national protection; and
3. Fears persecution by reason of his race, religion, nationality or political
opinion.
Because of the 2nd element, a refugee is considered a stateless person.
Only a person who is granted asylum by another State can apply for refugee
status; thus, the refugee treaties imply the principle of asylum.
Page 3417/12/2008
say
Purpose: To grant to the contracting party treatment not less favorable than that
which has been or may be granted to the most favored among other countries. The
most favored nation clause is intended to establish the principle of equality of
international treatment by providing that the citizens or subjects of the contracting
nations may enjoy the privileges accorded by either party to those of the most favored
nation. (CIR vs. S. C. Johnson & Sons, Inc., 309 SCRA 87, June 25, 1999)
2 Types of Most-Favored-Nation Clause:
say
to the most favored among other countries. The clause has been commonly included
in treaties of commercial nature.
1. Conditional
According to the clause in its unconditional form, any advantage of whatever kind
which has been or may in future be granted by either of the contracting parties to a third
State shall simultaneously and unconditionally be extended to the other under the same
or equivalent conditions as those under which it has been granted to the third State.
UNITED NATIONS
The international organization which succeeded the League of Nations
Organs of UN
1. General assemblyAssembly
2. Security Council
3. Economic & Social Council (ECOSOC) Council
4. Trusteeship Council
5. Secretariat
6. ICJ
organs
Page 3427/12/2008
2. Unconditional
342
has criminal jurisdiction to prosecute does not have criminal jurisdiction over
individuals
individuals
it prosecutes individuals for genocide, it is a civil tribunal that deals primarily
crimes against humanity, war crimes and with disputes between States
the crimes of aggression
it is independent of the United nations
Genocide;
Crimes against humanity;
War crimes; and
Crime of aggression. (Article 5, Rome Statute)
Page 3437/12/2008
Legal disputes which the ICJ may resolve under the optional clause of its
Statute:
1. The Interpretation of a treaty;
2. Any question of international law;
3. The existence of any fact which, if established, would constitute a breach of an
international obligation;
4. The nature and extent of the reparations to be made in case of breach of an
international obligation.
say
General Principles:
1. Nullum crimen sine lege (Ex post Facto law)
2. Nullum poena sine lege (void for vagueness)
3. Double Jeopardy
4. Non-retroactivity
343
The Statute was opened for signature by all States in Rome on July 17, 1988 and
had remained open for signature until December 31, 2000 at the UN Headquarters in
New York. The Philippines signed the Statute on December 28, 2000 through Charge d
Affairs Enrique A. Manalo of the Philippine Mission to the UN. Its provisions, however,
require that it be subject to ratification, acceptance or approval of the signatory states.
(Article 25, Rome Statute)
Pimentel, Jr. vs. Office of the Executive Secretary, 462 SCRA 622, July 6, 2005
Ratification of the Rome Statute of the International Criminal Courtthe SC held that
the power to ratify does not belong to the Senate. In the book of Justice Isagani Cruz,
the usual steps in the treaty-making process are:
1. Negotiationmay be undertaken directly by the head of state but usually
assigns this task to his authorized representatives. The negotiations may be
brief or protracted, depending on the issues involved, and may even collapse
in case the parties are unable to come to an agreement on the points under
consideration.
Page 3447/12/2008
No trial in absentia
No reservations
Penalties: Imprisonmentmax of 30 years; no death penalty
Principle of Complementaritythe ICC shall be complementary to national criminal
jurisdictions of states. It gives primacy over the duty of every State to exercise its
criminal jurisdiction over those responsible for international crimes.
say
2. Signatureif and when the negotiators finally decide on the terms of the
treaty, the same is opened for signature. This step is primarily intended as a
means of authenticating the instrument and for the purpose of symbolizing the
good faith of the parties; but significantly, it does not indicate the final consent
of the state in cases where ratification of the treaty is required. The document
is signed usually in accordance with the alternat, i.e., each of the several
negotiators is allowed to sign first on the copy which he will bring home to his
home state.
344
3. Ratificationis the formal act by which a state confirms and accepts the
usually signifies the effectivity of the treaty unless a different date has been
agreed upon by the parties. When ratification is dispensed with and no
effectivity clause is embodied in the treaty, the instrument is deemed effective
upon its signature.
It should be emphasized that under our Constitution, the power to ratify is vested
in the President, subject to the concurrence of the Senate. The role of the Senate,
however, is limited only to giving or withholding its consent, or concurrence, to the
ratification. Hence, it is within the authority of the President to refuse to submit a treaty
to the Senate or, having secured its consent for ratification, refuse to ratify it. Although
the refusal of a state to ratify a treaty which has been signed in its behalf is a serious
step that should not be taken lightly, such decision is within the competence of the
President alone, which cannot be encroached by this Court via a writ of mandamus.
This Court has no jurisdiction over actions seeking to enjoin the President in the
performance of his official duties. The Court, therefore, cannot issue the writ of
mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the
executive branch of the government to transmit the signed text of the Rome Statute to
the Senate.
GENOCIDE
It is the deliberate destruction and annihilation of a racial, ethnic or religious
group.
Page 3457/12/2008
say
JURISDICTION
It is the competence of a state under international law to prescribe and enforce
norms of law, as well as adjudicate over persons, property, events and relations within
its territory.
Components of Territory:
1. Terrestrial domain (Land)
2. Fluvial and Maritime domain
3. Aerial domain
LAND TERRITORY (Terrestrial Domain)
Modes of acquisition: (See page 7 of this notes)
Page 3467/12/2008
Hors de combat
1. The person is in the power of an adverse party to the conflict
2. He clearly expresses his intention to surrender
3. He is incapable of defending himself provided he abstains from any hostile act
and does not attempt to escape
say
Martens Clauseprovides that in cases not covered by this protocol or by any other
international agreements, civilians and combatants remain under the protection and
authority of the principles of international law derived from established customs, from
the principles of humanity and from the dictates of public conscience (Article I,
paragraph 2, Protocol additional to the Geneva Conventions of August 12, 1949).
AIR TERRITORY (Aerial Domain)this refer to the airspace above the land and waters
of the State.
Five (5) Freedoms for Scheduled International Services:
2. Freedom to fly across foreign territory without landing;
3. Freedom to land for non-traffic purposes;
4. Freedom to put down traffic originating in state of aircraft;
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say
The subjacent state has complete jurisdiction over the atmosphere above
it subject only to the innocent passage by aircraft of a foreign country.
If the crime is committed in an aircraft, no matter how high, as long as it can be
established that it is within the Philippine atmosphere, our law will govern.
Outer Spaceis the region beyond the earths atmosphere.
Outer Space Treatyprovides for the exploration and use of outer space as the
province of mankind and provides accordingly that the exploration and use of outer
space, including the moon and other celestial bodies, shall be carried out for the benefit
and in the interest of all countries, irrespective of their degree of economic or scientific
development.
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Leading principles:
1. TERRITORIALITYthe Philippines possesses absolute (but may not be
exclusive) jurisdiction over persons, property, relations, and events by reason of
the fact that they are within or they take place in its territory, without regard to the
nationality of the person responsible. (Article 14 of the Civil CodePenal laws
and those of public security and safety shall be obligatory upon all who live or
sojourn in Philippine territory, subject to the principles of public international law
and to treaty stipulations.)
A State may exercise jurisdiction only within its territory.
General rule:
A state has criminal jurisdiction only over offenses
committed within its territory.
say
party;
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SOVEREIGN IMMUNITY
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A State has jurisdiction over crimes against its own nationals even if committed
outside the territory.
b. Limited senseit refers to the acts taken by the State concerning as affecting
aliens, like the inherent right of every sovereign state to exclude resident
aliens from the territory when their continued presence is no longer desirable
from the standpoint of its domestic interest and tranquility.
Doctrine of State Immunityas a consequence independence, territorial
supremacy and equality, a state enjoys immunity from the exercise of jurisdiction
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(legislative, executive or judicial) by another state, unless it has given its consent,
waived its immunity, or voluntarily submitted to the jurisdiction of the court
concerned.
(Read Also Discussions under State Immunity from Suit)
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Remedy of Individual:
a. Sue in home state of diplomat
b. Waiver by state of nationality of diplomat
c. Declare diplomat persona non grata
Diplomatic immunity ceases to be enjoyed at the moment the diplomat leaves the
country, or on expiry of a reasonable period in which to do so. (Regina vs.
Palacios 7 DLR 112)
say
DIPLOMATIC CORPS
A body consisting of all diplomatic envoys accredited to the same local or
receiving state. The doyen or the head of this body is the papal nuncio, if there is one,
or the oldest ambassador, or in the absence, the oldest minister plenipotentiary.
Agreationthe process in appointment of diplomatic envoy where states resort to an
informal inquiry as to the acceptability of a particular envoy, to which the receiving state
responds with an informal conformity
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Letre de Creance (Letter of Credence)states the name, rank and general character
of the mission, and a request for favorable reception and full credence
DIPLOMATIC IMMUNITIES AND PRIVILEGES
1. Personal inviolabilityhe shall not be liable to any form of arrest or detention.
2. Inviolability of premises and archives
3. Right of official communication
4. Immunity from local jurisdiction
5. Exemption from taxes and custom duties
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Waiver of Immunities1. Diplomatic immunities can be waived, but the waiver cannot be made by the
individual concerned since such immunities are not personal to him.
2. Waiver may be made only by the government of the sending state if it concerns
the immunities of the head of mission.
3. In other cases, the waiver may be made either by the government or by the chief
of mission.
4. Waiver of this privilege, however, does not include waiver of the immunity in
respect of the execution of judgment; a separate waiver of the latter is necessary.
Termination of diplomatic mission:
1. Death
2. Resignation
3. Removal
4. Abolition of office
5. Recall of the sending State
6. Dismissal by the receiving state
7. War
8. Extinction of the State
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CONSULAR RELATIONS
Consul A state agent residing abroad for various purposes but mainly in the interest
of commerce and navigation.
Kinds:
1. Consules missiprofessional and career consuls, nationals of the appointing
state
2. Consul electiselected by the appointing state either from its own citizens or
from among nationals abroad
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Rank:
1. Consul-generalheads several consular districts, or one exceptionally large
consular district
2. Consultakes charge of small district, town or port
3. Vice-consulassist the consul
4. Consular agentusually entrusted with the performance of certain functions by
the consul.
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EXTRADITION
Secretary of Justice vs. Muoz, G.R. No. 140520, December 18, 2000, provisional
arrest of respondent was valid noting that the requirements of the Agreement on
documentation and the finding of probable cause have been complied with.
354
Government of USA vs. Purganan, G.R. 148571, September 24, 2002, right to bail in
extradition is not available; ultimate purpose of extradition proceedings in court is to
determine whether the extradition request complies with the extradition treaty. But in
exceptional cases, bail may issue provided:
a. Accused is not a flight risk; and
b. Compelling circumstances warrant.
The right of prospective extraditee to apply for bail in this jurisdiction must be
viewed in light of the various treaty obligations of the Philippines concerning respect for
the promotion and protection of human rights. (Government of HK Special
Administrative Region vs. Hon. Olalia, Jr., G.R. No. 153675, April 19, 2007)
say
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Jurisdiction: The State exercises jurisdiction over everything found within its internal or
national waters. In the case of foreign merchant vessels docked in a local port or bay,
the coastal state exercises jurisdiction in civil matters, but criminal jurisdiction is
determined according to the:
a. English rulethe coastal State shall have jurisdiction over all offenses
committed on board the vessel except those which do not compromise the
peace of the port (the Philippines adheres to this rule);
b. French ruleflag state shall have jurisdiction over all offenses committed
on board a vessel except those which compromise the peace of the port.
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Internal or national waters-- bodies of water within the land mass, among them are
rivers, bays and gulfs, straits, and canals.
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part thereof.
2. Mid-Ocean Archipelagosituated in the ocean at such distance from the
coasts of firm land. The Philippines is classified as mid-ocean archipelago just
like Indonesia. The Philippines is not in any way connected physically with the
Asia mainland.
Maritime zones of the Philippines: (See also discussion under National Territory)
1. Territorial Seathe belt of the sea located between the coast and the internal
waters of the coastal state on the other hand, and the high seas on the other,
extending up to 12 nautical miles from the low-water mark, or in the case of
archipelagic states, from the baselines.
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The internal waters of the Philippines are now subject to right of innocent
passage as well as to sea lanes for all foreign ships under the right of archipelagic sea
lanes passage. The airspace above the internal waters within the archipelagic sea lanes
passage is subject to the air routes for all foreign aircraft.
It is restricted by the right of archipelagic sea lane passage but only such
portions of the territorial sea adjacent to the Philippine archipelagic waters traversed by
the archipelagic sea lanes.
Innocent passagemeans navigation through the territorial sea of a state for
the purpose of traversing that sea without entering internal waters, or of
proceeding to or from internal waters. Passage is innocent if it is not prejudicial to
the peace, good order or security of the coastal state. It is required that passage
be continuous and expeditious, although a ship is allowed to stop and anchor if
this is incidental on account of force majeure or is required in order to assist
persons, ships or aircraft in danger or distress.
Innocent passage
Transit passage
Pertains only to navigation of ships
Includes rights of overflight
Requires submarine and other No requirement specially applicable to
underwater vehicles to navigate on the submarines
surface and to show their flag
Can be suspended
Cannot be suspended
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Baselineis a line from which the breadth of the territorial sea, the
contiguous zone and the exclusive economic zone is measured in order to
determine the maritime boundary of the coastal state.
Types of baseline:
ii. Normal Baseline Method
iii. Straight Baseline method
In designation of sea lanes and traffic Designation of sea lanes and traffic
separation schemes, the coastal state separation schemes is subject to adoption
shall
only
take
account
of
the by competent international organization
recommendations of the competent upon proposal and agreement of states
bordering the straits
international organization
As a rule, ships (not aircraft) of all states enjoy the right of innocent passage
through the territorial sea (not through internal waters). It is understood, however, that
the passage must be continuous and expeditious, except in cases of force majeure.
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Submarines and other underwater craft are required to navigate on the surface and to
show their flag.
2. Contiguous Zoneextends up to 12 nautical miles from the territorial sea; this
The Philippines does not have sovereignty over the contiguous zone. It is a zone
of jurisdiction, not of sovereignty.
This contiguous zone is not appurtenant to Philippine territory. For a coastal state
to assume pertinent rights, it must make a specific claim to its contiguous zone. If no
contiguous zone is claimed or declared, the rights that may otherwise pertain to the
contiguous are deemed to be subsumed in those pertaining to the territorial sea.
3. Exclusive Economic Zone (EEZ)shall not extend beyond 200 nautical miles
from the archipelagic baselines. The Philippines has sovereign rights over EEZ
for the purpose of exploring, exploiting, conserving and managing the natural
resources in this zone. In addition, it has jurisdictional rights with regard to
artificial islands, environmental protection, and marine scientific research.
The resources covered by the sovereign rights of the Philippines over its EEZ are
the living and non-living resources in the superjacent waters of the sea-bed, as well as
the resources of the sea-bed and its subsoil.
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Jurisdiction: Adjacent to the territorial sea, it is a zone where Philippines may exercise
certain protective jurisdiction. The coastal state may exercise limited jurisdiction over
the contiguous zone:
a. To prevent infringement of customs, fiscal immigration or sanitary laws
and regulations within its territory or territorial sea; and
b. To punish violation of the above laws and regulations committed within its
territory or in territorial sea.
say
The Philippines is required to grant other states access to living resources in its
EEZ. It must determine its capacity to harvest the living resources. If it does not have
the capacity to harvest the entire allowable catch, it shall give other states access to the
surplus of the allowable catch by means of agreements consistent with the UNCLOS.
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Jurisdiction: the coastal state enjoys the right of exploitation of oil deposits and other
resources in the continental shelf. In case of the continental shelf extends to the shores
of another State, or is shared with another State, the boundary shall be determined in
accordance with equitable principle.
The continental shelf does not form part of the Philippine territory. The
Philippines has the sovereign rights over the continental shelf for the purpose of
exploring it and exploiting its natural resources.
The natural resources covered by sovereign rights in the continental shelf consist
of (a) mineral and other non-living resources of the sea-bed and subsoil, (b) together
with living organisms which are sedentary.
The UNCLOS describes these sovereign rights as exclusive in the sense that if
the Philippines does not explore the continental shelf or exploit its natural resources, no
one may undertake these activities without its consent. Rights of the Philippines over
the continental shelf do not depend on occupation, effective or notional, or on any
express proclamation.
The Philippines has the exclusive right to construct, to authorize and regulate the
construction, operation and use of artificial islands and installations. Its jurisdiction over
these is exclusive, in particular with respect to customs, fiscal, health, safety and
immigration regulations. It has also exclusive right to authorize as well as to regulate
drilling for all purposes.
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Continental shelfit is the seabed and subsoil of the submarine areas extending
beyond the Philippine territorial sea throughout the natural prolongation of the land
territory. It extends up to:
a. The outer edge of the continental margin; or
b. A distance of 200 nautical miles from the archipelagic baselines, whichever is the
farthest.
say
Philippine territory is not enlarged by reason of EEZ. The legal regime of the EEZ
limits Philippine rights to specified sovereign rights and to particular jurisdictional rights.
No territorial acquisition is involved.
In the EEZ, all states continue to enjoy the freedom of the high seas, subject to
the rights of the Philippines as thus mentioned. Generally, the rules of international law
pertaining to the high seas apply to EEZ.
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Jurisdiction: may be exercised by the State on the high seas over the following:
a. Its vesselsthe flag State has jurisdiction over its public vessels wherever
they are, and over its merchant vessels on the high seas. However, UNCLOS
considered the flag of convenience controversy.
b. Piratesthey are enemies of mankind; they may be captured on the open
seas by the vessels of any State, to whose territory they may be brought for
trial and punishment.
c. Drug trafficking and slave tradeall States shall cooperate in the suppression
of illicit traffic in narcotics and slave trade.
d. Right to visit and searchuse the law of neutralitythe vessels or aircraft of
a belligerent State may visit and search any neutral merchant vessel on the
open seas and capture it if found to be engaged in activities favorable to the
other belligerent.
e. Hot pursuit the State authorities can pursue an offender up to high seas
until he enters the territorial sea of another State.
1. The pursuit must commence from internal waters, territorial sea or
contiguous zone, of pursuing State
2. The pursuit must be uninterrupted
3. It must be conducted by warship, military aircraft, or government ships
authorized for the purpose
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High Seastreated as res communes, thus, not territory of any particular State. These
are the waters which do not constitute the internal waters, archipelagic waters, territorial
sea and exclusive economic zones of a state. They are beyond the jurisdiction and
sovereign rights of States.
The traditional view is freedom of the high seas, i.e., they are open and available,
without restriction, to the use of all states for the purpose of navigation, overflight,
submarine cables/pipelines, construction of artificial islands or any installations, fishing,
mining, research, etc. however, this rule is subject to regulation arising from treaty
stipulations.
say
Deep Sea(as part of the common heritage of mankind) resources of the deep seabed
owned by all States. All rights to the resources of the area are vested in mankind as a
whole. The Enterprise (organ of the Deep Sea Bed Authority) shall explore and exploit
the area.
Open for peaceful purposes and for exploitation for the benefit of mankind; right
of a coastal state to prevent or mitigate any grave and imminent danger to its coastline
or environment; governed by the International Seabed Authority.
361
Philippine ship
A ship may assume Philippine nationality if it flies Philippine flag and thus
become the flag state. A ship has the nationality of the state whose flag it is entitled to
fly. It is for the Philippines to decide the conditions by which it will accord a ship the right
to fly its flag.
It is required that there be genuine link between the Philippines and the ship.
However, so far, no objective criteria have been established to determine the existence
of a genuine link. If no genuine link is found to exist, no legal consequences have been
defined. The result is that the genuine link requirement fails to command broad
compliance.
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Freedom of navigationrefers to the right to sail ship on the high sea, subject
to international law and the laws of the flag of the state.
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The Philippines has exclusive jurisdiction over a Philippine ship on the high seas.
Flag Statethe state whose nationality the ship possesses; for it is nationality that
gives the right to fly a countrys flag.
Flag of Convenienceforeign flag under which a merchant vessel is registered for
purposes of reducing operating costs or avoiding government regulations. It is a flag of
one country, flown by a ship owned by a citizen of another country. A vessel shall have
the nationality of the flag it flies, provided there is a genuine link between the State
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(whose flag is flown) and the vessel, i.e., the State must effectively exercise jurisdiction
and control in administrative, technical and social matters over the ship.
364