Political Law Reviewer

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ATENEO CENTRAL BAR OPERATIONS 2007

Political Law SUMMER REVIEWER

—Advisers: Atty. Sedfrey Candelaria; Head: Patricia Libo-on; Understudy: Grip Bueta

Members: Felippe Closa, Juancho Hernandez, Immaculada Ylagan

CONSTITUTIONAL LAW .............................................................................................................................2

ARTICLE I – THE NATIONAL TERRITORY ...............................................................................................2 ARTICLE II – DECLARATION OF PRINCIPLES AND STATE POLICIES...................................................2 ARTICLE III – BILL OF RIGHTS .................................................................................................................4 ARTICLE IV – CITIZENSHIP ..................................................................................................................23 ARTICLE V – SUFFRAGE ......................................................................................................................24 ARTICLE VI – THE LEGISLATIVE DEPARTMENT...............................................................................25 ARTICLE VII. THE EXECUTIVE DEPARTMENT ..................................................................................35 ARTICLE VIII. THE JUDICIAL DEPARTMENT......................................................................................43 ARTICLE IX – THE CONSTITUTIONAL COMMISSIONS .....................................................................46

THE CIVIL SERVICE COMMISSION.................................................................................................47 THE COMMISSION ON ELECTIONS................................................................................................50 THE COMMISSION ON AUDIT .........................................................................................................53

ARTICLE X: LOCAL GOVERNMENT ....................................................................................................54 ARTICLE XI: ACCOUNTABILITY OF PUBLIC OFFICERS...................................................................57 ARTICLE XII – NATIONAL ECONOMY AND PATRIMONY ...................................................................61 ARTICLE XIII – SOCIAL JUSTICE AND HUMAN RIGHTS.....................................................................65 ARTICLE XIV - EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS ....67 ARTICLE XVI - GENERAL PROVISIONS ..............................................................................................68 ARTICLE XVII- AMENDMENTS OR REVISIONS...................................................................................69 ARTICLE XVIII - TRANSITORY PROVISIONS ......................................................................................71

PUBLIC INTERNATIONAL LAW ...............................................................................................................72

THE NATURE OF INTERNATIONAL LAW............................................................................................72 SOURCES OF INTERNATIONAL LAW..................................................................................................72 TREATIES ..............................................................................................................................................73 INTERNATIONAL LAW AND MUNICIPAL LAW.....................................................................................74 SUBJECTS OF INTERNATIONAL LAW.................................................................................................74 STATE RESPONSIBILITY......................................................................................................................76 SETTLEMENT OF DISPUTES ...............................................................................................................77 SPECIAL TOPICS ..................................................................................................................................77 LAW ON HUMAN RIGHTS.....................................................................................................................81

ADMINISTRATIVE LAW ............................................................................................................................84

LAW ON PUBLIC CORPORATION ...........................................................................................................89

LAW ON PUBLIC OFFICERS....................................................................................................................98

ELECTION LAW.......................................................................................................................................104



Political Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007

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CONSTITUTIONAL LAW

Article I – THE NATIONAL TERRITORY The national territory of the Philippines comprises: 1) the Philippine archipelago; 2) all other territories over which the Philippines has

sovereignty or jurisdiction PHILIPPINE ARCHIPELAGO – that body of water studded with islands which is delineated in the Treaty of Paris (1898), as amended by the Treaty of Washington (1900) and the Treaty with Great Britain (1930).

– consists of its a) Terrestrial b) Fluvial c) Aerial domains

– including its a) Territorial sea b) The seabed c) The subsoil d) The insular shelves; and e) The other submarine areas

INTERNAL WATERS – the waters Around, Between and Connecting the islands of the archipelago, regardless of their breadth and dimensions ALL OTHER TERRITORIES OVER WHICH THE PHILIPPINES HAS SOVEREIGNTY OR JURISDICTION –includes any territory that presently belongs or might in the future belong to the Philippines through any of the accepted international modes of acquiring territory. ARCHIPELAGIC PRINCIPLE Two elements: 1. The definition of internal waters (supra); 2. The straight baseline method of delineating the

territorial sea – consists of drawing straight lines connecting the outermost points on the coast without departing to any appreciable extent from the general direction of the coast.

Important distances with respect to the waters around the Philippines Territorial Sea 12 nautical miles (n.m.) Contiguous Zone 12 n.m. from the edge of the

territorial sea Exclusive Economic Zone

200 n.m. from the baseline [includes T.S. and C.Z.]

NOTE: There can be a Continental Shelf without an EEZ, but not an EEZ without a Continental Shelf.

TERRITORIAL SEA The belt of the sea located between the coast and internal waters of the coastal state on the one hand, and the high seas on the other, extending up to 12 nautical miles from the low water mark. CONTIGUOUS ZONE Extends up to 12 nautical miles from the territorial sea. Although not part of the territory, the coastal State may exercise jurisdiction to prevent infringement of customs, fiscal, immigration or sanitary laws. EXCLUSIVE ECONOMIC ZONE Body of water extending up to 200 nautical miles, within which the state may exercise sovereign rights to explore, exploit, conserve and manage the natural resources The state in the EEZ exercises jurisdiction with regard to: 1. the establishment and use of artificial islands,

installations, and structures; 2. marine scientific research; 3. the protection and preservation of marine

environment; Article II – DECLARATION OF PRINCIPLES AND

STATE POLICIES Selected principles Sec. 1. The Philippines is a democratic and republican state. Sovereignty resides in the people and all government authority emanates from them. Elements of a State (for municipal law purposes)

1) People – A group of persons sufficiently numerous held together by a common bond

2) Territory – A definite area over which the State exercises sovereign jurisdiction

3) Sovereignty – Power of the State to regulate matters within its own territory.

4) Government – Institution organized and run in order to manage the affairs of the State.

Classification of governments

1) De jure – Government which is placed in power following legal / constitutional processes.

2) De facto – a government that actually exercises power or control but without legal title.

Classification of de facto governments




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1) De facto proper a. That government that gets possession and

control of b. or usurps by force or by the voice of majority c. the rightful legal government d. and maintains itself against the will of the

latter.

2) Government of paramount force a. That which is established and maintained by

military forces b. who invade and occupy a territory of the enemy c. in the course of war. d. That established as an independent government

by the inhabitants of a country who rise in insurrection against the parent state.

“REPUBLICAN STATE” It is one wherein all government authority emanates from the people and is exercised by representatives chosen by the people. “DEMOCRATIC STATE” This merely emphasizes that the Philippines has some aspects of direct democracy such as initiative and referendum. Sec. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

• The Philippines renounces AGGRESSIVE war as an instrument of national policy, but allows for a defensive war.

Examples of Generally Accepted Principles of International Law" cited in Philippine Jurisprudence: 1) The right of an alien to be released on bail while

awaiting deportation when his failure to leave the country is due to the fact that no country will accept him (Mejoff v. Director of Prisons, 90 Phil. 70)

2) The right of a country to establish military commissions to try war criminals (Kuroda v. Jalondoni, 83 Phil. 171)

3) The Vienna Convention on Road Signs and Signals and Pacta Sunt Servanda (Agustin v. Edu, 88 SCRA 195)

4) Duty to protect the premises of embassies and legations (Reyes v. Bagatsing, G.R. 65366)

Pimentel, Jr. v Office of the Executive Secretary (462 SCRA 622) (July 6, 2005) Ratio: 1) Signing of the Treaty shows the assent of the

State to the treaty which it seeks to enter and has the corresponding duty on the State to refrain from actions which may defeat the purpose of the treaty.

2) A State party is not bound to ratify a treaty which it signs, however it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons.

3) The President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same.

4) It is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it.

Southern Cross Cement Corporation v. Cement Manufacturers Association of the Philippines (465 SCRA 532) (August 3, 2005) Ratio: Our treaty obligations dissuade the State for now from implementing default protectionist trade measures such as tariffs, and allow the same only under specified conditions. To insulate factual determination from political pressure, and to assure that it be conducted by an entity especially qualified by reasons of its general functions to undertake such investigation, Congress deemed it necessary to delegate to the Tariff Commission the function of ascertaining whether or not those factual conditions exist to warrant the atypical imposition of safeguard measures Sec. 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory. Civilian authority/Supremacy clause (1st sentence) The Constitution provides that the head of the armed forces is a civilian president and the primary purpose of AFP is to serve and protect the people.




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Mark of sovereignty (2nd and 3rd sentences) Positively, the military is the guardian of the people

and of the integrity of the national territory and therefore ultimately of the majesty of the law.

Negatively, it is an expression against military abuses.

Sec. 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military, or civil service. Sec. 5. 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. Sec. 6. The separation of Church and State shall be inviolable. Selected state policies Sec. 7. The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination. Paramount considerations in its relations with other states: 1) National sovereignty 2) Territorial integrity 3) National interest 4) Right to self-determination Sec. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory. Policy of freedom from nuclear weapons 1. The policy PROHIBITS:

a) The possession, control and manufacture of nuclear weapons

b) Nuclear arms tests. 2. The policy does NOT prohibit the peaceful use of

nuclear energy. Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception x x x

Principle that the family is not a creature of the state. Protection for the unborn It is not an assertion that the unborn is a legal person. It is not an assertion that the life of the unborn is placed exactly on the level of the life of the mother. Hence, when it is necessary to save the life of the mother, the life of the unborn may be sacrificed. Under this provision, the Roe v. Wade doctrine allowing abortion up to the 6th month of pregnancy cannot be adopted in the Philippines because the life of the unborn is protected from the time of conception. Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. Oposa v. Factoran, 224 SCRA 792

The right to a balanced and healthful ecology is not less important than any of the civil and political rights enumerated in the Bill of Rights. () The right to a balanced and healthful ecology carries with it an intergenerational responsibility to care for and protect the environment. Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law. Sec. 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

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




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“POLICE POWER” Power vested in the legislature by the Constitution 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 of the subjects of the same. Aspects of “Due Process”: Procedural due process – refers to the mode of procedure, which government agencies must follow in the enforcement, and application of laws. -A law which hears before it condemns, proceeds upon inquiry and renders judgment only after trial. - Due process of law contemplates notice and opportunity to be heard before judgment is rendered affecting one’s person or property (Lopez v. Dir. of Lands) - Due process depends on circumstances; it varies with the subject matter and the necessities of the situation. Requisites of PROCEDURAL due process: For JUDICIAL proceedings: CODE: I J H J

a. An impartial court or tribunal clothed with

judicial power to hear and determine the matter before it.

b. Jurisdiction must be lawfully acquired over the person of the defendant or over the property, which is the subject of the proceedings.

c. The defendant must be given notice and an opportunity to be heard. (notice and hearing)

d. Judgment must be rendered upon a lawful hearing.

For ADMINISTRATIVE proceedings: CODE: H E D S H I P

a. The right to a hearing, which includes the right to present one’s case and submit evidence in support thereof.

b. The tribunal must consider the evidence presented.

c. The decision must have something to support itself.

d. Evidence supporting the conclusion must be substantial.

e. The decision must be based on the evidence presented at the hearing or at least contained in the record and disclosed to the parties affected.

f. The tribunal or body or any of its judges must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision.

g. The board or body should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved and the reasons for the decision rendered.

NOTE: What is required is not actual hearing, but a real opportunity to be heard. The requirement of due process can be satisfied by subsequent due hearing. Violation of due process: when same person reviews his own decision on appeal. Notice and hearing are required in judicial and quasi-judicial proceedings, but not in the promulgation of general rule. For SCHOOL DISCIPLINARY proceedings: CODE: W A In A D P

a. The student must be informed in writing of the nature and cause of any accusation against them.

b. The student shall have the right to answer the charges against him, with the assistance of counsel if desired.

c. The student has the right to be informed of the evidence against him.

d. The student has the right to adduce evidence in his own behalf.

e. The evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case.

f. The penalty imposed must be proportionate to the offense.

NOTE: The school has a contractual obligation to afford its students a fair opportunity to complete the course a student has enrolled for. Exceptions: a. Serious breach of discipline; or b. Failure to maintain the required academic standard. Proceedings in student disciplinary cases may be summary; cross-examination is not essential




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Instances when hearings are NOT necessary:

a. When administrative agencies are exercising their quasi-legislative functions.

b. Abatement of nuisance per se. c. Granting by courts of provisional remedies. d. Cases of preventive suspension. e. Removal of temporary employees in the

government service. f. Issuance of warrants of distraint and/or levy

by the BIR Commissioner. g. Cancellation of the passport of a person

charged with a crime. h. Issuance of sequestration orders (considered

a provisional remedy). i. Judicial order which prevents an accused

from traveling abroad in order to maintain the effectivity of the court’s jurisdiction.

j. Suspension of a bank’s operations by the Monetary Board upon a prima facie finding of liquidity problems in such bank.

NOTE: The right to counsel is a very basic requirement of substantive due process and has to be observed even in administrative and quasi-judicial bodies. The right to appeal is a statutory privilege that may be exercised only in the manner in accordance with law, except for the minimum appellate jurisdiction of the Supreme Court provided in Article VIII Section 5 of the Constitution, which may not be increased or reduced by law. Substantive due process – prohibition against arbitrary laws. Requisites of SUBSTANTIVE due process: CODE: I M

a. The INTERESTS of the public generally, as distinguished from those of a particular class, requires the interference by the government and

b. The MEANS employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.

Requisites of a valid ordinance: CODE: Must NOT CUPPU, Must be GC

a. Must not contravene the Constitution or any statute

b. Must not be unfair or oppressive c. Must not be partial or discriminatory d. Must not prohibit, but may regulate trade e. Must not be unreasonable

f. Must be general and consistent with public policy

VOID FOR VAGUENESS DOCTRINE When is a law VAGUE? When it lacks COMPREHENSIBLE STANDARDS That men of common intelligence must necessarily GUESS as to its meaning and differ as to its application. Why is a VAGUE law unconstitutional? 1) It VIOLATES DUE PROCESS for failure to accord persons fair notice of the conduct to avoid; and 2) It leaves law enforcers UNBRIDLED DISCRETION in carrying out its provisions. OVERBREADTH DOCTRINE: A government purpose may not be achieved by means, which sweep unnecessarily broadly and thereby invade the area of protected freedoms. NOTE: 1. Vagueness and overbreadth are distinct from each other; a vague law must lack clarity and precision, while an overbroad law need not. 2. Vagueness may be applied to cases involving speech and also criminal cases (although see contrary ruling that vagueness does not apply to criminal cases, as held in Estrada v. Sandiganbayan, G.R. No. 148560) 3. Overbreadth as an analytical tool is applicable only to cases involving speech. EQUAL PROTECTION OF THE LAW The equality that it guarantees is legal equality or the equality of all persons before the law. It does not demand absolute equality. It merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. Requisites for valid classification for purposes of the equal protection clause The classification must: CODE: SGEE

a. Rest on SUBSTANTIAL DISTINCTIONS b. Be GERMANE to the purposes of the law c. NOT LIMITED TO EXISTING CONDITIONS

only d. APPLY EQUALLY to all members of the

SAME CLASS.




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Millares v. Philippine Long Distance Telephone Co. Inc. (458 SCRA 102) (May 6, 2005) Ratio:

• Procedural due process requires the employer to give the employee two notices – first is the notice apprising him of the particular acts or omissions for which his dismissal is sought, and, second is the subsequent notice informing him of the employer’s decision to dismiss him.

Lavador v. “J” Marketing Corporation (461 SCRA 497) (June 28, 2005) Ratio:

• Procedural due process requires the employer to give the employee two notices – first is the notice apprising him of the particular acts or omissions for which his dismissal is sought, and, second is the subsequent notice informing him of the employer’s decision to dismiss him.

• Actual adversarial proceeding becomes necessary only for clarification or when there is a need to propound searching questions to unclear witnesses, a procedural right which the employee must ask for.

• Where the dismissal of the employee from service is due to dishonesty or for a just cause but due process was not observed as no hearing was conducted despite her request, the employer should be held liable for indemnity in the form of nominal damages.

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the person or things to be seized. General Rule: Search and seizures are unreasonable UNLESS authorized by a validly issued search warrant or warrant of arrest

Requisites for a valid warrant: CODE: P J E D One

a. It must be issued upon PROBABLE CAUSE. b. The existence of probable cause is

determined personally by the JUDGE. c. The judge must EXAMINE UNDER OATH

the complainant and the witnesses he may produce.

d. The warrant must PARTICULARLY DESCRIBE the place to be searched and person or things to be seized.

e. It must be in connection with One specific offense.

“PROBABLE CAUSE” For the issuance of a warrant of arrest: Probable cause refers to such facts and circumstances, which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. For the issuance of a search warrant: Probable cause would mean such facts and circumstances, which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place to be searched. NOTE: Probable cause for the issuance of a search warrant does NOT require that the probable guilt of a specific offender be established, unlike in the case of a warrant of arrest. Existence of probable cause “DETERMINED PERSONALLY BY THE JUDGE” Soliven v. Makasiar, 167 SCRA 394

The judge is NOT required to personally examine the complainant and his witnesses. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause.

Lim v. Felix, 187 SCRA 292

To be sure, the Judge must go beyond the prosecutor’s certification and investigation report whenever necessary. Procedure: The judge personally evaluates the report and supporting documents submitted by the prosecutor regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest or if on the




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basis thereof, the judge finds no probable cause, he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at the conclusion as to the existence of probable cause. Examination “UNDER OATH OR AFFIRMATION OF THE COMPLAINANT AND WITNESSES” Alvarez v. CFI, 64 Phil. 33

The oath required must refer to the truth of the facts within the personal knowledge of the complainant or his witnesses because the purpose is to convince the judge of the existence of probable cause.

The true test of sufficiency of an affidavit to warrant the issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon and affiant could be held liable for the damages caused. PARTICULARITY OF DESCRIPTION (SEARCH WARRANT) Bache and Co. v. Ruiz, 37 SCRA 823

A search warrant may 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 a direct relation to the offense for which the warrant is being issued. JOHN DOE WARRANT A “John Doe” warrant can satisfy the requirement of particularity of description if it contains a descriptio personae such as will enable the officer to identify the accused (People v. Veloso, 48 Phil. 159) GENERAL WARRANT A general warrant is one that does not allege any specific acts or omissions constituting the offense charged in the application for the issuance of the warrant. It contravenes the explicit demand of the Bill of Rights that the things to be seized be particularly described.

VALID WARRANTLESS SEARCH (IM CWAPO) Search made as an Incident to lawful arrest A. An officer making an arrest may take from the person arrested:

i. Any money or property found upon his person which was used in the commission of the offense or

ii. Was the fruit thereof or iii. Which might furnish the prisoner with the

means of committing violence or escaping or iv. Which may be used in evidence in the trial of

the case B. The search must be made simultaneously with the arrest and it may only be made in the area within the immediate control of the person arrested Search of Moving vehicles A. This exception is based on exigency. Thus, if there

is time to obtain a warrant in order to search the vehicle, a warrant must first be obtained.

B. The search of a moving vehicle must be based on probable cause.

Seizure of goods concealed to avoid Customs duties/authorized under the Tariffs and Customs Code A. The Tariffs and Customs Code authorizes persons

having police authority under the Code to effect search and seizures without a search warrant to enforce customs laws.

B. Exception: A search warrant is required for the search of a dwelling house.

C. Searches under this exception include searches at borders and ports of entry. Searches in these areas do not require the existence of probable cause

Seizure of evidence in Plain view A. There was a prior valid intrusion; B. The evidence was inadvertently discovered; C. The evidence is immediately apparent; D. Plain view is justified seizure without further

search. (People v. Valdez, 341 SCRA 25) Waiver of right A. Requisites of a valid waiver:

i. The right exists. ii. The person had actual or constructive

knowledge of the existence of such right. iii. There is an actual intention to relinquish such

right




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B. The right against unreasonable searches and seizures is a personal right. Thus, only the person being searched can waive the same. C. Waiver requires a positive act from the person. Mere absence of opposition is not a waiver. D. The search made pursuant to the waiver must be made within the scope of the waiver. Armed Conflict (wartime) Others A. Conduct of "Areal Target Zone" and "Saturation Drives" in the exercise of military powers of the President (Guazon vs. De Villa, 181 SCRA 623) B. Checkpoints (Valmonte vs. De Villa, 178 SCRA 211) REQUISITES: CODE: P.A.L.V. 1. Abnormal times 2. Limited to visual search 3. Vehicle not searched 4. Passengers not subjected to body search Valmonte V. De Villa

As long as the vehicle is neither searched nor its occupants subjected to a body search and the inspection of the vehicle is limited to a visual search = valid search. C. Stop and Frisk Even before an arrest, when an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is presently dangerous, he may conduct a limited protective search. The purpose of this limited search is not to discover evidence of a crime but to allow the officer to pursue his investigation without risk of violence. D. Exigent and emergency circumstances best illustrated in People v. De Gracia (233 SCRA 716), where a warrantless search was allowed where there was a prevailing general chaos and disorder because of an ongoing coup. NOTE: Carroll rule: warrantless search of a vehicle that can be quickly moved out of the locality or jurisdiction is valid The 1987 Constitution has returned to the 1935 rule that warrants may be issued only by judges, but the Commissioner of Immigration may order the arrest of

an alien in order to carry out a FINAL deportation order. INSTANCES WHEN WARRANTLESS ARRESTS ARE VALID:

a. When the person to be arrested has committed, is actually committing, or is about to commit an offense in the presence of the arresting officer.

b. When an offense has in fact just been committed and the arresting officer has probable cause to believe based on personal knowledge of facts and circumstances indicating that the person to be arrested has committed it.

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

Waiver of an invalid arrest: When a person who is detained applies for bail, he is deemed to have waived any irregularity which may have occurred in relation to his arrest. However, when a person who is detained applies for bail, before he enters a plea, he is not barred from later questioning the legality of his arrest. Hot pursuit A. The pursuit of the offender by the arresting officer

must be continuous from the time of the commission of the offense to the time of the arrest.

B. There must be no supervening event which breaks the continuity of the chase.

Stop and frisk When a policeman observes suspicious activity, which leads him to believe that a crime is about to be committed, he can investigate the suspicious looking person and may frisk him for weapons as a measure of self-protection. Should he find, however, a weapon on the suspect, which is unlicensed, he can arrest such person then and there for having committed an offense in the officer’s presence. NOTE: Probable cause is the minimal requirement for the validity of either a warrantless arrest or a warrantless search.




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United Laboratories, Inc. v. Isip (461 SCRA 574) (June 28, 2005) Ratio: On search warrant proceedings

• A search warrant proceeding is, in no sense, a criminal proceeding or the commencement of a prosecution – it is a special and peculiar remedy, drastic in nature, and made necessary because of public necessity, resembling in some respect with what is commonly known as John Doe proceedings

• A search warrant is a legal process which has been likened to a writ of discovery employed by the State to procure relevant evidence of crime – it is in the nature of a criminal process, restricted to cases of public prosecutions and not a process for adjudicating civil rights or maintaining mere private rights. A private individual or a private corporation complaining to the NBI or to a government agency charged with the enforcement of special penal laws, such as the BFAD, may appear, participate and file pleadings in the search warrant proceedings to maintain, inter alia, to validity of the search warrant issued by the court and the admissibility of the properties seized.

• While the general rule is that the proper party to file a petition in the Court of Appeals or Supreme Court to assail any adverse order of the RTC in search warrant proceedings is the People, a private corporation may file the petition for certiorari which may be considered as the petition filed by the OSG.

On the plain view doctrine

• The plain view doctrine is not an exception to the warrant – it merely serves to supplement the prior justification, whether it be a warrant for another subject, hot pursuit, search as an incident to a lawful arrest or some other legitimate reason for being present, unconnected with a search directed against the accused.

• The immediate requirement means that the executing officer can, at any time of discovery of the object or the facts therein available to him, determine probable cause of the object’s incriminating evidence – to be immediate, probable cause must be the direct result of the officer’s instantaneous sensory perception of the object.

• The immediately apparent test does not require an unduly high degree of certainty as to the incriminating character of the evidence

– incriminating means the furnishing of evidence as proof of circumstance tending to prove the guilt of a person.

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceedings. R.A. 4200 (Anti-Wiretapping Act) Ramirez v. Ca

The law does not distinguish between a party to the private communication or a third person. Hence, both a party and a third person could be held liable under R.A. 4200 if they commit any of the prohibited acts under R.A. 4200.

Gaanan v. IAC, 145 SCRA 112

The use of a telephone extension to overhear a private conversation is not a violation of R.A. 4200 because it is not similar to any of the prohibited devices under the law. Also, a telephone extension is not purposely installed for the purpose of secretly intercepting or recording private communication. Types of communication protected: Letters, messages, telephone calls, telegrams and the like. Exclusionary rule: People v. Marti, 193 SCRA 57

Any evidence obtained shall be inadmissible for any purpose in any proceeding. However, in the absence of governmental interference, the protection against unreasonable search and seizure cannot be extended to acts committed by private individuals. Constitutional Right to Privacy The right to privacy, the right to be left alone, is protected by the guarantee of due process over liberty, the right against unreasonable searches and seizures, the right to privacy of communications, liberty of abode, the right to form associations, and the right against self incrimination. (Ople v. Torres, 293 SCRA 141) Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or of the right of the people peaceably to assemble and petition the government for redress of grievances.




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What are considered protected speech: Protected speech includes every form of expression, whether oral, written, tape or disc recorded. It includes motion pictures as well as what is known as symbolic speech such as the wearing of an armband as a symbol of protest. Peaceful picketing has also been included within the meaning of speech. Prohibitions under Section 4 Prohibition against PRIOR RESTRAINT Prohibition against SUBSEQUENT PUNISHMENT Prohibition against prior restraint Prior restraint means official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Examples/forms of prior restraint

a. movie censorship b. judicial prior restraint = injunction against

publication c. license taxes based on gross receipts for the

privilege of engaging in the business of advertising in any newspaper

d. flat license fees for the privilege of selling religious books

When prohibition does not apply (Near v. Minnesota, 238 US 697)

a. When the nation is at war. Ex: government can prevent publication about the number/location of its troops

b. Obscene publications c. Security of community life may be protected

against incitements to acts of violence or overthrow by force of orderly government.

When is a Government control-based regulation justified?

a. It is within the constitutional power of the government;

b. It furthers an important or substantial government interest;

c. The governmental interest is unrelated to the suppression of free expression; and

d. The incidental restriction is no greater than is essential to the furtherance of the interest.

Social Weather Station v. COMELEC

The prohibition of publication of election surveys shortly before elections does not meet the last two tests. The causal connection of expression to the asserted government interest makes such interest related to the suppression of free expression. The regulation can be more narrowly pursued by

punishing unlawful acts rather than prohibiting speech.

The COMELEC can confiscate false survey results by virtue of its power under the Administrative Code of 1987 to stop false election propaganda. Standards for allowable subsequent punishment TEST

CRITERION

1. Dangerous Tendency Test

There should be a RATIONAL CONNECTION between the speech and the evil apprehended. (Focus on CONTENT)

2. Clear and Present Danger Test

There should be a clear and present danger that the words when used under such circumstances are of such a nature as to create a CLEAR AND PRESENT DANGER that they will bring about the substantive evils that the State has a right to prevent. (Focus on CONTENT & CONTEXT)

3. Balancing of Interests Test

The courts should BALANCE the PUBLIC INTEREST served by legislation on one hand and the FREEDOM OF SPEECH (or any other constitutional right) on the other. The courts will then decide where the greater weight should be placed. (Focus on weighing Government and Private interest)

Freedom of Speech The doctrine on freedom of speech was formulated primarily for the protection of “core” speech, i.e. speech, which communicates political, social or religious ideas. These enjoy the same degree of protection. Commercial speech, however, does not. Commercial Speech Communication which no more than proposes a commercial transaction.




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To enjoy protection: 1. It must not be false or misleading; and 2. It should not propose an illegal transaction. May be regulated if: 1. Government has a substantial interest to protect; 2. The regulation directly advances that interest; and 3. It is not more extensive than is necessary to protect that interest. (Central Hudson Gas and Electric Corp. v. Public Service Commission of NY, 447 US 557) Unprotected Speech 1. LIBEL FAIR COMMENT (U.S. Rule). These are statements of OPINION, not of fact, and are not considered actionable, even if the words used are neither mild nor temperate. What is important is that the opinion is the true and honest opinion of the person. The statements are not used to attack personalities but to give one’s opinion on decisions and actions. Borjal v. CA, 301 SCRA 1

Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment 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; unless it be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on facts, then it is immaterial that the opinion happens to be mistaken as long as it might reasonably be inferred from the facts. OPINIONS. With respect to public personalities (politicians, actors, anyone with a connection to a newsworthy event), opinions can be aired regarding their public actuations. Comment on their private lives, if not germane to their public personae, are not protected. 2. OBSCENITY A. Test for obscenity (Miller v. California) Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest.

Whether the work depicts or describes, in a patently offensive way, sexual conduct, specifically defined by law. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. B. Procedure for seizure of allegedly obscene publications

a) Authorities must apply for issuance of search warrant.

b) Court must be convinced that the materials are obscene. Apply clear and present danger test.

c) Judge will determine whether they are in fact “obscene.”

d) Judge will issue a search warrant. e) Proper action should be filed under Art. 201

of the RPC. f) Conviction is subject to appeal.

Right of Assembly and Petition 1. The standards for allowable impairment of speech and press also apply to the right of assembly and petition. 2. Rules on assembly in PUBLIC places (Reyes v. Bagatsing, G.R. No. L-65366): Applicant should inform the licensing authority of the date, the public place where and the time when the assembly will take place. The application should be filed ahead of time to enable the public official concerned to appraise whether there are valid objections to the grant of the permit or to its grant, but in another public place. The grant or refusal should be based on the application of the Clear and Present Danger Test. If the public authority is of the view that there is an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. The decision of the public authority, whether favorable or adverse, must be transmitted to the applicants at the earliest opportunity so that they may, if they so desire, have recourse to the proper judicial authority. 3. Rules on assembly in PRIVATE properties: Only the consent of the owner of the property or person entitled to possession thereof is required.




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Right of the people peaceably to assemble BAYAN versus EDUARDO ERMITA (G.R. No. 169838)/ Jess del prado versus ERMITA (G.R. No. 169848)/ KILUSANG MAYO UNO versus THE HONORABLE EXECUTIVE SECRETARY (G.R. No. 169881) (April 25, 2006)* Facts: Petitioners in this case contest the validity of BP 880 (The Public Assembly Act of 1985) and the policy of “Calibrated Preemptive Response” (CPR), which was issued in lieu of the “Maximum Tolerance” policy through a statement by Executive Secretary Ermita. Petitioners are protesters who claim that they were conducting a peaceful mass action when they were violently dispersed by virtue of the “no permit, no rally” policy and the recently issued CPR policy. Issues:

1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and Republic Act No. 7160: a. Are these content-neutral or content-based

regulations? b. Are they void on grounds of overbreadth or

vagueness? c. Do they constitute prior restraint? d. Are they undue delegations of powers to

Mayors? e. Do they violate international human rights treaties

and the Universal Declaration of Human Rights? 2. On the constitutionality and legality of the policy

of Calibrated Preemptive Response (CPR): a. Is the policy void on its face or due to

vagueness? b. Is it void for lack of publication? c. Is the policy of CPR void as applied to the rallies

of September 26 and October 4, 5 and 6, 2005? Ratio: The Court held that although people have the right to peaceably assemble and stage mass actions (1987 Constitution, Art.3, Sec.4), such right is not absolute (Primicias v. Fugoso and Reyes v. Bagatsing). B.P. 880 is a codification of the ruling in Reyes v. Bagatsing, setting forth the requirements and

procedure which are necessary to regulate the time, place and manner of public assemblies. B.P. 880 was also held to be a content-neutral legislation. A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies that would use public places. The reference to “lawful cause” does not make it content-based because assemblies really have to be for lawful causes; otherwise they would not be “peaceable” and entitled to protection. Neither are the words “opinion,” “protesting” and “influencing” in the definition of public assembly content based, since they can refer to any subject. The words “petitioning the government for redress of grievances” come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally. Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health. This is a recognized exception to the exercise of the right even under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Considering that the existence of such freedom parks is an essential part of the law’s system of regulation of the people’s exercise of their right to peacefully assemble and petition, the Court is constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit may be required for the exercise of such right in any public park or plaza of a city or municipality until that city or municipality shall have complied with Section 15 of the law. For without such alternative forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be given to the authorities to ensure proper coordination and orderly proceeding. On the matter of the CPR, the Solicitor General has conceded that the use of the term should now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P. No. 880.




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Furthermore, there is need to address the situation adverted to by petitioners where mayors do not act on applications for a permit and when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence and part of maximum tolerance, rallyists who can show the police an application duly filed on a given date can, after two days from said date, rally in accordance with their application without the need to show a permit, the grant of the permit being then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law. In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments a deadline of 30 days within which to designate specific freedom parks as provided under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The only requirement will be written notices to the police and the mayor’s office to allow proper coordination and orderly activities. Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. Clauses under Section 5 1. Non-establishment clause 2. Free exercise of Religion School District v. Schempp, 374 US 203 Distinction between the clauses

1. The non-establishment clause does not depend upon any showing of direct governmental compulsion. It is violated by the enactment of laws

which establish an official religion whether those laws operate directly to coerce non-observing individuals or not. The test of compliance with the non-establishment clause can be stated as follows: What are the purposes and primary effect of the enactment? If either is the advancement or inhibition of religion, the law violates the non-establishment clause. Thus, in order for a law to comply with the non-establishment clause, two requisites must be met:

A. It has a secular legislative purpose. B. Its primary effect neither advances nor inhibits religion.

2. The free exercise of religion clause

withdraws from legislative power the exertion of any restraint on the free exercise of religion. In order to show a violation of this clause, the person affected must show the coercive effect of the legislation as it operates against him in the practice of his religion. While the freedom to believe (non-establishment) is absolute, the moment such belief flows over into action, it becomes subject to government regulation. Requisites for government aid to be allowable:

a. It must have a secular legislative purpose; b. It must have a primary effect that neither

advances nor inhibits religion; c. It must not require excessive entanglement

with recipient institutions. Re: Request of Muslim Employees in Different Courts in Iligan City (Re: Office Hours)* (477 SCRA 648) (December 14, 2005) Ratio:

• To allow the Muslim employees in the Judiciary to be excused form work from 10:00 a.m. to 2:00 p.m. every Friday (Muslim Prayer Day) during the entire calendar year would mean a diminution of the prescribed government working hours – the performance of religious practices, whether by Muslim employees or those belonging to other denominations, should not prejudice the court and the public.

• The remedy of the Muslim employees, with respect to their request to be excused from work from 10:00 a.m. to 2:00 p.m. every Friday during the entire calendar year, is legislative.




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Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety or public health, as may be provided by law. Rights guaranteed under Section 6: 1. Freedom to choose and change one’s place of abode. 2. Freedom to travel within the country and outside. Curtailment of rights: RIGHT

MANNER OF CURTAILMENT

1. Liberty of abode Lawful order of the court and within the limits prescribed by law.

2. Right to travel May be curtailed even by administrative officers (ex. passport officers) in the interest of national security, public safety, or public health, as may be provided by law.

NOTE: The right to travel and the liberty of abode are distinct from the right to return to one’s country, as shown by the fact that the Declaration of Human Rights and the Covenant on Human Rights have separate guarantees for these. Hence, the right to return to one’s country is not covered by the specific right to travel and liberty of abode. (Marcos v. Manglapus, 177 SCRA 668) Sec. 7. The right of the people to information on matters of public concern shall be recognized. Rights guaranteed under Section 7 1. Right to information on matters of public concern 2. Right of access to official records and documents Persons entitled to the above rights: Only Filipino citizens. Discretion of government The government has discretion with respect to the authority to determine what matters are of public concern and the authority to determine the manner of access to them.

Recognized restrictions on the right of the people to information:

1. National security matters 2. Intelligence information 3. Trade secrets 4. Banking transactions 5. Diplomatic correspondence 6. Executive sessions 7. Closed door cabinet meetings 8. Supreme Court deliberations 9.

Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law, shall not be abridged. - The right to form associations shall not be impaired without due process of law and is thus an aspect of the right of liberty. It is also an aspect of the freedom of contract. In addition, insofar as the associations may have for their object the advancement of beliefs and ideas, the freedom of association is an aspect of the freedom of speech and expression, subject to the same limitation. -The right also covers the right not to join an association. -Government employees have the right to form unions. They also have the right to strike, unless there is a statutory ban on them (i.e. ban on public school teachers). Sec. 9. Private property shall not be taken for public use without just compensation. Who can exercise the power of eminent domain:

a. The national government b. Congress c. Executive, pursuant to legislation enacted by

Congress d. Local government units, pursuant to an

ordinance enacted by their respective legislative bodies (under LGC)

e. Public utilities, as may be delegated by law. When is the exercise of the power of eminent domain necessary? It is only necessary when the owner does not want or opposes the sale of his property. Thus, if a valid contract exists between the government and the owner, the government cannot exercise the power of eminent domain as a substitute to the enforcement of the contract.




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Elements of the power of eminent domain CODE: TPJ

1. There is a TAKING of private property 2. Taking is for PUBLIC USE 3. Payment of JUST COMPENSATION

"TAKING" A. Elements: CODE: E P A P O

a. The expropriator enters the property b. The entrance must not be for a momentary

period, i.e., it must be permanent c. Entry is made under warrant or color of legal

authority d. Property is devoted to Public use e. Utilization of the property must be in such a

way as to oust the owner and deprive him of the beneficial enjoyment of his property.

B. Compensable taking does not need to involve all the property interests which form part of the right of ownership. When one or more of the property rights are appropriated and applied to a public purpose, there is already a compensable taking, even if bare title still remains with the owner. "PUBLIC USE" Public use, for purposes of expropriation, is synonymous with public welfare as the latter term is used in the concept of police power. Examples of public use include land reform and socialized housing. "JUST COMPENSATION" Compensation is just if the owner receives a sum equivalent to the market value of his property. Market value is generally defined as the fair value of the property as between one who desires to purchase and one who desires to sell. The point of reference used in determining fair value is the value at the date of the taking of the property or the filing of the complaint, whichever came first. Thus, future potential use of the land is not considered in computing just compensation. Judicial review of the exercise of the power of eminent domain

a. To determine the adequacy of the compensation

b. To determine the necessity of the taking c. To determine the "public use" character of

the taking. However, if the expropriation is pursuant to a specific law passed by Congress, the courts cannot question the public use character of the taking.

When municipal property is taken by the State: Compensation is required if the property is a patrimonial property, that is, property acquired by the municipality with its private funds in its corporate or private capacity. However, if it is any other property such as public buildings or legua comunal held by the municipality for the State in trust for the inhabitants, the State is free to dispose of it at will, without any compensation. Point of reference for valuating a piece of property: General rule: The value must be that as of the time of the filing of the complaint for expropriation. Exception: When the filing of the case comes later than the time of taking and meanwhile the value of the property has increased because of the use to which the expropriator has put it, the value is that of the time of the earlier taking. BUT if the value increased independently of what the expropriator did, then the value is that of the latter filing of the case. NOTE: Even before compensation is given, entry may be made upon the property condemned. The deposit of money or an equivalent form of payment such as government bonds is necessary and sufficient to satisfy the requirement. Any law fixing the amount of just compensation is not binding on the courts because it is a question of fact which is always subject to review by the courts. REGULATION v. TAKING REGULATION TAKING Compensation is not required Title is not transferred Property interest is restricted or destroyed An exercise of police power, not for public use

Just compensation Title is transferred Property taken for public use

Commissioner of Internal Revenue v. Central Luzon Drug Corporation (456 SCRA 414) (April 15, 2005) Ratio:

• The tax benefit granted to the establishments can be deemed as their just compensation for private property taken by the State for public use.

• The taxation power can also be used as an implement for the exercise of the power of eminent domain.




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Jesus is Lord Christian School Foundation Inc. v. Municipality (now City) of Pasig, Metro Manila* (466 SCRA 235) (August 9, 2005) Ratio:

• The following requisites for the valid exercise of the power of eminent domain by a local government unit must be complied with: (1) an ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the local government unit, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property; (2) the power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless; (3) there is payment of just compensation as required under Section 9, Article 3 of the Constitution, and other pertinent laws; (4) a valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted.

Sec. 10. No law impairing the obligation of contracts shall be passed. When does a law impair the obligation of contracts: 1. If it changes the terms and conditions of a legal contract either as to the time or mode of performance 2. If it imposes new conditions or dispenses with those expressed 3 If it authorizes for its satisfaction something different from that provided in its terms. A mere change in PROCEDURAL REMEDIES which does not change the substance of the contract, and which still leaves an efficacious remedy for enforcement does NOT impair the obligation of contracts. A valid exercise of police power is superior to obligation of contracts. Sec. 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. Sec. 12. Rights of person under investigation for the commission of an offense.

Rights of person under investigation for the commission of an offense (Miranda Rights) CODE: SCISI 1) Right to remain silent 2) Right to have competent and independent

counsel, preferably of his own choice 3) Right to be provided with the services of counsel

if he cannot afford the services of one. 4) Right to be informed of these rights. When rights are available: 1) AFTER a person has been taken into custody or 2) When a person is otherwise deprived of his

freedom of action in any significant way 3) When a person is merely “invited” for questioning

(R.A. No. 7438) 4) When the investigation is being conducted by the

government (police, DOJ, NBI) with respect to a criminal offense.

5) Signing of arrest reports and booking sheets. When rights are not available: 1) During a police line-up.

Exception: Once there is a move among the investigators to elicit admissions or confessions from the suspect.

2) During administrative investigations. 3) Confessions made by an accused at the time he

voluntarily surrendered to the police or outside the context of a formal investigation.

4) Statements made to a private person. Exclusionary rule Any confession or admission obtained in violation of this section shall be inadmissible in evidence against him (the accused). Therefore, any evidence obtained by virtue of an illegally obtained confession is also inadmissible, being the fruit of a poisonous tree. Requisites of valid waiver of these rights: 1) Made voluntarily, knowingly, and intelligently 2) Waiver should be made in WRITING 3) Waiver should be made in the PRESENCE OF

COUNSEL. Requisites for a valid extra-judicial confession: CODE: WAVES 1) voluntary 2) made with the assistance of competent and

independent counsel 3) must be express 4) made in writing




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5) signed, or if the confessant does not know how to read and write, thumbmarked by him (P.v. Olivares, G.R. No. 77865)

CUSTODIAL INVESTIGATION commences when a person is taken into custody and singled out as a suspect in the commission of a crime under investigation. Rights during custodial investigation apply only against testimonial compulsion and not when the body of the accused is proposed to be examined (i.e. urine sample; photographs; measurements; garments; shoes). Sec. 13. Right to bail Who are entitled to bail: All persons ACTUALLY DETAINED shall, BEFORE CONVICTION be entitled to bail. Who are not entitled to bail: 1) Persons charged with offenses PUNISHABLE by

RECLUSION PERPETUA or DEATH, when evidence of guilt is strong

2) Persons CONVICTED by the trial court. Bail is only discretionary pending appeal.

3) Persons who are members of the AFP facing a court martial.

Other rights in relation to bail.

a. The right to bail shall NOT be impaired even when the privilege of the writ of habeas corpus is suspended.

b. Excessive bail shall not be required. Factors considered in setting the amount of bail: 1) Ability to post bail 2) Nature of the offense 3) Penalty imposed by law 4) Character and reputation of the accused 5) Health of the accused 6) Strength of the evidence 7) Probability of appearing at the trial 8) Forfeiture of previous bail bonds 9) Whether accused was a fugitive from justice

when arrested 10) If accused is under bond in other cases Implicit limitations on the right to bail:

a. The person claiming the right must be in actual detention or custody of the law.

b. The constitutional right is available only in criminal cases, not, e.g. in deportation proceedings.

Waiver of the right to bail: 1) if appellant escapes from prison or confinement 2) if appellant jumps bail 3) if appellant flees to another country during the

pendency of the appeal NOTE: Persons charged with offenses punishable by LIFE IMPRISONMENT, when evidence of guilt is strong, are likewise not entitled to bail. Right to bail is not available in the military. Apart from bail, a person may attain provisional liberty through recognizance, which is an obligation of record entered into by a third person before a court, guaranteeing the appearance of the accused for trial. It is in the nature of a contract between the surety and the state. Sec. 14. Rights of an accused 1) Rights of a person charged with a criminal

offense 2) Right to due process of law 3) Right to be presumed innocent 4) Right to be heard by himself and counsel 5) Right to be informed of the nature and cause of

the accusation against him 6) Right to have a speedy, impartial and public trial 7) Right to meet the witnesses face to face 8) Right to have compulsory process to secure the

attendance of witnesses and the production of evidence in his behalf

“DUE PROCESS” This means that the accused can only be convicted by a tribunal which is required to comply with the stringent requirements of the rules of criminal procedure. “PRESUMPTION OF INNOCENCE” The Constitution does not prohibit the legislature from providing that proof of certain facts leads to a prima facie presumption of guilt, provided that the facts proved have a reasonable connection to the ultimate fact presumed. Presumption of guilt should not be conclusive.




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“RIGHT TO BE HEARD BY HIMSELF AND COUNSEL” The right to be heard includes the following rights: 1) Right to be present at the trial 2) The right to be present covers the period from

ARRAIGNMENT to PROMULGATION of sentence.

After arraignment, trial may proceed notwithstanding absence of accused. Note: Trial in absentia is allowed only if the accused has been validly arraigned and the following 2 requisites are met:

i. Accused has been duly notified; ii. His failure to appear is unjustifiable.

The accused may waive the right to be present at the trial by not showing up. However, the court can still compel the attendance of the accused if necessary for identification purposes. EXCEPTION: If the accused, after arraignment, has stipulated that he is indeed the person charged with the offense and named in the information, and that any time a witness refers to a name by which he is known, the witness is to be understood as referring to him. While the accused is entitled to be present during promulgation of judgment, the absence of his counsel during such promulgation does not affect its validity. 3. Right to counsel Right to counsel means the right to EFFECTIVE REPRESENTATION. If the accused appears at arraignment without counsel, the judge must:

a. Inform the accused that he has a right to a counsel before arraignment

b. Ask the accused if he desires the aid of counsel

c. If the accused desires counsel, but cannot afford one, a counsel de oficio must be appointed

d. If the accused desires to obtain his own counsel, the court must give him reasonable time to get one.

4. Right to an impartial judge 5. Right of confrontation and cross-examination

6. Right to compulsory process to secure the attendance of witnesses “RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION AGAINST HIM” Purposes of the right:

a. To furnish the accused with a description of the charge against him as will enable him to make his defenses

b. To avail himself of his conviction or acquittal against a further prosecution for the same cause

c. To inform the court of the facts alleged. If the information fails to allege the material elements of the offense, the accused cannot be convicted thereof even if the prosecution is able to present evidence during the trial with respect to such elements. The real nature of the crime charged is determined from the recital of facts in the information. It is not determined based on the caption or preamble thereof nor from the specification of the provision of law allegedly violated. “RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL” Factors used in determining whether the right to a speedy trial has been violated:

a. Time expired from the filing of the information b. Length of delay involved c. Reasons for the delay d. Assertion or non-assertion of the right by the

accused e. Prejudice caused to the defendant.

Effect of dismissal based on the ground of violation of the accused’s right to speedy trial If the dismissal is valid, it amounts to an acquittal and can be used as basis to claim double jeopardy. This would be the effect even if the dismissal was made with the consent of the accused. Remedy of the accused if his right to speedy trial has been violated

a. He can move for the dismissal of the case. b. If he is detained, he can file a petition for the

issuance of writ of habeas corpus. Definition of impartial trial The accused is entitled to the “cold neutrality of an impartial judge.” It is an element of due process. Definition of public trial




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The attendance at the trial is open to all irrespective of their relationship to the accused. However, if the evidence to be adduced is “offensive to decency or public morals,” the public may be excluded. The right of the accused to a public trial is not violated if the hearings are conducted on Saturdays, either with the consent of the accused or if failed to object thereto. “RIGHT TO MEET WITNESS FACE TO FACE” Purposes of the right:

a. To afford the accused an opportunity to cross-examine the witness

b. To allow the judge the opportunity to observe the deportment of the witness

Failure of the accused to cross-examine a witness: If the failure of the accused to cross-examine a witness is due to his own fault or was not due to the fault of the prosecution, the testimony of the witness should be excluded. When the right to cross-examine is demandable? It is demandable only during trials. Thus, it cannot be availed of during preliminary investigations. Principal EXCEPTIONS to the right of confrontation

1. The admissibility of “dying declarations” 2. Trial in absentia under Section 14(2) 3. With respect to child testimony

Estrada v. People* (468 SCRA 233) (August 25, 2005) Ratio:

• Promulgation of judgment in absentia is valid provided that the essential elements are present: (a) that the judgment be recorded in the criminal docket, and, (b) that a copy be served upon the accused or counsel.

• Recording the decision in the criminal docket of the court satisfies the requirement of notifying the accused of the decision wherever he may be.

Sec. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.

Distinction between Section 14 and Section 16. While the rights of an accused only apply to the trial phase of criminal cases, the right to a speedy disposition of cases covers ALL phases of JUDICIAL, QUASI-JUDICIAL or ADMINISTRATIVE proceedings. Sec. 17. No person shall be compelled to be a witness against himself. When is a question incriminating: A question tends to incriminate when the answer of the accused or the witness would establish a fact which would be a necessary link in a chain of evidence to prove the commission of a crime by the accused or the witness. Distinction between an accused and an ordinary witness An accused can refuse to take the witness stand altogether by invoking the right against self-incrimination. An ordinary witness cannot refuse to take the stand. He can only refuse to answer specific questions which would incriminate him in the commission of an offense. Scope of right What is PROHIBITED is the use of physical or moral compulsion to extort communication from the witness or to otherwise elicit evidence which would not exist were it not for the actions compelled from the witness. The right does NOT PROHIBIT the examination of the body of the accused or the use of findings with respect to his body as physical evidence. Hence, the fingerprinting of an accused would not violate the right against self-incrimination. However, obtaining a sample of the handwriting of the accused would violate this right if he is charged for falsification. The accused cannot be compelled to produce a private document in his possession which might tend to incriminate him. However, a third person in custody of the document may be compelled to produce it. When the right can be invoked:

1. In criminal cases 2. In all other government proceedings,

including civil actions and administrative or legislative investigations.




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Who can invoke the right: a. Only natural persons. Judicial persons are

subject to the visitorial powers of the state in order to determine compliance with the conditions of the charter granted to them.

Crisostomo v. Sandiganbayan (456 SCRA 45) (April 14, 2005) Ratio:

• The deafening silence of all the accused does not necessarily point to conspiracy. An accused has the right to remain silent and to be exempt from being compelled to be a witness against himself.

Sec. 18. Right against involuntary servitude “INVOLUNTARY SERVITUDE” It is every condition of enforced or compulsory service of one to another no matter under what form such servitude may be disguised. Exceptions:

1. Punishment for a crime for which the party has been duly convicted

2. Personal military or civil service in the interest of national defense

3. In naval enlistment: a person who enlists in a merchant ship may be compelled to remain in service until the end of the voyage

4. Posse comitatus for the apprehension of criminals

5. Return to work order issued by the DOLE Secretary or the President

6. Minors under patria potestas are obliged to obey their parents.

Sec. 19. Prohibition against cruel, degrading and inhuman punishment When is a penalty “cruel, degrading and inhuman”? A penalty is cruel and inhuman if it involves torture or lingering suffering. (Ex. Being drawn and quartered.) A penalty is degrading if it exposes a person to public humiliation. (Ex. Being tarred and feathered, then paraded throughout town.) Standards used:

1. The punishment must not be so severe as to be degrading to the dignity of human beings.

2. It must not be applied arbitrarily.

3. It must not be unacceptable to contemporary society

4. It must not be excessive, i.e. it must serve a penal purpose more effectively than a less severe punishment would.

5. Excessive fine 6. A fine is excessive, when under any

circumstance, it is disproportionate to the offense.

NOTE: Fr. Bernas says that the accused cannot be convicted of the crime to which the punishment is attached if the court finds that the punishment is cruel, degrading or inhuman. The reason for this is without a valid penalty, the law is not a penal law. Sec. 20. No person shall be imprisoned for debt or non-payment of a poll tax. Definition of “DEBT” under Section 20. Debt refers to a CONTRACTUAL obligation, whether express or implied, resulting in any liability to pay money. Thus, all other types of obligations are not within the scope of this prohibition. Thus, if an accused fails to pay the fine imposed upon him, this may result in his subsidiary imprisonment because his liability is ex delicto and not ex contractu. A FRAUDULENT debt may result in the imprisonment of the debtor if:

1. The fraudulent debt constitutes a crime such as estafa; and

2. The accused has been duly convicted.

Sec. 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. What are the TWO KINDS OF JEOPARDY?

a. First Sentence of Sec. 21: No person shall be twice put in jeopardy of punishment for the same offense.

b. Second Sentence: When an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

Under the first kind of jeopardy, conviction, acquittal, or dismissal of the case without the express consent




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of the accused will bar a subsequent prosecution. Under the second kind of jeopardy, only conviction or acquittal – not dismissal without the express consent of the accused – will bar a subsequent prosecution. Requisites for a valid defense of double jeopardy: CODE: ATS

1. First jeopardy must have attached prior to the second.

2. The first jeopardy must have terminated. 3. The second jeopardy must be for the same

offense, one that includes or is necessarily included in the first offense, or is an attempt or frustration of the first, or is an element thereof.

When does jeopardy ATTACH: (1st requisite) CODE: CICAV

1. A person is charged 2. Under a complaint or information sufficient in

form and substance to sustain a conviction 3. Before a court of competent jurisdiction 4. After the person is arraigned 5. Such person enters a valid plea.

When does jeopardy NOT attach:

1. If information does not charge any offense 2. If, upon pleading guilty, the accused presents

evidence of complete self-defense, and the court thereafter acquits him without entering a new plea of not guilty for accused. There is no valid plea here.

3. If the information for an offense cognizable by the RTC is filed with the MTC.

4. If a complaint filed for preliminary investigation is dismissed.

When does first jeopardy TERMINATE: (2ND REQUISITE)

1. Acquittal 2. Conviction 3. Dismissal W/O the EXPRESS consent of the

accused 4. Dismissal on the merits.

Examples of termination of jeopardy:

1. Dismissal based on violation of the right to a speedy trial. This amounts to an acquittal.

2. Dismissal based on a demurrer to evidence. This is a dismissal on the merits.

3. Dismissal on motion of the prosecution, subsequent to a motion for reinvestigation filed by the accused.

4. Discharge of an accused to be a state witness. This amounts to an acquittal.

When can the PROSECUTION appeal from an order of dismissal:

1. If dismissal is on motion of the accused. Exception: If motion is based on violation of the right to a speedy trial or on a demurrer to evidence.

2. If dismissal does NOT amount to an acquittal or dismissal on the merits.

3. If the question to be passed upon is purely legal.

4. If the dismissal violates the right of due process of the prosecution.

5. If the dismissal was made with grave abuse of discretion.

What are considered to be the “SAME OFFENSE”: (under the 1st sentence of Sec. 21)

1. Exact identity between the offenses charged in the first and second cases.

2. One offense is an attempt to commit or a frustration of the other offense.

3. One offense is necessarily included or necessary includes the other.

NOTE: Where a single act results in the violation of different laws or different provisions of the same law, the prosecution for one will not bar the other so long as none of the exceptions apply. Definition of double jeopardy (2nd sentence of Sec. 21) Double jeopardy will result if the act punishable under the law and the ordinance are the same. For there to be double jeopardy, it is not necessary that the offense be the same. SUPERVENING FACTS Under the Rules of Court, a conviction for an offense will not bar a prosecution for an offense which necessarily includes the offense charged in the former information where: a. The graver offense developed due to a

supervening fact arising from the same act or omission constituting the former charge.

b. The facts constituting the graver offense became known or were discovered only after the filing of the former information.

c. The plea of guilty to the lesser offense was made without the consent of the prosecutor and the offended party.

d. Under (1)(b), if the facts could have been discovered by the prosecution but were not discovered because of the prosecution’s incompetence, it would not be considered a supervening event.




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Effect of appeal by the accused: If the accused appeals his conviction, he WAIVES his right to plead double jeopardy. The whole case will be open to review by the appellate court. Such court may even increase the penalties imposed on the accused by the trial court. Sec. 22. No ex post facto law or bill of attainder shall be enacted. “EX-POST FACTO LAW”

One which makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action.

One which aggravates the crime or makes it greater than when it was committed.

One which changes the punishment and inflicts a greater punishment than that which the law annexed to the crime when it was committed.

One which alters the legal rules of evidence and receives less testimony than the law required at the time of the commission of the offense in order to convict the accused.

One which assumes to regulate civil rights and remedies only BUT, in effect, imposes a penalty or deprivation of a right, which, when done, was lawful.

One which deprives a person accused of a crime of some lawful protection to which he has become entitled such as the protection of a former conviction or acquittal, or a proclamation of amnesty.

NOTE: The prohibition on ex post facto laws only applies to retrospective PENAL laws. Characteristics of an Ex Post Facto Law

1. Refers to criminal matters 2. Retrospective 3. Causes prejudice to the accused

“BILL OF ATTAINDER” A bill of attainder is a LEGISLATIVE act which inflicts punishment W/O JUDICIAL trial. The bill of attainder does not need to be directed at a specifically named person. It may also refer to easily ascertainable members of a group in such a way as to inflict punishment on them without judicial trial. Elements of the bill of attainder:

1. There must be a LAW. 2. The law imposes a PENAL burden, on; 3. a NAMED INDIVIDUAL or EASILY

ASCERTAINABLE MEMBERS of a GROUP.

4. The penal burden is imposed DIRECTLY by the LAW W/O JUDICIAL trial.

ARTICLE IV – CITIZENSHIP

Who are citizens of the Philippines?

1. Those who are citizens of the Philippines at the time of the adoption of the 1987 Constitution

2. Those whose fathers or mothers are citizens of the Philippines.

3. Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority.

4. Those who are naturalized in accordance with law.

Modes of acquiring citizenship:

1. Jus Soli – acquisition of citizenship on the basis of place of birth

2. Jus Sanguinis – acquisition of citizenship on the basis of blood relationship

3. Naturalization – the legal act of adopting an alien and clothing him with the privilege of a native-born citizen.

NOTE: The Philippines follows (2) and (3) Election of citizenship under the 1987 Constitution: Prior to the 1973 Constitution, if a Filipina married an alien, she lost her Filipino citizenship. Hence, her child would have to elect Filipino citizenship upon reaching the age of majority. Under the 1973 Constitution, however, children born of Filipino mothers were already considered Filipinos. Therefore, the provision on election of citizenship under the 1987 Constitution only applies to those persons who were born under the 1935 Constitution. In order for the children to elect Filipino citizenship, the mothers must have been Filipinos at the time of their marriage. So, if your mother was a Filipina who married an alien under the 1935 constitution and you were born before January 17, 1973, you can elect Filipino citizenship upon reaching the age of majority. When must election be made: The election must be made within a reasonable period after reaching the age of majority. Effects of naturalization:

1. The legitimate minor children of the naturalized father become Filipinos as well.

2. The wife also becomes a Filipino citizen, provided that she does not have any




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disqualification which would bar her from being naturalized.

Natural-born citizens:

1. Citizens of the Philippines from birth who do not need to perform any act to acquire or perfect their Philippine citizenship.

2. Those who elect Philippine citizenship under Art. IV, Sec. 1(3) of 1987 Constitution.

Marriage of Filipino with an alien: General Rule: The Filipino RETAINS Philippine citizenship Exception: If, by their act or omission they are deemed, under the law, to have renounced it. How may one lose citizenship (C.A. No. 63):

1. By naturalization in a foreign country 2. By express renunciation of citizenship 3. By subscribing to an oath of allegiance to the

laws or constitution of a foreign country 4. By serving in the armed forces of an enemy

country 5. By cancellation of certificates of

naturalization 6. By being a deserter of the armed forces of

one’s country How may one reacquire citizenship:

1. By direct act of Congress 2. By naturalization 3. By repatriation

Re-acquisition of citizenship

Natural-born Filipinos who are deemed to have lost their citizenship may re-acquire the same via repatriation proceedings. This involves taking an oath of allegiance and filing the same with the civil registry.

RA 9225- Citizen Retention and Re-acquisition Act

Natural born citizens, who lost their citizenship by reason of their naturalization as citizens of a foreign country, are deemed to have reacquired their Philippine citizenship upon taking the oath of allegiance to the Republic.

Derivative citizenship- the unmarried child below 18 yrs. Old of those who re-acquired the citizenship shall likewise be deemed as citizens of the Philippines.

Distinguish dual citizenship from dual allegiance Mercado v. Manzano

Dual citizenship arises when, as a result of the concurrent application of the laws of two or more states, a person is simultaneously considered a citizen of those states. Dual allegiance refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. Dual nationality is involuntary and legal, while dual allegiance is voluntary and illegal.

ARTICLE V – SUFFRAGE

Qualifications: CODE: CD18RR

1. Citizen of the Philippines 2. Not Disqualified by law 3. At least 18 years old 4. Resident of the Philippines for at least 1 year 5. Resident of the place wherein he/she

proposes to vote for at least 6 months immediately preceding the election.

NOTE: NO literacy, property or other substantive requirement can be imposed on the exercise of suffrage. Residency requirement Residency, under Article V has 2 senses: 1. DOMICILE – This is in reference to the 1 year residency requirement in the Philippines. The principal elements of domicile – physical presence in the country and intention to adopt it as one’s domicile – must concur. 2. TEMPORARY RESIDENCE – This is in reference to the 6 month residency requirement in the place where one wants to vote. In this case, residence can either mean domicile or temporary residence. Disqualifications:

1. Any person sentenced by final judgment to imprisonment of not less than 1 year, which disability has not been removed by plenary pardon, provided, however, That such a person shall automatically reacquire the right

2. to vote upon expiration of 5 years after service of sentence.

3. Any person adjudged by final judgment of having violated his allegiance to the Republic of the Philippines.

4. Insane or incompetent persons as declared by competent authority.




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To whom does Absentee Voting apply: 1. Persons who have the qualifications of a

voter but who happen to be temporarily abroad

2. Qualified voters who are in the Philippines but are temporarily absent from their voting places

ARTICLE VI – THE LEGISLATIVE DEPARTMENT

Sec. 1. The legislative power shall be vested in the Congress of the Philippines, which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. Classification of legislative power: (O De CO)

1. Original – Possessed by the people in their sovereign capacity which is exercised via initiative and referendum.

2. Delegated – Possessed by Congress and other legislative bodies by virtue of the Constitution

3. Constituent – The power to amend or revise the Constitution

4. Ordinary – The power to pass ordinary laws Limits on the legislative power of Congress:

1. Substantive – limitations on the content of laws.

e.g. no law shall be passed establishing a state religion.

2. Procedural – limitations on the manner of passing laws.

e.g. generally a bill must go through three readings on three separate days.

3. Congress cannot pass irrepealable laws. 4. Congress, as a general rule, cannot delegate

its legislative power, under the maxim delegata potestas non potest delegari (delegated power may not be delegated).

Exceptions to non-delegability of legislative power: (PETAL)

1. Delegation to the people through initiative and referendum

2. Emergency powers delegated by Congress to the President

3. Congress may delegate tariff powers to the President

4. Delegation to administrative bodies 5. Delegation to local governments

What may Congress delegate: Congress can only delegate, usually to administrative agencies, RULE-MAKING POWER or LAW

EXECUTION. This involves either of two tasks for the administrative agencies:

1. “Filling up the details” on an otherwise complete statute; or

2. Ascertaining the facts necessary to bring a “contingent” law or provision into actual operation.

Sections 2-4. SENATE Sections 5-7. HOUSE OF REPRESENTATIVES

Senator Representative 24 senators Not more than 250

members 35 yrs. old 25 yrs. old

Natural- born citizen of the Philippines Able to read and write

Registered voter Registered voter in the district in which he

shall be elected – n/a to party-list

Resident of the Philippines for at least 2 years immediately

preceding the election

Resident of the said district for at least 1

year immediately preceding election –

n/a to party-list Term of 6 yrs. Term of 3 yrs.

Unless otherwise provided by law, term of office commence at noon of June 30 next following the

lection Term limit of not more

than 2 consecutive years

Term limit of not more than 3 consecutive

years NOTE: The qualifications of both Senators and Members of the House are limited to those provided by the Constitution. Congress cannot, by law, add or subtract from these qualifications. Voluntary renunciation 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. District Representatives:

1. Elected from legislative districts which are apportioned in accordance with the number of inhabitants of each area and on the basis of a uniform and progressive ratio.

2. Each district shall comprise, as far as practicable, contiguous, compact and adjacent territory;




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3. Each city with at least 250,000 inhabitants will be entitled to at least one representative while each province will have at least one representative.

4. Legislative districts shall be re-apportioned by Congress within 3 years after the return of each census.

5. The standards used to determine the apportionment of legislative districts is meant to prevent ‘gerrymandering’, which is the formation of a legislative district out of separate territories so as to favor a particular candidate or party.

Distinctions between Term and Tenure

Term Tenure The period during which the elected officer is legally authorized to assume his office and exercise the powers thereof

The period during which such officer actually holds his position

CANNOT be reduced MAY, by law, be limited

Party-List Representatives Constitute 20% of the total number of representatives or a maximum of 50 party-list members. However, for 3 consecutive terms from February 2, 1987 (i.e., the 1987-92, 92-95 and 95-98 terms), 25 seats shall be allotted to sectoral representatives. Under Art. XVIII, Sec. 7, the sectoral representatives are to be appointed by the President until legislation otherwise provides. Mechanics of the party-list system

1. Registered organizations submit a list of candidates in order of priority.

2. During the elections, these organizations are voted for at large.

3. Those parties getting at least 2% of the total votes cast for the party-list system shall be entitled to one seat each. Those obtaining more than 2% shall be given additional seats in proportion to their total number of votes, but none of them shall have more than 3 seats each.

Qualifications of Party-List Representative

1. Natural born citizen of the Philippines 2. At least 25 years of age on the day of the

election (Youth sector nominee must be at least 25 years but not more than 30 years old on day of election)

3. Able to read and write

4. Must be a bona fide member of the party he seeks to represent at least ninety days before election day.

Guidelines for the election of party-list representatives: The parties or organizations must represent the marginalized and underrepresented in section 5 of R.A. 7941 (Party-List Law); Political parties who wish to participate must comply with this requirement;

1. The religious sector may not be represented; 2. The party or organization must not be

disqualified under Section 6 of R.A. 7941 i.e. religious sector/ organization, advocates of violence or unlawful means to seek its goal, foreign party or organization;

3. The party or organization must not be an adjunct of or a project organized or a entity funded or assisted by the government;

4. Its nominees must likewise comply with the requirement of the law;

5. Its nominees must likewise be able to contribute to the formation and enactment of legislation that will benefit the nation. (Ang Bagong Bayani-OFW Labor Party v. COMELEC, GR No. 147589)

Sec. 9. In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term. Special Election (R.A. 6645)

1. No special election will be called if vacancy occurs:

a. at least eighteen (18) months before the next regular election for the members of the Senate;

b. at least one (1) year before the next regular election members of Congress

2. The particular House of Congress where vacancy occurs must pass either a resolution if Congress is in session or the Senate President or the Speaker must sign a certification, if Congress is not in session,

a. declaring the existence of vacancy; b. calling for a special election to be held

within 45 to 90 days from the date of the resolution or certification.




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3. The Senator or representative elected shall serve only for the unexpired term.

Sec. 10. Salaries of Senators and Members of the House Determination of Salaries: Their salaries shall be determined by law. Rule on increase in salaries: No increase in their salaries shall take effect until AFTER the EXPIRATION OF THE FULL TERM (NOT TENURE) of all the members of the Senate and the House of Representatives approving such increase. NOTE: Since the Constitution ‘provides for rules on “salaries” and not on ‘emoluments,’ they can appropriate for themselves other sums of money such as travel allowances, as well as other side ‘benefits.’ Sec. 11: CONGRESSIONAL IMMUNITIES A. Immunity from arrest: Legislators are privileged from arrest, and not to prosecution for criminal offenses, while Congress is “in session” only (whether regular or special) with respect to offenses punishable by up to 6 years of imprisonment. B. Legislative privilege: No member shall be questioned or held liable in any forum other than his/her respective Congressional body for any debate or speech in the Congress or in any Committee thereof. Limitation on the privilege:

1. Protection is only against prosecution in any forum other than Congress itself. Hence, the Senate or the House, as the case may be, may discipline their members.

2. The ‘speech or debate’ must be made in performance of their duties as members of Congress.

3. Congress need NOT be in session when the utterance is made, as long as it forms part of legislative action i.e. part of the deliberative and communicative process used to participate in legislative proceedings in consideration of proposed legislation or with respect to other matters with Congress’ jurisdiction.

Sec. 12. All Members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests. They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors.

Disqualifications:

DISQUALIFICATION WHEN APPLICABLE

1) Cannot hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including GOCCS or their subsidiaries.

During his term. If he does so, he forfeits his seat.

2) Legislators cannot be appointed to any office.

IF the office was created or the emoluments thereof increased during the term for which he was elected.

3) Legislators cannot personally appear as counsel before any court of justice, electoral tribunal, quasi-judicial and administrative bodies.

During his term of office.

4) Legislators cannot be financially interested directly or indirectly in any contract with or in any franchise, or special privilege granted by the Government, or any subdivision, agency or instrumentality thereof, including any GOCC or its subsidiary.

During his term of office.

5) Legislators cannot intervene in any matter before any office of the government.

When it is for his pecuniary benefit or where he may be called upon to act on account of his office.

Sections 13-14: CONGRESSIONAL DISQUALIFICATIONS:




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Sec. 15: REGULAR AND SPECIAL SESSIONS Regular Sessions: Congress convenes once every year on the 4th Monday of July (unless otherwise provided for by law). Continues in session for as long as it sees fit, until 30 days before the opening of the next regular session, excluding Saturdays, Sundays, and legal holidays. Special Sessions: Called by the President at any time when Congress is not in session. Sec. 16. Officers:

1) Senate President; 2) Speaker of the House; and 3) Such other officers as it may deem

necessary. Election of Officers By a majority vote of all respective members. Quorum to do business:

1. Majority of each House shall constitute a quorum.

2. A smaller number may adjourn from day to day and may compel the attendance of absent members.

3. In computing a quorum, members who are outside the country and thus outside of each House’s coercive jurisdiction are not included.

Internal Rules: As part of their inherent power, they can determine their own rules. Hence, the courts cannot intervene in the implementation of these rules insofar as they affect the members of Congress. Discipline:

1. Suspension – needs concurrence of 2/3 of ALL its members and shall not exceed 60 days. Or,

2. Expulsion - Concurrence of 2/3 of ALL its members.

Congressional Journals and Records: General rule, the Journal is conclusive upon the courts but an enrolled bill prevails over the contents of the Journal.

An enrolled bill is the official copy of approved legislation and bears the certifications of the presiding officers of each House. Thus where the certifications are valid and are not withdrawn, the contents of the enrolled bill are conclusive upon the courts as regards the provision of that particular bill. Adjournments:

1. Neither House can adjourn for more than 3 days during the time Congress is in session without the consent of the other House.

2. Neither can they adjourn to any other place than that where the two houses are sitting, without the consent of the other.

Sec. 17: THE ELECTORAL TRIBUNAL The Senate and the House shall each have an Electoral Tribunal which shall be composed of:

1. 3 Supreme Court Justices to be designated by the Chief Justice; &

2. 6 Members of the Senate or House, as the case may be.

The senior Justice in the Electoral Tribunal shall be its Chairman. NOTE: The congressional members of the ET’s shall be chosen on the basis of proportional representation from the political parties and party-list organizations. Jurisdiction: Each Electoral tribunal shall be the sole judge of all CONTESTS relating to the election, returns, and qualifications of their respective members. This includes determining the validity or invalidity of a proclamation declaring a particular candidate as the winner. An ‘election contest’ is one where a defeated candidate challenges the qualification and claims for himself the seat of a proclaimed winner. In the absence of an election contest, the Electoral Tribunal is without jurisdiction. However, the power of each House to expel its own members or even to defer their oath-taking until their qualifications are determined may still be exercised even without an election contest. Issues regarding the Electoral Tribunals: Since the Electoral Tribunals are independent constitutional bodies,

1. Neither Congress nor the Courts may interfere with procedural matters relating to the functions of the Electoral Tribunals.




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2. The Electoral Tribunals being independent bodies, its members may not be arbitrarily removed from their positions in the tribunal by the parties which they represent. Neither may they be removed for not voting according to party lines, since they are acting independently of Congress.

3. The mere fact that the members of either the Senate or the House sitting on the Electoral Tribunal are those which are sought to be disqualified due to the filing of an election contest against them does not warrant all of them from being disqualified from sitting in the Electoral Tribunal.

4. Judicial review of decisions of the Electoral Tribunals may be had with the SC only insofar as the decision or resolution was rendered without or in excess of jurisdiction or with grave abuse of discretion constituting denial of due process.

Sec. 18: THE COMMISSION ON APPOINTMENTS Composition:

1. Senate President as ex-officio chairman; 2. 12 Senators; and 3. 12 Members of the House.

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

1. The Commission shall rule by a majority vote of all the Members.

2. The chairman shall only vote in case of a tie. 3. The Commission on Appointments shall act

on all appointments within 30 session days from their submission to Congress.

Jurisdiction Commission on Appointments shall confirm the appointments by the President with respect to the following positions: (CODE: HAPCOO)

1. Heads of the Executive Departments (except if it is the Vice-President who is appointed to the post).

2. Ambassadors, other public ministers or consuls.

3. Officers of the AFP from the rank of Colonel or Naval Captain: and

4. Other officers whose appointments are vested in him by the Constitution (e.g. COMELEC members).

Limitations 1. Congress CANNOT by law prescribe that the

appointment of a person to an office created by such law shall be subject to confirmation by the CA.

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

Meetings of the CA

Commission on Appointments meets only while Congress is in session.

Meetings are held either at the call of the Chairman or a majority of all its members.

Since the Commission on Appointments is also an independent constitutional body, its rules of procedure are also outside the scope of congressional powers as well as that of the judiciary.

NOTE: The Electoral Tribunal and the Commission on Appointments shall be constituted within 30 days after the Senate and the House of Representative shall have been organized with the election of the President and the Speaker. Sections 21-22: LEGISLATIVE INQUIRIES Scope of Legislative Inquiries: Such must be conducted “in aid of legislation” which does not mean that there is pending legislation regarding the subject of the inquiry. Hence, the materiality of a question is determined not by its connection to any actually pending legislation, but by its connection to the general scope of the inquiry. But, if the investigation is no longer “in aid of legislation” but “in aid of prosecution” which the stated purpose of the investigation is to determine the existence of violations of the law, then it is beyond the scope of congressional powers. Enforcement: Congress or local government units if they are expressly authorized to do so, has the inherent power to punish recalcitrant witnesses for contempt, and may have them incarcerated until such time that they agree to testify. The continuance of such incarceration only subsists for the lifetime, or term, of such body. Thus, each ‘Congress’ of the House lasts for only 3 years. But if one is incarcerated by the Senate, it is indefinite because the Senate, with its staggered terms, is a continuing body.




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Limitations:

1. The inquiry must in aid of legislation. 2. The inquiry must be conducted in

accordance with the ‘duly published rules of procedure’ of the House conducting the inquiry; and

3. The rights of persons appearing in or affected by such inquiries shall be respected. Ex. The right against self-incrimination.

Question Hour -- Appearance of department heads before Congress: Under the principle of separation of powers, department heads cannot be compelled to appear before Congress. Neither may the department heads impose their appearance upon Congress. Department heads may appear before Congress in the following instances:

1. Upon their own initiative, with the consent of the President (and that of the House concerned); or

2. Upon the request of either House (which cannot compel them to attend)

And, their appearance will be conducted in EXECUTIVE SESSION when:

1. Required by the security of state or required by public interest; and

2. When the President so states in writing Question

Hour (Sec. 22,

Article VI)

Legislative Investigation

(Sec. 21, Article VI)

As to persons who may appear

Only a department

head

Any person

As to who conducts the investigation

Entire body Committees

As to the subject matter

Matters related to the

department only

Any matter for the purpose of

legislation

Senate of the Philippines vs. Eduardo Ermita* (G.R. No. 169777) (20 April 2006) EO 464: ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF POWERS, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE

INQUIRIES IN AID OF LEGISLATION UNDER THE CONSTITUTION AND FOR OTHER PURPOSES.

Facts:

Several invitations were issued by the Senate to various officials of the Executive Department including officials of the AFP for them to appear as resource speakers in a public hearing on the alleged overpricing and unlawful provisions of the contract covering the North Rail Project.

However, they received a letter requesting a postponement of the hearing in order to be given opportunity to prepare for the various issues involved. However, Senator Drilon said that the request was belatedly sent and all preparation were already made, thus, postponement is impossible. On that same day, the President issued EO 464 which, pursuant to Section 6 thereof, took effect immediately.

Such law provides that “all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress”. And, this does not only cover department heads but several officials which, in the discretion of the president, are covered by the executive privilege.

This need for prior consent is based on the executive privilege, defined as the power of the Government to withhold information from the public, the courts and the Congress.




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Because of this law, the Senate was informed that no officer of the Executive Branch can attend the hearing without seeking approval from the President while those military officials who testified without the approval from the President were relieved. Thus, several petitions were filed questioning the said EO.

Issue:

• W/N the petitioners have standing to file the suit. • W/N EO 464 is unconstitutional for violating the certain provisions of the constitutions

Held:

The petitions were partly granted. Section 2b and 3 of EO 464 are void while section 1 and 2A are valid.

Ratio:

A. Standing:

• The Senate of the Philippines - EO 464 stifles its fundamental right in making sound legislation. • Party list representatives - allowed to sue absent any claim that an investigation called by the House of Representative was aborted due to the implementation of EO 464. • Individuals (e.g. Francisco Chavez) - well settled rule that when suing as a citizen the interest of the petitioner assailing the constitutionality of the laws, PD, EO orders and other regulations must be direct and personal. In Francisco v House of Representatives, the court held when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest. • As for PDP-Laban - the court held that the said group is bereft of standing to file the present petition. For one to be accorded standing on the ground of transcendental importance, it must be established that (1) the character of the funds (public) or other assets are involved in this case, (2) the presence of clear case of disregards of a constitutionality or statutory provision, (3) lack of any

party with a more direct and specific interest in raising the questions being raised. The first and last are lacking since no public funds or assets are involve in the present petition.

Constitutionality of EO 464

The Congress has the power of inquiry as provided in Section 21 of Article VI. Such power – with the process to enforce it – is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change [Arnault vs. Nazareno, 87 Phil 29 (1950)]. This power is broad enough to cover officials of the executive branch.

Therefore, when congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power – the president. Section 1 therefore, in view of its specific reference to Section 22 of Article VI of the constitution and the absence of any reference to inquiries in aid of legislation, must be construed to be limited in its application to appearances of department heads in the question hour. The requirement then to secure presidential assent is limited as it is only to appearances in the question hour, is valid on its face.

However, the provision which requires all the public officials, enumerated in the law, to secure the consent of the President prior to appearing before either house of Congress is too broad. Under the rule of ejusdem generis, the determination by the president under this provision is intended to be based on a similar finding of coverage under executive privilege. Executive privileges are properly involved to specific categories of information and to categories of persons. Assuming that the order refers to “officials in possession of information”,




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whenever an official involves EO 464 to justify his failure to be present, such invocation must be construed as a declaration to Congress that the President has determined that the requested information is privileged. Such declaration however, even without mentioning the term “executive privilege” amounts to an implied claim that the information is privileged. However, in the letter of Sec. Ermita, there is no explicit invocation of executive privilege.

Section 3 cannot be dismissed outright as invalid by the mere fact that it sanctions claims of executive privilege. Claims of privilege must be assessed on a case to case basis, examining the ground involved and circumstances surrounding them. What is important is that the President asserts such a privilege.

However, in the case at bar, such a claim is not asserted, Instead of providing precise and certain reasons from the claim, the letter of Sec. Ermita merely invokes 464 coupled with an announcement that the President has not given her consent. This frustrates the power of inquiry of the Congress. Section 2b in relation to section 3 provides that once a head of office determines that certain information is privileged, such a determination is presumed to bear the President’s authority. These provisions thus allow the President to authorize claims of privilege by mere silence. In fine, Section 3 and Section 2 of EO 464 must be invalidated.

Sections 23-24. DECLARATION OF WAR/EMERGENCY POWERS Vote requirement: (to declare the existence of a state of war)

1. 2/3 of both Houses, 2. in joint session 3. Voting separately

Emergency powers: During times of war or other national emergency, Congress may, BY LAW, authorize the President to

exercise powers necessary and proper to carry out a declared national policy. Such powers expires

1. by resolution of Congress or 2. upon the next adjournment of Congress

Limitations:

1. Powers will be exercised for a limited period only; and

2. Powers will be subject to restrictions prescribed by Congress

Sections 24-27, 30-31 LEGISLATION Bills that must originate from the House of Representatives (Sec. 24) (CODE: A R T Pu Lo P)

1. Appropriation bills 2. Revenue bills 3. Tariff bills 4. Bills authorizing the increase of public debt 5. Bills of local application 6. Private bills

NOTE: The Senate may, however, propose or concur with amendments. Appropriation bills The primary and specific aim of an appropriation bill is to appropriate a sum of money from the public treasury. E.g. Budget BUT: A bill creating a new office, and appropriating funds therefor is NOT an appropriation bill. Revenue Bill A revenue bill is one specifically designed to raise money or revenue through imposition or levy. But a provision in, for instance, the Videogram Regulatory Board law imposing a tax on video rentals does not make the law a revenue bill. Bills of local application A bill of local application, such as one asking for the conversion of a municipality into a city, is deemed to have originated from the House provided that the bill of the House was filed prior to the filing of the bill in the Senate even if, in the end, the Senate approved its own version. Limitations: A. For appropriation bills:

1. Cannot increase the appropriations recommended by the President for the




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operation of the Government as specified in the budget.

2. Must relate specifically to some particular appropriation therein and any such provision or enactment must be limited in its operation to the appropriation to which it relates.

3. The procedure in approving appropriations for Congress shall strictly follow the procedure for approving appropriations for other departments and agencies.

4. A special appropriations bill must specify the purpose for which it is intended and must be supported by funds actually available as certified by the National Treasurer or to be raised by a corresponding revenue proposal therein.

Transfer of appropriations: Rule: No law shall be passed authorizing any transfer of appropriations BUT the following may, BY LAW, be authorized to AUGMENT any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations

1. President 2. President of the Senate 3. Speaker of the House of Representatives 4. Chief Justice of the Supreme Court 5. Heads of the Constitutional Commissions

Discretionary funds appropriated for particular officials shall be:

1. Disbursed only for public purposes; 2. Should be supported by appropriate

vouchers; and 3. Subject to guidelines as may be prescribed

by law. NOTE: If Congress fails to pass General Appropriations Bill (GAB) by the end of any fiscal year: The GAB for the previous year is deemed reenacted It will remain in full force and effect until the GAB is passed by Congress. B. For law granting tax exemption: Concurrence of a MAJORITY of ALL the members of Congress. C. For bills in general Every bill shall embrace only one (1) subject, as expressed in the title thereof, which does not have to be a complete catalogue of everything stated in the bill. A title expressing the general subject of the bill and all the provisions of the statute are germane to that general subject is sufficient

Readings Each bill must pass three (3) readings in both Houses which shall be held on separate days & printed copies thereof in its final form shall be distributed to its Members three (3) days before its passage. Exception: If a bill is certified as urgent by the President as to the necessity of its immediate enactment to meet a public calamity or emergency, the 3 readings can be held on the same day. First reading – only the title is read; the bill is passed to the proper committee Second reading – Entire text is read and debates are held, and amendments introduced. Third reading – only the title is read, no amendments are allowed. Vote shall be taken immediately thereafter and the yeas and nays entered in the journal. Veto power of President:

1. Must be presented to and signed by the President.

2. May veto the same and return it with his objections to the House from which it originated. The House shall enter the objections in the Journal and proceed to reconsider it.

3. The President must communicate his decision to veto within 30 days from the date of receipt thereof. If he fails to do so, the bill shall become a law as if he signed it.

4. This rule eliminates the ‘pocket veto’ whereby the President would simply refuse to act on the bill.

5. To OVERRIDE the veto, at least 2/3 of ALL the members of each House must agree to pass the bill. In such case, the veto is overridden and becomes a law without need of presidential approval.

General Rule: If the president disapproves a bill enacted by Congress, he should veto the entire bill. He is not allowed to veto separate items of a bill. Exception: Item veto in the case of appropriation, revenue, and tariff bills




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Definition of item

TYPE OF BILL ITEM 1. Revenue/tax bill Subject of the tax

and the tax rate imposed thereon

2. Appropriations bill Indivisible sum dedicated to a stated purpose

Exceptions to the Exception: 1. Doctrine of Inappropriate Provisions- a provision that is constitutionally inappropriate for an appropriation bill may be singled for veto even if it is not an appropriation or revenue “item” (Gonzales vs. Macaraig, 191 SCRA 452) 2. Executive Impoundment- refusal of the President to spend funds already allocated by Congress for specific purpose. It is the failure to spend or obligate budget authority of any type (Philconsa vs. Enriquez, G.R. No. 113105. August 19, 1994) Veto of RIDER A rider is a provision which does not relate to a particular appropriation stated in the bill. Since it is an invalid provision under Section 25(2), the President may veto it as an item. Specific limitations on legislation No law shall be enacted increasing the Supreme Court’s appellate jurisdiction without the SC’s advice and concurrence. No law shall be enacted granting titles of royalty or nobility. Sec. 28. POWER TO TAX Limitations: (UP DEP)

1. The rule of taxation should be UNIFORM 2. It should be EQUITABLE 3. Congress should evolve a PROGRESSIVE

system of taxation. 4. The power to tax must be exercised for a

Public purpose because the power exists for the general welfare

5. The Due process and equal protection clauses of the Constitution should be observed.

Delegation of power to fix rates Congress may, BY LAW, authorize the President to fix the following:

1. Tariff rates 2. Import and Export Quotas 3. Tonnage and wharfage dues 4. Other duties and imposts

Within the framework of the national development program of the Government Constitutional tax exemptions: The following properties are exempt from REAL PROPERTY taxes (CODE: Cha Chu M- CA)

1. Charitable institutions 2. Churches, and parsonages or convents

appurtenant thereto 3. Mosques 4. Non-profit cemeteries; and 5. All lands, buildings and improvements

actually, directly and exclusively used for religious, charitable, or educational purposes.

NOTE: All revenues and assets of NON-STOCK NON-PROFIT EDUCATIONAL institutions are exempt from taxes and duties PROVIDED that such revenues and assets are actually, directly and exclusively used for educational purposes. (Art. XIV Sec. 4 (3)) Grants, endowments, donations or contributions used actually, directly and exclusively for educational purposes shall be exempt from tax. This is subject to conditions prescribed by law. (Art. XIV. Sec. 4 (4)) Sec. 29. Power of the Purse No money shall be paid out of the National Treasury EXCEPT in pursuance of an appropriation made by law. BUT: This rule does not prohibit continuing appropriations. e.g. for debt servicing. This is because the rule does not require yearly, or annual appropriation. Limitations.

1. Appropriations must be for a PUBLIC PURPOSE

2. Cannot appropriate public funds or property, directly or indirectly, in favor of

a. any sect, church, denomination, or sectarian institution or system of religion or

b. Any priest, preacher, minister, or other religious teacher or dignitary as such. EXCEPT if the priest, etc is assigned to:

i. the Armed Forces; or ii. any penal institution; or iii. government orphanage; or iv. leprosarium

NOTE: BUT the government is not prohibited from appropriating money for a valid secular purpose,




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even if it incidentally benefits a religion, e.g. appropriations for a national police force is valid even if the police also protects the safety of clergymen. ALSO, the temporary use of public property for religious purposes is valid, as long as the property is available for all religions Special Funds Money collected on a tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. Once the special purpose is fulfilled or abandoned, any balance shall be transferred to the general funds of the Government Sec. 32. INITIATIVE AND REFERENDUM Initiative: The power of the people to propose amendments to the Constitution or to propose and enact legislation called for the purpose. Referendum: Power of the electorate to approve or reject legislation through an election called for the purpose. Required Petition

1. Should be signed by at least 10% of the total number of registered voters

2. Every legislative district should be represented by at least 3% of the registered voters

3. Petition should be registered

ARTICLE VII. THE EXECUTIVE DEPARTMENT Sec. 1. Executive Power Scope:

1. Executive power is vested in the President of the Philippines.

2. Such is not limited to those set forth in the constitution. The SC, in Marcos v. Manglapus, referred to the RESIDUAL powers of the President as the Chief Executive of the country, which powers include others not set forth in the Constitution. EXAMPLE: The President is immune from suit and criminal prosecution while he is in office.

3. Privilege of immunity from suit is personal to the President and may be invoked by him alone. It may also be waived by the President, as when he himself files suit.

4. BUT The President CANNOT dispose of state property unless authorized by law.

Pimentel, Jr. v. Ermita* (472 SCRA 587) (October 13, 2005) Ratio: “The power to appoint is essentially executive in nature, and the legislative may not interfere with the exercise of this executive power except in those instances when the Constitution expressly allows it to interfere.” Sec. 2 Qualifications

President Vice President At least 40 years old on the day of election

Natural- born citizen of the Philippines Able to read and write

Registered voter Resident of the Philippines for at least 10 years

immediately preceding the election

Term of 6 yrs. Unless otherwise provided by law, term of office commence at noon of June 30 next following the

lection Single term only; not

eligible for any reelection

Any person who has succeeded as

President, and served as such for more than 4 years shall NOT be

qualified for election to the same office at any

time.

Term limitation: 2 successive terms.

Sec. 4. MANNER OF ELECTION/ TERM OF OFFICE Manner of Election

1. The President and Vice-President shall be elected by direct vote of the people.

2. Election returns for President and Vice-President, as duly certified by the proper Board of Canvassers shall be forwarded to Congress, directed to the Senate President.

3. Not later than 30 days after the day of the election, the certificates shall be opened in




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the presence of both houses of Congress, assembled in joint public session.

4. The Congress, after determining the authenticity and due execution of the certificates, shall canvass the votes.

5. The person receiving the highest number of votes shall be proclaimed elected.

6. In case of a tie between 2 or more candidates, one shall be chosen by a majority of ALL the members of both Houses, voting separately. In case this results in a deadlock, the Senate President shall be the acting President until the deadlock is broken.

7. The Supreme Court en banc shall act as the sole judge over all contests relating to the election, returns, and qualifications of the President or Vice-President and may promulgate its rules for the purpose

Sec. 6. SALARIES AND EMOLUMENTS

1. Official salaries are determined by law. 2. Salaries cannot be decreased during the

TENURE of the President and the Vice-President.

3. Increases take effect only after the expiration of the TERM of the incumbent during which the increase was approved.

4. Prohibited from receiving any other emolument from the government or any other source during their TENURE

Sections 7-12. PRESIDENTIAL SUCCESSION 1. Vacancies at the beginning of the term

VACANCY SUCCESSOR President-elect fails to qualify or to be chosen

VP-elect will be Acting President until someone is qualified/chosen as President.

President-elect dies or is permanently disabled.

VP becomes President.

Both President and VP-elect are not chosen or do not qualify or both die, or both become permanently

1) Senate President or 2) In case of his

inability, the Speaker of the House shall act as President until a President or a VP shall have been

disabled. chosen and qualified. In case of death or disability of (1) and (2), Congress shall determine, by law, who will be the acting President.

2. Vacancies after the office is initially filled:

VACANCY SUCCESSOR President dies, is permanently disabled, is impeached, or resigns.

Vice-President becomes President for the unexpired term.

Both President and Vice-President die, become permanently disabled, are impeached, or resign.

1. Senate President or

2. In case of his inability, the Speaker of the House shall act as President until the President or VP shall have been elected and qualified.

3. Vacancy in office of Vice-President during the term for which he was elected:

a) President will nominate new VP from any member of either House of Congress.

b) Nominee shall assume office upon confirmation by majority vote of ALL members of both Houses, voting separately. (Nominee forfeits seat in Congress)

4. Election of President and Vice-President after vacancy during term

a) Congress shall convene 3 days after the vacancy in the office of both the President and the VP, without need of a call. The convening of Congress cannot be suspended.

b) Within 7 days after convening, Congress shall enact a law calling for a special election to elect a President and a VP. The special election cannot be postponed.

c) The special election shall be held not earlier than 45 days not later than 60 days from the time of the enactment of the law.

d) The 3 readings for the special law need not be held on separate days.

e) The law shall be deemed enacted upon its approval on third reading.




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BUT: No special election shall be called if the vacancy occurs within 18 months before the date of the next presidential election.

5. TEMPORARY DISABILITY of the President: The temporary inability of the President to discharge his duties may be raised in either of two ways:

a) By the President himself, when he sends a written declaration to the Senate President and the Speaker of the House. In this case, the Vice-President will be Acting President until the President transmits a written declaration to the contrary.

b) When a majority of the Cabinet members transmit to the Senate President and the Speaker their written declaration.

i. The VP will immediately be Acting President.

ii. BUT: If the President transmits a written declaration that he is not disabled, he reassumes his position

iii. If within 5 days after the President re-assumes his position, the majority of the Cabinet retransmits their written declaration, Congress shall decide the issue. In this event, Congress shall reconvene within 48 hours if it is not in session, without need of a call.

iv. Within 10 days after Congress is required to assemble, or 12 days if Congress is not in session, a 2/3 majority of both Houses, voting separately, is needed to find the President temporarily disabled, in which case, the VP will be Acting President.

6. Presidential Illness:

a) If the President is seriously ill, the public must be informed thereof.

b) Even during such illness, the National Security Adviser, the Secretary of Foreign Affairs, and the Chief of Staff of the AFP are entitled to access to the President

Sec. 13. DISQUALIFICATIONS

SUBJECT SOURCE OF DISQUALIFICATION

President, Vice-President, Cabinet Members, Deputies or Assistants of Cabinet Members

Prohibited from: 1) Holding any office or

employment during their tenure, UNLESS: • otherwise

provided in the

Constitution (e.g. VP can be appointed a Cabinet Member, Sec. of Justice sits on Judicial and Bar Council); or

• the positions are ex-officio and they do not receive any salary or other emoluments therefor (e.g. Sec. of Finance is head of Monetary Board).

2) Practicing, directly or

indirectly, any other profession during their tenure;

3) Participating in any

business; 4) Being financially

interested in any contract with, or in any franchise, or special privilege granted by the government or any subdivision, agency or instrumentality thereof, including GOCC's or their subsidiaries.

N.B. The rule on disqualifications for the President and his Cabinet are stricter than the normal rules applicable to appointive and elective officers under Art. IX-B, Sec. 7.

Spouses and 4th degree relatives of the President (consanguinity or affinity)

Cannot be appointed during President’s tenure as: 1) Members of the

Constitutional Commissions;

2) Office of the Ombudsman;

3) Department Secretaries;

4) Department under-secretaries;

5) Chairman or heads of




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bureaus or offices including GOCC’s and their subsidiaries.

N.B. 1) If the spouse, etc.,

was already in any of the above offices at the time before his/her spouse became President, he/she may continue in office. What is prohibited is appointment and reappointment, NOT continuation in office.

2) Spouses, etc., can be appointed to the judiciary and as ambassadors and consuls.

Sections 14-16. POWER TO APPOINT Principles: Power to appoint is executive in nature. While Congress (and the Constitution in certain cases) may prescribe the qualifications for particular offices, the determination of who among those who are qualified will be appointed is the President’s prerogative. Scope: The President shall appoint the following: 1. Heads of executive departments (CA

confirmation needed): 2. Ambassadors, other public ministers, and

consuls (CA confirmation needed). 3. Officers of AFP from rank of colonel or naval

captain (CA confirmation needed). 4. Other officers whose appointment is vested in

him by the Constitution (CA confirmation needed), such as:

a. Chairmen and members of the COMELEC, COA and CSC.

b. Regular members of the Judicial and Bar Council.

c. The Ombudsman and his deputies; d. Sectoral representatives in Congress.

N.B. President also appoints members of the Supreme Court and judges of the lower courts, but these appointments do not need CA confirmation.

5. All other officers whose appointments are not otherwise provided for by law; and those whom he may be authorized by law to appoint.

a. This includes the Chairman and members of the Commission on Human Rights, whose appointments are provided for by law NOT by the Constitution.

b. Congress may, by law, vest the appointment of other officers lower in rank in the President alone or in the courts, or in the heads of departments, agencies, boards or commissions.

c. BUT: Congress cannot, by law, require CA confirmation of the appointment of other officers for offices created subsequent to the 1987 Constitution (e.g. NLRC Commissioners, Bangko Sentral Governor).

d. ALSO: Voluntary submission by the President to the CA for confirmation of an appointment which is not required to be confirmed does not vest the CA with jurisdiction. The President cannot extend the scope of the CA’s power as provided for in the Constitution.

Procedure: 1. CA confirmation needed:

a) Nomination by President b) Confirmation by CA c) Appointment by President; and d) Acceptance by appointee.

NOTE: At any time before all four steps have been complied with, the President can withdraw the nomination/appointment.

2. No CA confirmation: a) Appointment; and b) Acceptance. NOTE: Once appointee accepts, President can no longer withdraw the appointment.

Ad-interim appointments:

1. When Congress is in recess, the President may still appoint officers to positions subject to CA confirmation.

2. These appointments are effective immediately, but are only effective until they are disapproved by the CA or until the next adjournment of Congress.

3. Appointments to fill an office in an ‘acting’ capacity are NOT ad-interim in nature and need no CA approval.

Appointments by an Acting President:




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These shall remain effective UNLESS revoked by the elected President within 90 days from his assumption or re-assumption of office. Limitation

1. 2 months immediately before the next Presidential elections, and up to the end of his term, the President or Acting President SHALL NOT make appointments. This is to prevent the practice of ‘midnight appointments.”

2. EXCEPTION: a) Can make TEMPORARY

APPOINTMENTS b) To fill EXECUTIVE POSITIONS; c) If continued vacancies therein will

prejudice public service or endanger public safety.

Sec. 17. Power of Control and Supervision POWER OF CONTROL: The power of an officer to alter, modify, or set aside what a subordinate officer has done in the performance of his duties, and to substitute the judgment of the officer for that of his subordinate. The President’s power over government-owned corporations comes not from the Constitution but from statute. Hence, it may be taken away by statute. Qualified Political Agency: Generally the acts of these department heads, etc, which are performed and promulgated in the regular course of business, are presumptively the acts of the President. Exception:

a. If the acts are disapproved or reprobated by the President.

b. If the President is required to act in person by law or by the Constitution Example: The power to grant pardons must be exercised personally by the President

NOTE: Under Administrative Law, decisions of Department Secretaries need not be appealed to the President in order to comply with the requirement of exhaustion of administrative remedies. Disciplinary Powers: The power of the President to discipline officers flows from the power to appoint the officer, and NOT from the power to control.

BUT While the President may remove from office those who are not entitled to security of tenure, or those officers with no set terms, such as Department Heads, the officers, and employees entitled to security of tenure cannot be summarily removed from office. Power of Supervision: This is the power of a superior officer to ensure that the laws are faithfully executed by subordinates. The power of the president over local government units is only of general supervision. Thus, he can only interfere with the actions of their executive heads if these are contrary to law. The execution of laws is an OBLIGATION of the President. He cannot suspend the operation of laws. The power of supervision does not include the power of control; but the power of control necessarily includes the power of supervision. Sec. 18. COMMANDER-IN-CHIEF POWERS Scope: Being the Commander-in-Chief of the Armed Forces, whenever necessary, the President may call out the AFP

1. to PREVENT or SUPPRESS: a. Lawless violence; b. Invasion; or c. Rebellion.

2. May also: a. Suspend the privilege of the writ of

habeas corpus; and b. Proclaim a state of martial law.

Suspension of the privilege of the writ of habeas corpus and declaring martial law;

1. Grounds a. Invasion or b. Rebellion; and c. Public safety requires it.

2. The invasion or rebellion must be ACTUAL and not merely imminent.

3. Limitations: a. Suspension or proclamation is effective

for only 60 days. b. Within 48 hours from the declaration or

suspension, the President must submit a report to Congress.

c. Congress, by majority vote and voting jointly, may revoke the same, and the President cannot set aside the revocation.




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d. In the same manner, at the President’s initiative, Congress can extend the same for a period determined by Congress if:

4. Invasion or rebellion persist and 5. Public safety requires it.

NOTE: Congress CANNOT extend the period motu propio.

e. Supreme Court review: i. The appropriate proceeding can

be filed by any citizen. ii. The SC can review the

FACTUAL BASIS of the proclamation or suspension.

iii. Decision is promulgated within 30 days from filing.

f. Martial Law does NOT: i. Suspend the operation of the

Constitution. ii. Supplant the functioning of the

civil courts or legislative assemblies.

iii. Authorize conferment of jurisdiction on military courts over civilians where civil courts are able to function and

iv. Automatically suspend the privilege of the writ of habeas corpus.

g. Suspension of privilege of the writ of habeas corpus:

i. Applies ONLY to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

ii. Anyone arrested or detained during suspension must be charged within 3 days. Otherwise he should be released.

NOTE: While the suspension of the privilege of writ and the proclamation of martial law is subject to judicial review, the actual use by the President of the armed forces is not. Thus, troop deployments in times of war are subject to the President’s judgment and discretion. Declaration of State of Rebellion IBP v. Zamora, G.R. 141284

The factual necessity of calling out the armed forces is something that is for the President to decide, but the Court may look into the factual basis of the declaration to determine if it was done with grave abuse of discretion amounting to lack of jurisdiction.

David v. Macapagal-Arroyo* G.R. No. 171396, May 3, 2006 Facts: President Arroyo issued Presidential Proclamation No. 1017 declaring a state of national emergency, stating that the proximate cause behind the executive issuances was the conspiracy among members of the political opposition in a plot to unseat or assassinate President Arroyo.

By virtue of PP1017, political rallies were cancelled, rallyists were violently dispersed, and warrantless arrests and take-over of facilities, including media, were implemented. On March 3, 2006, PGMA issued PP1021 declaring that the state of national emergency has ceased to exist. Issues:

A. PROCEDURAL 1. W/N the issuance of PP 1021 renders the

petitions moot and academic 2. W/N the petitioners in 171485 (Escudero,

et.al), 171400 (Alternative Law Groups, Inc.), 171483 (Kilusang Mayo Uno, et al.), 171489 (Cadiz, et.al.), and 171424 (Legarda) have legal standing.

B. SUBSTANTIVE 1. W/N the SC can review the factual bases of

PP 1017 2. W/N PP 1017 and G.O. 5 are

unconstitutional a. Facial Challenge b. Constitutional Basis c. As Applied Challenge

Held:

A. Procedural 1. PGMA’s issuance of PP 1021 did not render

the present petitions moot and academic. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.

2. All petitioners have locus standi. Even if the plaintiff who asserts a “public right”, fails to prove that he has a “personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result”, the requirement of locus standi may




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be waived by the Court in the exercise of its discretion, under the principle of “transcendental importance”, provided the following requirements are met:

a. the cases involve constitutional issues

b. for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional;

c. for voters, there must be a showing of obvious interest in the validity of the election law in question;

d. for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early;

e. for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators

3. it is not proper to implead PGMA as a respondent. Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any civil or criminal cases, and there is no need to provide for it in the Constitution or law.

A. SUBSTANTIVE 1. Review of Factual Bases 4. As to how the Court may inquire into the

President’s exercise of power, in Lansang v. Garcia, it adopted the test that “judicial inquiry can go no further than to satisfy the Court not that the President’s decision is correct but that the President did not act arbitrarily. Thus, the standard laid down is not correctness, but arbitrariness.

5. Hence, it is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual basis of which they failed to show that PGMA’s exercise of the calling-out power, by issuing PP 1017, is totally bereft of factual basis.

B. Substantive

The Petitions are partly granted.

1. The Court rules that PP 1017 is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence, which pertains to a spectrum of conduct, and not free speech, which is manifestly subject to state regulation.

2. However, the provisions of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the President, are declared UNCONSTITUTIONAL. The assailed PP 1017 is unconstitutional insofar as it grants PGMA the authority to promulgate “decrees.” Legislative power is peculiarly within the province of the Legislature. She can only order the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence. 3. In addition, the provision in PP 1017 declaring national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such declaration does not authorize the President to take over privately-owned public utility or business affected with public interest without prior legislation. 4. G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP 1017, i.e. whatever is “necessary and appropriate actions and measures to suppress and prevent acts of lawless violence.” Considering that “acts of terrorism” have not yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL.

Hence, the various warrantless arrest; the imposition of standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL for PP 1017 is merely an invocation of the President’s calling-out power; there is nothing in it allowing the police, expressly or impliedle, to conduct illegal arrest, search, or violate the citizen’s constitutional rights. Sec. 19: EXECUTIVE CLEMENCY Scope: After conviction by final judgment, the President may grant the following: [ Pa R C Re]

1. Pardons (conditional or plenary) 2. Reprieves 3. Commutations 4. Remittance of fines and forfeitures

NOTE: The power to grant clemency includes cases involving administrative penalties. Where a conditional pardon is granted, the determination of whether it has been violated rests with the President. Limitations: A. Cannot be granted:

1. Before conviction In cases of impeachment




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2. For violations of election laws, rules, and regulations without the favorable recommendation of the COMELEC

3. In cases of civil or legislative contempt B. As to effect:

1) Does not absolve civil liabilities for an offense. 2) Does not restore public offices already forfeited, although eligibility for the same may be restored.

Amnesty: An act of grace concurred in by Congress, usually extended to groups of persons who commit political offenses, which puts into oblivion the offense itself. President alone CANNOT grant amnesty for it needs the concurrence by a majority of all the members of Congress. When a person applies for amnesty, he must admit his guilt of the offense which is subject to such amnesty. If his application is denied, he can be convicted based on this admission of guilt. Amnesty V. Pardon

AMNESTY PARDON Addressed to POLITICAL offenses

Addressed to ORDINARY offenses

Granted to a CLASS of persons

Granted to INDIVIDUALS

Need not be accepted Must be accepted Requires concurrence of majority of all members of Congress

No need for Congressional concurrence

A public act. Subject to judicial notice

Private act of President. It must be proved.

Extinguishes the offense itself

Only penalties are extinguished. May or may not restore political rights. Absolute pardon restores. Conditional does not. Civil indemnity is not extinguished.

May be granted before or after conviction

Only granted after conviction by final judgment

Sec. 20. Power to Contract or Guarantee Foreign Loans Limitations: 1. The President may contract or guarantee foreign

loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board; and

2. Subject to such limitations as may be provided by law.

a. Monetary Board shall submit to Congress report on loans within 30 days from the end of every quarter.

Section 21. Foreign Relations Powers include: 1. Power to negotiate treaties and other international

agreements BUT: Such treaty or international agreement needs to pass to the Senate which has the following options: a. Approve with 2/3 majority; b. Disapprove outright; or c. Approve conditionally, with suggested

amendments which if re-negotiated and the Senate’s suggestions are incorporated, the treaty will go into effect without need of further Senate approval

However, if re-negotiated, there is no treaty. If there’s conflict between treaty and municipal law, then under;

a. Philippine Courts: The later enactment will prevail, be it treaty or law, as it is the latest expression of the State’s will.

b. International tribunal: Treaty will always prevail. A State cannot plead its municipal law to justify noncompliance with an international obligation.

NOTE: While our municipal law makes a distinction between international agreements and executive agreements, with the former requiring Senate approval and the latter not needing the same, under international law, there is no such distinction. NOTE: The President cannot, by executive agreement, undertake an obligation which indirectly circumvents a legal prohibition.

2. Power to appoint ambassadors, other public

ministers, and consuls. 3. Power to receive ambassadors and other public

ministers accredited to the Philippines. 4. Power to contract and guarantee foreign loans

on behalf of the Republic 5. Power to deport aliens

a. This power is vested in the President by virtue of his office, subject only to restrictions as may be provided by




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legislation as regards to the grounds for deportation.

b. In the absence of any legislative restriction to authority, the President may still exercise this power.

c. The power to deport aliens is limited by the requirements of due process, which entitles the alien to a full and fair hearing.

d. BUT: The alien is not entitled to bail as a matter of right.

ARTICLE VIII. THE JUDICIAL DEPARTMENT Sec. 1. JUDICIAL POWER Definition: Judicial power is the authority to settle justiciable controversies or disputes involving rights that are enforceable and demandable before the courts of justice or the redress of wrongs for violations of such rights. To whom vested: Supreme Court and such lower courts as may be established by law. Hence, they may neither attempt to assume or be compelled to perform non-judicial functions. They may not be charged with administrative functions except when reasonably incidental to the fulfillment of their duties. The duties of the courts are

1. to settle actual controversies involving rights which are legally demandable and enforceable; and

2. To determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

Note: The courts cannot be asked for advisory opinions. Political Questions: A ‘POLITICAL QUESTION’ is one the resolution of which has been vested by the Constitution exclusively in either the people, in the exercise of their sovereign capacity, or in which full discretionary authority has been delegated to a co-equal branch of the Government. Thus, while courts can determine questions of legality with respect to governmental action, they cannot review government policy and the wisdom thereof, for these questions have been vested by the Constitution in the Executive and Legislative Departments.

Sec. 2. ROLES OF CONGRESS

1. Defining enforceable and demandable rights and prescribing remedies for violations of such rights; and

2. Determining the court with jurisdiction to hear and decide controversies or disputes arising from legal rights.

BUT, Congress cannot deprive the Supreme Court of its jurisdiction over cases provided for in the Constitution. Creation and abolition of courts: The power to create courts implies the power to abolish and even re-organize courts. BUT this power cannot be exercised in a manner which would undermine the security of tenure of the judiciary. If the abolition/re-organization is done in good faith and not for political or personal reasons, then it is VALID. Sec. 3. FISCAL AUTONOMY The entire judiciary shall enjoy fiscal autonomy. Annual appropriations for the judiciary cannot be reduced below the amount appropriated for the previous year. Once approved, appropriations shall be automatically and regularly released. Sections 4-7; 12 JUDICIARY Composition of the Supreme Court:

1) Chief Justice and 2) 14 Associate Justices

NOTE: Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. Qualifications of members of the:

SC lower collegiate courts e.g. CA,

CTA, Sandiganbayan

judges of lower non-collegiate

courts Natural born citizen of the Philippines

Citizen of the Philippines (may be a naturalized citizen)

At least 40 years old

Possesses other qualifications prescribed by Congress




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At least 15

years of experience as a judge or in the

practice of law in the

Philippines

Member of the Philippine Bar

Person of proven competence, integrity, probity and independence

Sec. 8. JUDICIAL AND BAR COUNCIL Under the supervision of the SC. A. Composition

1. Chief Justice, as ex-officio chairman 2. Secretary of Justice, as an ex-officio member 3. Representative of Congress, as an ex-officio

member 4. Representative of the Integrated Bar 5. A professor of law 6. A retired member of the SC; and 7. Private sector representative

NOTE: The last four are the regular members of the JBC. Regular members are appointed by the President with CA approval. Regular members serve for 4 years, with staggered terms. B. Functions of JBC Principal function: recommend appointees to the Judiciary Exercise such other functions as the SC may assign to it. C. Appointments to the Judiciary President shall appoint from a list of at least 3 nominees for each vacancy, as prepared by the JBC. No CA confirmation is needed for appointments to the Judiciary. Vacancies in SC should be filled within 90 days from the occurrence of the vacancy. Vacancies in lower courts should be filled within 90 days from submission to the President of the JBC list. Sec. 10. SALARIES Salaries of SC Justices and judges of lower courts shall be fixed by law. Cannot be decreased during their continuance in office, but can be increased. Members of the Judiciary are NOT exempt from payment of income tax.

Sec. 11. TENURE/DISCIPLINARY POWERS OF SC 1. Members of the SC and judges of the lower courts hold office during good behavior until;

a) The age of 70 years old; or b) They become incapacitated to discharge their duties.

2. Disciplinary action against judges of lower courts: Only the SC en banc has jurisdiction to discipline or dismiss judges of lower courts. Disciplinary action/dismissal: Majority vote of SC Justices who took part in the deliberations and voted therein. 3. Only by IMPEACHMENT SC Justices can be removed. They cannot be disbarred while they hold office. Sections. 4-6, 13. THE SUPREME COURT Hearing of cases: En banc; or Divisions of 3, 5, or 7. Cases required to be heard en banc:

1. All cases involving constitutionality of a/an: (CODE: T I L) a. Treaty b. International or executive agreement or c. Law.

2. All cases required to be heard en banc under the Rules of Court:

3. Appeals from Sandiganbayan; and from the Constitutional Commissions

4. All cases involving the constitutionality, application or operation of: (CODE: PPOIRO) a. Presidential decrees b. Proclamations c. Orders d. Instructions e. Ordinances; and f. Other regulations.

5. Cases heard by a division where required majority of 3 was not obtained.

6. Cases where SC modifies or reverses a doctrine or principle of law laid down by the SC en banc or by a division.

7. Administrative cases to discipline or dismiss judges of lower courts; and

8. Election contests for President and Vice-President.




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Cases heard by division 1. Must be decided with the concurrence of a

majority of the members who took part in the deliberations and voted thereon.

2. Majority vote in a division should be at least 3 members.

Powers of the SC

ORIGINAL jurisdiction

APPELLATE jurisdiction

1) Cases affecting ambassadors, other public ministers and consuls. NOTE: This refers to foreign ambassadors, etc., stationed in the Philippines 2) Petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

over final judgments and orders in the following: 1) All cases involving the constitutionality or validity of any: treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or, regulation; 2) All cases involving the legality of any: tax, impost, toll, assessment or any penalty imposed in relation thereto; 3) All cases in which the jurisdiction of any lower court is in issue 4) Criminal cases where the penalty imposed is reclusion perpetua or higher; and 5) All cases where ONLY errors or questions of law are involved.

3. Temporarily assign lower court judges to other stations in the public interest. Note: Temporary assignment shall not exceed 6 months without the consent of the judge concerned. 4. Order a change of venue or place of trial to avoid a miscarriage of justice. 5. Promulgate rules concerning:

i. The protection and enforcement of constitutional rights; ii. Pleading, practice and procedure in all courts; iii. Admission to the practice of law;

iv. The Integrated Bar; and v. Legal assistance to the underprivileged.

Limitations on Rule Making Power 1. It should provide a simplified and inexpensive

procedure for the speedy disposition of cases.

2. It should be uniform for all courts of the same grade

3. It should not diminish, increase, or modify substantive rights.

6. Appoint ALL officials and employees of the Judiciary, in accordance with Civil Service Law. 7. Exercise administrative supervision over ALL courts and the personnel thereof. Decisions of the Supreme Court:

1. Reached in consultation before being assigned to a member for the writing of the opinion.

2. A certification to this effect must be signed by the Chief Justice and attached to the record of the case and served upon the parties.

3. Members of the SC who took no part, or who dissented or abstained must state the reasons therefore.

NOTE: This procedure shall also be observed by all lower collegiate courts (CA, CTA, and the Sandiganbayan). JUDICIAL REVIEW Definition Judicial Review is the power of the SC to declare a law, treaty, ordinance etc. unconstitutional. Lower courts may also exercise the power of judicial review, subject to the appellate jurisdiction of the SC. Only SC decisions are precedent, and thus, only SC decisions are binding on all. Requisites: Code: [A R S E L]

1. An ACTUAL CASE calling for the exercise of judicial power

2. The question involved must be RIPE FOR ADJUDICATION, i.e. the government act must have had an adverse effect on the person challenging it.

3. The person challenging the governmental act must have ‘STANDING’, i.e. a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement.




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4. The question of Constitutionality must be raised in the first instance, or at the earliest opportunity.

5. Resolution of the issue of constitutionality is unavoidable or is the very lis mota

Effect of a declaration of unconstitutionality: Prior to the declaration that a particular law is unconstitutional, it is considered as an ‘operative fact’ which at that time had to be complied with. Thus, these vested rights, acquired under such law before it was declared unconstitutional, are not prejudiced by the subsequent declaration that the law is unconstitutional. Sec. 14. DECISIONS

1. Decisions MUST state clearly and distinctly the facts and the law on which they are based.

2. Memorandum decisions, where the appellate court adopts the findings of fact and law of the lower court, are allowed as long as the decision adopted by reference is attached to the Memorandum for easy reference.

3. These rules only apply to courts. They do not apply to quasi-judicial or administrative bodies nor to military tribunals.

Safeguards that guarantee Independence of the Judiciary:

1. Being a Constitutional body, it may not be abolished by law;

2. Members are only removable by impeachment;

3. SC may not be deprived of minimum and appellate jurisdiction; appellate jurisdiction may not be increased without its advice or concurrence;

4. SC has administrative supervision over all inferior courts and personnel;

5. SC had exclusive power to discipline judges/ justices of inferior courts;

6. Members of the judiciary enjoy security of tenure;

7. Members of judiciary may not be designated to any agency performing quasi-judicial or administrative functions;

8. Salaries of judges may not be reduced; judiciary enjoys fiscal autonomy;

9. SC alone may initiate Rules of Court; 10. SC alone may order temporary detail of

judges; and 11. SC can appoint all officials and employees of

the Judiciary (Nachura, Reviewer in Political Law, p. 199-200.)

ARTICLE IX – THE CONSTITUTIONAL

COMMISSIONS Sec. 1. Constitutional Commissions Independent Constitutional Commissions:

1. Civil Service Commission (CSC) 2. Commission on Elections (COMELEC) 3. Commission on Audit (COA)

Safeguards that guarantee Independence of Commissions:

1. They are constitutionally created; may not be abolished by statute;

2. Each is expressly described as “independent”

3. Each is conferred certain powers and functions which cannot be reduced by statute;

4. The Chairmen and members cannot be removed except by impeachment;

5. The chairmen and the members are given fairly a long term of office of 7 years;

6. The Chairmen and members may not be re-appointed or appointed in an acting capacity (Brillantes v. Yorac, 192 SCRA 358);

7. The salaries of the Chairmen and members are relatively high and may not be decreased during continuance in office;

8. The Commissions enjoy fiscal autonomy; 9. Each Commission may promulgate its own

procedural rules, provided they do not diminish, increase or modify substantive rights (though subject to disapproval by the SC.);

10. The Chairmen and members are subject to certain disqualifications calculated to strengthen their integrity;

11. The Commissions may appoint their own officials and employees in accordance with Civil Service Law (Nachura, Reviewer in Political Law, p. 209)

Sec. 2. DISQUALIFICATIONS Disqualifications: Members cannot, during their tenure:

1. Hold any other office or employment; 2. Engage in the practice of any profession;\ 3. Engage in the active management or control

of any business, which, in any way, may be affected by the functions of their office; and

4. Be financially interested, directly or indirectly, in any contract, franchise, privilege granted by the government, any of its subdivisions,




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agencies, instrumentalities, including GOCC's and their subsidiaries.

NOTE: The Ombudsman and his deputies are subject to the same qualifications. Sec. 3. SALARIES

1. Salaries are fixed by law and shall not be decreased during their TENURE.

2. Decreases in salaries only affect those members appointed AFTER increase.

3. Incumbent members do not lose any salary. 4. Increases take effect IMMEDIATELY.

Sec. 6. RULES OF PROCEDURE Procedures:

1. Rules: The Commissions may promulgate their own rules EN BANC.

2. Limitation: The rules shall not: a. Diminish, b. Increase, or c. Modify substantive rights.

3. Power of SC a. The SC may not, under Art. VIII Sec.

5(5), exercise the power to disapprove rules of "special courts and quasi-judicial bodies."

b. In proceedings before the Commissions, the rules of the Commission prevail.

c. In proceedings before a court, the Rules of Court prevail.

d. The SC may, however, in appropriate cases, exercise JUDICIAL REVIEW

Sec. 7. DECISION MAKING/APPEAL Decision-Making: 1. Each commission shall decide matter or cases by

a majority vote of all the members within 60 days from submission. a. COMELEC may sit en banc or in 2 divisions. b. Election cases, including pre-proclamation

controversies are decided in division, with motions for reconsideration filed to the COMELEC en banc.

c. The SC has held that a majority decision decided by a division of the COMELEC is a valid decision.

2. As COLLEGIAL BODIES, each commission must act as one, and no one member can decide a case for the entire commission. (i.e. The Chairman cannot ratify a decision which would otherwise have been void).

Appeals: 1. Decisions, orders or rulings of the

COMELEC/COA may be brought on certiorari to the SC under Rule 65.

2. Decisions, orders or ruling of the CSC should be appealed to the CA under Rule 43.

Enforcement: It has been held that the CSC can issue a writ of execution to enforce judgments, which are final. THE CIVIL SERVICE COMMISSION Sec.1. COMPOSITION/QUALIFICATIONS/TERM Composition: 1. Chairman 2. Commissioners – 2 commissioners Qualifications:

1. Natural-born citizens of the Philippines; 2. At least 35 years old at the time of their

appointments; 3. With proven capacity for public

administration; and 4. NOT candidates for any elective position in

the elections immediately preceding their appointment.

5. Appointees by the President to the CSC need Commission on Appointments (CA) confirmation

Term:

1. 7 years (except for the 1st appointees where the Chairman has 7 years, 1 Commissioner has 5 years while another has 3 years)

2. Limitation: single term only, no reappointment

3. Appointment to vacancy: only for unexpired term of predecessor

4. No temporary appointments, or appointments in acting capacity.

Sec. 2. Scope: The Civil Service embraces all:

1. branches, 2. subdivisions, 3. instrumentalities, 4. agencies of the government, 5. including GOCCs with original charters.

a. "With Original Charter" means that the GOCC was created by special law/by Congress

b. If incorporated under the Corporation Code, it does not fall within the Civil




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Service, and is not subject to the CSC jurisdiction.

c. If previously government-controlled, but is later privatized, it ceases to fall under CSC.

d. Jurisdiction is determined as of the time of filing the complaint.

Appointments to civil service shall be: A. Competitive positions According to merit and fitness to be determined by competitive examinations, as far as practicable except to positions which are policy-determining, primarily confidential, or highly technical. B. Non-competitive positions

1. No need for competitive examinations.

2. 3 kinds a. Policy-determining - formulate a method

of action for the government b. Primarily confidential - more than

ordinary confidence; close intimacy insures freedom of intercourse without betrayals of personal trust.

c. Highly technical - requires technical skill to a superior degree.

C. The TEST to determine whether non-competitive

is the nature of the responsibilities, NOT the administrative or legislative description given to it.

D. Both types of positions are entitled to security

of tenure. They only differ in the MANNER in which they are filled.

E. Who may be appointed:

1. RULE: Whoever fulfills all the qualifications prescribed by law for a particular position may be appointed therein.

2. The CSC cannot disapprove an appointment just because another person is better qualified, as long as the appointee is himself qualified.

3. The CSC CANNOT add qualifications other than those provided by law.

F. Next-In-Rank Rule While a person next in rank is entitled to preferential consideration, it does not follow that only he, and no one else, can be appointed. Such person has no vested right to the position and the appointing

authority is not bound to appoint the person next in rank.

Tenure (Classification of Positions)

Career Service Non-Career Service 1. Entrance based on merit and fitness to be determined as far as practicable by competitive examinations or based on highly technical qualifications.

1. Entrance on bases OTHER than usual tests of merit and fitness.

2. Entitled to security of tenure

2. Tenure limited to: a) Period specified by

law, b) Coterminous with

the appointing authority or subject to his pleasure, or

c) Limited to the duration of a particular project for which purpose the employment was made.

3. With opportunity for advancement to higher career positions.

Security of Tenure:

1. Officers or employees of the Civil Service cannot be removed or suspended EXCEPT for cause provided by law. It guarantees both procedural and substantive due process.

2. For "LEGAL CAUSE" - Cause is:

a. related to and affects the administration of office, and

b. must be substantial (directly affects the rights & interests of the public)

3. Security of tenure for Non-competitive

positions a. Primarily confidential officers and

employees hold office only for so long as confidence in them remains.

b. If there is GENUINE loss of confidence, there is no removal, but merely the expiration of the term of office

c. Non-career service officers and employees do not enjoy security of tenure.




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d. Political appointees in the foreign service possess tenure coterminous with that of the appointing authority or subject to his pleasure.

4. One must be VALIDLY APPOINTED to enjoy security of tenure. Thus, one who is not appointed by the proper appointing authority does not acquire security of tenure.

Abolition of Office To be valid, abolition must be made:

1. In good faith; (good faith is presumed) 2. Not for political or personal reasons; and 3. Not in violation of law.

Temporary employees are covered by the following rules:

1. Not protected by security of tenure - can be removed anytime even without cause

2. If they are separated, this is considered an expiration of his term.

BUT: They can only be removed by the one who appointed them

3. Entitled only to such protection as may be provided by law.

No officer or employee in the Civil Service shall engage in any electioneering or in partisan political activity

1. Cannot solicit votes in favor of a particular candidate.

2. Cannot give campaign contributions or distribute campaign materials.

3. BUT: Allowed to express views on political issues, and to mention the names of the candidates whom he supports.

4. Prohibition does not apply to department secretaries

Right to organize The right to organize does NOT include the right to strike Sec. 6-7. DISQUALIFICATIONS Disqualifications:

1. Losing candidates in any election a. Cannot be appointed to any office in the

government or GOCC's or their subsidiaries

b. Period of disqualification: (1) year after such election.

2. Elective officials a. Not eligible for appointment or designation

in ANY CAPACITY to ANY PUBLIC OFFICE or position during their tenure.

b. EXCEPTION: May hold ex officio positions.

c. Examples: d. The Vice President may be appointed as

a Cabinet member e. A Congressman may sit in the Judicial

and Bar Council f. To be eligible to hold any other office, the

elected official must first resign from his office

g. Even Congress cannot, by law, authorize the appointment of an elective official.

3. Appointive officials a. Cannot hold any other office or

employment in the government, any subdivision, agency, instrumentality, including GOCC's and their subsidiaries.

b. EXCEPTION: Unless otherwise allowed by law, or by the primary functions of his position.

This exception DOES NOT APPLY to Cabinet members, and those officers mentioned in Art. VII, Sec. 13. They are governed by the stricter prohibitions contained therein.

Sec. 8. COMPENSATION

1. Prohibitions: apply to elected or appointed officers and employees cannot receive: a. Additional compensation: an extra

reward given for the same office i.e. bonus

b. Double compensation: when an officer is given 2 sets of compensation for 2 different offices held concurrently by 1 officer

c. Indirect Compensation 2. EXCEPTION: Unless specifically authorized

by law a. "SPECIFICALLY AUTHORIZED" means

a specific authority particularly directed to the officer or employee concerned.

b. BUT: per diems and allowances given as REIMBURSEMENT for expenses actually incurred are not prohibited

3. Cannot accept any present, emolument, office, title of any kind from foreign governments UNLESS with the consent of Congress.

4. Pensions and gratuities are NOT considered as additional, double, or indirect compensation.




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THE COMMISSION ON ELECTIONS

Sec.1.COMPOSITION/QUALIFICATIONS/TERM Composition: (7)

1. 1Chairman and 2. 6 Commissioners

Qualifications:

1. Natural-born citizens of the Philippines; 2. At least 35 years old at the time of

appointment 3. Holders of college degrees; and 4. Not candidates for any elective position in the

immediately preceding elections. 5. Majority of the Commission, including the

Chairman must be: a. Members of the Philippines Bar b. Engaged in the practice of law for at least

10 years: “any activity in or out of court, which requires the application of law, legal procedure, knowledge, training and experience.”

6. Appointments subject to CA approval Term:

1. 7 years (1st appointed: Chairman -7 yrs; 3 Members - 7 yrs; 2 Members - 5 yrs; 1 Member - 3 yrs)

2. LIMITATION: Single term only: no reappointment allowed

3. Appointment to a vacancy: only for unexpired portion of predecessor’s term

4. No temporary appointments, or appointments in acting capacity a. Thus, the President cannot designate an

incumbent commissioner as acting Chairman.

b. The choice of temporary chairman falls under the COMELEC’s discretion.

Sec. 2. POWERS AND FUNCTIONS Powers:

1. Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.

Ex: COMELEC can enjoin construction of public works within 45 days of an election.

2. Exercise:

a. Exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective

i. Regional, ii. Provincial, and iii. City officials

b. Appellate jurisdiction over all contests

involving: i. Elective municipal officials decided by

trial courts of general jurisdiction ii. Elective barangay officials decided by

trial courts of limited jurisdiction.

c. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. Exception: Appealable to the SC on questions of law.

d. Contempt powers i. COMELEC can exercise this power

only in relation to its adjudicatory or quasi-judicial functions. It CANNOT exercise this in connection with its purely executive or ministerial functions.

ii. If it is a pre-proclamation controversy, the COMELEC exercises quasi-judicial/administrative powers.

iii. Its jurisdiction over ‘contests’ (after proclamation), is in exercise of its judicial functions.

e. The COMELEC may issue writs of

certiorari, prohibition and mandamus in exercise of its appellate jurisdiction. This is not an inherent power.

3. Decide, except those involving the right to

vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters.

NOTE: Questions involving the right to vote fall within the jurisdiction of the ordinary courts.

4. Deputize, with the concurrence of the

President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections.




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a. This power is NOT limited to the election period.

b. Applies to both criminal and administrative cases.

5. Registration of political parties,

organizations, or coalitions/accreditation of citizens’ arms of the Commission on Elections. a. The political parties etc. must present their

platform or program of government. b. There should be sufficient publication c. Groups which cannot be registered:

i. Religious denominations/sects But not applicable to political parties with religious affiliation or which derive their principles from religious beliefs

ii. Groups which seek to achieve their goals through violence or unlawful means

iii. Groups which refuse to uphold and adhere to the Constitution

iv. Groups which are supported by any foreign government such as financial contributions related to elections. If accepted, it is an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law.

6. File, upon a verified complaint, or on its own

initiative, petitions in court for inclusion of exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting elections frauds, offenses and malpractices. a. COMELEC has exclusive jurisdiction to

investigate and prosecute cases for violations of election laws.

b. COMELEC can deputize prosecutors for this purpose. The actions of the prosecutors are the actions of the COMELEC

c. Preliminary investigation conducted by COMELEC is valid

7. Recommend to the Congress effective

measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies.

8. Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision.

9. Submit to the President and the congress a

comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall.

Sec. 3. RULES OF PROCEDURE/ DECISION-MAKING Rules of Procedure

1. COMELEC can sit en banc or in two divisions 2. It has the power to promulgate its own rules

of procedure in order to expedite disposition of election cases, including pre-election controversies.

Decision-Making

1. Election cases should be heard and decided in division.

2. However, motions for reconsideration of decisions should be decided by COMELEC en banc. a. ”Decisions” mean resolutions on

substantive issues. b. If a division dismisses a case for failure

of counsel to appear, the Motion for Reconsideration here may be heard by the division.

c. EXCEPTION: COMELEC en banc may directly assume jurisdiction over a petition to correct manifest errors in the tallying of results by Board of Canvassers.

NOTE: In Balajonda v. COMELEC (GR No. 166032), the COMELEC CAN ORDER IMMEDIATE EXECUTION OF ITS OWN JUDGMENTS. Sec. 4. SUPERVISION/REGULATION OF FRANCHISES / PERMITS / GRANTS / SPECIAL PRIVILEGES / CONCESSIONS Regulation of franchises

1. What can COMELEC supervise or regulate a. The enjoyment or utilization of all

franchises or permits for the operation of transportation and other public utilities, media of communication or information.

b. Grants, special privileges or concessions granted by the Government or any




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subdivision, agency or instrumentality thereof, including any GOCC or its subsidiary

2. When can COMELEC exercise this power

a. During the election period i. Under Article XI, Section 9, the

election period commences 90 days before the day of the election and ends 30 days thereafter.

ii. In special cases, COMELEC can fix a period.

b. Applies not just to elections but also to

plebiscites and referenda. 3. Plebiscite: Submission of constitutional

amendments or important legislative measures to the people for ratification

4. Referendum: power of the electorate to approve or reject legislation through an election called for that purpose.

COMELEC and the MEDIA

1. COMELEC cannot compel print media to donate free space to the COMELEC. It may, however, compel it to provide space after paying just compensation.

2. Power of COMELEC is over franchises and permits, NOT individuals. For example, COMELEC may not regulate media practitioners, for this would violate the freedom of expression.

Sec. 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission. Sec. 6. A free and open PARTY SYSTEM Definition of “POLITICAL PARTY” Organized group of persons pursuing the same political ideals in a government and includes its branches, and divisions. Importance of registration of a political party

1. Registration confers juridical personality on the party.

2. It informs the public of the party's existence and ideals.

3. It identifies the party and its officers for purposes of regulation by the COMELEC.

Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list system as provided in this Constitution. Prohibition on block-voting

1. General rule: Block voting NOT allowed 2. EXCEPTION: those registered under the

party-list system

Sec. 8. PARTY LIST SYSTEM No Right to be represented in Various Boards Political parties, organizations, or coalitions registered under the party-list system shall NOT be represented in the following:

1. Voters’ registrations boards, 2. Boards of election inspectors, 3. Boards of canvassers, or 4. Other similar bodies.

Poll Watchers Political parties, etc. are entitled to appoint poll watchers in accordance with law. Sec. 10. Bona fide candidates for any public office shall be free from any form of harassment and discrimination.

1. This section does not give candidates immunity from suit.

2. Discrimination includes unequal treatment in the availment of media facilities.

Sec. 11. FUNDING How provided:

1. Funds certified by the COMELEC as necessary to defray the expenses for holding regular and special elections, plebiscites, initiative, referenda and recalls, shall provided in the regular or special appropriations.

2. Funds should be certified by the COMELEC as necessary.

Release of funds Once approved, funds should be released automatically upon certification by the Chairman of COMELEC.




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THE COMMISSION ON AUDIT Section1.COMPOSITION/QUALIFICATIONS Composition:

1. Chairman, and 2. Commissioners (2).

Qualifications:

1. Natural-born citizens of the Philippines 2. At least 35 years old at the time of their

appointment; 3. Either:

a. CPA’s with at least 10 years auditing experience; or

b. Members of Phil. Bar with 10 years of practice.

4. Members cannot all belong to the same profession.

5. Subject to confirmation of the CA. 6. Must not have been candidates for any

elective position in the elections immediately preceding their appointment.

Term:

1. 7 years (1st appointees) Chairman-7yrs; Commissioner1-5yrs; Commissioner2-3 yrs)

2. LIMITATION: Single terms only; no re-appointment allowed

3. Appointments to any vacancy shall only be for the unexpired portion of predecessor’s term

Sec. 2. POWERS

1. Examine, audit, and settle accounts pertaining to: a. Revenue and receipts of funds or

property; or b. Expenditures and uses of funds or

property Owned or held in trust by, or pertain to: 1. The Government; 2. Any of its subdivisions, agencies or

instrumentalities; 3. Including GOCC’s with original charters.

2. Conduct post-audit with respect to the

following: a. Constitutional bodies, commissions, and

offices granted fiscal autonomy; b. Autonomous state colleges and

universities;

c. GOCC’s and their subsidiaries incorporated under the Corporation Code.

d. Non-governmental entities receiving subsidies or equity, directly or indirectly, from or through the government, which are required by law of the granting of institution to submit to such audit.

3. If COA finds internal control system of

audited agencies as inadequate, COA may adopt measures, including temporary or special pre-audit, as may be necessary.

4. Keep the general accounts of the

government, preserving vouchers and other supporting papers pertaining thereto.

5. Exclusive authority to define the scope of

COA’s audit and examination and to establish the techniques and methods required therefor.

6. Promulgate accounting and auditing rules and regulations.

a. Including those for the prevention or disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures or uses of government funds and properties.

b. Failure to comply with these rules can be a ground for disapproving the payment of a proposed expenditure.

NOTE:

1. The functions of COA can be classified as: a. Examine and audit all forms of

government revenues; b. Examine and audit all forms of gov’t

expenditures c. Settle gov’t accounts d. Promulgate accounting and auditing

rules (including those for the prevention of irregular…expenditures).

e. To decide administrative cases involving expenditures of public funds.

2. COA can settle only LIQUIDATED ACCOUNTS or those accounts, which may be adjusted simply by arithmetic process.

3. COA has authority not just over accountable officers but also over other officers who perform functions related to accounting such as verification of evaluations and computation of fees collectible, and the adoption of internal rules of control.

4. COA does not have the power to fix the amount of an unfixed or undetermined debt.




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5. Where the following requirements are complied with, it becomes the ministerial duty of the COA to approve and pass in audit vouchers for payment: a. There is a law appropriating funds for a

particular purpose; b. There is a contract, made by the proper

officer, entered into in conformity with the above-mentioned law;

c. The goods or services covered by such contract have been delivered or rendered in pursuance to such contract, as attested by the proper officer; and

d. Payment has been authorized by officials of the corresponding department or bureau.

6. Prosecutors may still review accounts already settled and approved by COA for the purpose of determining possible criminal liability. This is because COA’s interest in such accounts is merely administrative.

7. COA has the power to determine the meaning of ‘public bidding’ and what constitutes failure when regulations require public bidding for the sale of government property.

Sec. 3. No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatever, or any investment of public funds, from the jurisdiction of the Commission on Audit.

ARTICLE X: LOCAL GOVERNMENT Sec.1.TERRITORIAL/POLITICAL SUBDIVISIONS OF THE REPUBLIC OF THE PHILIPPINES ARE THE: Composition:

1. Provinces 2. Cities; 3. Municipalities; and 4. Barangays

There shall be Autonomous regions in:

1. Muslim Mindanao, and 2. Cordilleras [At present, it is only the

Cordillera ADMINISTRATIVE region] NOTE:

1. A third autonomous region would require a constitutional amendment.

2. These political subdivisions, created by the Constitution can be replaced by AMENDMENT, and not by law.

3. While Congress can abolish or eradicate individual units, it cannot abolish an entire class of LGUs

Sec. 2. Local Autonomy

1. All political subdivisions shall enjoy local autonomy

2. This does not mean that the LGUs are completely free from the central government. a. Judiciary may still pass on LGU actions b. President may exercise disciplinary

power over LGU officials. SEC. 3. Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. Sec.4. PRESIDENTIAL SUPERVISION OF LGUS Supervision of President

1. The President exercises GENERAL supervision over all LGUs

2. The President exercises DIRECT supervision over a. Provinces b. Autonomous regions and c. Independent cities.

3. This power is limited to ensuring that lower officers exercise their functions in accordance with law.

4. The President cannot substitute his judgment for that of an LGU official unless the latter is acting contrary to law.

5. The President may, however, impose administrative sanctions against LGU officials, such as suspension for 120 days, and may even remove them from their posts, in accordance with law.

6. Provinces exercise DIRECT supervision over component cities and municipalities.

7. Cities and municipalities exercise DIRECT supervision over component barangays.

Sec. 5. EACH LOCAL GOVERNMENT SHALL HAVE THE POWER TO CREATE OWN SOURCES




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OF REVENUE/LEVY TAXES, FEES AND CHARGES ETC. Limitations on Power

1. It is subject to such guidelines and limitations as Congress may provide. See Local Government Code for examples.

2. The guidelines set by Congress should be consistent with the basic policy of local autonomy.

Accrual of taxes, fees, charges The taxes, fees and charges shall accrue exclusively to the local governments. Sec.6. LGUs SHALL HAVE A JUST SHARE IN NATIONAL TAXES, AS DETERMINED BY LAW, WHICH SHALL BE AUTOMATICALLY RELEASED TO THEM. Internal Revenue Allotment (IRA)

1. Share of LGUs in national taxes is limited to the internal revenue taxes.

2. This is released, without need of any further action, directly to the provincial, city, municipal or barangay treasurer. Release is made on a quarterly basis within 5 days after the end of each quarter.

3. This should not be subject to any lien or holdback that may be imposed by the national government for whatever purpose.

4. Each LGU should appropriate in its annual budget at least 20% of its annual IRA for development or infrastructure projects in accordance with local development plan

5. Adjustments in IRA a. Ground: Unmanageable public section

deficit b. President can make the necessary

adjustments in the IRA upon the recommendation of the following:

i. Department of Finance Secretary ii. DILG Secretary iii. DBM Secretary

6. IRA is included as part of the income of an

LGU for purposes of compliance with the income requirement for conversion from one political subdivision to the next. (Alvarez v. Guingona)

Sec. 7. SHARE OF LGUS IN NATIONAL WEALTH Share of LGUs in national wealth

1. LGUs are entitled to an equitable share in the proceeds of the utilization and development

of the national wealth within their respective areas in the manner provided by law.

2. This includes sharing the same with the inhabitants by way of direct benefits.

Under the LGC: CODE: MR.-FOS LGUs have a share of 40% of the gross collection derived by the national government from the preceding fiscal year from

1. Mining taxes 2. Royalties 3. Forestry and fishery charges 4. Other taxes, fees and charges 5. Share in any co-production, joint venture or

production sharing agreement in the utilization and development of the national wealth w/in their territorial jurisdiction

SEC. 8. TERM OF OFFICE Term of Office Elective local officials, now including barangay officials, have a term of 3 years. Limitations:

1. No elective official shall serve for more than 3 consecutive terms

2. Voluntary renunciation of 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.

SEC. 9. SECTORAL REPRESENTATION IN LGUS Legislative bodies of the local governments shall have Sectoral Representation (under the LGC) as may be provided by law There should be representatives from:

1. The women’s sector 2. The workers 3. Third sector (can choose from any of the

following) a. Urban poor b. Indigenous cultural communities c. Disabled persons d. Any other sector as may be determined

by the sanggunian SEC. 10. Creation, abolition and division of LGU’s

1. Requisites

a. Compliance with the requirements of the Local Government Code; and




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b. Approved by a majority of the votes cast in a plebiscite held in the political units DIRECTLY affected.

2. Thus, if a province is to be divided into 2 separate provinces, plebiscite will include voters of the ENTIRE province, and not just the area to comprise the new province.

3. LGC requirements relate to matters such as POPULATION, REVENUE, and AREA requirements.

Sec. 11. Special Metropolitan political subdivisions Creation:

1. Congress may create special metropolitan political subdivisions by law.

2. It is subject to a plebiscite Jurisdiction of Metropolitan authority It is limited to basic services requiring coordination. Basic Autonomy of Component Cities and Municipalities The component cities and municipalities retain their basic autonomy. They shall be entitled to their own local executive and legislative assemblies. SEC. 12. CITIES Classification of Cities:

1. Highly urbanized (as determined by law) 2. Component cities (cities still under provincial

control); and 3. Independent component cities (non-highly

urbanized cities whose voters are prohibited by the city charter from voting in provincial elections)

Independence from the Province

1. Highly urbanized cities and independent component cities are independent of the province.

2. Component cities whose charter contains no such prohibition are still under the control of the province and its voters may still vote for elective provincial officials.

Sec. 13. Coordination among LGUS Consolidation and Coordination of Efforts, Services and Resources It is optional on the part of LGUs as shown by the use of the word “may”. It can be done for purposes commonly beneficial to them in accordance with the law.

LGC, Section 33 Consolidation and coordination may be done through appropriate ordinance wherein a PUBLIC HEARING should be conducted and the approval of the sanggunian obtained. An LGU can:

1. Contribute funds, real estate, equipment and other kinds of property

2. Appoint/assign personnel under such terms and conditions as may be agreed upon by the participating LGUs through MEMORANDA OF AGREEMENT.

Sec. 14. REGIONAL DEVELOPMENT COUNCILS Who can provide for RDC The President shall provide for RDC or other similar bodies composed of: Composition

1. Local government officials 2. Regional heads of departments and other

government offices 3. Representatives of NGOS within the regions

For Purpose of:

1. Administrative decentralization 2. To strengthen local autonomy 3. To accelerate the economic and social

growth and development of the units in the region

Sec. 15. AUTONOMOUS REGIONS Where: Muslim Mindanao and the Cordillera region Factors:

1. Historical heritage 2. Cultural heritage 3. Economic and social structures, 4. Other relevant characteristics within: 5. The framework of the constitution 6. National sovereignty 7. Territorial integrity.

Creation: Provided BY LAW. EFFECTIVITY of such creation occurs only when it is approved by a majority of the votes cast in a plebiscite held among the constituent units. Only those Provinces, Cities, and Geographical Areas voting favorably in such plebiscite shall form part of the autonomous region.




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If only 1 province approved the law, NO AUTONOMOUS REGION is created, since the constitution requires more than one province to constitute one (like what happened in the Cordillera plebiscite) The question of which LGUs shall constitute an autonomous region is one which is exclusively for Congress to decide. Sec. 16. GENERAL SUPERVISION OVER AUTONOMOUS REGIONS By Whom: The President Purpose: To ensure that the laws are faithfully executed. SEC. 17. All powers, functions and responsibilities not granted by this Constitution or by law to the autonomous region shall be vested in the National Government. Examples: 1) Foreign relations, 2) National defense and Security 3) Monetary Affairs Sec. 20. LEGISLATIVE POWERS The Organic Act of Autonomous Region shall provide for legislative powers over:

1. Administrative organization; 2. Creation of sources of revenues; 3. Ancestral domain and natural resources 4. Personal, family and property relations 5. Regional, urban, and rural planning

development; 6. Economic, social, and tourism development; 7. Educational policies; 8. Preservation and development of the cultural

heritage; and 9. Such other matters as may be authorized by

law for the promotion of the general welfare of the people of the region.

Limitations:

1. Subject to the provisions of the Constitution and national laws

2. To be exercised within its territorial jurisdiction

Sec. 21. PRESERVATION OF PEACE AND ORDER/DEFENSE AND SECURITY Peace and Order It shall be the responsibility of the local police agencies.

Defense and Security It shall be the responsibility of the national government. ARTICLE XI: ACCOUNTABILITY OF PUBLIC OFFICERS Sec. 1: PUBLIC OFFICE AS 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. Sec. 2: IMPEACHMENT/REMOVAL FROM OFFICE Impeachment: (as means of removal from office)

1. Who may be impeached: a. President b. VP c. SC Justices d. Constitutional Commission members e. Ombudsman

2. Grounds (CODE: CT-GOBB)

a. Culpable violation of the Constitution b. treason c. graft and corruption d. other high crimes or e. betrayal of public trust f. bribery

NOTE: It is an exclusive list. Congress cannot, by law, add to the list of impeachable offenses. These officers cannot be charged in court with offenses that have removal from office as penalty. BUT AFTER an official has been impeached, he can be charged with the appropriate offense. Resignation by an impeachable official does not place him beyond the reach of impeachment proceedings; he can still be impeached. All Other Public Officers and Employees They may be removed from office as provided by law BUT: NOT by impeachment Section 3: PROCEDURE FOR IMPEACHMENT Exclusive Power of House of Representatives The House of Representatives has exclusive power to INITIATE all cases of impeachment. Procedure:

1. Filling of verified complaint. Can be filed by:




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a. Any member of the House of Representatives or

b. Any citizen upon a resolution or endorsement by any Member of the House or

c. By at least 1/3 of all the Members of the House of Representatives

2. Inclusion of complaint in the order of business with 10 session days

3. Referral to proper Committee within 3 session days thereafter

4. Submission of Committee report to the House together with corresponding resolution

5. The report should be submitted within 60 days from referral, after hearing, and by a majority vote of ALL its members.

6. Calendaring of resolution for consideration by the House

7. Should be done within 10 session days from receipt thereof

8. Vote of at least 1/3 of all Members of the House necessary to: a. Affirm a favorable resolution with the

Articles of Impeachment of the Committee or

b. To override its contrary resolution NOTE: If the verified complaint or resolution of impeachment was filed by at least 1/3 of all the Members of the House, it shall constitute the Articles of Impeachment. Trial in the Senate shall proceed. Trial in the Senate Senate has the sole power to try and decide all cases of impeachment. For this purpose, the Senators shall be under oath or affirmation. When the President of the Philippines is on trial, the CJ of the Supreme Court presides. However, he/she will not vote. Judgment of Conviction This requires the concurrence of 2/3 of all the Members of the Senate Effect of the Impeachment

1. Removal from office of the official concerned 2. Disqualification to hold any office under the

Republic of the Philippines 3. Officer still liable to prosecution, trial, and

punishment if the impeachable offense committed also constitutes a felony or crime.

Sec. 4. SANDIGANBAYAN Sandiganbayan = the anti-graft court People v. Sandiganbayan, 451 SCRA 413, February 16, 2005 Ratio: The fact that legislature. in mandating the inclusion of “ presidents, directors or trustees, or managers of government-owned and controlled corporations” within the jurisdiction of the Sandiganbayan, has consistently refrained form making any distinction with respect to the manner of their creation clearly reveals its intention to include such officials of GOCCs with original charters and those organized and incorporated under the Corporation Code within the jurisdiction of the Sandiganbayan whenever they are involved in graft and corruption. Sections 5-6, 8-14: OFFICE OF THE OMBUDSMAN Composition:

1. Ombudsman/Tanodbayan 2. Overall deputy - at least one Deputy each for

Luzon, Visayas and Mindanao. Deputy for military establishment may be appointed

Qualifications: (Ombudsman and his deputies)

1. Natural born citizen of the Philippines 2. At least 40 years old at time of appointment 3. Of recognized probity and independence 4. Member of the Philippine bar 5. Must not have been candidate for any

elective office in the immediately preceding election

6. For Ombudsman: He must have been for ten years or more a. A judge or b. Engaged in the practice of law in the

Philippines

Disqualifications/Prohibitions (under Article IX, Section 2)

1. Cannot hold any other office or employment during his tenure

2. Cannot engage in the practice of any profession or in the active management or control of any business which may be affected by the functions of his office

3. Cannot be financially interested, directly or indirectly, in any contract with or in any




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franchise or privilege granted by the Government, any of its subdivisions, agencies or instrumentalities, including GOCCs or their subsidiaries

Appointment: A. Of Ombudsman and deputies

1. By the president from a list of at least 6 nominees prepared by the Judicial and Bar Council. Vacancies will be filled from a list of 3 nominees

2. Appointments do NOT require confirmation 3. All vacancies shall be filled within 3 months

after they occur. B. Of other officials and employees of the Office of the Ombudsman

1. By the Ombudsman 2. In accordance with Civil Service Law

Term: (Ombudsman and deputies)

1. 7 years with reappointment 2. They are NOT qualified to run for any office

in the election immediately succeeding their cessation from office

Rank/Salaries:

1. The Ombudsman has the rank of Chairman of a Constitutional Commission

2. The Members have the rank of members of a Constitutional Commission

3. Their salaries cannot be decreased during their term of office.

Powers, Functions and Duties of the Office of the Ombudsman

1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

a. Such may be delegated. b. The power to investigate includes the

power to impose preventive suspension. But, this is not a penalty.

c. “INVESTIGATE” does not mean preliminary investigation.

d. The complaint need not be drawn up in the usual form.

e. The “ILLEGAL” act or omission need not be in connection with the duties of the public officer or employee concerned.

f. ANY illegal act may be investigated by the Ombudsman. In this regard, the Ombudsman’s jurisdiction is

CONCURRENT with that of the regular prosecutors.

2. Direct, upon complaint or at its own instance,

any public official or employee of the government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act of duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.

a. The Ombudsman has PERSUASIVE

POWER, and may require that proper legal steps are taken by the officers concerned.

b. The public official or employee must be employed in:

i. The Government ii. Any subdivision, agency, or

instrumentality thereof; or iii. GOCC’s with original charters

c. The SC has held that the SP may prosecute before the Sandiganbayan judges accused of graft and corruption, even if they are under the Supreme Court.

3. Direct the officer concerned to take the

appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. a. The Ombudsman does NOT himself

prosecute cases against public officers or employees.

b. Final say to prosecute still rests in the executive department.

c. The Ombudsman or Tanodbayan may use mandamus to compel the fiscal to prosecute.

3. Direct the officer concerned, in any

appropriate case, and subject to such limitations as may be provided by law to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds of properties, and report any irregularity to COA for appropriate action.

4. Request any government agency for

assistance and information necessary in the discharge of its responsibilities, and to




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examine, if necessary, pertinent records and documents.

5. Public matters covered by its investigation

when circumstances so warrant and with due process

6. Determine the cause of inefficiency, red tape,

mismanagement, fraud and corruption in the government and make recommendations for their elimination and the observance of high standards of ethics and efficiency

7. Promulgate its rules of procedure and

exercise such other powers or perform such functions or duties as may be provided by law

NOTE: The Office of the Ombudsman also has the duty to act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality including GOCCs and their subsidiaries. In appropriate cases, it should notify the complainants of the action taken and the result thereof. Fiscal Autonomy: The Office of the Ombudsman enjoys fiscal autonomy. Its approved annual appropriations should be automatically and regularly released. Section 7: OFFICE OF THE SPECIAL PROCECUTOR Under the 1987 Constitution, the existing Tanodbayan became the Office of the Special Prosecutor Powers It will continue to function and exercise its powers as now or hereafter may be provided by law Exception: Powers conferred on the Office of the Ombudsman NOTE: The Office of the Special Prosecutor is subordinate to and acts under the orders of the Ombudsman NOTE: According to Jack, the SC was wrong because the ConCom intended that the SP was to prosecute anti-graft cases.

Section 15: RECOVERY OF ILL-GOTTEN WEALTH Prescription, Laches, Estoppel The right of the State to recover properties unlawfully acquired by public officials and employees from them or from their nominees or transferees shall NOT be barred by prescription, laches or estoppel. Their right to prosecute criminally these officials and employees may prescribe. Section 16: PROHIBITION ON CERTAIN FINANCIAL TRANSACTIONS Coverage: This prohibition applies to:

1. President 2. Vice-President 3. Members of the Cabinet 4. Members of Congress 5. Members of Supreme Court 6. Members of Constitutional Commissions

Ombudsman 7. Any firm or entity in which they have

controlling interest When prohibition applies: during their TENURE. Scope of prohibition:

1. The above mentioned officials cannot obtain, directly or indirectly for BUSINESS PURPOSES:

a. Loans b. Guarantees c. Other forms of financial accommodation

from: i. Government owned or controlled

banks; or ii. Government owned or controlled

financial institutions.

2. If the loan, etc, is NOT for business purpose, e.g. a housing loan, the prohibition does not apply.

Section 17: Statements of assets, liabilities and net worth When submitted: Public officer and employee shall submit a declaration under oath of his assets, liabilities and net worth upon assumption of office and as often as required under the law. When declaration shall be disclosed to the public:




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These declarations shall be disclosed to the public in a manner provided by law in the case of:

1. President 2. Vice-President 3. Members of the Cabinet 4. Members of Congress 5. Justices of the Supreme Court 6. Members of Constitutional Commissions 7. Other constitutional offices 8. Officers of the armed forces with general or

flag rank Section 18: Allegiance of public officers and employees Allegiance to the State and to the Constitution Change in Citizenship/Immigrant Status

1. Incumbent public officers and employees who seek either change in his citizenship; or to acquire immigrant status in another country shall be dealt with by law.

2. If Philippine citizenship is one of the qualifications to the office, the loss of such citizenship means the loss of the office by the incumbent.

3. The Election Code provides the rules with respect to non-incumbents, i.e. persons running for elective offices.

4. The Code provides that permanent residents of or immigrant to a foreign country cannot file certificates of candidacy unless they expressly waive their status as such

NOTE: This renunciation must be some other than, and prior to, the filling of the certificate of candidacy. Re: Report on the On-the-Spot Judicial Audit Conducted in the RTC Branches 45 & 53, Bacolod City*, 467 SCRA 20, August 16, 2005 Ratio: A judge’s high case load, his being assigned in other salas with also heavy case load, not to mention the fact that he has to traverse long distance by public utility buss and has to attend to some other additional assignments could constitute sufficient justification for his non-compliance with his duty to decided cases within the 90-day period as mandated by the Constitution. Chan v. Lantion*, 468 SCRA 37, August 25, 2005 Ratio: The transfer of the branch clerk of court to the office of the Provincial Prosecutor or the difficulty encountered by the legal researcher in studying

some material points, heavy work load, and other circumstances allegedly beyond her control does not absolve a judge from liability for failure to decide a case within the reglementary period. ARTICLE XII – NATIONAL ECONOMY AND PATRIMONY SEC. 1. GOALS OF THE NATIONAL ECONOMY Three-fold goal:

2. More equitable distribution of opportunities, income and wealth;

3. Sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and

4. Expanding productivity, as the key to raising the quality of life for all.

The State shall promote industrialization and full employment

1. It should be based on sound agricultural development and agrarian reform

2. It should be through industries that make full and efficient use of human and natural resources. Industries should also be competitive in both domestic and foreign markets.

Protection of Filipino enterprises The State shall protect Filipino enterprises against unfair foreign competition and trade practices. Role of Private Enterprises Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership. Section 2. REGALIAN DOCTRINE Distinction between Imperium and Dominium Imperium: Government authority possessed by the State which is appropriately embraced in sovereignty. Dominium:

a. The capacity of the State to own and acquire property.

b. It refers to lands held by the government in a proprietary character: can provide for the exploitation and use of lands and other natural resources.

Scope:




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The following are owned by the State: 1. Lands of the public domain: 2. Waters 3. Minerals, coals, petroleum, and other mineral

oils; 4. All sources of potential energy; 5. Fisheries; 6. Forests or timber; 7. Wildlife; 8. Flora and fauna; and 9. Other natural resources.

Alienation of Natural Resources

1. General Rule: All natural resources CANNOT be alienated

2. Exception: Agricultural lands Exploration, Development and Utilization of Natural Resources

1. Shall be under the full control and supervision of the State

2. Means a. The state may DIRECTLY UNDERTAKE

such activities b. The state may enter into CO-

PRODUCTION, JOINT VENTURE OR PRODUCTION-SHARING arrangements with Filipino citizen or Corporation or association at least 60% of whose capital is owned by such citizens

3. Limitations: a. Period: It should not exceed 25 years,

renewable for not more than 25 years b. Under terms and conditions as may be

provided by law. 5. In case of water rights/water

supply/fisheries/industrial uses other than the development of water power

6. The beneficial use may be the measure and limit of the grant.

Small-scale Utilization of Natural Resources

1. Congress may, by law, authorize small-scale utilization of natural resources by Filipino citizens

2. Congress may also authorize cooperative fish farming with priority given to subsistence fishermen and fishworkers in the rivers, lakes, bays and lagoons.

Large-Scale Exploration, Development and Utilization of Minerals/Petroleum/Other Mineral Oils

1. The President may enter into agreements with foreign owned corporations involving technical or financial assistance for large-

scale exploration etc. of minerals, petroleum, and other mineral oils. These agreements should be in accordance with the general terms and conditions provided by law.

2. They should be based on the real contributions to economic growth and general welfare of the country.

3. In the agreements, the State should promote the development and use of local scientific and technical resources.

4. The President should notify Congress of every contract under this provision within 30 days from its execution.

5. Management and service contracts are not allowed under this rule.

Protection of Marine Wealth

1. The State shall protect its marine wealth in its archipelagic waters, territorial sea & EEZ

2. The State shall reserve its use and enjoyment exclusively to Filipino citizens.

Sec. 3. LANDS OF THE PUBLIC DOMAIN ARE CLASSIFIED INTO:

1. Agricultural 2. Forest/timber 3. Mineral lands & 4. National Parks

NOTE:

1. Reclassification of PUBLIC (MINERAL AND AGRICULTURAL) lands - exclusive prerogative of the Executive Department through the Office of the President, upon recommendation by the DENR.

But as to FOREST AND NATIONAL PARKS, it is the Congress which has the sole power to reclassify.

2. Classification is descriptive of the legal nature of the land and NOT what it looks like. Thus, the fact that forest land is denuded does not mean it is no longer forest land.

Alienable lands of public domain

1. Only agricultural lands are alienable. 2. Agricultural lands may be further classified by

law according to the uses to which they may be devoted.

Limitations regarding Alienable Lands of the Public Domain

1. For private corporations or associations a. They can only hold alienable lands of the

public domain BY LEASE




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b. Period: Cannot exceed 25 years, renewable for not more than 25 years

c. Area: Lease cannot exceed 1,000 hectares

NOTE: A corporation sole is treated like other private corporations for the purpose of acquiring public lands.

2. For Filipino citizens

a. Can lease up to 500 hectares b. Can ACQUIRE not more than 12 hectares

by purchase, homestead or grant Means by Which Lands of the Public Domain Become Private Land

1. Acquired from government by purchase or grant;

2. Uninterrupted possession by the occupant and his predecessors-in-interest since time immemorial; and

3. Open, exclusive, and undisputed possession of ALIENABLE (agricultural) public land for a period of 30 years.

a. Upon completion of the requisite period, the land becomes private property ipso jure without need of any judicial or other sanction.

b. Possession since time immemorial leads to the presumption that the land was never part of public domain.

c. In computing 30 years, start from when land was converted to alienable land, not when it was still forest land

d. Presumption is always that land belongs to the State.

Sec. 4. Congress shall, as soon as possible, determine by law, the specific limits of forest lands and national parks, marking clearly their boundaries on the ground. Thereafter, such forest lands and national parks shall be conserved and may not be increased or diminished, except by law. Congress shall provide measures to prohibit logging in endangered forest and Watershed areas for such period as it may determine. Sec. 5. ANCESTRAL LANDS Protection of Indigenous Cultural Communities

1. The State protects the rights of indigenous cultural communities to their ancestral lands a. Subject to Constitutional provisions b. Subject to national development policies

and programs

2. In determining ownership and extent of ancestral domain, Congress may use customary laws on property rights and relations.

3. “ANCESTRAL DOMAIN” a. It refers to lands which are considered as

pertaining to a cultural region b. This includes lands not yet occupied,

such as deep forests.

Section 7. PRIVATE LANDS General rule

1. Private lands CAN only be transferred or conveyed to: a. Filipino citizens b. Corporations or associations

incorporated in the Philippines, at least 60% of whose capital is owned by Filipino citizens

Exceptions i. In intestate succession, where an alien

heir of a Filipino is the transferee of private land.

ii. A natural born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of PRIVATE LAND, subject to limitation provided by law. Hence, land can be used only for residential purposes. In this case, he only acquires derivative title.

iii. Foreign states may acquire land but only for embassy and staff residence purposes.

3. Filipino citizenship is only required at the time the land is acquired. Thus, loss of citizenship after acquiring the land does not deprive ownership.

4. Restriction against aliens only applies to acquisition of ownership. Therefore: a. Aliens may be lessees or usufructuaries

of private lands b. Aliens may be mortgagees of land, as

long as they do not obtain possession thereof and do not bid in the foreclosure sale.

5. Land tenure is not indispensable to the free exercise of religious profession and worship. A religious corporation controlled by non-Filipinos cannot acquire and own land, even for religious purposes.

Remedies to recover private lands from disqualified aliens:

1. Escheat proceedings




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2. Action for reversion under the Public Land Act

3. An action by the former Filipino owner to recover the land a. The former in pari delicto principle has

been abandoned b. Alien still has the title (didn’t pass it on to

one who is qualified)

J.G. Summit Holdings v. Court of Appeals, 450 SCRA 169, January 31, 2005 Ratio: The prohibition under Section 7, Article XII of the Constitution applies only to ownership of land – it does not extend to immovable or real property as defined in Article 415 of the Civil Code The agreement of co-shareholders to mutually grant the right of first refusal to each other, by itself, does not constitute a violation of the provisions of the Constitution limiting land ownership to Filipinos and Filipino Corporations. If the foreign shareholdings of a landholding corporation exceeds 40%, it is not the foreign stockholders’ ownership of the shares which is adversely affected but the capacity of the corporation to own land – that is, the corporation becomes disqualified to own land. Section 10. NATIONAL ECONOMY AND PATRIMONY/INVESTMENTS Power of Congress

1. Congress, upon the recommendation of NEDA, can reserve to Filipino citizens or to corporations or associations at least 60% of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investment. This may be done when the national interest dictates.

2. Congress shall also enact measures to encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos.

National Economy and Patrimony In the grant of rights, privileges and concessions covering the national economy and patrimony, the State shall give preference to QUALIFIED Filipinos. Sec. 11. FRANCHISES FOR PUBLIC UTILITIES Power to grant:

1. Congress may directly grant a legislative franchise; or

2. Power to grant franchises may be delegated to appropriate regulatory agencies and/or LGU’s

Public utility

1. In order to be considered as a public utility, and thus subject to this provision, the undertaking must involve dealing directly with the public.

2. Thus, a Build-Operate-Transfer grantee is NOT a public utility. The BOT grantee merely constructs the utility, and it leases the same to the government. It is the government which operates the public utility (operation separate from ownership).

To whom granted:

1. Filipino citizens or 2. Corporations or associations incorporated in

the Philippines and at least 60% of the capital is owned by Filipino citizens.

Terms and conditions:

1. Duration: Not more than 50 years 2. Franchise is NOT exclusive in character 3. Franchise is granted under the condition that

it is subject to amendment, alteration, or repeal by Congress when the common good so requires.

Participation of Foreign Investors

1. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital.

2. Foreigners cannot be appointed as the executive and managing officers because these positions are reserved for Filipino citizens.

Sec.16.FORMATION/ORGANIZATION/

REGULATION OF CORPORATIONS

1. Private corporations Congress can only provide for the

formation, etc of private corporations through a general law.

2. GOCC’s They may be created by: a. Special charters in the interest of the

common good and subject to the test of economic viability.

b. By incorporation under the general corporation law.




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Sections 18-19. SPECIAL ECONOMIC POWERS OF THE GOVERNMENT

1. Temporary takeover or direction of operations: a. Conditions

i. National emergency and ii. When the public interest requires

b. May be used against privately owned public utilities or businesses affected with public interest.

c. Duration of the takeover: period of emergency

d. Takeover is subject to reasonable terms and conditons

e. No need for just compensation because it is only temporary.

2. Nationalization of vital industries:

a. Exercised in the interest of national welfare or defense

b. Involves either: i. Establishment and operation of vital

industries; or ii. Transfer to public ownership, upon

payment of just compensation, public utilities and other private enterprises to be operated by the government.

Section 19. MONOPOLIES

1. The Constitution does NOT prohibit the

existence of monopolies. 2. The State may either regulate or prohibit

monopolies, when public interest so requires. 3. Combinations in restraint of trade or unfair

competition are prohibited. Filipino citizenship or equity requirements: ACTIVITY CITIZENSHIP AND/OR

EQUITY REQUIREMENTS Exploitation of natural resources

1. Filipino citizens; or 2. Corporations incorporated in RP, with 60% Filipino ownership

Operation of Public Utilities

1. Filipino citizens; or 2. Corporations incorporated in RP, with 60% Filipino ownership

Acquisition of alienable lands of the public domain

1. Filipino citizens; or 2. Corporations incorporated in RP, with 60% Filipino ownership 3. Former natural-born citizens of RP, as

transferees, with certain legal restrictions; and 4. Alien heirs as transferees in case of intestate succession.

Practice of ALL professions

Filipino citizens only (natural persons) *But Congress may, by law, otherwise prescribe

Mass media 1. Filipino citizens; or 2. Corporations incorporated in RP, and 100% Filipino owned

Advertising 1. Filipino citizens; or 2. Corporations incorporated in RP, and 70% Filipino owned

Educational Institution 1. Filipino citizens; or 2. Corporations incorporated in RP, and 60% Filipino owned EXCEPT: Schools established by religious groups and mission boards. Congress may, by law, increase Filipino requirements for ALL educational institutions

Other economic activities

Congress may, by law, reserve to Filipino citizens or to corporations 60% Filipino owned (or even higher) certain investment areas.

ARTICLE XIII – SOCIAL JUSTICE AND HUMAN RIGHTS

Social Justice

1. Social justice in the Constitution is principally the embodiment of the principle that those who have less in life should have more in law.

2. The 1987 Constitution advances beyond what was in previous Constitutions in that it seeks not only economic social justice but also political social justice.

Principal activities in order to achieve social justice

1. Creation of more economic opportunities and more wealth; and

2. Closer regulation of the acquisition, ownership, use and disposition of property in




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order to achieve a more equitable distribution of wealth and political power.

Labor Section 3 of Article XIII elaborates on the provision in Article II by specifying who are protected by the Constitution, what rights are guaranteed, and what positive measures the state should take in order to enhance the welfare of labor. Right to organize and to hold peaceful concerted activities The right to organize is given to all kinds of workers BOTH in the PRIVATE and PUBLIC sectors. The workers have a right to hold peaceful concerted activities except the right to strike, which is subject to limitation by law. Right to participate in the decision making process of employers The workers have the right to participate on matters affecting their rights and benefits, “as may be provided by law”. This participation can be through

1. collective bargaining agreements, 2. grievance machineries, 3. voluntary modes of settling disputes, and 4. conciliation proceedings mediated by

government.

Agrarian Reform Goals: Agrarian reform must aim at

1. efficient production, 2. a more equitable distribution of land which

recognizes the right of farmers and regular farmworkers who are landless to own the land they till, and

3. a just share of other or seasonal farmworkers in the fruits of the land.

CARL as an exercise of police power and power of eminent domain: To the extent that the law prescribes retention limits for landowners, there is an exercise of police power. But where it becomes necessary to deprive owners of their land in excess of the maximum allowed, there is compensable taking and therefore the exercise of eminent domain. Reach of agrarian reform It extends not only to private agricultural lands, but also to “other natural resources,” even including the use and enjoyment of “communal marine and fishing resources” and “offshore fishing grounds”. The Commission on Human Rights Composition:

1. Chairman; and

2. 4 members Qualifications:

1. Natural-born citizens of the Philippines; 2. Majority of the Commission must be

members of the Philippine Bar; 3. Term of office, other qualifications and

disabilities shall be provided by law; 4. The appointment of the CHR members is

NOT subject to CA confirmation; and 5. The CHR is not of the same level as the

COMELEC, CSC, or COA. Powers:

1. INVESTIGATE all forms of human rights violations involving civil or political rights a. Violations may be committed by public

officers or by civilians or rebels. b. CHR cannot investigate violations of

social rights. c. CHR has NO adjudicatory powers over

cases involving human rights violations. d. They cannot investigate cases where no

rights are violated. e. Example: There is no right to occupy

government land, i.e. squat thereon. Therefore, eviction therefrom is NOT a human rights violation.

2. ADOPT operational guidelines and rules of procedure.

3. CITE FOR CONTEMPT for violations of its rules, in accordance with the Rules of Court.

4. PROVIDE APPROPRIATE LEGAL MEASURES for the protection of the human rights of all persons, within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection. a. CHR can INITIATE COURT

PROCEEDINGS on behalf of victims of human rights violations.

b. They can RECOMMEND THE PROSECUTION of human rights violators, but it cannot itself prosecute these cases.

c. BUT: The CHR CANNOT ISSUE RESTRAINING ORDERS OR INJUNCTIONS against alleged human rights violators. These must be obtained from the regular courts.

5. EXERCISE VISITORIAL POWERS over jails, prisons and other detention facilities.

6. ESTABLISH CONTINUING PROGRAMS FOR RESEARCH, education and information




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in order to enhance respect for the primacy of human rights.

7. RECOMMEND TO CONGRESS EFFECTIVE MEASURES to promote human rights and to provide compensation to victims of human rights violations or their families.

8. MONITOR COMPLIANCE BY THE GOVERNMENT with international treaty obligations on human rights.

9. GRANT IMMUNITY FROM PROSECUTION to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any CHR investigation.

10. REQUEST ASSISTANCE from any department, bureau, office, or agency in the performance of its functions.

11. APPOINT ITS OFFICERS and employers in accordance with law.

12. Perform such OTHER FUNCTIONS AND DUTIES as may be provided for by law.

ARTICLE XIV - EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS Education Goals of the State: The State shall promote and protect:

1. The right to quality education at all levels; 2. The right to affordable and accessible

education; and 3. Education that is relevant to the needs of

people and society. Right to Education and Academic Freedom The right to education must be read in conjunction with the academic freedom of schools to require “fair, reasonable, and equitable admission requirements.” Power to Dismiss Students

1. Schools have the power to dismiss students, after due process, for disciplinary reasons.

2. Acts committed outside the school may also be a ground for disciplinary action if: a. It involves violations of school policies

connected to school-sponsored activities; or

b. The misconduct affects the student’s status, or the good name or reputation of the school.

Regulation of Right to Education The right to education in particular fields may be regulated by the State in the exercise of its police power, e.g. the State may limit the right to enter

medical school by requiring the applicants to take the NMAT. Free Education

1. The State shall maintain a system of free education in: a. Elementary level, and b. High school level.

2. Elementary education is compulsory for all children of school age. However, this is a moral rather than a legal compulsion.

Educational Institutions: I. Filipinization

1. Ownership: a. Filipino citizens, or b. Corporations incorporated in RP and

60% Filipino-owned. EXCEPT: Schools established by

religious groups and mission boards. c. Congress may increase Filipino equity

requirements in ALL educational institutions.

2. Control and Administration: a. Must be vested in Filipino citizens b. Refers to line positions, such as

President, Dean, Principal, and Trustees c. Faculty members may be foreigners.

3. Student Population: GENERAL RULE: Cannot establish

school exclusively for aliens. Aliens can only comprise up to 1/3 of total enrollment.

EXCEPTIONS: Schools established for foreign diplomatic personnel and their dependents, and unless otherwise provided for by law for other foreign temporary residents.

II. Tax Exemptions

1. Non-stock, non-profit educational institutions: a. All revenues and assets actually, directly

and exclusively used for educational purposes are exempt from taxes and duties.

b. This is self-executory. 2. Proprietary educational institutions, including

cooperatives: a. Entitled to exemptions as may be

provided by law, including restrictions on dividends and re-investment

b. Requires an enabling statute c. Grants, endowments, donations and

contributions actually, directly and exclusively used for educational purposes are exempt from taxes, subject to conditions prescribed by law.




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III. Academic Freedom

1. Educational Institutions Schools have the freedom to determine: a. Who may teach, b. What may be taught, c. How it shall be taught, and d. Who may be admitted to study

2. Faculty members a. Full freedom in research and in the

publication of the results, subject to the adequate performance of their other academic duties.

b. Freedom in the classroom in discussing their subjects, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subjects.

c. When faculty members speak or write in their capacity as citizens, then they are free from institutional censorship or discipline.

3. Students

They have the right to enjoy in school the guarantees of the Bill of Rights.

4. Limitations a. Dominant police power of the State b. Social interest of the community

5. Budgetary Priority: Education must be assigned the highest budgetary priority. BUT: This command is not absolute. Congress is free to determine what should be given budgetary priority in order to enable it to respond to the imperatives of national interest and for the attainment of other state policies or objectives.

Religious Education in Public Schools

Religion may be taught in public schools subject to the following requisites: 1. Express written option by parents and

guardians; 2. Taught within regular class hours; 3. Instructors are designated and approved by

the proper religious authorities; and 4. WITHOUT ADDITIONAL COST TO THE

GOVERNMENT. Section 6. Language

National language: Filipino Official Languages: Filipino, and unless

otherwise provided by law, English. Regional languages are auxiliary to the

official languages. Spanish and Arabic are promoted only on an

optional and voluntary basis.

ARTICLE XVI - GENERAL PROVISIONS Sections 1-2. Symbols of Nationality

1. FLAG a. Red, white, and blue. b. With a sun and 3 stars c. The design may be changed by

constitutional amendment. 2. Congress may, by law, adopt a new:

A. NAME FOR THE COUNTRY, b. NATIONAL ANTHEM, or C. NATIONAL SEAL.

NOTE: Law will take effect upon ratification by the people in a NATIONAL REFERENDUM.

Section 3. State Immunity Suability of State

1. The State cannot be sued without its consent.

2. When considered a suit against the State a. The Republic is sued by name; b. Suits against an un-incorporated

government agency; c. Suit is against a government official, but

is such that ultimate liability shall devolve on the government i. When a public officer acts in bad faith,

or beyond the scope of his authority, he can be held personally liable for damages.

ii. BUT: If he acted pursuant to his official duties, without malice, negligence, or bad faith, he is not personally liable, and the suit is really one against the State.

3. This rule applies not only in favor of the Philippines but also in favor of foreign states.

4. The rule likewise prohibits a person from filing for interpleader, with the State as one of the defendants being compelled to interplead.




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Consent to be sued I. Express consent:

1. The law expressly grants the authority to sue the State or any of its agencies.

2. Examples: a. A law creating a government body

expressly providing that such body “may sue or be sued.”

b. Art. 2180 of the Civil Code, which creates liability against the State when it acts through a special agent.

II. Implied consent:

1. The State enters into a private contract. The contract must be entered into by

the proper officer and within the scope of his authority.

UNLESS: The contract is merely incidental to the performance of a governmental function.

2. The State enters into an operation that is

essentially a business operation. a. UNLESS: The operation is incidental to

the performance of a governmental function (e.g. arrastre services)

b. Thus, when the State conducts business operations through a GOCC, the latter can generally be sued, even if its charter contains no express “sue or be sued” clause.

NOTE: difference between: i. Jure Gestionis - by right of

economic or business relation =may be sued

ii. Jure Imperii - by right of sovereign power, in the exercise of sovereign functions.= no implied consent; cannot be sued.

3. Suit against an incorporated government

agency. 4. This is because they generally conduct

proprietary business operations and have charters, which grant them a separate juridical personality.

5. The State files suit against a private party. 6. UNLESS: The suit is entered into only to

resist a claim. Garnishment of government funds: GENERAL RULE: Not allowed. Whether the money

is deposited by way of general or special deposit, they remain government funds and are not subject to garnishment.

EXCEPTION: Where a law or ordinance has been enacted appropriating a specific amount to pay a valid government obligation, then the money can be garnished.

Consent to be sued is not equivalent to consent to liability:

1. The Fact that the State consented to being sued does not mean that the State will ultimately be held liable.

2. Even if the case is decided against the State, an award cannot be satisfied by writs of execution or garnishment against public funds. Reason: No money shall be paid out of the public treasury unless pursuant to an appropriation made by law.

Rules regarding payment of Interests by Government in Money Judgments against it: GENERAL RULE: Government cannot be made to pay interests; EXCEPTIONS:

1. Eminent domain; 2. Erroneous collection of taxes; or 3. Where government agrees to pay interest

pursuant to law. Section 4. THE ARMED FORCES OF THE PHILIPPINES Composition: A citizen armed force Prohibitions and disqualifications:

1. Military men cannot engage, directly or indirectly, in any partisan political activity, except to vote.

2. Members of the AFP in active service cannot be appointed to a civilian position in the government, including GOCCs or their subsidiaries.

The Chief of Staff: GENERAL RULE: Tour of duty: Not to exceed three years EXCEPTION: In times of war or other national

emergency as declared by Congress, the President may extend such tour of duty.

ARTICLE XVII- AMENDMENTS OR REVISIONS

DEFINITIONS:




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AMENDMENT: an alteration of one or a few specific provisions of the Constitution. Its main purpose is to improve specific provisions of the Constitution. The changes brought about by amendments will not affect the other provisions of the Constitution.

REVISION: An examination of the entire Constitution to determine how and to what extent it should be altered. A revision implies substantive change, affecting the Constitution as a whole.

Constituent power Legislative power 1. The power to formulate a Constitution or to propose amendments to or revisions of the Constitution and to ratify such proposal

1. The power to pass, repeal or amend ordinary laws or statutes (as opposed to organic law)

2. It is exercised by Congress (by special constitutional conferment), by a Constitutional Convention or Commission, by the people through initiative and referendum, and ultimately, by the sovereign electorate

2. It is an ordinary power of Congress and of the people, also through initiative and referendum.

3. The exercise of constituent power does not need the approval of the Chief Executive

the exercise of legislative power ordinarily needs the approval of the Chief Executive, except when done by people through initiative and referendum.

Three (3) steps necessary to give effect to amendments and revisions:

1. Proposal of amendments or revisions by the proper constituent assembly;

2. Submission of the proposed amendments or revisions; and

3. Ratification. Proposal of amendments: Amendments may be proposed by:

1. Congress, acting as a constituent assembly, by a 3/4 vote of all its members. a. The power of Congress to propose

amendments is NOT part of its ordinary legislative power.

b. The only reason Congress can exercise such power is that the Constitution has granted it such power.

2. Constitutional Convention:

a. How a Constitutional Convention may be called i. Congress may call a ConCon by a 2/3

vote of all its members; or ii. By a majority vote of all its members,

Congress may submit to the electorate the question of whether to call a ConCon or not.

b. Choice of which constituent assembly (either Congress or ConCon) should initiate amendments and revisions is left to the discretion of Congress. In other words, it is a political question.

c. BUT: The manner of calling a ConCon is subject to judicial review, because the Constitution has provided for voting requirements.

d. If Congress, acting as a constituent assembly, calls for a ConCon but does not provide the details for the calling of such ConCon, Congress - exercising its ordinary legislative power - may supply such details. But in so doing, Congress (as legislature) should not transgress the resolution of Congress acting as a constituent assembly.

e. Congress, as a constituent assembly and the ConCon have no power to appropriate money for their expenses. Money may be spent from the treasury only pursuant to an appropriation made by law.

3. People’s Initiative a. Petition to propose such amendments

must be signed be at least 12% of ALL registered voters.

b. Every legislative district represented by at least 3% of the registered voters therein.

c. Limitation: It cannot be exercised more often than once every 5 years

Defensor-Santiago v. COMELEC, G.R. 127325 Requires implementing legislation: The Supreme Court held that RA 6735, the Initiative and Referendum law is insufficient. Therefore, amendment by initiative and referendum must still await a valid law. NOTE:

1. While the substance of the proposals made by each type of constituent assembly is not subject to judicial review, the manner the proposals are made is subject to judicial review.

2. Since these constituent assemblies owe their




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existence to the Constitution, the courts may determine whether the assembly has acted in accordance with the Constitution.

3. Examples of justiciable issues: a. Whether a proposal was approved by the

required number of votes in Congress (acting as a constituent assembly).

b. Whether the approved proposals were properly submitted to the people for ratification.

Proposal of Revisions By Congress, upon a vote of 3/4 of its members By a constitutional convention Ratification Amendments and revisions proposed by Congress and/or by a ConCon:

Valid when ratified by a MAJORITY of votes cast in a plebiscite.

Plebiscite is held not earlier than 60 days nor later than 90 days from the approval of such amendments or revisions.

Amendments proposed by the people via initiative: Valid when ratified by a MAJORITY of votes cast in a plebiscite. Plebiscite is held not earlier than 60 days nor later than 90 days after the certification by COMELEC of the petition's sufficiency. Requisites of a valid ratification:

1. Held in a plebiscite conducted under the election law;

2. Supervised by the COMELEC; and 3. Where only franchised voters (registered)

voters take part.

Issues regarding ratification: The Constitution does not require that amendments and revisions be submitted to the people in a special election. Thus, they may be submitted for ratification simultaneously with a general election. The determination of the conditions under which proposed amendments/revisions are submitted to the people falls within the legislative sphere. That Congress could have done better does not make the steps taken unconstitutional. All the proposed amendments/revisions made by the constituent assemblies must be submitted for ratification in one single plebiscite. There cannot be a piece-meal ratification of amendments/revisions.

Presidential proclamation is NOT required for effectivity of amendments/revisions, UNLESS the proposed amendments/revisions so provide.

ARTICLE XVIII - TRANSITORY PROVISIONS

Effectivity of the 1987 Constitution The 1987 Constitution took effect immediately upon its ratification. According to the SC, this took place on February 2, 1987, which was the day the




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PUBLIC INTERNATIONAL LAW

THE NATURE OF INTERNATIONAL LAW International Law – Set of rules and principles that governs the relationships between States and other international actors which under Modern International Law includes International Organizations, Transnational Corporations and Individuals. Distinction between a subject and object of international law

1. Subject - An entity that has rights and responsibilities under international law; it can be a proper party in transactions involving the application of international law among members of the international community.

2. Object - A person or thing in respect of which rights are held and obligations assumed by the subject; it is not directly governed by the rules of international law; its rights are received, and its responsibilities imposed, indirectly through the instrumentality of an international agency.

NOTE: Given the trend in International Law today, with the birth of the ICC and Arbitration Courts, the line between a Subject and Object of International is increasingly being blurred. Divisions of International Law

1. Laws Of Peace- governs the normal relations of States

2. Laws Of War - rules during periods of hostility

3. Laws Of Neutrality- rules governing States not involved in the hostilities

SOURCES OF INTERNATIONAL LAW

Article 38 of the Statute of the International Court of Justice (ICJ).

1. Primary a. Treaty / international conventions -

Generally, a treaty only binds the parties. However, treaties may be considered a direct source of Int'l law when concluded by a sizable no. of States, and is reflective of the will of the family of nations (in which case, a treaty is evidence of custom).

b. Custom – General and consistent practice of states followed by them from a sense of legal obligation. 2 Elements:

i. State Practice – a consistent and

uniform external conduct of States. Generally, both what states say and what they do are considered state practice.

ii. Opinio Juris - State practice must be accompanied with the conviction that the State is legally obligated to do so by int'l law, and not through mere courtesy or comity, or because of humanitarian considerations.

c. General Principles Of Law - Principles

common to most national systems of law; rules based on natural justice. Ex. good faith, estoppel, exhaustion of local remedies

2. Secondary

a. Judicial Decisions - a subsidiary means for the determination of rules of law (e.g., determining what rules of customary IL exist) that is acceptable so long as they correctly interpret and apply int'l law.

NOTE: Even decisions of national courts, when applying int'l law, are acceptable. Ex. Principles on diplomatic immunity have been developed by judgments of national courts.

b. Teachings Of The Most Highly

Qualified Publicists -- The word 'Publicist' means 'learned writer.' Learned writings, like judicial decisions, can be evidence of customary law, and can also play a subsidiary role in developing new rules of law.

Requisites for Highly Qualified Publicist

1. Fair and impartial representation of law. 2. By an acknowledged authority in the field.

Q: What is 'INSTANT' CUSTOM? A: Customary law may emerge even within a relatively short period of time, if within that period, State Practice has been uniform and extensive. It comes about as a spontaneous activity of a great number of states supporting a specific line of action.




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TREATIES

A treaty is an International Agreement in written form concluded between States that may be embodied in one or more instrument, and is governed by International Law. (Art. 2, Vienna Convention on the Law of Treaties). Q: If not in writing, is it still considered a treaty? A: Yes. Oral agreements between States are recognized as treaties under customary international law (but are extremely rare nowadays). 1. Difference between Treaty and Executive

Agreement TREATY EXECUTIVE

AGREEMENT SUBJECT MATTER

[CODE: PCI] 1. Political Issues 2. Changes in

National Policy 3. Involve

international arrangements of a permanent character

[CODE: TAAI] 1. Have Transitory

effectivityAdjustment of details carrying out well-established national policies and traditions

3. Arrangements of temporary nature

4. Implementation of treaties, statutes, well-established policies

Ratification

While the Constitution vests the power to NEGOTIATE treaties with the President, such must be RATIFIED by the 2/3 of the Senate to become valid and effective (Art.7, Sec 21)

Do not need to be ratified by the Senate

2. Principal Rules of International Law in

Connection to Treaties

a. Pacta Sunt Servanda – All parties to a Treaty must comply with their Treaty Obligation in Good Faith.

NOTE: A state can avoid PERFORMANCE if the treaty obligation collides with its Constitution, but it CANNOT escape LIABILITY it may incur as a result of such non-performance.

b. Rebus Sic Stantibus - A party is not bound

to perform a treaty if there has been a fundamental change of circumstances since the treaty was concluded.

i. Described as the exception to the rule of

pacta sunt servanda. ii. justifies the non-performance of a treaty

obligation if the subsequent condition in relation to which the parties contracted has changed so materially and unexpectedly as to create a situation in which the exaction of performance would be unreasonable.

iii. Rebus sic stantibus may not be invoked as a ground for terminating or withdrawing from a treaty: a. if the treaty establishes a boundary b. if the 'fundamental change' is the

result of a breach by the party invoking it of an obligation under the treaty or of any other obligation owed to any other party to the treaty.

c. Jus Cogens - a rule which has the status of

a preemptory (i.e., absolute, uncompromising) norm of international law where no derogation may be permitted. Elements: i. a norm accepted and recognized ii. by the int'l community of States as a

whole iii. as a norm from which no derogation is

permitted. iv. It can only be modified by a subsequent

norm having the same character. If a treaty, at the time of its

conclusion, conflicts with jus cogens, it is void.

Examples: 1. prohibition against the unlawful use of force; 2. prohibition against piracy, genocide, and

slavery

Steps in treaty-making process: 1. Negotiation; 2. Signature; 3. Ratification; 4. Exchange of Instruments of Ratification; 5. Registration with UN.

Reservation A unilateral statement made by a State when signing, ratifying, accepting, approving or acceding to a treaty,




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whereby it purports to exclude or to modify the legal effects of certain provisions of the treaty in their application to that State. Invalidity of treaties: Grounds

1. Error of fact 2. Fraud 3. Corruption 4. Duress 5. Jus cogens

Termination Of Treaty

1. Expiration of term; 2. Accomplishment of purpose; 3. Impossibility of performance; 4. Loss of subject matter; 5. Novation; 6. Desistance of parties; 7. Extinction of one of parties, if treaty is

bipartite; 8. Occurrence of vital change of

circumstances; 9. Outbreak of war; and 10. Voidance of treaty.

Succession to treaties: the “Clean Slate” rule When one state ceases to exist and is succeeded by another on the same territory, the newly independent state is not bound to maintain in force, or become a party to, any treaty although it may agree to be bound by treaties made by its predecessor.

INTERNATIONAL LAW AND MUNICIPAL LAW Effect of Municipal Law in International Law 2 Theories:

1. Dualism – domestic and international law are independent of each other, as they regulate different subject matters. IL regulates the relations of sovereign states, while municipal law regulates the internal affairs of a state. Thus, no conflict can ever arise between international and municipal law, because the two systems are mutually exclusive. If IL is applied within a state, it is only because it has been expressly incorporated by municipal law. The Philippines is a dualist state.

2. Monism – Monists have a unitary concept of law and see all law – including both international and municipal law – as an integral part of the same system. If conflict exists between international law and municipal law, international law must prevail. Germany is a monist state.

2 Views:

1. Doctine Of Incorporation - rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. a. Such is recognized in art. 2, sec. 2, as

the Philippines "adopts the generally accepted principles of international law as part of the law of the land."

b. Rules of international law are given equal standing with, but are not superior to, national legislative enactments. Thus, the Constitution, as the highest law of the land, may invalidate a treaty in conflict with it. (Secretary of Justice v. Hon. Lantion and Mark Jimenez, Jan. 18, 2000)

2. Doctrine Of Transformation - the generally accepted rules of int'l law are not per se binding upon the State but must first be embodied in legislation enacted by the lawmaking body and so transformed into municipal law. Only when so transformed will they become binding upon the State as part of its municipal law.

In case of conflict between international law and domestic law:

1. International rule: Before an international tribunal, a state may not plead its own law as an excuse for failure to comply with international law. The state must modify its laws to ensure fulfillment of its obligations under the treaty, unless the constitutional violation is manifest and concerns a rule of internal law of fundamental importance.

2. Municipal rule: When the conflict comes before a domestic court, domestic courts are bound to apply the local law. Should a conflict arise between an international agreement and the Constitution, the treaty would not be valid and operative as domestic law. It does not, however, lose its character as international law.

SUBJECTS OF INTERNATIONAL LAW

State Elements of a state: Art. 1, Montevideo Convention:

1. a permanent population; 2. a defined territory; 3. government;




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4. capacity to enter into relations with other States

Distinctions Between Sovereignty And Independence

1. SOVEREIGNTY is the broader term. It refers to the supreme and uncontrollable power inherent in the State by which such State is governed. It has 2 aspects: a. INTERNAL- freedom of the State to

manage its own affairs. b. EXTERNAL- freedom of the State to

direct its foreign affairs.

2. INDEPENDENCE is synonymous with external sovereignty. It is defined as the power of a State to manage its external affairs without direction or interference from another State.

Principles Of State Succession

1. State Succession is the substitution of one State by another, the latter taking over the rights and some of the obligations of the former.

2. 2 types of State Succession: a. Universal- takes place when a State is

completely annexed by another, or is dismembered or dissolved, or is created as a result of merger of 2 or more States.

b. Partial - takes place when a portion of the territory of a State loses part of its sovereignty by joining a confederation or becoming a protectorate or suzerainty.

3. Effects of State Succession a. The allegiance of the inhabitants of the

predecessor State is transferred to the successor State.

b. The political laws of the predecessor State are automatically abrogated but the non-political laws are deemed continued unless expressly repealed or contrary to the institutions of the new sovereign.

c. The public property of the predecessor State is acquired by the successor State but not the tort liability of the former.

d. Treaties entered into by the predecessor State are not considered binding on the successor State except those dealing with local rights and duties such as servitudes and boundaries.

Succession Of Government

1. In succession of government, the integrity of the original State is not affected as what takes place is only a change in one of its elements, the government.

2. Effects of a change in government: a. If effected by peaceful means, the new

government inherits all rights and obligations of the old government.

b. If effected by violence, the new government inherits all the rights of the old government. However, the new government may reject the obligations of the old government if they are of a political complexion. If the obligations are the consequence of the routinary act of administration of the old government, they should be respected.

Territory

1. Methods used in defining the territorial sea 2. Normal baseline method

Under this method, the territorial sea is drawn from the low-water mark of the coast to the breadth claimed, following its sinuosities and curvatures but excluding the internal waters in bays and gulfs.

3. Straight baseline method Straight lines are made to connect

appropriate points on the coast without departing radically from its general direction. The waters inside the lines are considered internal.

4. Some modes of acquisition: a. Cession

It is a derivative mode of acquisition by which territory belonging to one state is transferred to the sovereignty of another state in accordance with an agreement between them.

b. Subjugation It is a derivative mode of acquisition

by which the territory of one state is conquered in the course of war and thereafter annexed and placed under sovereignty of the conquering state.

c. Prescription It is a derivative mode of acquisition

by which territory belonging to one state is transferred to the sovereignty of another state by reason of the adverse and uninterrupted possession thereof by the latter for a sufficiently long period of time.




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RIGHT OF LEGATION

1. It is the right of a state to maintain diplomatic relations with other states.

2. Types: a. Active- right to send diplomatic

representatives b. Passive- right to receive diplomatic

representatives Functions of Diplomatic Missions:

representing sending state in receiving state; protecting in receiving state interests of

sending state and its nationals; negotiating with government of receiving

state; promoting friendly relations between sending

and receiving states and developing their economic, cultural, and scientific relations;

ascertaining by all lawful means conditions and developments in receiving state and reporting thereon to government of sending state; and

in some cases, representing friendly governments at their request.

Diplomatic and Consular immunity

1. personal inviolability 2. immunity of embassy and legation buildings 3. right of protection 4. extraterritoriality- exemption from local

jurisdiction on the basis of international custom

5. exemption from taxes and personal services 6. inviolability of means of communication 7. Diplomatic bag- immune from search

PRINCIPLES OF JURISDICTION OF STATES

1. Territoriality principle: The fundamental source of jurisdiction is sovereignty over territory. A state has absolute, though not necessarily exclusive, power to prescribe, adjudicate, and enforce rules for conduct within its territory.

2. Nationality principle: Every state has jurisdiction over its nationals even when those nationals are outside the state.

3. Protective principle: A state may exercise jurisdiction over conduct outside its territory that threatens its security, as long as that conduct is generally recognized as criminal by the states in the international community.

4. Universality principle: Recognizes that certain offenses are so heinous and so widely condemned that any state, if it

captures the offender, may prosecute and punish that person on behalf of the world community regardless of the nationality of the offender or victim or where the crime was committed.

5. Passive personality principle: A state may apply law – particularly criminal law – to an act committed outside its territory by a person not its national where the victim of the act was its national.

This principle has not been ordinarily accepted for ordinary torts or crimes, but is increasingly accepted as applied to terrorist and other organized attacks on a state’s nationals by reason of their nationality, or to assassination of a state’s diplomatic representatives of other officials.

Some Incomplete Subjects Of International Law

1. PROTECTORATES – dependent states which have control over their internal affairs but whose external affairs are controlled by another state.

2. FEDERAL STATE – union of previously autonomous entities. The central organ will have personality in international law, but the extent of the international personality of the component entities can be a problem.

3. MANDATED AND TRUST TERRITORIES – territories placed by the League of Nations under one or other of the victorious allies of WWI.

STATE RESPONSIBILITY

1. It is the doctrine which holds a state responsible for any injury sustained by an alien within its jurisdiction. Because of an international wrong imputable to it, the state will be responsible if it is shown that it participated in the act or omission complained of or was remiss in redressing the resultant wrong.

2. Elements of State Responsibility a, breach of an international obligation b, attributability

3. Types of State responsibility a, Direct responsibility-attaches to the

state if the wrongful act/omission was effected through any of its superior organs acting on its behalf




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b, Indirect responsibility- Acts of the following are attributable to the state:

i, state organs ii, other persons exercising elements of

governmental authority in the absence or default of the official authorities and in circumstances calling for the exercise of those elements of authority

iii, insurrectional or other movement which becomes the new government

4. Conditions for the enforcement of the doctrine of state responsibility a, The injured alien must first exhaust all

local remedies b, He must be represented in the int'l Claim

for damages by his own state (ordinarily, individuals have no standing to bring a claim before international law).

SETTLEMENT OF DISPUTES AMICABLE METHODS

1. NEGOTIATION- discussion by the parties of their respective claims and counterclaims with a view to the just and orderly adjustment.

2. INQUIRY - an investigation of the points in question with the view that this will contribute to the solution of the problem

3. GOOD OFFICES - method by which a 3rd party attempts to bring the disputing states together in order that they may be able to discuss the issues in contention.

4. MEDIATION- 3rd party actively participates in the discussion in order to reconcile the conflicting claims. Suggestions of mediator are merely persuasive

5. CONCILIATION- 3rd party also actively participates in order to settle the conflict. Suggestions of conciliator are also not binding. As distinguished from mediation, the services of the conciliator were solicited by the parties in dispute.

6. ARBITRATION- process by which the solution of a dispute is entrusted to an impartial tribunal usually created by the parties themselves under a charter known as the compromis. The proceedings are essentially judicial and the award is, by previous agreement, binding on the parties

HOSTILE/NON-AMICABLE METHODS

1. RETORSION - is a lawful act which is designed to injure the wrongdoing State.

Ex.: cutting off economic aid (this is lawful because there is no legal obligation to provide economic aid).

2. REPRISAL - an act which would normally be illegal but which is rendered legal by a prior illegal act committed by the State against which the reprisal is directed; it is a form of retaliation against the prior illegal act.

3. Reprisals may be used only when other means of redress (e.g. protests and warnings) have failed.

4. SEVERANCE (OF DIPLOMATIC RELATIONS)- One country cuts of all diplomatic ties with another, as a sign of protest/hostility.

5. NAVAL BLOCKADE- Blocking the ports of a country with naval forces.

6. EMBARGO- Preventing the ingress to and egress from a country of commercial and other goods; refusal by a state to undertake commercial transactions with another state.

SPECIAL TOPICS

Extradition

1. EXTRADITION is the surrender of a person by one state to another state where he is wanted for prosecution or, if already convicted, for punishment.

2. Basis of Extradition: a treaty. Outside of treaty, there is no rule in international law compelling a State to extradite anyone. Such may be done, however, as a gesture of comity.

3. Principles: a. Principle of Specialty - a fugitive who is

extradited may be tried only for the crime specified in the request for extradition and such crime is included in the list of extraditable offenses in the treaty.

b. Under the Political offense exception, most extradition treaties provide that political and religious offenders are not subject to extradition.

Attentant Clause- assassination of head of state or any member of his family is not regarded as political offense for purposes of extradition. Also for the crime of genocide.

c. There can only be extradition if there is a treaty between the states.




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4. PROCEDURE FOR EXTRADITION: (Judicial and diplomatic process of request and surrender) PD 1069 a. Request through diplomatic

representative with: b. DFA forwards request to DOJ c. DOJ files petition for extradition with

RTC, d. RTC issues summons or warrant of

arrest to compel the appearance of the individual;

e. hearing (provide counsel de officio if necessary)

f. appeal to CA within 10 days whose decision shall be final and executory;

g. decision forwarded to DFA through the DOJ;

h. Individual placed at the disposal of the authorities of requesting state-costs and expenses t be shouldered by requesting state.

Q: The Philippines entered into an extradition treaty with another country which provided that it would apply crimes committed before its effectivity. The country asked the Philippines to extradite X for a crime committed before the effectivity of the treaty. X argued the extradition would violate the prohibition against ex post facto laws. Is he right? A: No. The constitutional prohibition applies to penal laws only. The extradition treaty is not a penal law. (Wright v. CA, 235 SCRA 341) SECRETARY OF JUSTICE V. HON. LANTION AND MARK JIMENEZ (G.R. # 139465, Oct. 17, 2000, overturning the Court’s previous decision in 322 SCRA 160 dated Jan. 18, 2000) By virtue of an extradition treaty between the US and the Philippines, the US requested for the extradition of Mark Jimenez for violations of US tax and election laws. Pending evaluation of the extradition documents by the Philippine government, Jimenez requested for copies of the US' extradition request. The Secetary of Justice denied that request. ISSUE: During the evaluation stage of the extradition proceedings, is private respondent entitled to the two basic due process rights of notice and hearing? HELD: Private respondent is bereft of the right to notice and hearing during the evaluation stage of the extradition process. Extradition is a proceeding sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused guaranteed

by the Bill of Rights. The process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. There is NO deprivation of the right to due process. Dissent (original decision): Under the extradition treaty, the prospective extraditee may be provisionally arrested pending the submission of the request. Because of this possible consequence, the evaluation process is akin to an administrative agency conducting an investigative proceeding, and partakes of the nature of a criminal investigation. Thus, the basic due process rights of notice and hearing are indispensable.

Assuming that the extradition treaty does not allow for such rights, the Constitutional right to procedural due process must override treaty obligations. When there is a conflict between international law obligations and the Constitution, the Constitution must prevail.

United Nations Organs

1. GENERAL ASSEMBLY Composition: All members of the UN (as of

1996: 185 member States) Function: The GA may discuss any question or matter within the scope of the Charter or relating to the powers and functions of any other organ. It is also vested with jurisdiction over matters concerning internal machinery and operations of the UN.

2. SECURITY COUNCIL Composition: 15 members: a. 5 Permanent Members (China, France,

UK, US, Russia) b. 10 non-permanent: elected for 2 year

terms by the General Assembly. Function: the maintenance of international peace and security. Q: What is the "double veto"? A: In all non-procedural matters, each permanent member is given a 'veto' - a Security Council decision is ineffective if even one permanent member votes against it. The veto does not ordinarily apply to Procedural matters. However, a permanent member may exercise a 'double veto' when it vetoes any attempt to treat a question as procedural, and then proceed to veto any draft resolution dealing with that question.

1. SECRETARIAT - CHIEF ADMINISTRATIVE ORGAN OF THE UN

2. ECONOMIC AND SOCIAL COUNCIL - organ charged with promoting social progress and better standards of life in larger freedom




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3. TRUSTEESHIP COUNCIL - organ charged with administration of Int'l Trusteeship System.

4. INTERNATIONAL COURT OF JUSTICE - judicial organ of the UN.

Use Of Force

1. Under Article 2(4) of the UN Charter, all member States are bound to refrain from the threat or use of force against the territorial integrity or political independence of a State. Recognized exceptions: a) self-defense b) military action taken or authorized by the

UN or competent Regional organizations (such as NATO).- collective self- defense

2. Requirement of proportionality in the use of

force 3. Aggression- as used in international law

means the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in army other manner inconsistent with the charter of the UN. Types:

• direct • indirect- ideological agression

Calvo Clause It is a provision inserted in contracts, in which the foreigner agrees in advance not to seek the diplomatic protection of his national State. In general, International Courts have disregarded such clauses, as the right to diplomatic protection is a right which belongs to a State, and waiver from an individual does not bind his State. State Immunity (Jure Imperii And Jure Gestionis) Originally, under customary international law the doctrine of absolute state immunity applied, covering all areas of State activity and recognizing only very narrow exceptions. Nowadays, the rule is to adopt a doctrine of qualified immunity -- that is, immunity is granted to foreign States only in respect of their governmental acts (acts jure imperii), not in respect of their commercial acts (acts jure gestionis). Diplomatic Immunity Diplomatic Immunity is a principle of customary international law that grants immunity to diplomatic representatives, in order to uphold their dignity as representatives of their respective states and to allow them free and unhampered exercise of their

functions. In the Philippines, immunity is claimed by request of the foreign state for endorsement by the Department of Foreign Affairs. The determination by the executive department is considered a political question that is conclusive upon Philippine Courts. International Contracts Usually, agreements between States and foreign corporations contain stipulations as to which national legal system governs the contract. Occasionally, however, in case of powerful multinational companies, such contracts are placed not under any single system of municipal law, but under international law, general principles of law, or the provisions of the contract itself. The reason for concluding these so-called internationalized contracts is to establish a balance between the parties and prevent the State party from evading its obligations under the contract by changing its own internal law. This is mostly secured by an arbitration clause referring disputes under the agreement to an international body. The international court of justice

1. "Optional Clause" of the ICJ: As a rule, the ICJ can operate only on

the basis of the consent of States to its jurisdiction. Such may take the form of a special agreement between States to submit an existing dispute before the Court (i.e. compromis).

However, under the 'optional clause' (art. 36(2), ICJ Statute), a State may declare in advance that they recognize the jurisdiction of the Court as compulsory ipso facto and without need of special agreement, in relation to any other State accepting the same obligation, in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law c. existence of any fact which, if

established, would constitute breach of international obligation; and

d. nature or extent of reparation to be made for breach of international obligation.

2. STARE DECISIS does not apply to the ICJ. Under the statute of the Court, previous decisions have no binding force; in practice, however, the Court always takes past decisions into account.




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Q: What does it mean to decide a case EX AEQUO ET BONO? A: It is to rule in justice and fairness -- equity overrides all other rules of law. The ICJ has no power to decide a case ex aequo et bono, unless all parties agree thereto [art. 38(2), ICJ Statute]. Q: Who has standing before the ICJ? A: Only States may be parties in contentious proceedings before the ICJ (art 34, ICJ Statute). Outer Space

1. The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

2. Outer space, including the moon and other celestial bodies, shall be free from exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

3. Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

4. Astronauts are envoys of mankind in outer space, and states party to the Treaty on the Exploration and Use of Outer Space shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State party or on the high seas. When astronauts make such a landing, they shall be safely and promptly returned to the State of registry on their space vehicle.

WAR Armed contention between public forces of states or other belligerent communities implying employment o force between parties of force between parties for purpose of imposing their respective demands upon each other. BASIC PRINCIPLES OF WAR:

1. Principle of Military Necessity- belligerents may employ any amount and kind of force to compel complete submission of enemy with least possible loss of lives, time, and money.

2. Principle of Humanity- prohibits use of any measure that is not absolutely necessary for purposes of war; and

3. principle of Chivalry- basis of such rules as those that require belligerents to give proper warning before launching a bombardment or prohibit use of perfidy (treachery) in conduct of hostilities.

RIGHTS OF PRISONERS OF WAR

1. to be treated humanely; 2. not subject to torture; 3. allowed to communicate with their families 4. receive food, clothing religious articles,

medicine; 5. bare minimum of information; 6. keep personal belongings 7. proper burial; 8. group according to nationality; 9. establishment of an informed bureau; 10. repatriation for sick and wounded (1949

Geneva Convention)




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11. LAW ON HUMAN RIGHTS UNIVERSAL DECLARATION OF HUMAN RIGHTS What is the Universal Declaration of Human Rights (UDHR)? The UDHR is the basic international statement of the inalienable and inviolable rights of human beings. It is the first comprehensive international human rights instrument. What are the rights covered by the UDHR? The UDHR proclaims two broad category of rights: (a) civil and political rights; and (b) economic, social, and cultural rights. Are these rights subject to limitations? Yes, the exercise of these rights and freedoms may be subject to certain limitations, which must be determined by law, only for the purpose of securing due recognition and respect for the rights of others and of the meeting the just requirements of morality, public order and the general welfare in a democratic society. Rights may not be exercised contrary to the purposes and principles of the UN. (Article 29 of the UDHR) International Covenant on Economic, Social, and Cultural Rights ( ICESCR) What are the rights guaranteed by the Covenant?

1. Right of self-determination (Art. 1) 2. Right to work and accompanying rights

thereto (Arts. 6, 7, 8) 3. Right to Social Security and other social

rights (Arts. 9& 10) 4. Adequate standard of living (Art. 11 (1))

including: (a) right to adequate housing (Art. 11 (1)); (b) right to adequate food (Art. 11 (1). 11 (2)); (c) Right to adequate clothing (Art. 11 (1)

5. Right to health (Art. 12) 6. Right to education (Arts. 13 &14) 7. Cultural rights (Art. 15)

What are the States-parties’ obligations under the Covenant? 1. Specific Obligations under Article 2

To take steps ti the maximum available resources, towards the progressive realization of the rights in the covenant;

Non-discrimination- states guarantee the exercise of the rights without discrimination (Art. 2 [2]).

2. Three General duties/ obligations of states: Just like the ICCPR and other human rights conventions, ESCR imposes three different types of obligations: a. To respect- requires to refrain from

interfering with enjoyment of rights. Thus, there is violation if it engages in forced eviction;

b. To protect- requires states to prevent violations by third parties. Thus, failure to ensure compliance by private employers with basic labor standards violates the right to work;

c. To fulfill- requires states to take appropriate measures (legislative, judicial etc.) towards the full realization of the rights. Thus, the states’ failure to provide essential primary health care to the needy amounts to a violation.

International Covenant on Civil and Political Rights (ICCPR) What are some of the civil and political rights recognized under the ICCPR?

1. Right of the peoples to self-determination (art. 1)

2. Right to an effective remedy (art. 2) 3. Equal rights of men and women in the

enjoyment of civil and political rights/ nopn-discrimination on the basis of sex (Art. 3)

4. Right to life (art. 6) 5. Freedom from torture or cruel, inhuman or

degrading punishment (art. 7) 6. Freedom from slavery (art. 8) 7. Right to liberty and security of person (art. 9) 8. Right to be treated with humanity in cases of

deprivation of liberty (art. 10) 9. Freedom from imprisonment for failure to

fulfill a contractual obligation (art. 11) 10. Freedom of movement and the right to travel

(art. 12) 11. Right to a fair, impartial and public trial (art.

14) 12. Freedom from ex post fact laws (art. 15) 13. Right of recognition everywhere as a person

before the law (art. 16) 14. Right to privacy (art. 17) 15. Freedom of thought, conscience, and religion

(art. 18) 16. Freedom of expression (art. 19) 17. Freedom of peaceful assembly (art. 21) 18. Freedom of association (art. 22) 19. Right to marry and found a family (art. 23)




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20. Right of a child to protection, a name and nationality (art. 24)

21. Right to participation, suffrage, and access to public service (art. 25)

22. Right to equal protection before the law (art. 26)

23. Right of minorities to enjoy their own culture, to profess and prtactice their religion and to use their own language.

When can a State Party derogate from the ICCPR? A state party to the ICCPR may derogate from the treaty “in time of oublic emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.” (Art. 4 (1), ICCPR) What are the Non-derogable rights under the ICCPR?

Even in times of national emergency, no derogation can be made from the following: 1. Right to life (art. 6) 2. Freedom from torture or cruel, inhuman or

degrading punishment (art. 7) 3. Freedom from slavery (art. 8) 4. Freedom from imprisonment for failure to

fulfill a contractual obligation (art. 11) 5. Freedom from ex post fact laws (art. 15) 6. Right of recognition everywhere as a person

before the law (art. 16) 7. Freedom of thought, conscience, and religion

(art. 18) (Art. 4 (2), ICCPR) Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) What does discrimination against women cover? Art. 1 defines Discrimination against Women as “ any distinction, exclusion, or restriction made of the basis of sex which has the effect or purpose or impairing or nullifying the recognition, enjoyment or exercise by women, irrespective or their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social cultural, civil, or any other field. What are the State Obligations of State-Parties under CEDAW?

Arts. 2- 16 enumerate the Obligations of State-Parties

I. Legal Measures (de jure) 1. embody principle of equality of men and

women in the national constitution and other apprpriate laws (art. 2[a])

2. adopt apprpriate legislative and other measures prohibiting all discrimination against women, which includes legislation to modify, abolish, or repeal discriminatory laws, regulations, customs, and practices (art. 2 [b]. [f] and [g])

3. adopt appropriate legislation to ensure full development and advancement of women, for the purpose of guaranteeing exercise and enjoyment of Human Rights on the basis of equality with men (art. 3)

4. adopt appropriate legislation to suppress all forms of traffic in women and exploitation and prostitution of women. (Art. 6)

II. Administrative Measures (de facto) 1. refrain from any act or practice which is

discriminatory against women (includes public authorities and institutions) (art. 2 [d])

2. adopt temporary special measures to address de fact inequality of men and women (art. 4 [1])

3. modify the social and cultural patterns of conduct of men and women to eliminate practices based on the idea of inferiority. Superiority of either men or women (art. 5 [a])

4. educate family as to proper social function of maternity and common responsibility in rearing children (art. 5 [b])

What are some Civil and Political Rights under CEDAW, which are unique to women?

1. Guarantee of civil and political rights 2. right to acquire, change, and retain

nationality- not prejudiced by marriage to a foreigner (art. 9 [1])

3. equal rights with men as regards nationality of children (art. 9 [2])

4. equal rights with men as regards freedom of movement and choice of domicile/ residence (art. 15 [4])

What are some Economic, Social and Cultural Rights under CEDAW which are unique to women?

1. Guarantee of Economic, Social and Cultural rights




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2. equal rights with men as regards education (Art. 10)

elimination of stereotyped concept of roles of man and women through co-education, revision of textbooks, programmes and teaching methods; reduction of female student drop-outs; and access to information on health and well-being of families, including advice of family planning.

3. equal rights with men as regards employment (art. 11)

4. prohibition against dismissals due to marriage, pregnancy or maternity leave;

5. promotion of child-care facilities; special protection to pregnant women as regards type of work.

6. equal access with men as regards health services, right to services in connection with pregnancy, adequate nutrition during pregnancy and lactation and confinement and the post natal period (art. 12)

7. right to enter into marriage, to freely choose a spouse and to enter into marriage only with free and full consent;

8. equal rights and responsibilities as parents, to freely decide number of children and access to information and education to be able to exercise these rights.




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ADMINISTRATIVE LAW Sources of power of administrative agencies:

charter or statute constitution

Powers of Administrative Agencies As to their nature:

1. Quasi-legislative power / Power of subordinate legislation

2. Quasi-judicial power/Power of adjudication

3. Determinative powers (Note: Senator Neptali Gonzales calls them incidental powers)

4. Investigatory power (although some authors include this as part of quasi-judicial power, De Leon is of the opinion that it is separate and distinct, not merely incidental)

Note: the failure to exercise such powers granted to them does not forfeit or extinguish them As to the degree of subjective choice:

1. Discretionary- the power or right conferred upon them by law to act officially under the circumstances, according to the dictates of their own judgment/conscience

2. Ministerial- nothing is left to discretion; a duty performed in response to what has been imposed by law

Definition of "QUASI-LEGISLATIVE POWER" It is the authority delegated by the law-making body to the administrative body to adopt rules and regulations intended to carry out the provisions of a law and implement legislative policy. Distinctions between Quasi-legislative power and legislative power

1. LEGISLATIVE power involves the discretion to determine what the law shall be. QUASI-legislative power only involves the discretion to determine how the law shall be enforced.

2. LEGISLATIVE power CANNOT be delegated. QUASI-legislative power CAN be delegated.

Tests of Delegation (applies to the power to promulgate administrative regulations)

1. COMPLETENESS test. This means that the law must be complete in all its terms and conditions when it leaves the legislature so that when it reaches the delegate, it will have nothing to do but to enforce it.

2. SUFFICIENT STANDARD test. The law must offer a sufficient standard to specify the limits of the delegate’s authority, announce the legislative policy and specify the conditions under which it is to be implemented.

NOTE: These two must CONCUR. If one or both are absent, any delegation that occurs is UNDUE DELEGATION of legislative powers. Exceptions to the rule requiring standards or guides

handling of state property or funds when the law does not involve personal

or property rights matters of internal administration power of the board to make

recommendation matters involving privileges (like use of

property, engaging in profession) regulation or exercise of police power to

protect general welfare, morals and public policy

Limitations on the exercise of quasi- legislative power

1. it must be within the limits of the powers granted to Administrative agencies

2. cannot make rules or regulations which are inconsistent with the provisions of the Constitution or statute

3. cannot defeat/ derogate the purpose of the statute

4. may not amend, alter, modify, supplant, enlarge, or limit the terms of the statute

5. a rule or regulation must be uniform in operation, reasonable and not unfair or discriminatory

Definition of “QUASI-JUDICIAL POWER” It is the power of administrative authorities to make determinations of facts in the performance of their official duties and to apply the law as they construe it to the facts so found. .It partakes of the judicial, but is exercised by a person other than a judge. Determinative Powers [DEEDS] 1. ENABLING powers




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Those that PERMIT the doing of an act which the law undertakes to regulate and would be unlawful without government approval. Ex. Issuance of licenses to engage in a particular business 2. DIRECTING powers Those that involve the corrective powers of public utility commissions, powers of assessment under the revenue laws, reparations under public utility laws, and awards under workmen’s compensation laws, and powers of abstract determination such as definition-valuation, classification and fact finding 3. DISPENSING powers Exemplified by the authority to exempt from or relax a general prohibition, or authority to relieve from an affirmative duty. Its difference from licensing power is that dispensing power sanctions a deviation from a standard. 4. SUMMARY powers Those that apply compulsion or force against person or property to effectuate a legal purpose without a judicial warrant authorizing such action; usually without notice and hearing. Ex. Abatement of nuisance, summary restraint, levy of property of delinquent taxpayers 5. EQUITABLE powers Those that pertain to the power to determine the law upon a particular state of facts. It refers to the right to, and must, consider and make proper application of the rules of equity. Ex. Power to appoint a receiver, power to issue injunctions Definition of “INVESTIGATORY POWER”

The power to inspect, secure, or require the disclosure of information by means of accounts, records, reports, statements and testimony of witnesses.

Administrative agencies do not have the inherent power to require the attendance of witnesses but has the power to require the production of books, etc. The exertion if not expressly provided for by law must be done through judicial process.

Neither do they have the inherent power to punish a person who fails to appear before them for contempt in the absence of any statutory provision granting the same.

Kinds of Administrative Regulations

Requisites of a Valid Administrative Regulation

1. Its promulgation must be authorized by the legislature.

2. It must be within the scope of the authority given by the legislature.

3. It must be promulgated in accordance with the prescribed procedure.

4. It must be reasonable. Need for Previous Notice and Hearing

1. General Rule: Administrative rules of GENERAL application do NOT require previous notice and hearing.

2. Exceptions: a. When the legislature itself requires it

and mandates that the regulation shall be based on certain facts as determined at an appropriate investigation.

b. And, if the regulation is in effect a settlement of a controversy between specific parties, it is considered an administrative adjudication, requiring notice and hearing.

DISTINC TIONS

LEGISLATIVE INTERPRETATIVE

1. Capacity that administrative agency is acting in

Legislative Judicial

2. What administrative agency is doing

It supplements the statute by filling in the details

It says what the statute means

3. Force and effect

Legislative regulations have the force and effect of law immediately upon going into effect. Such is accorded by the courts or by express provision of statute.

Merely persuasive/ Received by the courts with much respect but not accorded with finality




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Prescribing of Rates It can be either:

1. LEGISLATIVE If the rules/rates are meant to

apply to all enterprises of a given kind throughout the country, prior notice and hearing is NOT required.

2. QUASI-JUDICIAL If the rules and rates imposed

apply exclusively to a particular party, based upon a finding of fact, prior notice and hearing is REQUIRED.

Requirement of Publication Administrative Regulations that MUST be published:

1. Administrative regulations of GENERAL application.

2. Administrative regulations which are PENAL in nature.

3. When the law specifically requires notice and hearing

Administrative regulations that DO NOT NEED to be published:

1. INTERPRETATIVE regulations 2. INTERNAL RULES AND

REGULATIONS governing the personnel of the administrative agency.

3. Letters of instruction issued by administrative superiors concerning guidelines to be followed by their subordinates. (Tanada v. Tuvera)

Special Requisites of a Valid Administrative Regulation with a PENAL sanction

1. The law itself must make violation of the administrative regulation punishable.

2. The law itself must impose and specify the penalty for the violation of the regulation.

3. The regulation must be published. Requisites for Proper Exercise of Quasi-Judicial Power

1. Jurisdiction 2. Due process

Requirements of Procedural Due Process in Administrative Proceedings

1. The right to a hearing, which includes the right to present one’s case and submit evidence in support thereof.

2. The tribunal must consider the evidence presented.

3. The decision must be based on facts and law.

4. The evidence must be substantial. 5. The decision must be rendered on the

evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected.

6. The tribunal or body or any of its judges must act on its or his own independent consideration of the law and facts of the controversy and not simply accept the views of a subordinate in arriving at a decision.

7. The board or body should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reason for the decision rendered.

NOTE: The rule requiring an admin officer to exercise his own judgment and discretion DOES NOT preclude him from utilizing the aid of his subordinates in the hearing and reception of evidence. When an admin agency acts as a collegiate body, its power and duties CANNOT be exercised by the members individually. Exceptions to the Notice and Hearing Requirement:

1. Urgency of immediate action 2. Tentativeness of the administrative

action 3. Right was previously offered but not

claimed 4. Summary abatement of a nuisance per

se 5. Preventive suspension of a public

servant facing administrative charges 6. Padlocking of filthy restaurants/theaters

showing obscene movies 7. Cancellation of a passport of a person

sought for criminal prosecution 8. Summary proceedings of levy upon

properties of a delinquent taxpayer 9. Replacement of a temporary or acting

appointee Doctrine of RIPENESS FOR JUDICIAL REVIEW




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1. This determines the point at which courts may review admin action.

2. Application: a. when the interest of the plaintiff is

subjected to or imminently threatened with substantial injury

b. if the statute is self-executory c. when a party is immediately

confronted with the problem of complying or violating a statute and there is a risk of criminal penalties

d. when plaintiff is harmed by the vagueness of the statute

Questions Reviewable on Judicial Review:

1. Questions of FACT General Rule: Courts will not disturb

the findings of administrative agencies acting within the parameters of their own competence.

Exception: If such findings are NOT supported by substantial evidence. By reason of their special knowledge, expertise, and experience, the courts ordinarily accord respect if not finality to factual findings of administrative tribunals.

2. Questions of LAW

Administrative decision may be appealed to the courts independently of legislative permission.

It may be appealed even against legislative prohibition because the judiciary cannot be deprived of its inherent power to review all decisions on questions of law.

Enforcement of admin determinations/ decisions Must be in accordance with the manner prescribed by the statute. Or, if there is no provision, resort to the courts is necessary for enforcement. Doctrine of FINALITY General Rule: Courts are reluctant to interfere with actions of an administrative agency prior to its completion or finality. Absent a final order or decision, power has not been fully and finally exercised, and there can usually be no irreparable harm. Exceptions:

1. Interlocutory order affecting the merits of a controversy;

2. Preserve status quo pending further action by the administrative agency;

3. Essential to the protection of the rights asserted from the injury threatened;

4. Officer assumes to act in violation of the Constitution and other laws;

5. Order not reviewable in any other way; 6. Order made in excess of power

Doctrine of PRIMARY JURISDICTION

1. Courts cannot or will not determine a controversy, which requires the expertise, specialized skills and knowledge of the proper administrative bodies because technical matters of intricate questions of fact are involved.

2. Relief must first be obtained in an administrative proceeding before a remedy will be supplied by the court, despite the matter is within the proper jurisdiction of a court.

Doctrine of PRIOR RESORT When a claim originally cognizable in the courts involves issues, which under a regulatory scheme are within the special competence of an administrative agency, judicial proceedings will be suspended pending the referral of these issues to the administrative body for its view. NOTE: The doctrines of primary jurisdiction and prior resort have been considered to be interchangeable. Doctrine of EXHAUSTION OF ADMINISTRATIVE REMEDIES General Rule: An administrative decision must first be appealed to the administrative superiors up to the highest level before it may be elevated to a court of justice for review. NOTE: The premature invocation of a court’s intervention is fatal to one’s cause of action Reasons:

1. to enable the administrative superiors to correct the errors committed by their subordinates.

2. courts should refrain from disturbing the findings of administrative bodies in deference to the doctrine of separation of powers.

3. courts should not be saddled with the review of administrative cases.

4. judicial review of administrative cases is usually effected through special civil actions which are available only if there is no other plain, speedy and adequate remedy.




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Exceptions: 1. when the question raised is purely

legal, involves constitutional questions 2. when the administrative body is in

estoppel 3. when act complained of is patently

illegal 4. when there is urgent need for judicial

intervention 5. when claim/ amount involved is small 6. when irreparable damage is involved 7. when there is no other plain, speedy ,

adequate remedy 8. when strong public interest is involved 9. when the subject of controversy is

private land 10. in quo warranto proceedings 11. when the administrative remedy is

permissive, concurrent 12. utter disregard of due process 13. long-continued and unreasonable delay 14. when no administrative review is

provided 15. respondent is a department secretary

(DOCTRINE OF QUALIFIED POLITICAL AGENCY – ALTER EGO DOCTRINE)

Substantial evidence – defined to mean not necessarily preponderant proof as required in ordinary civil cases but such kind of relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Tudtud v. Caayon ,454 SCRA 10 (March 28, 2005) Ratio:

• Civil Service Commission Resolution No. 99-1936 classifies simple neglect of duty as a less grave offense and imposes the penalty of suspension of 1 month and 1 day to 6 months for the first offense.

Lim v.Dumlao, 454 SCRA 196 (March 31, 2005) Ratio:

• Unjustified failure to comment on an administrative complaint constitutes gross misconduct and insubordination.

MMDA v. Garin, 456 SCRA 176 (April 15, 2005) Ratio:

• Only where there is a traffic law or regulation validly enacted by legislature or those agencies to whom legislative powers have been delegated that the MMDA may confiscate and suspend or revoke driver’s 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.

• Republic Act No. 7924 does not grant the MMDA with the police power, let alone the legislative power, and that all its functions are legislative in nature.

• The laudable intentions regarding the creation of the MMDA are limited by its enabling law which the Court can but interpret – MMDA’s efforts must be authorized by a valid law, or ordinance, or regulation arising from a legitimate source.

Bagano v. Hontanosas, 458 SCRA 59 (May 6, 2005) Ratio:

• When the law or rule is so elementary, as that which written motions to be heard, not knowing about it constitutes gross ignorance of the law even in the absence of malicious intent.

Mendoza v National Police Commission ,460 SCRA 399 (June 21, 2005) Ratio: In cases where the decision rendered by a bureau or office is appealable to the Civil Service Commission, the same may initially be appealed to the Department and finally to the Commission. Concerned Taxpayer v Doblada*, 470 SCRA 218 (September 20, 2005) Ratio:

• The prescription provided for in RA 3019 does not apply in administrative cases – administrative offenses do not prescribe.




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LAW ON PUBLIC CORPORATION Definition of public corporation It is formed or organized for the government of a portion of the State. (Corporation Code) Elements of a municipal corporation

1. A legal creation or incorporation 2. A corporate name by which the

artificial personality or legal entity is known and in which all corporate acts are done

3. Inhabitants constituting the population who are invested with the political and corporate powers which are executed through duly constituted officers and agents

4. A place or territory within which the local civil government and corporate functions are exercised.

Dual nature of municipal corporations

1. Governmental a. The municipal corporation acts as

an agent of the State for the government of the territory and the inhabitants within the municipal limits

b. It exercises by delegation a part of the sovereignty of the State

2. Private/proprietary

a. It acts in a similar category as a business corporation, performing functions not strictly governmental or political

b. Those exercised for the special benefit and advantage of the community.

Note: Local Government Code §15. Every LGU created or recognized under this Code is a body politic and corporate endowed with powers to be exercised by it in conformity with law. As such, it shall exercise powers as a POLITICAL SUBDIVISION of the national government and as a CORPORATE ENTITY representing the inhabitants of its territory. Requisites for the Incorporation of a Municipal Corporation CODE: Te Po C

1. Territory 2. Population 3. Charter

Requisites of a De Facto Municipal Corporation

1. A valid law authorizing incorporation 2. An attempt in good faith to organize

under it 3. A colorable compliance with the law 4. An assumption of corporate powers

An attack on Legal Existence A quo warranto proceeding brought by the State is the proper remedy. It should be commenced within 5 years from the time the act complained of was committed. Creation of Local Government Units (LGUs) Authority to Create LGUs (§ 6, LGC)

1. By law enacted by Congress a. Province b. City c. Municipality b. Any other political subdivision (A

barangay may also be created by law. See §386)

2. By ordinance passed by Sangguniang Panlalawigan /Panlungsod

For barangay located within its

territorial jurisdiction Indicators for creation/conversion a. Income b. Population c. Land Area Plebiscite Requirement

It applies to the creation, division, merger, abolition or substantial alteration of boundaries of LGU.

Creation etc. should be approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Beginning of Corporate Existence ( §14, LGC) Corporate existence commences upon the election and qualification of its chief executive and a majority of members of the Sanggunian unless some other time is fixed by the law or ordinance creating it. Local Autonomy Local autonomy can be considered a measure of decentralization of the functions of




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government. Under the principle of local autonomy and decentralization, LGUs have more powers, authority, responsibilities and resources. Decentralization It is the devolution of national administration, not power, to the local levels, in which local officials remain accountable to the central government in the manner the law may provide. Levels of Decentralization Administrative Autonomy

1. The central government delegates administrative powers to the political subdivisions.

2. Purposes a. To broaden the local power base b. To make the units more responsive

and accountable c. To ensure the full development of

LGUs into self-reliant communities d. To break the monopoly of the

national government over managing local affairs

e. To relieve the national government from the burden of managing local affairs

Political Autonomy

1. Involves the abdication of political power in favor of LGUs declared to be autonomous

2. It would amount to self-immolation because the autonomous government would become accountable to its constituency, not to the central government.

Devolution It refers to the act by which the national government confers power and authority upon the various LGUs to perform specific functions and responsibilities. (§ 17, LGC). It is considered mandatory under the LGC. Distinction between Supervision and Control Supervision

It means the overseeing or the power or authority of an officer to see that the subordinate officers perform their duties.

In relation to LGUS, the President only has the power of supervision over LGUS. Thus, he cannot interfere with the local governments

as long as they act within the scope of their authority.

Under the LGC (§25), the President exercises direct supervision over provinces, highly urbanized cities and independent component cities. He exercises indirect supervision over component cities and municipalities through the provinces. He also exercises indirect supervision over barangays through the city or municipality concerned. Control It means the power of an officer to alter or modify or nullify or set aside what a subordinate officer has done in the performance of his/her duties and to substitute the judgment of the former for that of the latter. In relation to LGUs, it is Congress which exercises control over them. Police Power Police power is not inherent in municipal corporations. Under the LGC, LGUs exercise police power under the general welfare clause (See § 16) Branches of the general welfare clause

One branch relates to such ordinances and regulations as may be necessary to carry into effect and discharge the powers and duties conferred upon the municipal council by law.

The second branch is more independent of the specific functions of the council. It authorizes ordinances as are necessary and proper to provide for the health and safety, promote prosperity, improve morals, peace, good order etc. Eminent Domain and Reclassification of Land Requisites for Valid Exercise [CODE: OPJO]

1. ORDINANCE authorizing the local chief executive to subject a certain property to expropriation

2. Expropriation should be for a PUBLIC USE/PURPOSE or for the WELFARE of the POOR/LANDLESS.

3. Payment of JUST COMPENSATION 4. Valid and definite OFFER TO PAY

which was NOT accepted. Role of Supervising Local Government Unit It can only declare the ordinance invalid on the sole ground that it is beyond the power of the




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lower LGU to issue. Hence, it cannot declare the ordinance invalid on the ground that it is unnecessary. (Moday v. CA, Feb. 20, 1997) Role of National Government The approval of the national government is not required of local governments to exercise the power of eminent domain. Role of Judiciary

1. Can inquire into the legality of the exercise of the right.

2. Can determine whether there was a genuine necessity

NOTE: Only cities and municipalities can reclassify agricultural lands through the proper ordinance after conducting public hearings for the purpose. Grounds for Reclassification

1. When the land ceases to be economically feasible and sound for agricultural purposes as determined by the Department of Agriculture.

2. When the land shall have substantially greater economic value for residential, commercial or industrial purposes as determined by the Sanggunian concerned.

Taxation Power to tax of LGUs is now pursuant to direct authority conferred by the 1987 Constitution. Since LGUs have no inherent power to tax, their power must yield to a legislative act. Legislative Power

1. Local chief executive (except for punong barangay because he is already a member of the Sangguniang barangay) has to approve the ordinance enacted by the council.

2. Veto power of local chief executive. (§ 55)

a. Grounds i. Ultra vires ii. Prejudicial to public welfare

b. Item veto i. Appropriations ordinance ii. Ordinance/resolution adopting local

development plan and public investment program

iii. Ordinance directing the payment of money or creating liability. Veto communicated to sanggunian

within 15 days for province and 10 days for city or municipality.

Review by Higher/Supervising Council

1. The higher council can declare the ordinance/resolution invalid if it is beyond the scope of the power conferred upon the lower Sanggunian.

2. For barangay ordinances, the higher council can also rule that it is inconsistent with law or city/municipal ordinances.

Corporate Powers (§ 22) CODE: S C Re C O

1. To have continuous succession in its corporate name

2. To sue and be sued 3. To have and use a corporate seal 4. To acquire and convey real or personal

property 5. To enter into contracts 6. To exercise such other powers as are

granted to corporations, subject to limitations in LGC/other laws.

Requisites of valid municipal contracts:

1. LGU has express, implied or inherent power to enter into a particular contract;

2. Entered into by proper department, board, committee, or agent;

3. must comply with substantive requirements;

4. must comply with formal requirements; 5. in case entered into by local chief

executive on behalf of LGU, prior authorization by Sanggunian concerned is needed

Municipal Liability Rule: Local Government units and their officials are not exempt from liability for death or injury to persons or damage to property (Sec 24 R.A. 7160) Doctrine of Implied Municipal Liability A municipality may become obligated upon an implied contract to pay the reasonable value of the benefits accepted or appropriated by it as to which it has the general power to contract; the doctrine applies to all cases where money or other property of a party is received under such circumstances that the general law, independent




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of an express contract, implies an obligation to do justice with respect to the same (Nachura, Reviewer in Political Law, p. 499) Qualifications of Elective Local Officials (§ 39)

1. Filipino citizen 2. Registered voter in:

a. the barangay, municipality, city or province where he intends to be elected

b. the district where he intends to be elected in case of a member of the Sangguniang panlalawigan, Sangguniang panlungsod or Sangguniang bayan.

3. Resident therein for at least 1 year immediately preceding the day of the election.

4. Able to read and write Filipino/ any other local language or dialect

Age requirement POSITION AGE

REQUIREMENT Governor, Vice Governor, Mayor, Vice Mayor, member of Sangguniang Panlungsod in highly urbanized cities

At least 23 years old on election day

Mayor, Vice Mayor of independent component cities or municipalities


Member of Sangguniang Panglungsod, Member of Sangguniang Bayan, Punong Barangay, Member of Sangguniang Barangay


Disqualifications for Local Elective Officials (§ 40)

1. Those sentenced by final judgment for an offense involving moral turpitude, or for an offense punishable by 1 year or more of imprisonment within 2 years after serving sentence

2. 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. Fugitives 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 Term of Office Term of office: 3 years No local elective official shall serve for more than 3 consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall be considered an interruption in the continuity of service for the full term for which the elective official concerned was elected. Vacancies Permanent vacancy

1. Grounds a. Elective local official fills a higher

vacant office b. Refuses to assume office c. Fails to qualify d. Dies e. Removed from office f. Voluntarily resigns g. Permanently incapacitated to

discharge the functions of his office




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2. Filling of vacancy a. Automatic succession

b. by appointment

3. Ranking- It is determined on the basis of proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election

4. The general rule is that the successor (by appointment) should come from the same political party as the Sanggunian member whose position has become vacant. The exception would be in the case of vacancy in the Sangguniang barangay.

Temporary Vacancy Grounds (not exclusive list)

1. Leave of absence 2. Travel abroad 3. Suspension from office

If the positions of governor, mayor or

punong barangay become temporarily vacant, the vice-governor, vice-mayor or highest ranking Sanggunian member will automatically exercise the powers and perform the duties and functions of the local chief executive concerned.

Exception: He/she cannot exercise the power to appoint, suspend or dismiss employees. Exception to exception: If the period of temporary incapacity exceeds 30 working days. Termination of temporary incapacity

Upon submission to the appropriate Sanggunian of a written declaration by the local chief that he has reported back to office

If the temporary incapacity was due to legal reasons, the local chief executive should also submit necessary documents showing that the legal causes no longer exist. Appointment of OIC: The local chief executive can designate in writing an OIC if he is traveling within the country but outside his territorial jurisdiction for a period not exceeding 3 consecutive days. The OIC cannot exercise the power to appoint, suspend or dismiss employees. Omnibus Election Code (§ 67)

Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall

VACANCY SUCCESSOR 1. In the office of the governor, mayor

Vice-Governor, Vice-Mayor

2. In the office of the governor, vice-governor, mayor or vice-mayor

Highest ranking Sanggunian member

3. In the office of the highest ranking Sanggunian member (who was supposed to fill the vacant position of governor etc.

Second highest ranking Sanggunian member

4. In the office of the punong barangay

Highest ranking sangguniang barangay member/2nd highest ranking sanggunian member

VACANCY APPOINTMENT BY WHOM

1. Sanggunian Panlalawigan or Panlungsod of highly urbanized cities and independent component cities

President, through Executive Secretary

2. Sangguniang Panlungsod of Component Cities, Sangguniang Bayan

Governor

3. Sangguniang Barangay

City/Municipal Mayor upon Recommendation of the Sanggunian barangay concerned




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be considered ipso facto resigned from his office upon filing of his certificate of candidacy. Grounds for Disciplinary Actions (§ 60) CODE: DCDCAUAS An elective local official may be disciplined, suspended or removed from office on any of the following grounds:

1. Disloyalty to the Republic of the Philippines

2. Culpable violation of the Constitution 3. Dishonesty, oppression, misconduct in

office, gross negligence, dereliction of duty

4. Commission of any offense involving moral turpitude or an offense punishable by at least prison mayor

5. Abuse of authority 6. Unauthorized absence for 15

consecutive working days, except in the case of members of the Sanggunian panlalawigan, Sangguniang panlungsod, Sangguniang bayan, Sangguniang barangay.

7. Application for or acquisition of foreign citizenship or residence or the status of an immigrant of another country.

8. Such other grounds as may be provided by the Code/other laws.

Preventive Suspension (§ 63)

1. When can it be imposed a. After the issues are joined b. When the evidence of guilt is strong c. Given the gravity of the offense,

there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence

2. Who can impose preventive suspension

IMPOSED BY: RESPONDENT LOCAL OFFICIAL

1. President Elective official of a province, highly urbanized or Independent component city

2. Governor Elective official of a component city or municipality

3. Mayor Elective official of a barangay

3. Duration of preventive suspension

Single preventive suspension should not exceed 60 days.

If several administrative cases are filed against an elective official, he cannot be preventively suspended for more than 90 days within a single year on the same ground/s existing and known at the time of the first suspension.

Suspension

It should not exceed the unexpired term of the respondent or a period of 6 months for every administrative offense.

Penalty is NOT a bar to the candidacy of the respondent suspended as long as he meets the qualifications for the office. Removal as result of Administrative Investigation It serves as a BAR to the candidacy of the respondent for any elective position. Recall (§§ 69-75) Recall is the power of the electorate (registered voters) to remove a local elected official for loss of confidence through the holding of a special/recall election. Two modes of initiating a recall:

1. adoption of a resolution by the Preparatory Recall Assembly (composed of local officials of the lower/supervised local government unit)

2. petition by at least 25% of the registered voters. GROUND = Loss of confidence




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Process of Initiating Recall I. By Preparatory Recall Assembly (PRA)

1. Composition of PRA

2. Procedure

Session in a public place to initiate recall proceeding

Resolution adopted by a majority of all the members of the PRA during the session called for the purpose of initiating recall proceedings

II. By Petition of Registered Voters

Petition of at least 25% of the total number of registered voters in the LGU concerned during the election in which the local official sought to be recalled was elected.

The written petition for recall should be duly signed before the election registrar or his representative and in the presence of the representative of the petitioner and the official sought to be recalled.

It should be signed in a public place. Petition should be filed with

COMELEC through its office in the LGU concerned

Publication of petition for 10-20 days in order to verify the authenticity and genuineness of the petition and the required % of voters.

Conduct of Recall Election

The official/s sought to be recalled are automatically considered as duly registered candidates.

The date set for the recall election should not be less than 30 days after filing of resolution/petition in the case of barangay, city or municipal officials and 45 days in the case of provincial officials

Effectivity of Recall

Recall will only be effective upon the election and proclamation of a successor.

If the official sought to be recalled receives the highest number of votes, confidence in him is affirmed and he shall continue in office.

Limitations on Recall

Elective local official can be the subject of a recall election only once during his term of office.

No recall shall take place within 1 year from the date of the official’s assumption to office or 1 year immediately preceding a regular local election.

LOCAL Initiative (§§ 120-125) It is the legal process whereby the registered voters of a LGU may directly propose, enact or amend any ordinance NOTE: In Garcia v. Comelec, the SC ruled that a resolution can also be the proper subject of an initiative Who May Exercise Power It may be exercised by all registered voters of the provinces, cities, municipalities, barangays. Procedure

1. Number of voters who should file petition with Sanggunian concerned a. Provinces and cities - at least 1000

registered voters

IMPOSED BY: RESPONDENT LOCAL OFFICIAL

1. President Elective official of a province, highly urbanized or Independent component city

2. Governor Elective official of a component city or municipality

3. Mayor Elective official of a barangay

LEVEL COMPOSITION 1. Provincial Mayors, vice-mayors,

Sanggunian members of the municipalities and component cities

2. City Punong barangay and Sangguniang barangay members in the city

3. Legislative district

Elective municipal/barangay officials

4. Municipal Punong barangay and sangguniang barangay members in the municipality




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b. Municipality - at least 100 c. Barangay - at least 50

2. Sanggunian concerned has 30 days to

act on the petition. If the Sanggunian does not take any favorable action, the proponents may invoke the power of initiative, giving notice to Sanggunian.

3. Proponents will have the following number of days to collect required number of signatures a. Provinces and cities - 90 days b. Municipalities - 60 days c. Barangays - 30 days

4. Signing of petition 5. Date for initiative set by Comelec if

required number of signatures has been obtained.

Effectivity of Proposition

If proposition is approved by a majority of the votes cast, it will take effect 15 days after certification by the Comelec as if the Sanggunian and the local chief executive had taken affirmative action.

If it fails to obtain required number of votes, it is considered defeated

Limitations

It should not be exercised more than once a year.

It can only extend to subjects or matters which are within the legal powers of the Sanggunians to enact.

If the Sanggunian adopts in toto the proposition presented and the local chief executive approves the same, the initiative shall be cancelled.

Limitations upon Sanggunians

The Sanggunian cannot repeal, modify or amend any proposition or ordinance approved through system of initiative/referendum within 6 months from the date of approval thereof.

The Sanggunian can amend, modify or repeal the proposition/ordinance w/in 3 years thereafter by a vote of ¾ of all its members.

For barangays, the applicable period is 18 months.

Referendum (§§ 126-127) It is the legal process whereby the registered voters of the local government units may

approve, amend or reject any ordinance enacted by the Sanggunian. Authority of Courts The proper courts can still declare void any proposition adopted pursuant to an initiative/referendum on the following grounds:

1. Violation of the Constitution 2. Want of capacity of the Sanggunian

concerned to enact the measure.

Camid v. Office of the President, 448 SCRA 711 (January 17, 2005)

Ratio:

• Pelaez (122 Phil 965) and its offspring cases ruled that the President has no power to create municipalities, yet limited its nullificatory effects to the particular municipalities challenged in actual cases before this Court. With the promulgation of the Local Government Code, the legal cloud was lifted over the municipalities similarly created by Executive Order but not judicially annulled – Section 442B of the Local Government Code deemed curative whatever legal effects to title those municipalities had labored under.

• Municipal corporations may exist by prescription where it is shown that the community has claimed and exercised corporate functions, with the knowledge and acquiescence of the legislature, and without interruption or objection for period long enough to afford title by prescription.

• The legal effect of the nullification of a municipality in Pelaez case was to revert the constituent barrios of the voided town back into their original municipalities.




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Atienza v Villarosa , 458 SCRA 385 (May 10, 2005) Ratio:

• The provisions of Republic Act 7160 are anchored on principles that give effect to decentralization.

• The Vice-Governor, as the presiding officer of the Sangguniang Panlalawigan, has administrative control of the funds of the said body and it is he who has the authority to approve disbursement vouchers for expenditures appropriated for the operation of the Sangguniang Panlalawigan.

• While Republic Act 7160 is silent as to the matter, the authority granted to the Vice-Governor to sign all warrants drawn on the provincial treasury for all expenditures appropriated for the operation of the Sangguniang Panlalawigan as well as to approve disbursement vouchers relating thereto necessarily includes the authority to approve purchase orders covering the same applying the doctrine of necessary implication.

• While the Governor has authority to appoint officials and employees whose salaries are paid out of the provincial funds, this does not extend to the officials and employees of the Sangguniang Panlalawigan because such authority is lodged with the Vice-Governor. The appointing power of the Vice-Governor is limited to the employees of the Sangguniang Panlalawigan as well as those of the Office of the Vice-Governor, whose salaries are paid out of the funds appropriated for the Sangguniang Panlalawigan – if the salary of an employee or official is charged aagainst the provincial funds, even if this employee reports to the Vice-Governor or is assigned to his office, the Governor retains the authority to appoint the said employee

Laxina, Sr. v Office of the Ombudsman*, 471 SCRA 542 (September 30, 2005) Ratio:

• The Office of the Ombudsman has concurrent jurisdiction with the local government units over administrative cases against elective officials such as barangay chairmen.

Republic v Gingoyon*, 478 SCRA 474 (December 19, 2005) Ratio:

• The Court cannot accept the Government’s proposition that the only properties that may be expropriated under Republic Act No. 8974 are parcels of land – RA No. 8974 contemplates within its coverage such real property constituting land, buildings, roads, and constructions of all kinds adhered to the soil.




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LAW ON PUBLIC OFFICERS

PUBLIC OFFICE is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the appointing power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. Essential elements

1. Created by Constitution or by law or by some body or agency to which the power to create the office has been delegated (enabling law)

2. Invested with authority to exercise some portion of the sovereign power of the State

3. Powers/Functions defined by the Constitution, law, or through legislative authority

4. Duties are performed independently without control unless those of a subordinate

5. Continuing / permanent in nature Distinctions Public Official is an officer of the Government itself, as distinguished from the officers and employees of instrumentalities of government. Officer is distinguished from an employee in the greater importance, dignity and independence of his position, being required to take an official oath, and perhaps give an official bond and in the liability to be called to account as a public offender for misfeasance or nonfeasance in office. REQUIREMENTS FOR PUBLIC OFFICE I. Eligibility and Qualification Eligibility is the state or quality of being legally fit or qualified to be chosen. Qualification refers to the act which a person, before entering upon the performance of his duties, is by law required to do such as the taking, and often, subscribing and filing of an official oath, and, in some cases, the giving of an official bond. Who are required to give an official bond? Accountable public officers or those to whom are entrusted the collection and custody of public money, and public ministerial officers whose actions may affect the rights and interests of individuals. II. Formal qualifications:

1. citizenship, 2. age, 3. suffrage, 4. residence,

5. education, 6. ability to read and write, 7. political affiliation, 8. civil service examination

III. Disqualifications The following are grounds for disqualification to hold public office:

1. mental or physical incapacity, 2. misconduct or crime, 3. impeachment, 4. removal or suspension from office, 5. previous tenure of office, 6. consecutive terms, 7. holding more than one office, 8. relationship with the appointing power, 9. office newly created or the emoluments of

which have been increased, 10. being an elective official, 11. having been a candidate for any elective

position, and 12. grounds under the local government code.

In the absence of constitutional inhibition,

Congress has the same right to provide disqualifications that it has to provide qualifications for office.

When the constitution has attached a disqualification to the holding of any office, Congress cannot remove it under the power to prescribe qualifications as to such offices as it may create.

Presumption is in favor of eligibility. The qualifications are continuing

requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer’s entire tenure.

Limitations on the power of the legislature to prescribe qualifications:

1. The legislature may not reduce or increase

the qualifications prescribed in an exclusive manner by the Constitution.

2. The legislature may prescribe only general qualifications.

3. The qualifications must be relevant to the office for which they are prescribed.

IV. Selection for Public Office A public officer is chosen either by appointment or election.

1. Appointment




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Appointment is the act of designation by the executive officer, board, or body to whom that power has been delegated, of the individual who is to exercise the powers and functions of a given office. It is to be distinguished from the selection or designation by a popular vote.

Power to appoint is generally regarded as an executive function. But it is not limited to the executive department.

Power of appointment is absolute when the choice of the appointing authority is conclusive. It is conditional where assent or approval by some other officer or body is necessary to complete the appointment.

Acceptance of appointment is not necessary for the completion or validity of appointment. However, acceptance is necessary to possession of office, and to enable appointee to the enjoyment and responsibility of an office. Acceptance may be express when it is done verbally or in writing. Acceptance is implied when without formal acceptance, the appointee enters upon the exercise of the duties and functions of an office.

The general rule is that an appointment to an office, once made and complete, is not subject to reconsideration or revocation. The exception is where an officer is removable at will of the appointing power.

Steps in the Appointing Process:

1. Nomination – exclusive prerogative of the President

2. Confirmation – belongs to Congress i.e.

Commission on Appointments

3. Issuance of commission – a commission is a written authority from a competent source given to the officer as his warrant for the exercise of the powers and duties of the office to which he is commissioned.

Confirmation on the part of the Civil Service Commission is called “Attestation”.

2. Designation

Designation is simply the mere imposition of new or additional duties upon an officer to be performed by him in a special manner. It presupposes that the officer is already in the service by virtue of an earlier appointment, performing other functions.

V. Vacancy There is a vacancy when an office is empty and without a legally qualified incumbent appointed or elected to it with a lawful right to exercise its powers and perform its duties. There can be no appointment to a non-vacant position. Causes of vacancy are death, permanent disability, removal from office or resignation of the incumbent. Other causes of vacancy are abandonment, expiration of term, conviction of a crime, impeachment conviction, acceptance of incompatible office, creation of a new office, reaching the age limit, and recall. DE FACTO AND DE JURE OFFICERS I. De Facto Officers A de facto officer is one who actually possesses an office although he has an imperfect or colorable title thereto. His acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons. The requisites of de facto officer:

1. There must be a de jure office; 2. There must be color of right or general

acquiescence by the public; and 3. There must be actual physical possession of

the office in good faith. II. De Jure Officers A de jure officer is one who has the lawful right to the office in all respects, but who has either been ousted from it, or who has never actually taken possession of it. When the officer de jure is also the officer de facto, the lawful title and possession are united. Usurper is one who takes possession of the office and undertakes to act officially without any color of right or authority, either actual or apparent. III. Effects of Acts of De Facto Officers

The lawful acts of an officer de facto, so far as the rights of third persons are concerned are, if done within the scope and by the apparent authority of the office, considered valid and binding as if he were the officer legally elected and qualified for the office and in full possession thereof.

The de facto officer cannot benefit from his

own status because public policy demands that unlawful assumption of public office be




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discouraged. Thus, as a general rule, the de facto officer cannot claim a salary and other compensations for services rendered by him as such. However, there is authority to the effect that the de facto officer may retain salaries collected by him for services rendered in good faith where there is no de jure officer claiming the office.

The de facto officer is subject to the same

liabilities imposed on the de jure officer in the discharge of official duties, in addition to whatever special damages may be due from him because of his unlawful assumption of office.

IV. How to challenge a de facto officer:

The incumbency of a de facto officer may not be challenged collaterally or in an action to which he is not a party.

The challenge must be made in a direct proceeding where title to the office will be the principal issue.

The authorized proceeding is quo warranto either by the Solicitor General in the name of the Republic or by any person claiming title to the office.

THE CIVIL SERVICE I. Scope of the Civil Service

The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters.

The civil service does not include government-owned or controlled corporations which are organized as subsidiaries of government-owned or controlled corporations under the general corporation law.

II. Positions in the Civil Service

1. career service 2. non-career service

Career Service The Career Service is characterized by:

1. entrance based on merit and fitness to be determined, as far as practicable, by competitive examinations, or based on highly technical qualifications;

2. opportunity for advancement to higher career positions; and

3. security of tenure The Career Service includes:

1. Open career positions for which prior qualification in an appropriate examination is required;

2. Closed career positions which are scientific or highly technical in nature;

3. Career Executive Service – Undersecretary, Asst. Secretary, Bureau Director, Asst. Bureau Director, Regional Director, Asst. Regional Director, Chief of Dept. Service, and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President;

4. Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the DFA;

5. Commissioned officers and enlisted men in the Armed Forces, which shall maintain a separate merit system;

6. Personnel of GOCCs, whether performing governmental or proprietary functions, who do not fall under the non-career service; and

7. Permanent laborers, whether skilled, semi-skilled, or unskilled.

Non-Career Service The Non-Career Service is characterized by:

1. Entrance on bases other than those of usual

tests of merit and fitness utilized for the career service; and

2. Tenure which is limited to a period specified by law, or which is co-terminous 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.

The Non-Career Service includes:

1. Elective officials and their personal or confidential staff;

2. Department Heads and other officials of Cabinet rank who hold positions at the pleasure of the President and their personal or confidential staff;

3. Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff;

4. Contractual personnel or those whose employment in the government is in




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accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with minimum of direction and supervision from the hiring agency; and

5. Emergency and seasonal personnel. III. Appointments Appointments in the Civil Service may either be:

1. Permanent – issued to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of the laws, rules, and standards promulgated in pursuance thereof.

2. Temporary – issued in the absence of appropriate eligibles when necessary in the public interest to fill a vacancy to a person who meets all the requirements for the position to which he is being appointed, except the appropriate civil service eligibility. Temporary appointments shall not exceed 12 months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available.

NOTE: Where a temporary appointee acquires civil service eligibility during his tenure as such, his temporary appointment does not thereby automatically become permanent. What is required is a new appointment. (Maturan v. Magalona) Provisional Appointment – one which may be issued, upon the prior authorization of the Commissioner of the Civil Service Commission in accordance with the provisions of the Civil Service Law and the rules and standards promulgated thereunder, to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment. Distinguished from a Temporary appointment – temporary appointment given to a non-civil service

eligible is without a definite tenure and is dependent upon the pleasure of the appointing power. IV. Exceptions from Requirement of Competitive Examinations

1. policy-determining – charged with laying down of principal and fundamental guidelines or rules, such as that of a head of a department.

2. primarily confidential – denotes close

intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayals of personal trust or confidential matters of state; or one declared to be so by the President upon recommendation of the Civil Service Commission. Their tenure ends upon loss of confidence.

3. highly technical – requires the appointee to

possess technical skill or training in the supreme or superior degree.

V. Promotion The movement from one position to another with increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay Next-in-Rank Rule – The person next in rank shall be given preference in promotion when the position immediately above his is vacated. However, the concept of next-in-rank does not import any mandatory or peremptory requirement that the person next in rank must be appointed to the vacancy. The appointing authority has the discretion to fill the vacancy under the next-in-rank rule or by any other method authorized by law, e.g., by transfer. VI. Discipline Grounds for the discipline of members of the Civil Service:

1. dishonesty 2. oppression 3. neglect of duty 4. misconduct 5. disgraceful and immoral conduct 6. being notoriously undesirable 7. discourtesy in the course of official duties 8. inefficiency and incompetence in the

performance of official duties 9. conviction of a crime involving moral

turpitude 10. falsification of official documents 11. habitual drunkenness




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12. gambling 13. refusal to perform official duty or render

overtime service 14. physical or mental incapacity due to immoral

or vicious habits 15. willful refusal to pay just debts or willful

failure to pay taxes due to the government Preventive Suspension Two Kinds:

1. Preventive Suspension Pending Investigation 2. Preventive Suspension Pending Appeal

The duration of preventive suspension is coextensive with the period prescribed for deciding administrative disciplinary cases. If the case is decided before ninety (90) days then the suspension will last less than ninety (90) days, but if the case is not decided within ninety (90) days, then the suspension may not exceed the maximum period of ninety (90) days. SCOPE OF POWER OF A PUBLIC OFFICER

1. expressly conferred upon him by the law under which he has been appointed or elected;

2. expressly annexed to the office by the law which created it or some other law referring to it; or

3. attached to the office as incidents to it. Doctrine of Necessary Implication: The fact that a particular power has not been expressly conferred does not necessarily mean that it is not possessed by the officer claiming it. Such a power may still be sustained under the doctrine of necessary implication pursuant to which all powers necessary to the exercise of the power expressly granted are deemed impliedly granted. Kinds of Duties/Powers:

1. Ministerial – when it is absolute, certain, and imperative involving merely execution of a specific duty arising from fixed and designated facts. A duty is ministerial when the law exacting its discharge prescribes and defines the time, mode, and occasion of its performance with such certainty that nothing is left for judgment or discretion. It is susceptible of delegation and can be compelled by judicial action.

2. Discretionary – when it requires the

exercise of reason and discretion in

determining how or whether the act shall be done or the course pursued. The officer is expected to discharge the duty directly and not through the intervening mind of another.

It cannot be delegated to another, subject to some exceptions (power of the President to conclude treaties may be assigned to a treaty panel, which can negotiate the treaty on his behalf, under his instructions and subject to his approval).

Modes of Termination of Official Relations

1. Natural Causes a. Expiration of the term or tenure of office b. Reaching the age limit ( retirement) c. Death or permanent disability

2. Acts / Neglect of Officer

a. Resignation b. Acceptance of an incompatible office c. Abandonment of Office d. Prescription of Right to Office

3. Acts of the Government or People

a. Removal b. Impeachment c. Abolition of Office d. Conviction of a crime e. Recall

OTHER IMPORTANT CONCEPTS 1. HOLD-OVER – a public officer’s term has expired or his services terminated but he should continue holding his office until his successor is appointed or chosen and had qualified. 2. NEPOTISM – all appointments in the national and local governments or any branch or instrumentality thereof, including government-owned or controlled corporations, made in favor of a relative of the appointing authority; recommending authority; chief of the bureau or office; or person exercising immediate supervision over the appointee are PROHIBITED. Exceptions to the nepotism rule:

1. persons employed in a confidential capacity 2. teachers 3. physicians 4. members of the AFP

3. COMPENSATION IS NOT INDISPENSABLE TO A PUBLIC OFFICE.




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4. DIVESTMENT is when a public official is in a conflict-of-interest situation. Such official must resign from his position in any private business enterprise within 30 days from his assumption of office and/or divest himself of his shareholdings or interest within 60 days from such assumption. 5.OFFICIAL IMMUNITY only protects public officials from tort liability for damages arising from discretionary acts or functions in the performance of their official duties. Velasco v. Sandiganbayan, 452 SCRA 593 (February 28, 2005) Ratio:

• It is not necessary that the officer or employee who willfully refuses or fails to implement such final resolution be a party to the case.

Barriga v. Sandiganbayan, 457 SCRA 301 (April 26, 2005) Ratio:

• Where the public office of an accused is by statute a constituent element of the crime charged, there is no need for the Prosecutor to state in the Information specific factual allegations of the intimacy between the office and the crime charged, or that the accused committed the crime in performance of his duties.

Advincula v. Dicen , 458 SCRA 696 (May 16, 2005) Ratio:

• The Personal Data Sheet (“PDS”) is an official document required of a government employee or official by the Civil Service Commission – concealment of any information in the PDS warrants a penalty from the erring official.

• Misconduct, by uniform legal definition, is a transgression of some established and definite rule of action, more particularly, unlawful behavior as well as gross negligence by the public officer.

• It is incumbent on a public official to scrutinize each and every document he signs, it is hard to believe that he would affix his signature on his PDS without bothering to scrutinize, and correct if erroneous.

• Even if a public officer had indeed signed his PDS without bothering to review the same, he cannot escape administrative liability therefore – such an omission is considered as gross negligence on his part.

Garcia v Sandiganbayan, 460 SCRA 60 (June 22, 2005) Ratio:

• While at present, it is the Ombudsman who should file the petition for forfeiture under RA 1379, the Ombudsman’s exercise of the correlative powers, to investigate and initiate the proper action for recovery of ill-gotten and/or unexplained wealth is restricted only to cases for the recovery of ill-gotten and/or unexplained wealth amassed after February 25, 1986 – as regards such wealth accumulated on or before said date, the authority to file forfeiture proceedings belong to the Solicitor General. The Ombudsman has the authority to investigate cases even before February 25, 1986, pursuant to the Ombudsman’s general investigatory power under Section 15(1) of RA 6770.

Peralta v Desierto*, 473 SCRA 322 (October 19, 2005) Ratio:

• Every public official who signs or initials documents in the course of standard operating procedures does not automatically become a conspirator in a crime that transpired at some stage in which the official had no participation.




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ELECTION LAW

ELECTION Embodiment of the popular will, the expression of the sovereign power of the people. Components:

1. Choice or selection of candidates to public office by popular vote

2. Conduct of the polls 3. Listing of votes 4. Holding of Electoral campaign 5. Act of casting and receiving the ballots from

the voters 6. Counting the ballots 7. Making the election returns 8. Proclaiming the winning candidates

REGULAR ELECTION is an election participated in by those who possess the right of suffrage and not disqualified by law and who are registered voters SPECIAL ELECTION is one which is held when there is failure of election on the scheduled date of regular election in a particular place or which is conducted to fill up certain vacancies, as provided by law (ex. To fill in vacancy in office before the expiration of the term for which incumbent was elected) ELECTION PERIOD shall commence 90 days before the day of the election and shall end 30 days thereafter. Postponement of Election (Sec. 5 Omnibus Election Code) Causes: Any serious cause, such as: CODE: (VOLT-F)

1. Violence 2. Terrorism 3. Loss or destruction of election

paraphernalia/records 4. Force majeure 5. Other analogous causes such that it is

impossible to hold a free, orderly and honest election in any political subdivision

COMELEC can postpone the election (when decided by a majority vote of the COMELEC sitting en banc, RA 7166):

1. Motu proprio, or 2. Upon a verified petition by any interested

party, after due notice and hearing.

Date of new election The date of the postponed election should be reasonably close to the date of the election not held, suspended, or which resulted in a failure to elect. It should not be later than 30 days after the cessation of the cause for such postponement or suspension of the election or failure to elect. Failure of Election (Sec. 6 Omnibus Election Code) Pre-Conditions for declaring a failure of election:

That no voting has been held in any precinct

or precincts because of the following grounds: CODE: OFF-TV a. Force majeure b. Violence c. Terrorism d. Fraud e. Other analogous causes

Under RA 7166, the causes for the

declaration of the failure of election may occur before or after the casting of votes or on the day of the election.

And, that the votes not cast therein are sufficient to affect the results of the elections.

Effects of the above grounds:

1. Election in any polling place was not held on the date fixed;

2. Election was suspended before the hour fixed by law for the closing of the voting

3. Elections results in a failure to elect (after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof)

Remedy: COMELEC can, on the basis of a verified petition by any interested party, and after due notice and hearing, call for the holding or continuation of the election not held, suspended, or which resulted in a failure to elect. This is decided by the COMELEC, by a majority vote of its members, sitting en banc. Holding of the Special Election: Requisites:

1. There must be failure of election, 2. Such failure would affect the results of the

election. NOTE: In fixing the date of the special election, the Comelec should see to it that:




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It should not be later than 30 days after the cessation of the cause of the postponement or suspension of the election or failure to elect, and

It should be reasonably close to the date of the election not held, suspended, or which resulted in failure to elect.

POLITICAL PARTIES is an organized group of persons pursuing the same ideology, political ideas or platforms of government including its branches and divisions. Types of Political Parties

1. Registered Parties: a. Dominant Majority Party – usually the

administration party; entitled to a copy of election return

b. Dominant Minority Party – entitled to a copy of election return

c. Majority Political Party d. Top 3 Political Parties – entitled to

appoint principal watcher and a copy of the certificate of canvass

e. Bottom 3 political parties – entitled to appoint principal watcher

2. Non-registered parties

Criteria to Determine the Type of Political Party

Established Record of the said parties, showing in past elections

Number of Incumbent Elective Officials Identifiable political organizations and

strengths Ability to fill a complete slate of candidates Other analogous circumstances

Acquisition of Juridical Personality It is acquired upon registration with the COMELEC. NOTE: No religious sect shall be registered as a political party. No political party, which seeks to achieve its goal through violence, shall be entitled to accreditation. Forfeiture of Status as a Registered Political Party The status shall be deemed forfeited if the political party, singly or in coalition with others, fails to obtain at least 10% of the votes cast in the constituency in which it nominated and supported a candidate/s in the election next following its registration. There shall be notice and hearing.

RA 7941 – Party-List System Act I. Seeks to promote proportional representation II. Any party already registered need not register anew. File manifestation not later than 90 days before election. Grounds for refusing or canceling registration of Party-Lists groups

1. Religious sect or denomination, organization 2. Advocates violence 3. Foreign party or organization 4. Receives foreign support 5. Violates election law 6. Untruthful statements in its petition 7. Ceased to exist for at least one year 8. Failed 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 2 preceding elections for the constituency in which it has registered

Nomination of party-list reps should not

include any candidate for any elective office or a person who has lost his bid for an elective office in the immediately preceding election

Incumbent sectoral representatives in the

House of Representatives who are nominated in the party-list system shall not be considered resigned

Party List Reps constitute 20% of the total

number of the members of the House of Reps including those under the party-list

Q: How do we determine the number of party list seats in the House of Reps? A: (# of District Reps / 0.80) x 0.20 = # of party list reps

There are presently 208 legislative districts, according to the Veterans Federation Case

The 5 major political parties are now entitled to participate in the party list system

Parties receiving at least 2% of the total votes cast for the party-list system shall be entitled to one seat each

No party shall be entitled to more than 3 seats




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Currently, there are 260 (208/0.80) seats. So 20 % of 260 is 52 seats. But this is only a ceiling.

A list with 5 names should be submitted to COMELEC as to who will represent the party in the Congress. Ranking in the list submitted determines who shall represent party or organization.

Ang Bagong Bayani-OFW Labor Party v. COMELEC, G. R. No. 147589 26 June 2001

May political parties participate in the party-list elections?

Yes, provided that the political parties themselves represent the marginalized and under represented sectors, parties and organizations.

Aggabao v. COMELEC, 449 SCRA 400 (January 26, 2005)

Ratio:

Mere allegation that a candidate’s proclamation is null and void ab initio does not divest the House of Representatives Electoral Tribunal of its jurisdiction.

Poe v Macapagal Arroyo, 454 SCRA 142 (March 30, 2005) Ratio:

• In the application of Rule 3, Section 16 to an election contest, the Court has ruled that a public office is personal to the public officer and not a property transmissible to the heirs upon death; Even in analogous cases before other electoral tribunals, involving substitution by the widow of a deceased protestant, in cases where the widow is not the real party in interest, we denied substitution by the wife or heirs.

• While the right to a public office is personal and exclusive to the public officer, an election protest is not purely personal and exclusive to the protestant or protestee such that the death of either would oust the court of all authority to continue the protest proceedings; Court have allowed substitution and intervention but only by a real party in interest; Protestant’s widow is not a real party in interest to this election protest.




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Eligibility of Candidates and Certificates of Candidacy

QUALIFICATIONS Elective officials Citizenship Age Literacy Voter Presidency President/VP Natural-born 40 Read and Write Registered 10 in the Philippines Senator Natural-born 35 Read and Write Registered 2 in the Philippines District Reps Natural-born 25 Read and Write Registered in District 1 in District Party-List Reps* Natural-born 25

(if youth sector: 25-30) Read and Write Registered 1 in Philippines

Local Officials Citizen *Gov, Vice-Gov, member of sangguniang panlalawigan, mayor, vice mayor, sangguniang panlungsod in highly urbanized cities: 23 *In component cities/municipalities: 21 *Sangguniang panlungsod, sangguniang bayan, barangay: 18 *Sangguniang kabataan: 15-21

Read and Write Filipino or local dialect

Registered in locality 1 in locality

ARMM Governor Natural-born 35 Read and Write Registered in ARMM 5 in ARMM ARMM Legislator Natural-born 21 Read and Write Registered in District 5 in Districts




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Certificates of Candidacy Rules on filing of certificates of candidacy:

1. No person shall be elected into public office

unless he files his certificate of candidacy within the prescribed period

2. No person shall be eligible for more than one office. If he/she files for more than one position, he shall not be eligible for any of them unless he cancels all and retains one before the expiration of the period for the filing of certificates of candidacy.

3. The certificate of candidacy shall be filed by the candidate personally or by his duly authorized representative.

4. Upon filing, an individual becomes a candidate. Thus, he is already covered by rules, restrictions and processes involving candidates.

Effect of Filing of Certificate of Candidacy on Tenure of Incumbent Government Officials. On appointive officials: They are considered ipso facto resigned from office upon filing. On elective officials: No effect. The candidate shall continue to hold office, whether he is running for the same or a different position. (Fair Election Act) Rules on Substitution and Withdrawal of Candidacy Any candidate may withdraw his/her candidacy anytime before election day. Substitution is only allowed in the following instances:

1. death 2. withdrawal 3. disqualification

No substitution is allowed for an independent

candidate. Only candidates who are members of and are nominated by a party can be substituted.

Substitute candidate may file his/her certificate of candidacy not later than mid-day of election day.

No person who has withdrawn his/her candidacy for a position shall be eligible as a substituted candidate for any other position.

The filing of the withdrawal shall not affect the civil, criminal, or administrative liabilities the substituted candidate may have already incurred.

In case of valid substitutions, votes cast for substituted candidates are considered stray, except if the substitute candidate has the same surname. Official ballots shall provide spaces where voters may write the names of the substitute candidates. (Fair Election Act)

Grounds for disqualification under Sec. 12 of the Omnibus Election Code:

1. declared by competent authority as insane or incompetent

2. sentenced by final judgment for subversion, insurrection, rebellion, or any offense for which he has been sentenced to a penalty of more than 18 months or for a crime involving moral turpitude, unless given plenary pardon or amnesty.

*disqualification is lifted after the expiration of 5 years for service of sentence

3. Election offenses under Sec 68 of the Omnibus Election Code (OEC)

4. giving money or other material consideration to influence, induce, or corrupt the voters of public officials performing electoral functions;

5. committing acts of terrorism to enhance his candidacy;

6. spending in his election campaign an amount in excess of that allowed

7. soliciting, receiving, making prohibited contributions; or

8. committing prohibited acts under Sections 80, 83, 85, 86, and 261 pars. d, e, k, v, and cc, sub-par. 6

9. Not possessing qualifications and possessing disqualifications under the Local Government Code

10. Sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one year or more of imprisonment within two years after serving sentence

11. Removed from office as a result of an administrative case

12. Convicted by final judgment for violating the oath of allegiance to the Republic

13. Dual citizenship ( more specifically, dual allegiance)

14. Fugitives from justice in criminal or non-political cases here or abroad

15. Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right

16. Insane or feeble-minded




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17. Nuisance candidate 18. Violation of sec 73 of OEC with regard to

certificate of candidacy (filing a certificate of candidacy for more than one office)

19. Violation of sec 78: material misrepresentation in the certificate of candidacy

Effect of a Disqualification case (under RA 6646)

1. Any candidate who has been declared by final judgment to be disqualified shall NOT be voted for. The votes cast in his favor shall not be counted.

2. If the candidate is not disqualified by final judgment before the election and receives the highest number of votes in the election, the court or COMELEC will continue with the trial and hearing of the action, inquiry or protest. Upon motion of the complainant or intervenor, the court or COMELEC may order the suspension of the proclamation of the candidate whenever the evidence of his guilt is strong.

NUISANCE CANDIDATES refers to candidates who have no bona fide intention to run for the office for which the certificate of candidacy has been filed and would thus prevent a faithful determination of the true will of the people. Power of COMELEC

1. May refuse to give due course to or cancel a certificate of candidacy of a nuisance candidate. This can be done motu proprio or upon verified petition of an interested party.

2. There should be a showing that: Certificate of candidacy has been filed to

put the election process in mockery/disrepute or

To cause confusion among the voters by the similarity of the names of the registered candidates

Other circumstances which clearly demonstrate that the candidate has no bona fide intention to run for the office….

Petition to deny due course to or to cancel a certificate of candidacy

1. Exclusive ground: A material representation in the certificate of candidacy is false.

2. The petition should be filed not later than 25 days from the filing of the certificate of candidacy.

3. It should be decided not later than 15 days before the election, after due notice and hearing.

Election Campaign/Partisan Political Activity It refers to an act designed to promote the election or defeat of a particular candidate/s to a public office. It includes:

1. Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate.

2. Holding political caucuses, conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate.

3. Making speeches, announcements or commentaries or holding interviews for or against the election of any candidate for public office.

4. Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate.

5. Directly or indirectly soliciting votes pledges or support for or against a candidate.

6. Advertisements When the acts enumerated above are NOT considered an election campaign/partisan political activity - If the acts are performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, agroupment, or coalition of parties. RA 9006 – FAIR ELECTION ACT Important Features:

1. Repeal of Sec. 67 of the OEC – Now, any ELECTIVE official, whether national or local, running for any office other than the one which he is holding in a permanent capacity shall not be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

2. Lifting of the Political Ad Ban – The following are now considered lawful election propaganda: a. Written and Printed Materials (8.5” W x

14L”) b. Letter c. Posters (2’ x 3’) in common-private

poster areas (not more than 10 public




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places per political party or independent candidate, 12’ 16’), private places and public places (allocated equitably and impartially)

d. Rally streamers (3’ x 8’) e. Paid advertisements at discounted rates: f. Print: 1/4th page in broadsheet and ½

page in tabloid 3x a week g. TV: 120 mins. for candidate for national

office and 60 minutes for local office h. Radio: 180 mins. for candidate for

national office and 90 minutes for local office

i. Comelec free space (3 national newspapers for national offices and 1 national newspaper for local offices) and airtime (3 national television networks for national offices and 1 station for local offices): equal allocation for all candidates for 3 calendar days.

3. Authorized Expenses (multiplied with the

total number of registered voters) a. P 10 for president / vice president b. P 3 for other candidates for every voter

currently registered in the constituency c. P 5 for independent candidates and

political parties Electoral Contributions and Expenditures CONTRIBUTION (under Sec 94, Omnibus Election Code) – includes:

1. a gift, 2. donation, 3. subscription, 4. loan, 5. advance or deposit of money or anything of

value, 6. a contract, promise or agreement of

contribution, whether or not legally enforceable

7. use of facilities voluntarily donated by other persons, the money value of which can be assessed based on the rates prevailing in the area.

8. Made for the purpose of influencing the results of the elections.

DOES NOT INCLUDE services rendered without compensation by individuals volunteering a portion or all of their time in behalf of a candidate or political party.

EXPENDITURE includes the payment or delivery of money or anything of value, or a contract, promise or agreement to make an expenditure, for the purpose

of influencing the results of the election. It shall also include the use of facilities personally owned by the candidate, the money value of the use of which can be assessed on the rates prevailing in the area. Prohibited Contributions: Those made directly or indirectly by any of the following:

1. public or private financial institutions (except loans to a candidate or political party)

2. public utilities or those exploiting natural resources of the nation

3. persons with contracts to supply the government with goods or services or to perform construction or other works

4. grantees of franchises, incentives, exemptions, allocations or similar privileges or concessions by the government

5. persons who, within one year prior to the date of the election, have been granted loans or other accommodations in excess of P100,000 by the government

6. educational institutions which have received grants of public funds not less than P100,000

7. officials or employees in the Civil Service or members of the Armed Forces of the Philippines; and

8. foreigners and foreign corporations. Prohibited means of raising of funds (Sec. 97 Omnibus Election Code):

1. Holding any of the following activities: a. dances b. lotteries c. cockfights d. games e. boxing bouts f. bingo g. beauty contests h. entertainments i. cinematographic, theatrical, or other

performances

for the purpose of raising funds for an election campaign or for the support of any candidate from the commencement of the election period up to an including election day.

2. It shall also be unlawful for any person or

organization to solicit and/or accept from any candidate for public office any gift, food, transportation, contribution or donation in cash or in kind from the commencement of




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the election period up to and including election day, EXCEPT normal and customary religious stipends, tithes or collections

Lawful Expenditures:

1. For traveling expenses 2. Compensation of campaigners, clerks,

stenographers, messengers, and other persons actually employed in the campaign

3. Telegraph and telephone tolls, postage, freight and express delivery charges

4. Stationery, printing and distribution of printed matters relative to candidacy

5. Employment of watchers at the polls 6. Rent, maintenance and furnishing of

campaign headquarters, office, or place of meetings

7. Political meetings and rallies 8. Advertisements 9. Employment of counsel, the cost of which

shall not be taken into account in determining the amount of expenses which a candidate or political party may have incurred

10. Copying and classifying list of voters, investigating and challenging the right to vote of persons registered in the lists, the cost of which shall not be taken into account in determining the amount of expenses which a candidate or political party may have incurred

11. Printing sample ballots, the cost of which shall not be taken into account in determining the amount of expenses which a candidate or political party may have incurred

Voters Qualifications

1. Age: 18 years old and over.

2. Residence:

He /she should have resided in the Philippines for one year and resided in the city/municipality wherein he proposes to vote for at least 6 months immediately preceding the election.

Residence Requirement If the transfer of residence is due to any of the following reasons, the person concerned will be deemed NOT to have lost his original residence:

a. Transfer solely because of occupation, profession, employment in private or public service

b. Educational activities c. Work in military or naval reservations d. Service in the army, navy or air force,

national police force

e. Confinement/detention in government institutions in accordance with law

NOTE: Residence is equal to domicile. Hence, a person may be physically absent from his residence for a short, or even long period of time, due to work, studies, etc., but as long as he has the INTENT TO RETURN to his place of residence, and corollary to this, NO INTENT TO SETTLE in the place where he is physically present, he/she is still a resident in his original domicile (see Imelda Marcos case). REPUBLIC ACT NO. 9189 – THE OVERSEAS ABSENTEE VOTING ACT OF 2003 The Overseas Absentee Voting Act of 2003, also known as ‘Absentee Voting Law’, is the law that ‘ensures equal opportunity to all qualified citizens of the Philippines abroad’ to exercise their right to vote (suffrage) in the election of President, Vice President, Senators and Party-List Representatives. Who are qualified to vote under the Absentee Voting Law? All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators and party-list representatives. (Sec. 4 R.A. 9189) Who are disqualified from voting under the Absentee Voting Law?

1. Those who have lost their Filipino citizenship in accordance with Philippine laws;

2. Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country;

3. Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than one (1) year, including those who have committed and been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, such disability not having been removed by plenary pardon or amnesty; Provided, however, That any person disqualified to vote under this subsection shall automatically acquire the right to vote upon expiration of five (5) years after service of sentence; Provided, further, That the Commission may take cognizance of final judgments issued by foreign courts or tribunals only on the basis of reciprocity and subject to the formalities and processes prescribed by the Rules of Court on execution of judgments;




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4. An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be the cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia.

5. Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or foreign service establishments concerned, unless such competent authority subsequently certifies that such person is no longer insane or incompetent. (Section 5. R.A. 9189)

How shall registration be done? Registration as an overseas absentee voter shall be done in person. (Section 6,RA 9189) What is the procedure for registration? A. For Qualified citizens of the Philippines abroad who failed to register under Republic Act No. 8189, otherwise known as the “The Voters Registration Act of 1996”.

They may personally apply for registration with the Election Registration Board of the city or municipality where they were domiciled immediately prior to their departure from the Philippines, or with the representative of the Commission at the Philippine embassies, consulates and other foreign service establishments that have jurisdiction over the locality where they temporarily reside.

The embassies, consulates and other foreign

service establishments shall transmit within (5) days from receipt the accomplished registration forms to the Commission, after which the Commission shall coordinate with the Election Officer of the city or municipality of the applicant’s stated residence for

verification, hearing and annotation in the permanent list of voters.

Upon receipt of the application for

registration, the Election Officer shall immediately set the application for hearing, the notice of which shall be posted in a conspicuous place in the premises of the city or municipal building of the applicant’s stated residence for at least one (1) week before the date of the hearing. The Election Officer shall immediately furnish a copy of the application to the designated representatives of political parties and other accredited groups.

If no verified objection to the application is

filed, the Election Officer shall immediately forward the application to the Election Registration Board, which shall decide on the application within one (1) week from the date of hearing without waiting for the quarterly meeting of the Board. The applicant shall be notified of the approval or disapproval of his/her application by registered mail.

In the event that an objection to the

application is filed prior to or on the date of hearing, the Election Officer shall notify the applicant of said objection by registered mail, enclosing therein copies of affidavits or documents submitted in support of the objection filed with the said Election Officer, if any. The applicant shall have the right to file his counter-affidavit by registered mail, clearly stating therein facts and defenses sworn before any officer in the host country authorized to administer oaths

The application shall be approved or

disapproved based on the merits of the objection, counter-affidavit and documents submitted by the party objecting and those of the applicant.

A Certificate of Registration as an overseas

absentee voter shall be issued by the Commission to all applicants whose applications have been approved, including those certified as registered voters. The Commission shall include the approved applications in the National Registry of Absentee Voters.

If the application has been approved, any

interested party may file a petition for exclusion not later than two hundred ten




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(210) days before the day of elections with the proper municipal or metropolitan trial court. The petition shall be decided within fifteen (15) days after its filing on the basis of the documents submitted in connection therewith. Should the court fail to render a decision within the prescribed period, the ruling of the Election Registration Board shall be considered affirmed.

If the application has been disapproved, the

applicant or his authorized representative shall, within a period of five (5) days from receipt of the notice of disapproval, have the right to file a petition for inclusion with the proper municipal or metropolitan trial court. The petition shall be decided within five (5) days after its filing on the basis of documents submitted in connection therewith.

B. For Qualified citizens of the Philippines abroad, who have previously registered as voters pursuant to Republic Act No. 8189 They shall apply for certification as absentee voters and for inclusion in the National Registry of Overseas Absentee Voters, with a corresponding annotation in the Certified Voters’ List. (Section 6 of RA 9189) How shall voting be done?

1. The overseas absentee voter shall personally accomplish his/her ballot at the embassy, consulate or other foreign service establishment that has jurisdiction over the country where he/she temporarily resides or at any polling place designated and accredited by the Commission. (section 16, RA 9189)

2. The overseas absentee voter may also vote by mail. (Section 17, RA 9189)

When may voting by mail be allowed? For the May, 2004 elections, the Commission

shall authorize voting by mail in not more than three (3) countries, subject to the approval of the Congressional Oversight Committee. Voting by mail may be allowed in countries that satisfy the following conditions:

Where the mailing system is fairly well-developed and secure to prevent the occasion of fraud;

Where there exists a technically established identification system that would preclude multiple or proxy voting; and,

Where the system of reception and custody of mailed ballots in the embassies,

consulates and other foreign service establishments concerned are adequate and well-secured.

Thereafter, voting by mail in any country shall be allowed only upon review and approval of the Joint Congressional Oversight Committee. (Section 17.1, RA 9189)

How will the counting and canvassing of the votes be done?

The counting and canvassing of votes shall be conducted on site in the country where the votes were actually cast. The opening of the specially-marked envelopes containing the ballots and the counting and canvassing of votes shall be conducted within the premises of the embassies, consulates and other foreign service establishments or in such other places as may be designated by the Commission pursuant to the Implementing Rules and Regulations. The Commission shall ensure that the start of counting in all polling places abroad shall be synchronized with the start of counting in the Philippines.

The Commission shall constitute as many Special Boards of Election Inspectors as may be necessary to conduct and supervise the counting of votes.

Immediately upon the completion of the counting, the Special Boards of Election Inspectors shall transmit via facsimile and/or electronic mail the results to the Commission in Manila and the accredited major political parties. (Section 18, RA 9189)

Can the canvass of the overseas absentee votes delay the proclamation of winners?

No. The canvass of votes shall not cause the delay of the proclamation of a winning candidate if the outcome of the election will not be affected by the results thereof. Notwithstanding the foregoing, the Commission is empowered to order the proclamation of winning candidates despite the fact that the scheduled election has not taken place in a particular country or countries, if the holding of elections therein has been rendered impossible by events, factors and circumstances peculiar to such country or countries, and which events, factors and circumstances are beyond the control or influence of the Commission. (Section 18, RA 9189)




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RA 8189 – VOTER”S REGISTRATION ACT OF 1996 What kind of registration system do we have?

1. Continuing, 2. Computerized and 3. Permanent

Disqualifications

1. If sentenced by final judgment to suffer imprisonment for not less than 1 year and such disability was not removed by plenary pardon or has not been granted amnesty. However, any person disqualified to vote shall automatically reacquire the right to vote upon expiration of 5 years after service of sentence.

2. Any person who has been adjudged by final judgment by competent court or tribunal of having committed any crime involving disloyalty to the duly constituted government such as rebellion or any crime against national security: a. UNLESS restored to his full civil and

political rights in accordance with law. b. However, he shall regain his right to vote

automaticallyupon expiration of 5 years after service of sentence.

3. Insane or incompetent persons as declared by competent authority.

Jurisdiction in Inclusion/Exclusion cases

1. The municipal and metropolitan trial courts shall have original and exclusive jurisdiction over all matters of inclusion and exclusion of voters from the list in their respective municipalities or cities. Petition filed at any time except 105 days before regular election or 75 days before special election

2. Decisions may be appealed to the RTC within 5 days from receipt of notice of decision.

3. RTC will decide the appeal within 10 days. Decision is final and executory.

NOTE: Relate this to Article IX of the Constitution, which provides that the COMELEC has no jurisdiction over questions involving the right to vote.

4. Exclusion is through sworn petition and not later than 100 days before regular election; 65 days before special election

Grounds when the List of Voters will be altered:

1. Deactivation/ Reactivation

2. Exclusion/ Inclusion 3. Cancellation of Registration in case of

Death 4. New voters 5. Annulment of Book of Voters 6. Transfer of Residence

How is challenge to right to register effected?

Who - any voter, candidate, political party representative

How - in writing, stating grounds, under oath, proof of notice of hearing

DEACTIVATION is the removal from the registration records of persons from the precinct book of voters and place the same, properly marked and dated in indelible ink, in the inactive file after entering the cause of deactivation. How is reactivation of registration effected?

1. Sworn application for reactivation 2. Affidavit 3. Not later than 120 days before regular

election and 90 days before special election Annulment of Book of Voters is through verified petition; notice and hearing; not prepared in accordance with law or prepared through fraud, bribery, forgery, impersonation, intimidation, force, any similar irregularity or which contains data that are statistically improbable; Cannot be done within 90 days before election Pre-Proclamation Controversies 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.

It would also refer to any matter raised under Sections 233, 234, 235, and 236 of the Omnibus Election Code in relation to the preparation, transmission, receipt, custody, and appreciation of the election returns. (Board of canvassers has original jurisdiction while COMELEC has appellate jurisdiction)

When election returns are delayed, lost or destroyed (Sec.233)

Material defects in the election returns (Sec. 234)

When election returns appear to be tampered with or falsified. (Sec. 235)




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Discrepancies in election returns (Sec. 236)

Those that can be filed with COMELEC directly are the ff:

1. Issue involves the illegal composition or proceedings of the board of canvassers, as when a majority or all of the members do not hold legal appointments or are in fact usurpers

2. Issue involves the correction of manifest errors in the tabulation or tallying of the results during the canvassing

Recount There can be a recount under the grounds of 234-236. The returns involved will affect the results and the integrity of the ballot box has been preserved Issues that may be raised in a pre-proclamation controversy

1. Illegal composition or proceedings of the board of canvassers

2. The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in authentic copies thereof.

3. The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured, or not authentic.

4. When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate/s.

Procedure

1. Contested composition or proceedings of the board (under RA 7166)

It may be initiated in the board or directly

with COMELEC.

2. Contested election returns (under RA 7166)

Matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns, and certificate of canvass, should be brought in the first instance before the board of canvassers only.

Summary nature of pre-proclamation controversy Pre-proclamation controversies shall be

heard summarily by the COMELEC. Its decision shall be executory after the lapse

of 5 days from receipt by the losing party of the decision, unless restrained by the SC.

Effect of filing petition to annul or suspend proclamation It suspends the running of the period within which to file an election protest or quo warranto proceeding. When not allowed Pre-proclamation cases on matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns or the certificates of canvass NOT allowed in elections for: (under RA 7166)

1. President 2. Vice-President 3. Senator 4. Member of the House of Representatives

BUT:

The appropriate canvassing body motu propio or upon written complaint of an interested person can correct manifest errors in the certificate of canvass or election returns before it.

Questions affecting the composition or proceedings of the board of canvassers may be initiated in the board or directly with COMELEC.

When pre-proclamation cases are deemed TERMINATED (RA 7166)

All pre-proclamation cases pending before the COMELEC shall be deemed terminated at the beginning of the term of the office involved and the rulings of the boards of canvassers concerned deemed affirmed.

This is without prejudice to the filing of a regular election protest by the aggrieved party.

HOWEVER: Proceedings MAY CONTINUE if:

1. The COMELEC determines that the petition is meritorious and issues an order for the proceedings to continue or

2. The Supreme Court issues an order for the proceedings to continue in a petition for certiorari.




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Election Contest I. Original Jurisdiction COMELEC has ORIGINAL jurisdiction over contests relating to the elections, returns, and qualifications of all elective:

1. Regional 2. Provincial 3. City officials

II. Appellate Jurisdiction COMELEC has APPELLATE jurisdiction over all contests involving:

1. Elective MUNICIPAL officials decided by trial courts of GENERAL jurisdiction

2. Elective BARANGAY officials decided by trial courts of LIMITED jurisdiction

Who can file a petition contesting the election? Any candidate who has duly filed a certificate of candidacy and has been voted for the same office Purpose of an election contest The defeated candidate seeks to oust the proclaimed winner and claims the seat. Final COMELEC Decisions Provision that decisions, final orders, rulings of the Commission on Election contests involving municipal and barangay offices are final, executory and not appealable:

1. This only applies to questions of FACT. (Flores v. COMELEC, 184 SCRA 484)

2. It does NOT preclude a special civil action of certiorari. (Galido v. COMELEC, Jan. 18,1991)

Distinctions between Pre-Proclamation Controversy and Election Contest

1. Dividing line: Proclamation of a candidate 2. Jurisdiction

I. Pre-proclamation controversy

1. The jurisdiction of COMELEC is administrative /quasi-judicial

2. It is governed by the requirements of administrative due process

II. Election contest

1. The jurisdiction of COMELEC is judicial 2. It is governed by the requirements of judicial

process

3. In some cases, even if the case (involving municipal officials) began with the COMELEC before proclamation but a proclamation is made before the controversy is resolved, it ceases to be a pre-proclamation controversy and becomes an election contest cognizable by the RTC.

However, in some cases, the SC has recognized the jurisdiction of COMELEC over municipal cases even after proclamation. Relate to the provision in RA 7166 allowing pre-proclamation controversy proceedings to continue even after a proclamation has been made.

Distinctions between Pre-Proclamation Controversy and Quo Warranto

Quo warranto is not, strictly speaking, a contest. It is a proceeding to unseat an ineligible person from office. An election protest more than seeks to oust the winner. It is strictly a contest between the winning candidate and the defeated candidate.

Quo warranto may be filed by an voter. An election protest may be filed only by a candidate who has duly filed a certificate of candidacy to the same office and has been voted for.

Grounds for quo warranto are disloyalty or ineligibility of the winning candidate. Grounds for election contest are election fraud and irregularities in the counting and casting of votes or in the preparation of the returns.

In quo warranto, the respondent may be unseated, but the petitioner may not be installed into the office vacated. In election contest, the protestee may be unseated and the protestant may be installed into the office vacated.

Election Offenses (Selected Offenses) Vote buying and vote-selling I. Covered acts

1. Give, offer or promise money or anything of value

2. Making or offer to make any expenditure, directly or indirectly, or cause expenditure to be made to any person, association, corporation, entity or community

3. Soliciting or receiving, directly or indirectly, any expenditure or promise of any office or employment, public or private




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II. Purpose of acts 1. To induce anyone or the public in general to

vote for or against any candidate or withhold his vote in the election; or

2. To vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection

III. Under RA 6646 (Prosecution of vote-buying/selling)

1. Presentation of a complaint supported by affidavits of complaining witnesses attesting to the offer or promise by or the voters acceptance of money or other consideration from the relatives, leaders or sympathizers of a candidate is sufficient basis for an investigation by the COMELEC, directly or through its duly authorized legal officers.

2. Disputable presumption of conspiracy: Proof that at least one voter in different

precincts representing at least 20% of the total precincts in any municipality, city or province has been offered, promised or given money, valuable consideration or other expenditure by a candidate relatives, leaders and/or sympathizers for the purpose of promoting the election of such candidate.

3. Disputable presumption of involvement Proof affects at least 20% of the

precincts of the municipality, city or province to which the public office aspired for by the favored candidate relate. This will constitute a disputable presumption of the involvement of such candidate and of his principal campaign managers in each of the municipalities concerned in the conspiracy

Coercion of a subordinate I. Who can be held liable

1. public officer 2. officer of a public/private

corporation/association 3. heads/superior/administrator of any religious

organization 4. employer/landowner

II. Prohibited acts

1. Coercing, intimidating or compelling or influencing, in any manner, any subordinates, members, parishioners or employees or house helpers, tenants, overseers, farm helpers, tillers or lease holders to aid, campaign or vote for or against a candidate

or aspirant for the nomination or selection of candidates.

2. Dismissing or threatening to dismiss, punishing or threatening to punish by reducing salary, wage or compensation or by demotion, transfer, suspension etc.

Appointment of new employees, creation of new position, promotion or giving salary increases

1. Who can be held liable: Any head/official/appointing officer of

a government office, agency or instrumentality, whether national or local, including GOCCs.

2. Prohibited acts

a. Appointing or hiring a new employee (provisional, temporary or casual)

b. Creating or filling any new position c. Promoting/giving an increase in salary,

remuneration or privilege to any government official or employee.

3. Period when acts are prohibited

a. 45 days before a regular election b. 30 days before a special election

4. Exceptions

Upon prior authority of COMELEC if it is

satisfied that the position to be filled is essential to the proper functioning of the office/agency concerned AND that the position is not filled in a manner that may influence the election

In case of urgent need, a new employee may be appointed. Notice of appointment should be given to COMELEC within 3 days from appointment.

Prohibition against release, disbursement or expenditure of public funds

1. Who can be held liable: Any public official or employee including

barangay officials and those of GOCCs/subsidiaries

2. Prohibited acts:

The release, disbursement or expenditure of public funds for any and other kinds of public works.

3. Period when acts are prohibited: a. 45 days before a regular election b. 30 days before a special election




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4. Exception a. Maintenance of existing/completed public

works project. b. Work undertaken by contract through

public bidding, or by negotiated contract awarded before the 45 day period before election

c. Payment for the usual cooperation for working drawings, specifications and other procedures preparatory to actual construction including the purchase of material and equipment and incidental expenses for wages.

d. Emergency work necessitated by the occurrence of a public calamity but such work shall be limited to the restoration of the damaged facility.

e. Ongoing public work projects commenced before the campaign period or similar projects under foreign agreements.

Suspension of elective, provincial, city, municipal or barangay officer General rule: public official CANNOT suspend any of the officers enumerated above during the election period. Exceptions:

1. With prior approval of COMELEC 2. Suspension is for the purpose of applying the

Anti-Graft and Corrupt Practices Act In relation to registration of voters/voting

1. Unjustifiable refusal to register and vote- NOTE THAT FAILURE TO REGISTER AND/OR VOTE IS NO LONGER A CRIME.

2. Voting more than once in the same election/voting when not a registered voter

3. Voting in substitution for another with or without the latter’s knowledge and/or consent etc.

Other election offenses under RA 6646

1. Causing the printing of official ballots and election returns by printing establishments not on contract with COMELEC and printing establishments which undertakes unauthorized printing

2. Tampering, increasing or decreasing the votes received by a candidate or refusing after proper verification and hearing to credit the correct votes or deduct the tampered votes (committed by a member of the board of election inspectors)

3. Refusing to issue the certificate of voters to the duly accredited watchers (committed by a member of the BEI)

4. Person who violated provisions against prohibited forms of election propaganda

5. Failure to give notice of meetings to other members of the board, candidate or political party (committed by the Chairman of the board of canvassers)

6. A person who has been declared a nuisance candidate or is otherwise disqualified who continues to misrepresent himself as a candidate (Ex. by continuing to campaign) and any public officer or private individual who knowingly induces or abets such misrepresentation by commission or omission.

7. If the chairman of the BEI fails to affix his signature at the back of the official ballot, in the presence of the voter, before delivering the ballot to the voter. (under RA 7166)

Prescription of Election Offenses

Election offenses shall prescribe after 5 years from the date of their commission

If the discovery of the offense is made in an election contest proceeding, the period of prescription shall commence on the date on which the judgment in such proceedings becomes final and executory

Jurisdiction of courts

1. RTC has exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of the Code.

2. MTC/MCTC have jurisdiction over offenses relating to failure to register or vote.




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ELECTION PROTEST QUO WARRANTO PRE-PROCLAMATION CONTROVERSY

ANNULMENT OF PROCLAMATION

ELECTION OFFENSE

GROUNDS Fraud and irregularities in casting, counting of votes, and election incidents

1. Disloyalty to the Republic 2. Ineligibility

Illegal composition and proceedings of the Board of Canvassers Irregularities in preparation, transmission, receipt, custody, and appreciation of election returns and certificates of canvass

Proclamation based on irregular and illegal canvass whether in the election returns, certificate of canvass, proceedings and composition of board of canvassers

Violation of Election Code Commission of prohibited acts

VENUE President and VP: Presidential Electoral Tribunal Senators: Senate Electoral Tribunal Representatives: House of Rep. Electoral Tribunal Regional/Provincial/City: Comelec Municipal: RTC

President and VP: Presidential Electoral Tribunal Senators: Senate Electoral Tribunal Representatives: House of Rep. Electoral Tribunal Regional/Provincial/City: Comelec Municipal: RTC

Re: Board of Canvassers: with Board or with Comelec Re: Election Returns: with Board of Canvassers

Comelec Comelec Law Dept. for preliminary investigation, then Courts for prosecution

EFFECT IF CASE PROSPERS

Incumbent-protestee removed from office If protestant gains highest number, he/she is proclaimed

Incumbent-respondent dislodged Petitioner does not assume the petition. Follow the rules on succession

Election return set aside Recount Suspension of Proclamation

Proclamation annulled Filing suspends the running of the period within which to file election protest or

Respondent penalized with fine, imprisonment, disqualification to hold public office or deprivation of right to vote




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of officers or conduct special elections

quo warranto

PETITIONER Any candidate for the position

Any voter Any candidate or political party

Any candidate or political party

Any voter

PERIOD Within 10 days from proclamation

Within 10 days from proclamation

Upon convening of Board When election return presented

Within 10 days from proclamation

Within 5 years from commission




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ELECTION PROTEST QUO WARRANTO PRE-

PROCLAMATION CONTROVERSY

ANNULMENT OF PROCLAMATION

ELECTION OFFENSE

REQts Filed by candidate Within period Protestee proclaimed Payment of filing fee Allegations of fraud Certification against forum shopping

Filed by voter Within period Grounds Position Contested

Filed by candidate or political party

Filed by candidate or political party within period

Complaint-affidavit

PROCEDURE Revision Trial

Trial Two objection rule (oral and written)

Trial Summary proceedings

EVIDENCE Ballots Election returns Minutes Documentary and Testimonial Evidence

Documentary and Testimonial Evidence

Documentary and testimonial evidence Election returns

Documentary and testimonial evidence

Affidavits Documentary and testimonial evidence

courtesy of Atty. Agra




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OTHER LAWS in ELECTION LAW REPUBLIC ACT No. 7941 AN ACT PROVIDING FOR THE ELECTION OF PARTY-LIST REPRESENTATIVES THROUGH THE PARTY-LIST SYSTEM AND APPROPRIATING FUNDS THEREFOR What is the party-list system of election? It is a mechanism of proportional representation in the election of representatives to the House of Representatives from marginalized or underrepresented national, regional and sectoral parties, or organizations or coalitions thereof registered with the Commission on Elections (Comelec). It is part of the electoral process that enables small political parties and marginalized and underrepresented sectors to obtain possible representation in the House of Representatives, which traditionally is dominated by parties with big political machinery. Who may participate? Instead of individual candidates, only registered organized groups may participate and these are: Sectoral Party – an organized group of citizens whose principal advocacy pertains to the special interests and concerns of the following sectors: labor, fisherfolk, peasant, women, urban poor, youth, indigenous, overseas workers, veterans, cultural communities, professionals, handicapped, elderly Sectoral Organization – a group of qualified voters bound together by similar physical attributes or characteristics, or by employment, interests or concerns.

Political Party – an organized group of qualified voters pursuing the same ideology, political ideas and principles for the general conduct of the government; it may be:

A national party when its constituency is spread over the geographical territory of at least a majority of the regions; and

A regional party when its constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising a region.

COALITION – an aggrupation of duly-registered national, regional, sectoral parties or organizations for political and/or election purposes.

May the Comelec remove and/or cancel registration of any entity? The Comelec may, motu proprio or upon verified complaint of any interested party, remove or cancel after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds:

1. It is a religious sect or denomination, organization or association organized for religious purposes;

2. It advocates violence or unlawful means to achieve its goal;

3. It is a foreign party or organization; 4. It is receiving support from any foreign

government, foreign political party, foundation, organization, whether directly or indirectly or through its officers or members or indirectly through third parties for partisan election purposes;

5. It violates or fails to comply with laws, rules or regulations relating to elections;

6. It has made untruthful statements in its petition; and

7. It has ceased to exist for at least one (1) year from the time the petition is filed.

8. What are the qualifications of a party-list nominee?

1. A natural-born citizen of the Philippines; 2. A registered voter; 3. A resident of the Philippines for a period

of not less than one (1) year immediately preceding the election day;

4. Able to read and write; 5. A bona fide member of the party he

seeks to represent for at least ninety (90) days preceding election day;

6. and At least twenty-five (25) years of age on election day.

NOTE: In case of the youth sector, he must be at least twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who reaches the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his term. How many seats are available under the party-list system? Twenty percent (20%) of the total membership in the House of Representatives is reserved for party-list representatives, or a ratio of one (1) party list representative for every four (4) legislative district representatives. (20% ALLOCATION)




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How does the party-list system enhance the chances or marginalized or underrepresented parties of winning seats in the House of Representatives? In the party-list system, no single party may hold more than three (3) party-list seats. Bigger parties which traditionally will dominate elections cannot corner all the seats and crowd out the smaller parties because of this maximum ceiling. This system shall pave the way for smaller parties to also win seats in the House of Representatives. (3-SEAT LIMIT) How shall party-list seats be allocated? [See Veterans Federation Party, et al. vs. Commission on Elections, et al. (G. R. No. 136781, 06 October 2000)]. Party-list seats shall be allocated as follows:

1. The parties shall be ranked from highest to lowest based on the number and percentage of votes garnered during the elections;

2. Only a maximum of three seats may be

allowed per party. Seats are allocated at the rate of one seat per 2% of votes obtained; and

3. Unallocated seats shall be distributed among the parties, which have not yet obtained the maximum 3 seats, provided they have mustered at least 2% of votes.

NOTE: The variance of percentage in excess of 2% or 4% (equivalent to 1 or 2 seats that have already been obtained, respectively) shall be ranked and be the basis for allocating the remaining seats. What is the status of the party-list representatives vis-à-vis representatives of legislative districts in the House of Representatives? Party-list representatives are considered elected Members of the House and as such, entitled to the same deliberative rights, salaries, and emoluments as the regular Members of the House of representatives. They shall serve for a term of three (3) years with a maximum of three (3) consecutive terms. REPUBLIC ACT NO. 6646 AN ACT INTRODUCING ADDITIONAL REFORMS IN THE ELECTORAL SYSTEM AND FOR OTHER PURPOSES. How should City Voters vote? The registered voters of a highly urbanized city shall not vote in the election for provincial officials of the

province in which it is located. No component city shall be declared or classified as a highly urbanized city within sixty (60) days prior to a local election. The registered voters of a component city shall be entitled to vote in the election for provincial officials of the province of which it is a part, unless its charter provides otherwise. (Sec. 3) What is the effect of a disqualification case? Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (Sec. 6) Aside from the prohibited acts and election offenses enumerated in Sections 261 and 262 of the Omnibus Election Code (B. P. Blg. 881, as amended), what are the other ELECTION OFFENSES?

1. Any person who causes the printing of official ballots and election returns by any printing establishment, which is not under contract with the Commission on Elections and any printing establishment, which undertakes such unauthorized, printing.

2. Any member of the board of election inspectors or board of canvassers who tampers, increases, or decreases the votes received by a candidate in any election or any member of the board who refuses, after proper verification and hearing, to credit the correct votes or deduct such tampered votes.

3. Any member of the board of election inspectors who refuses to issue to duly accredited watchers the certificate of votes provided in Section 16 hereof.

4. Any person who violates Section 11 hereof regarding prohibited forms of election propaganda.

5. Any chairman of the board of canvassers who fails to give notice of meetings to other members of the board, candidate or political party as required under Section 23 hereof.

6. Any person declared a nuisance candidate as defined under Section 69 of Batas Pambansa Blg. 881, or is otherwise disqualified, by final and executory judgment, who continues to misrepresent himself, or

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holds himself out, as a candidate, such as by continuing to campaign thereafter, and/or other public officer or private individual, who knowingly induces or abets such misrepresentation, by commission or omission, shall be guilty of an election offense and subject to the penalty provided in Section 264 of the same Code. (Sec. 27)

REPUBLIC ACT NO. 7166 AN ACT PROVIDING FOR SYNCHRONIZED NATIONAL AND LOCAL ELECTIONS AND FOR ELECTORAL REFORMS, AUTHORIZING APPROPRIATIONS THEREFOR, AND FOR OTHER PURPOSES When may special elections be had? In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term, the Commission shall call and hold a special election to fill the vacancy not earlier than sixty (60) days nor longer than ninety (90) days after the occurrence of the vacancy. However, in case of such vacancy in the Senate, the special election shall be held simultaneously with the succeeding regular election.( Sec. 4) How long is the election and campaign period? Regular elections shall commence ninety (90) days before the day of the election and shall end thirty (30) days thereafter. The campaign period for President, Vice-President and Senators shall be ninety (90) days before the day of the election and for Members of the House of Representatives and elective provincial, city and municipal officials, forty-five (45) days before the day of the election. Any election campaign or partisan political activity for or against any candidate outside of the campaign period herein provided is prohibited and shall be considered as an election offense punishable under Section 263 and 264 of the Omnibus Election Code. How much may a candidate or registered political party spend for election campaign?

1. FOR CANDIDATES. - Ten pesos (P10.00) for President and Vice-President; and for other candidates Three Pesos (P3.00) for every voter currently registered in the constituency where he filed his certificate of candidacy: Provided, That a candidate without any political party and without support from any political party may be allowed to spend Five Pesos (P5.00) for every such voter; and

2. FOR POLITICAL PARTIES. - Five pesos (P5.00) for every voter currently registered in the constituency or constituencies where it has official candidates. (Sec. 13)

Is the Statement of Contributions and Expenditures required what is the Effect of Failure to File Statement? – Yes. Every candidate and treasurer of the political party shall, within thirty (30) days after the day of the election, file in duplicate with the offices of the Commission the full, true and itemized statement of all contributions and expenditures in connection with the election.

No person elected to any public offices shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required.

The same prohibition shall apply if the political party which nominated the winning candidate fails to file the statement required herein within the period prescribed by this Act.

Except candidates for elective barangay office, failure to file the statements or reports in connection with electoral contributions and expenditures are required herein shall constitute an administrative offense for which the offenders shall be liable to pay an administrative fine ranging from One thousand pesos (P1,000.00) to Thirty thousand pesos (P30,000.00), in the discretion of the Commission.

The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be enforceable by a writ of execution issued by the Commission against the properties of the offender. (Sec. 14)

Are Pre-proclamation Cases Allowed in Elections for President Vice-President, Senator, and Member of the House of Representatives? As a General Rule, no pre-proclamation cases shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns or the certificates of canvass, as the case may be. However, this does not preclude the authority of the appropriate canvassing body motu propio or upon written complaint of an interested person to correct manifest errors in the certificate of canvass or election returns before it. Are Pre-proclamation Cases Involving Provincial, City and Municipal Offices allowed? When are they terminated?





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Pre-proclamation cases involving provincial,

city and municipal offices shall be allowed. All pre-proclamation cases pending before

the Commission shall be deemed terminated at the beginning of the term of the office involved and the rulings of the boards of canvassers concerned shall be deemed affirmed, without prejudice

to the filing of a regular election protest by the aggrieved party. However, proceedings may continue when on the basis of the evidence thus far presented, the Commission determined that the petition appears meritorious and accordingly issues an order for the proceeding to continue or when an appropriate order has been issued by the Supreme Court in a petition for certiorari.

How are pre-proclamation controversies commenced? Questions affecting the composition or proceedings of the board of canvassers may be initiated in the board or directly with the Commission. However, matters raised in relation to the preparation, transmission, receipt, custody and appreciation of the election returns, and the certificates of canvass shall be brought in the first instance before the board of canvassers only. Are Partial Proclamations allowed? Yes. Notwithstanding the pendency of any pre-proclamation controversy, the Commission may summarily order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy. How are Election Contests for Municipal Offices resolved?

All election contests involving municipal offices filed with the Regional Trial Court shall be decided expeditiously.

The decision may be appealed to the Commission within five (5) days from promulgation or receipt of a copy thereof by the aggrieved party. The Commission shall decide the appeal within sixty (60) days after it is submitted for decision, but not later than six (6) months after the filing of the appeal, which decision shall be final, unappealable and executory.

How should the Congress as the National Board of Canvassers for the Election of President and Vice-President perform such function,

particularly the Determination of Authenticity and Due Execution of Certificates of Canvass? Congress shall determine the authenticity and due execution of the certificate of canvass for President and Vice-President as accomplished and transmitted to it by the local boards of canvassers, on a showing that:

1. each certificate of canvass was executed, signed and thumbmarked by the chairman and members of the board of canvassers and transmitted or caused to be transmitted to Congress by them;

2. each certificate of canvass contains the names of all of the candidates for President and Vice-President and their corresponding votes in words and in figures; and

3. there exists no discrepancy in other authentic copies of the certificate of canvass or discrepancy in the votes of any candidate in words and figures in the certificate.

When the certificate of canvass, duly certified by the board of canvassers of each province, city or district, appears to be incomplete, the Senate President shall require the board of canvassers concerned to transmit by personal delivery, the election returns from polling places that were not included in the certificate of canvass and supporting statements. Said election returns shall be submitted by personal delivery within two (2) days from receipt of notice. When it appears that any certificate of canvass or supporting statement of votes by precinct bears erasures or alterations which may cast doubt as to the veracity of the number of votes stated therein and may affect the result of the election, upon request of the Presidential or Vice-Presidential candidate concerned or his party, Congress shall, for the sole purpose of verifying the actual number of votes cast for President and Vice-President, count the votes as they appear in the copies of the election returns submitted to it.

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