Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R
review materials, www.pinoylaw.net, etc.)
Ma. Luisa Angeles Ramos
POLITICAL LAW
That branch of public law which deals with the organization and operations of the
governmental organs of the State and defines the relations of the State with the
inhabitants of its territory.
Scope/Divisions of Political Law:
1. Constitutional Lawthe study of the maintenance of the proper balance between
authority as represented by the three inherent powers of the state and liberty as
guaranteed by the Bill of Rights.
2. Administrative Law-- That branch of public law which fixes the organization,
determines the competence of administrative authorities who executes the law,
and indicates to the individual remedies for the violation of his right.
3. Law on Municipal Corporations
4. Law of Public Officers
5. Elections Law
Basis:
1. 1987 Constitution
2. 1973 and 1935 Constitutions
3. Organic laws made to apply to the Philippines
a. Philippine Bill of 1902
b. Jones Law of 1916
c. Tydings-McDuffie Law of 1934
4. Statutes, executive orders and decrees, and judicial decisions
5. US Constitution
Constitution Statute
legislation direct from the people;
states general principles;
intended not merely to meet existing
conditions;
it is the fundamental law of the State
legislation from the peoples representative;
provides the details of the subject matter of
which it treats;
intended primarily to meet existing conditions
only;
it conforms to the Constitution
PHILIPPINE CONSTITUTION
Constitutionit is the document which serves as the fundamental law of the State; that
body of rules and maxims in accordance with which the power of sovereignty are
habitually exercised.
That written instrument enacted by direct action of the people by which the
fundamental powers of the government are established, limited and defined, and by
which those powers are distributed among the several departments for their safe and
useful exercise for the benefit of the body politic.
It is the basic and paramount law to which all other laws must conform and to
which all persons, including the highest officials of the land, must defer. No act shall be
valid, however noble its intention, if it conflicts with the Constitution. The Constitution
must ever remain supreme. All must bow to the mandate of this law. Right or wrong, the
Constitution must be upheld as long as the sovereign people have not changed it.
Classification:
1. Written or unwritten
Written Unwritten
-one whose precepts are embodied in one
document or set of documents
-consists of rules which have not been
integrated into a single, concrete form but
are scattered in various sources
Examples: a. statutes of fundamental
character;
b. judicial decisions;
c. commentaries of publicists;
d. customs and traditions;
e. certain common law principles
2. Enacted (conventional) or Evolved (Cumulative)
Enacted (conventional) Evolved (Cumulative)
-formally struck off at a definite time and
place following a conscious or deliberate
effort taken by a constituent body or ruler
-the result of political evolution, not
inaugurated at any specific time but
changing by accretion rather than by any
systematic method
3. Rigid or Flexible
Rigid Flexible
a. C onstitution of Libertysets forth the fundamental civil and political rights of the
a. ORTHODOX VIEW
i. an unconstitutional act is not a law;
ii. it confers no rights;
iii. it imposes no duties;
iv. it affords no protection;
v. it creates no office;
vi. it is inoperative, as if it had not been passed at all.
b. MODERN VIEWCourts simply refuse to recognize the law and determine
the rights of the parties as if the statute had no existence. Certain legal effects
of the statute prior to its declaration of unconstitutionality may be recognized.
Thus, a public officer who implemented an unconstitutional law prior to the
declaration of unconstitutionality cannot be held liable (Ynot vs. IAC).
Partial Unconstitutionality
Requisites:
a. The legislature must be willing to retain the valid portion(s), usually shown by
the presence of a separability clause in the lawINTENT OF THE
LEGISLATIVE; and
b. The valid portion can stand independently as lawINDEPENDENCE OF
THE PROVISIONS.
PREAMBLE
ARTICLE I
NATIONAL TERRITORY
The national territory comprises the Philippine archipelago, with all the islands
and waters embraced therein, and all other territories over which the
Philippines
has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial
domains, including its territorial sea, the seabed, the subsoil, the insular
shelves,
and other submarines areas. The waters around, between and connecting the
islands of the archipelago, regardless of their breadth and dimensions, form
part
of the internal waters of the Philippines.
Two (2) Parts of the National Territory:
1. The Philippine archipelago with all the islands and waters embraced therein; and
2. All other territories over which the Philippines has sovereignty or jurisdiction.
Do you consider the Spratlys Group of Islands as part of Philippine
Archipelago? Spratlys Group of Islands is not part of the Philippine
Archipelago because it is too far away from the three main islands of the
Philippines. It is found, geographically, almost in the middle of the South China
Sea. It is not part of the Philippine Archipelago. Historically, when we talk about
Philippine Archipelago, we refer to those islands and waters that were ceded by
the Spain to the United States by virtue of Treaty of Paris in 1898. And that did
not include the Spratlys Group of Islands yet. Under the treaty, the islands that
were ceded by Spain were identifiedthe main islandsLuzon, Visayas and
Mindanao. Clearly, it did not include the Spratlys Group of Islands.
Spratlys Group of Islands was only discovered sometime in the 1950s by a
Filipino, Tomas Cloma. The latter waived his rights over the islands in favor of the
Philippine Government. In effect, the government stepped into the shoes of the
discoverer. By then President Marcos, what he did the moment Tomas Cloma waived
his rights over the Spratlys Group of Islands, is to have the islands immediately
occupied by Philippine troops. He then issued PD 1596, constituting the Spratlys Group
of Islands as a regular municipality claiming it the Municipality of Kalayaan placing it
under the Province of Palawan. And then he had the elections immediately held in the
islands so from that time on until now, we continue to hold elections there. The
Philippine exercises not only jurisdiction but also sovereignty over the Spratlys Group of
Islands, yet it is not part of the Philippine Archipelago. Geographically, it is too far away
from the Philippine Archipelago.
On May 20, 1980, the Philippines registered its claim with the UN Secretariat.
The Philippine claim to the islands is justified by reason of history, indispensable need,
and effective occupation and control. Thus, in accordance with the international law, the
Spratlys Group of islands is subject to the sovereignty of the Philippines.
Do you consider the Spratlys group of Islands as part of our National
Territory?
Yes. Article I of the Constitution provides: The national territory comprises the
Philippine archipelago, x x x, and all other territories over which the Philippines has
sovereignty or jurisdiction, x x x. The Spratlys Group of islands falls under the second
phrase and all other territories over which the Philippines has sovereignty or
jurisdiction. It is part of our national territory because Philippines exercise sovereignty
(through election of public officials) over Spratlys Group of Islands.
What was the basis of the Philippines claim over the Spratlys?
Through discovery of Tomas Cloma and occupation
Modes of acquiring territories:
1. Discovery and Occupationwhich are terra nullius (land belonging to no one)
Doctrine of Effective Occupationdiscovery alone is not enough. Mere discovery gives
only an inchoate right to the discoverer. For title to finally vest, discovery must be followed by
effective occupation in a reasonable time and attestation of the same.
2. Cession by Treaty. Examples are Treaty of Paris, treaty between France and US
ceding Louisiana to the latter and treaty between Russia and US ceding Alaska to
the latter;
3. Prescriptionwhich is a concept under the Civil Code. Territory may also be
acquired through continuous and uninterrupted possession over a long period of
time. However, in international law, there is no rule of thumb as to the length of time
for acquisition of territory through prescription. In this connection, consider the
Grotius Doctrine of immemorial prescription, which speaks of uninterrupted
possession going beyond memory.
4. Conquest or Subjugation (conquistadores)this is no longer recognized,
inasmuch as the UN Charter prohibits resort to threat or use of force against the
territorial integrity or political independence of any state ; and
5. Accretionanother concept in the Civil Code. It is the increase in the land area of
the State, either through natural means, or artificially, through human labor.
Philippine Archipelago:
1. Treaty of Paris, December 10, 1898Cession of the Philippine Islands by
Spain to the United States;
2. Treaty between Spain and US at Washington, November 7, 1900inclusion
of Cagayan, Sulu and Sibuto;
like Indonesia. The Philippines is not in any way connected physically with the
Asia mainland.
Components of National Territory:
Baselineis a line from which the breadth of the territorial sea, the
contiguous zone and the exclusive economic zone is measured in order to
determine the maritime boundary of the coastal state.
Types of baseline:
i. Normal Baseline Method
ii. Straight Baseline method
d. Contiguous Zoneextends up to 12 nautical miles from the territorial
sea; this shall not exceed 24 nautical miles from the archipelagic
baselines.
The coastal state may exercise limited jurisdiction over the
contiguous zone:
III.Aerialthis refers to the air space above the land and waters of the State.
(See Discussions under International Law)
ARTICLE II
2. Manifestations:
Ours is a government of law and not of men (Villavicencio vs. Lukban, 39
Phil 778).
Rule of the majority. (Plurality in elections)
Accountability of public officials
Bill of rights
Legislature cannot pass irrepealable laws.
Separation of powers.
Republicanism
What is a republican form of government?
It is a government of the people, by the people, and for the people, a representative
government wherein the powers and duties of government are exercised and
discharged for the common good and welfare.
Characteristics of a republican form of government:
1. The people do not govern themselves directly but through their representatives;
2. It is founded upon popular suffrage;
Forcesestablished and
maintained by the military forces
who invade and occupy a
territory of the enemy in the
course of war;
c. Independent Government
established by the inhabitants of
the country who rise in
insurrection against the parent
State.
Presidential vs. Parliamentary
Presidential Parliamentary
There is separation of legislative and
executive powers. The first is lodged in
the President and the second is vested
in Congress.
It embodies interdependence by
separation and coordination.
There is fusion of both executive and
legislative powers in Parliament,
although the actual exercise of the
executive powers is vested in a Prime
Minister who is chosen by, and
accountable to, Parliament.
It embodies interdependence by
integration.
Unitary vs. Federal Government
Functions of the government:
a. C onstituentcompulsory because constitutive of the society;
b. M inistrantundertaken to advance the general interest of the society; merely
optional.
Doctrine of Parens Patriaethe government as guardian of the rights of the people
may initiate legal actions for and in behalf of particular individual. (Government of the
Philippine Islands vs. Monte de Piedad, 35 SCRA 738; Cabaas vs. Pilapil, 58
SCRA 94)
4. Sovereigntythe supreme and uncontrollable power inherent in a State by which
that State is governed.
It is the right to exercise the functions of a State to the exclusion of any other
State.
While sovereignty has traditionally been deemed absolute and all-encompassing
on the domestic level, it is however subject to restrictions and limitations voluntarily
agreed to by the Philippines, expressly or impliedly, as a member of the family of
nations. In its Declaration of Principles and State Policies, the Constitution 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. By the doctrine of incorporation, the country is bound by generally accepted
principles of international law, which are considered to be automatically part of our own
laws.
Government of Laws and Not of Men.sovereignty of the people also
includes the concept that government officials have only the authority given them
by law and defined by law, and such authority continues only with the consent of
the people.
Kinds of Sovereignty:
a. Legalthe power to issue final commands;
b. Politicalthe sum total of all the influences which lie behind the law;
c. Internalthe supreme power over everything within its territory;
d. Externalalso known as independencefreedom from external control.
Characteristics:
a. Permanence
b. Exclusiveness
c. Comprehensiveness
d. Absoluteness
e. Indivisibility
f. Inalienability
g. Imprescriptibility
Sovereignty, often referred to as Imperiumis the States authority to govern; it
includes passing laws governing a territory, maintaining peace and order over it, and
defending it against foreign invasion.
It is the government authority possessed by the State expressed in the concept
of sovereignty.
Dominiumis the capacity of the State to own or acquire property such as lands and
natural resources. (Lee Hong Hok vs. David, No. L-30389, December 27, 1972;
Separate Opinion of Justice Kapunan in Cruz vs. Secretary of DENR, G.R. No.
135385, December 2000)
It necessarily includes the power to alienate what is owned. It was the foundation
for the early Spanish decrees embracing the feudal theory of jura regalia that all lands
were held from the Crown.
Effect of Belligerent Occupationthere is no change in sovereignty. However,
political laws, except those of treason, are suspended; municipal laws remain in force
unless changed by the belligerent occupant.
Principle of Jus Postliminiumat the end of the occupation, when the occupant is
ousted from the territory, the political laws which have been suspended shall
automatically become effective again. (Peralta vs. Director of Prisons, No. L049,
November 12, 1945)
Effect of Change of Sovereigntypolitical laws of the former sovereign are abrogated
unless they are expressly reenacted by the affirmative act of the new sovereign.
Municipal laws remain in force. (Macariola vs. Asuncion, Adm. Case No. 133-J, May
31, 1982)
Effect of Revolutionary Governmentit is bound by no constitution. However, it did
not repudiate the Covenant or Declaration in the same way it repudiated the
Constitution. As the de jure government, the revolutionary government could not escape
responsibility for the States good faith compliance with its treaty obligations under
international law. During the interregnum when no constitution or Bill of Rights existed,
directives and orders issued by government officers did not exceed the authority
granted them by the revolutionary government. The directives or orders should not have
also violated the Covenant or the Declaration. (Republic vs. Sandiganbayan, G.R.
No. 104768, July 21, 2003)
Jurisdictionis the manifestation of sovereignty.
a. T erritorialpower of the State over persons and things within its territory
subject to its control and protection.
the state even if the individual is outside the territory of the State.
c. E xtraterritorialpower of the State over persons, things or acts beyond its
territorial limits by reason of their effects to its territory.
Sec. 2, Article II
(Incorporation Clause)
The Philippine renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land
and adheres to the policy of peace, equality, justice, freedom, cooperation,
and
amity with all nations.
Three (3) parts:
1. Renunciation of warthe power to wage a defensive war is of the very essence
of sovereignty;
2. Adoption of the principles of international law;
3. Adherence to a policy of peace, equality, justice, freedom, cooperation & amity.
The second part is nothing more than a formal acceptance of a principle to which all
civilized nations must conform.
The third part is called the selfish policythe guiding principle of Philippine foreign
policy is the national interest. However, this is tempered with concern for equality,
peace, freedom and justice.
Section 23 (1), Article VI: The Congress, by a vote of two-thirds of both Houses in
join session assembled, voting separately, shall have the sole power to declare the
existence of a state of war.
Doctrine of Incorporationthe doctrine where the generally accepted principles of
international law are made part of the law of the land either by express provision of the
Constitution or by means of judicial declaration or fiat. The doctrine is applied whenever
municipal tribunals or local courts are confronted with situations in which there appears
to be a conflict between a rule of international law and the provisions of the Constitution
or statute of a State.
Efforts should first be exerted to harmonize them so as to give effect to both. In
case of conflict between international law and municipal law, the latter shall prevail.
However, the doctrine dictates that rules of international law are given equal
standing with, and are not superior to, national legislative enactments.
Lex posterior derogate prioriin States where the constitution is the highest
law of the land, both statutes and treaties may be invalidated if they are in conflict with
the Constitution. (Secretary of Justice vs. Lantion, G.R. No. 139465, January 18,
2000)
Philip Morris, Inc. vs. CA, the fact that the international law has been made part
of the law of the land does not by any means imply the primacy of international law over
national law in the municipal sphere.
Doctrine of Autolimitation
It is the doctrine where the Philippines adheres to principles of international law
as a limitation to the exercise of its sovereignty.
What war does the Philippines renounce?
The Philippines renounces an aggressive war because of its membership in the
United Nations whose charter renounces war as an instrument of national policies of its
member States.
Sec. 3, Article II
(Civilian Supremacy Clause)
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 Supremacy Clause
Sec. 18, Art. VIIinstallation of the President as the highest civilian authority, as the
commander-in-chief of the AFPexternal manifestation that civilian authority is
supreme over the military.
Sec. 5(1), Art. XVImembers of the AFP swear to uphold and defend the Constitution,
which is the fundamental law of the civil government.
Civilian supremacy is not a guaranteed supremacy of civilian officers who are in
power but of supremacy of the sovereign people. The Armed Forces, in this sense, is
the protector of the people and the State.
Sec. 6, Article XVIThe State shall establish and maintain one police force, which
shall be national in scope and civilian in character, to be administered and controlled by
a national police commission. The authority of local executives over the police units in
their jurisdiction shall be provided by law.
IBP vs. Zamora, G.R. No. 141284, August 15, 2000, the deployment of the
Marines does not constitute a breach of the civilian supremacy clause. The calling of the
marines in this case constitutes permissible use of military asset for civilian law
enforcement. x x x The limited participation of the Marines is evident in the provisions of
the Letter of Instruction (LOI) itself, which sufficiently provides the metes and bounds of
the Marines authority. It is noteworthy that the local police forces are the ones charge of
the visibility patrols at all times, the real authority belonging to the PNP. In fact, the
Metro Manila Police Chief is the overall leader of the PNP-Marines joint visibility patrols.
Under the LOI, the police forces are tasked to brief or orient the soldiers on police patrol
procedures. It is their responsibility to direct and manage the deployment of the
marines. It is, likewise, their duty to provide the necessary equipment to the Marines
and render logistic support to these soldiers. In view of the foregoing, it cannot be
properly argued that military authority is supreme over civilian authority.
It is worth mentioning that military assistance to civilian authorities in various
forms persists in Philippine jurisdiction. The Philippine experience reveals that it is not
averse to requesting the assistance of the military in the implementation and execution
of certain traditionally civil functions. x x x Some of the multifarious activities wherein
military aid has been rendered, exemplifying the activities that bring both the civilian
and
the military together in a relationship of cooperation are:
1. Elections;
2. Administration of the Philippine National Red Cross;
3. Relief and rescue operations during calamities and disasters;
4. Amateur sports promotion and development;
5. Development of the culture and the arts;
6. Conservation of the natural resources;
7. Implementation of the agrarian reform program;
8. Enforcement of customs laws;
9. Composite civilian-military law enforcement activities;
10. Conduct of licensure examinations;
11. Conduct of nationwide test for elementary and high school students;
12. Anti-drug enforcement activities;
13. Sanitary inspections;
14. Conduct of census work;
15. Administration of the Civil Aeronautic Board;
16. Assistance in installation of weather forecasting devices;
17. Peace and order policy formulation in local government units.
This unquestionably constitutes a gloss on executive power resulting from a
systematic, unbroken, executive practice, long pursued to the knowledge of Congress
and, yet, never before questioned. What we have here is a mutual support and
cooperation between the military and civilian authorities, not derogation of civilian
supremacy.
Sec. 4, Article II
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.
Does the Philippines renounce defensive war?
No, because it is duty bound to defend its citizens. Under the Constitution, the prime
duty of the government is to serve and protect the people.
Posse Commitatusit is the power of the state to require all able-bodied citizens to
perform civic duty to maintain peace and order.
In People vs. Lagman, 66 Phil. 13, the accused in this case, prosecuted for
failure to register for military service under the National Defense Act, assailed the
validity of the Act. The Supreme Court upheld the law on the basis of the compulsory
military and civil service provision of then 1935 Constitution. It said that: x x x. The duty
of the Government to defend the State cannot be performed except through an army.
To leave the organization of an army to the will of the citizens would be to make this
duty to the Government excusable should there be no sufficient men who volunteer to
enlist thereinx x x the right of the Government to require compulsory military service
is a consequence of its duty to defend the State and is reciprocal with its duty to defend
the life, liberty, and property of the citizen. x x x.
Sec. 5, Article II
The maintenance of peace and order, the protection of life, liberty, and
property,
and the promotion of the general welfare are essential for the enjoyment by
all
the people of the blessings of democracy.
Right to bear arms: It is statutory and not a constitutional right. The license to carry a
firearm is neither a property nor a property right. Neither does it create a vested right.
Even if it were a property right, it cannot be considered absolute as to be placed beyond
the reach of police power. The maintenance of peace and order, and the protection of
the people against violence are constitutional duties of the State, and the right to bear
firearm is to be construed in connection and in harmony with these constitutional duties.
(Chavez vs. Romulo, G.R. No. 157036, June 9, 2004)
Sec. 6, Article II
The separation of Church and State shall be inviolable.
The State should not use its money and coercive power to establish religion. It
should not support a particular religion. The State is prohibited from interfering with
purely ecclesiastical affairs. But it does not mean that there is total or absolute
separation. The better rule is symbiotic relations between the church and State.
Constitutional provisions evidencing the Separation of Church and State:
1. Sec. 6, Art. II
2. Sec. 5, Art. IIINo 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 and political rights.
appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and
improvements, actually, directly, and exclusively used for religious, charitable, or
educational purposes shall be exempt from taxation.
6. Sec. 29 (2), Art. VINo public money or property shall be appropriated, applied, paid,
or employed, directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or of any priest, preacher,
minister, or other religious teacher, or dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium.
7. Sec. 3 (3), Art. XIVAt the option expressed in writing by the parents or guardians,
religion shall be allowed to be taught to their children or wards in public elementary and
high schools within the regular class hours by instructors designated or approved by the
religious authorities of the religion to which the children or wards belong, without
additional cost to the Government.
8. Sec. 4 (2), Art. XIVFilipino ownership requirement for educational institutions,
STATE POLICIES
Sec. 7, Article II
(Independent Foreign Policy)
The State shall pursue an independent foreign policy. In its relations with
other
(Social Justice)
The State shall promote social justice in all phases of national development.
(Read Sections 1 and 2 of Article XIII)
Sections 1&2 of Article XIII:
Section 1The Congress shall give highest priority to the enactment of
measures that protect and enhance the right of all the people to human dignity, reduce
social, economic, and political inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and
disposition of property and its increments.
Section 2The promotion of social justice shall include the commitment to
create economic opportunities based on freedom of initiative and self-reliance.
The Constitution covers all phases of national development but with more
emphasis not only on economic inequities but also on political and cultural inequities.
Sec. 11, Article II
(Personal Dignity and Human Rights)
The State values the dignity of every human person and guarantees full
respect
for human rights.
(Read Sections 17-19 of Article XIII)
Section 12, Article II
(The Family as Basic Social Institution)
The State recognizes the sanctity of family life and shall protect and
strengthen
the family as a basic autonomous social institution. It shall equally protect the
life
of the mother and the life of the unborn from conception. The natural and
primary
right and duty of parents in the rearing of the youth for civic efficiency and the
policy of not accepting or considering as disqualified from work any woman worker who
contracts marriage, runs afoul of the test of, and the right against, discrimination, which
is guaranteed all women workers under the Constitution. While a requirement that a
woman employee must remain unmarried may be justified as a bona fide occupational
qualification where the particular requirements of the job would demand the same,
discrimination against married women cannot be adopted by the employer as a general
principle.
Section 15, Article II
(Right to Health)
The State shall protect and promote the right to health of the people and
instill
health consciousness among them.
(Read Sections 11-13 of Article XIII as an aspect of Social Justice)
Section 16, Article II
The Constitution does not necessarily rule out the entry of foreign investments,
goods and services. It contemplates neither economic seclusion nor mendicancy in
the international community.
Aside from envisioning a trade policy based on equality and reciprocity, the
fundamental law encourages industries that are competitive in both domestic and
foreign markets, thereby demonstrating a clear policy against a sheltered domestic
trade environment, but one in favor of the gradual development of robust industries that
can compete with the best in the foreign markets. (Taada vs. Angara, 272 SCRA 18)
Section 20, Article II
The State recognizes the indispensable role of the private sector, encourages
private enterprise, and provides incentives to needed investments.
(Read Article XII)
Doctrine of Free Enterprise
Association of Philippine Coconut Desiccators vs. PCA, G.R. No. 110526,
February 10, 1998, the SC said that although the Constitution enshrines free
enterprise
as a policy, it nevertheless reserves to the Government the power to intervene
whenever necessary for the promotion of the general welfare as reflected in Sections 6
& 19 of Article XII.
Pest Management Association of the Philippines vs. Fertilizer and Pesticide
Authority, G.R. No. 156041, February 21, 2007 and Pharmaceutical and Health
Care Association of the Philippines vs. Sec. Duque III, G.R. No. 173034,
October
9, 2007, it was held that despite the fact that our present Constitution enshrines free
enterprise as a policy, it nevertheless reserves to the Government the power to
intervene whenever necessary to promote the general welfare. Free enterprise does not
call for removal of protective regulations. It must be clearly explained and proven by
competent evidence just exactly how such protective regulation would result in the
restraint of trade.
Section 21, Article II
The State shall promote comprehensive rural development and agrarian
reform.
Rural development encompasses a broad spectrum of social, economic, human,
cultural, political and even industrial development.
(See the case of Association of Small Landowners of the Philippines vs.
Secretary
of Agrarian Reform, 175 SCRA 343)
relationship between the national legislature and the local government units has not
been enfeebled by the new provisions in the Constitution strengthening the policy of
local autonomy. Without meaning to detract from that policy, Congress retains control of
the LGUs although in a significantly reduced degree now under our previous
Constitutions. The power to create still includes the power to destroy. The power to
grant still includes the power to withhold or recall. True there are notable innovations in
the Constitution, like the direct conferment on the LGUs of the power to tax which
cannot now be withdrawn by mere statute. By and large, however, the national
legislature is still the principal of LGUs, which cannot defy its will or modify or violate it.
Ours is still a unitary form of government, not a federal state. Being so, any form of
autonomy granted to local governments will necessarily be limited and confined within
the extent allowed by the central authority.
Judge Dadole vs. COA, G.R. No. 125350, December 3, 2002, even as we recognize
that the Constitution guarantees autonomy to LGUs, the exercise of local autonomy
remains subject to the power of control by Congress and the power of general
supervision by the President. xxx The President can only interfere in the affairs and
activities of a LGU if he finds that the latter had acted contrary to law. The President or
any of his alter egos, cannot interfere in local affairs as long as the concerned LGU acts
within the parameters of the law and the Constitution. Any directive, therefore, by the
President or any of his alter egos seeking to alter the wisdom of a law-conforming
judgment on local affairs of a LGU is a patent nullity, because it violates the principle of
local autonomy, as well as the doctrine of separation of powers of the executive and
legislative departments in governing municipal corporations.
Section 26, Article II
The State shall guarantee equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law.
Pamatong vs. COMELEC, G.R. No. 161872, April 13, 2004, the SC said that this
provision does not bestow a right to seek the Presidency; it does not contain a judicially
enforceable constitutional right and merely specifies a guideline for legislative action.
The provision is not intended to compel the State to enact positive measures that would
accommodate as many as possible into public office. The privilege may be subjected to
limitations. One such valid limitation is the provision of the Omnibus Election Code on
nuisance candidates.
Section 27, Article II
The State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption.
2. To forestall overaction
3. To prevent despotism
4. To obtain efficiency
In La Bugal-BLaan Tribal Association vs. Ramos, G.R. No. 127882,
December 1, 2004, the court restrained itself from intruding into policy matters to
allow
the President and Congress maximum discretion in using mineral resources of our
country and in securing the assistance of foreign groups to eradicate the grinding
poverty of our people and answer their cry for viable employment opportunities in the
country. The Judiciary is loath to interfere with the due exercise by co-equal branches
of government of their official functions. Let the development of mining industry be the
responsibility of the political branches of the government. The questioned provisions of
RA 7942 (Philippine Mining Act of 1995) are not unconstitutional.
In Maceda vs. Vasquez, 221 SCRA 464, in the absence of any administrative
action taken against the RTC Judge by the SC with regard to the formers certificate of
service, the investigation conducted by the Ombudsman encroaches into the SCs
power of administrative supervision over all courts and its personnel, in violation of the
1. Police Power
2. Power of Eminent Domain
3. Power of Taxation
Similarities:
1. Inherent in the State, exercised even without need of express constitutional
grant.
2. Necessary and indispensable; State cannot be effective without them.
3. Methods by which State interferes with private property.
4. Presupposes equivalent compensation.
5. Exercised primarily by the legislature.
Distinctions:
Police Power Eminent Domain Taxation
Regulates both liberty and
property
may be exercised only by
Affects property rights
may even be exercised by
affects property rights
may be exercised only by
government; cannot be
delegated to administrative
body
property taken is usually
noxious(unpleasant and
harmful) or intended for
noxious purpose and may
thus be destroyed
compensation is the
intangible, altruistic feeling
that the individual has
contributed to the public
good
private entities
the property is wholesome
and devoted to public use
or purpose
compensation is the full
and fair equivalent of the
property taken
government; cannot be
delegated to administrative
body
the property is wholesome
and devoted to public use
or purpose
it is the protection and/or
public improvements
instituted by government for
the taxes paid
Limitations: Generally, the Bill of Rights, although in some cases the exercise of the
power prevails over specific constitutional guarantees. The courts may annul the
improvident exercise of police power.
These powers must not be exercised arbitrarily, to the prejudice of Bill of Rights.
In Ericta vs. City Government of Quezon City, 122 SCRA 759, the City
Government of QC was not exercising police power when they required private
cemetery owners to reserve 6% of the burial lots for paupers burial ground. The SC
held that in police power, the property to be taken is to be destroyed. The 6% are
private property of the cemetery owners. This is a taking of private property. Sec. 9, Art.
III: Private property shall not be taken for public use without just compensation.
Clearly, this is an invalid exercise of police power. The City was made to pay the
owners just compensation.
In Philippine Press Institute vs. COMELEC, 244 SCRA 272, Sec. 2 of
COMELEC Resolution No. 2772, which mandates newspapers of general circulation in
every province or city to provide free print space of not less than page as COMELEC
space, was held to be an invalid exercise of police power there being no showing of the
existence of a national emergency or imperious public necessity for the taking of print
space, nor that the resolution was the only reasonable and calibrated response to such
necessity. This was held to be an exercise of the power of eminent domain, albeit
invalid, because the COMELEC would not pay for the space to be given to it by the
newspapers.
POLICE POWER
It is the power of promoting public welfare by restraining and regulating the use
of liberty and property.
It is the power vested by the Constitution in the legislature to make, ordain, and
establish all manner of wholesome and reasonable laws, statutes and ordinances,
either with penalties or without, not repugnant to the Constitution, as they shall judge to
be for the good and welfare of the commonwealth, and for the subjects of the same.
The power is plenary and its scope is vast and pervasive, reaching and justifying
measures for public health, public safety, public morals, and the general welfare.
It is the power to prescribe regulations to promote the health, morals, peace,
education, good order or safety and general welfare of the people (now common good).
(Binay vs. Domingo, 201 SCRA 508)
It has been described as the most essential, insistent and the least limitable of
powers, extending as it does to all the great public needs. It is the power vested in the
legislature to make, ordain, and establish all manner of wholesome and reasonable
laws, statutes and ordinances, either with penalties or without, not repugnant to the
Constitution, as they shall judge to be for the good and welfare of the commonwealth,
and for the subjects of the same. (Carlos Superdrug Corp. vs. DSWD, G.R. No.
166494, June 29, 2007)
Cabrera vs. Lapid, G.R. No. 129098, December 6, 2006, a careful reading of the
questioned Resolution reveals that the Ombudsman dismissed petitioners criminal
complaint because respondents had validly resorted to the police power of the State
when they effected the demolition of the illegal fishpond in question following the
declaration thereof as a nuisance per se. in the words of the Ombudsman, those who
participated in the blasting of the subject fishpond were only impelled by their desire to
serve the best interest of the general public; for the good and the highest good.
Requisites (Limitations):
1. Lawful subjectthe interests of the public in general as distinguished from
those of a particular class, require the exercise of this power.
2. Lawful meansthe means employed are reasonably for the accomplishment of
the purpose, and not unduly oppressive on individuals.
Affected with public interestan industry is subject to control for the public
good; it has been considered as the equivalent of subject to the exercise of police
power.
Construction: construed strictly and any doubt must be resolved against the grant.
Scope/Characteristics:
It is the most pervasive, least limitable, and the most demanding of the three
powers. The justification is found in: salus populi est suprema lex (the welfare of the
people is the supreme law) and sic utere tuo ut alienum non laedas (use your property
so as not to impair others).
1. It cannot be bargained away through the medium of a treaty or a contract.
2. The taxing power may be used as an implement of police power
3. Eminent domain may be used as an implement to attain the police power
objective (Association of Landowners vs. Secretary of Agrarian Reform,
175 SCRA 343).
4. In Ortigas & Co. vs. CA, G.R. No. 126102, December 4, 2000, nonimpairment
of contracts or vested rights clauses will have to yield to the
superior and legitimate exercise by the State of the police power.
5. In PRC vs. De Guzman, G.R. No. 144681, June 21, 2004, the exercise of
the constitutional right of every citizen to select a profession or course of
study may be regulated pursuant to the police power of the State to safeguard
health, morals, peace, education, order, safety, and the general welfare of the
people. This regulation assumes particular pertinence in the field of medicine,
to protect the public from the potentially dead effects of incompetence and
ignorance.
In Chavez vs. Romulo, 431 SCRA 534, the right to bear arms is merely
statutory privilege. The license to carry firearm is neither a property nor a property right.
Neither does it create a vested right. A permit to carry outside ones residence may be
revoked at any time. Even if it were a property right, it cannot be considered as absolute
as to be beyond the reach of the police power.
Who may exercise police power?
The power is inherently vested in Congress. However, they may validly delegate
this power to the following:
1. the President
2. administrative bodiespublic and quasi-public corporations
3. the lawmaking bodies of local government units
Local government units exercise the power under the general welfare clause.
CANORECO vs. Torres, G.R. no. 127249, February 27, 1998, while police
power may be delegated to the President by law, RA 6939 and PD 260, as amended,
do not authorize the President or any other administrative body, to take over the internal
management of a cooperative. Accordingly, Memorandum Order No. 409, issued by the
President, constituting an ad hoc committee to temporarily take over and manage the
affairs of CANORECO is invalid.
In MMDA vs. Bel-Air Village Association, G.R. No. 135962, March 27, 2000,
there is no provision in RA 7924 that empowers the MMDA or its council to enact
ordinance, approve resolutions and appropriate funds for the general welfare of the
inhabitants of Metro Manila. Thus, MMDA may not order the opening of Neptune St. in
the Bel-Air Subdivision to public traffic, as it does not possess delegated police power.
Section 11, Article Xthe Congress may, by law, create special metropolitan
political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The
component cities and municipalities shall retain their basic autonomy and shall be
entitled to their own local executives and legislative assemblies. The jurisdiction of the
metropolitan authority that will thereby be created shall be limited to basic services
requiring coordination.
MMDA is not a special metropolitan political subdivision.
However, in MMDA vs. Garin, G.R. No. 130230, April 15, 2005, although the
law (RA 7924) does not grant the MMDA the power to confiscate and suspend or
revoke drivers licenses without need of any legislative enactment, the same law vests
the MMDA the duty to enforce existing traffic rules and regulations. Thus, where there is
a traffic law or regulation validly enacted by the legislature or those agencies to whom
legislative power has been delegated, the MMDA is not precludedand in fact is
dutybound
to confiscate and suspend or revoke drivers licenses in the exercise of its
mandate of transport and traffic management, as well as the administration and
implementation of all traffic enforcement operations, traffic engineering services and
traffic education programs.
Additional Limitations (When exercised by delegate):
a. express grant by law
b. within territorial limits (for local government units, except when exercised to
protect water supply)
c. must not be contrary to law
For municipal ordinance to be valid:
1. it must not contravene the Constitution or any statute;
2. it must not be unfair or oppressive;
3. it must not be partial or discriminatory;
4. it must not prohibit, but may regulate, trade;
5. it must not be unreasonable; and
6. it must be general in application and consistent with public policy.
In City of Manila vs. Judge Laguio, G.R. No. 118127, April 12, 2005, the SC
declared as an invalid exercise of the police power the City of Manila Ordinance No.
7783, which prohibited the establishment or operation of businesses providing certain
forms of amusement, entertainment, services and facilities in the Ermita-Malate area,
for being contrary to the Constitution, infringing the guarantees of due process and
equal protection of the laws.
In Centeno vs. Villalon-Pornillos, 236 SCRA 197 (1994), solicitation for
religious purposes may be subject to proper regulation by the State in the exercise of
police power.
In Acebedo Optical Company, Inc. vs. CA, 329 SCRA 314 (2000), the
issuance of business licenses and permits by a municipality or city is essentially
regulatory in nature. The authority, which devolved upon local government units, to
issue or grant such licenses or permits, is essentially in the exercise of the police power
of the State within the contemplation of the general welfare clause of the LGC.
The implementation of the Comprehensive Agrarian Reform Law (CARL) is an
exercise of police power and the power of eminent domain. To the extent that the CARL
prescribes retention limits to the landowners, there is an exercise of police power for the
regulation of private property in accordance with the Constitution. But where, to carry
out such regulation, the owners are deprived of lands they own in excess of the
maximum area allowed, there is also taking under the power of eminent domain. The
taking contemplated is not a mere limitation of the use of the land. What is required is
the surrender of the title to and physical possession of the said excess and all beneficial
rights accruing to the owner in favor of the farmer beneficiary. The Bill of rights provides
that no person shall be deprived of life, liberty and property without due process of
law. The CARL was not intended to take away property without due process of law.
The exercise of power of eminent domain requires that due process be observed in the
taking of private property. [Roxas and Co., vs. CA, 321 SCRA 106 (1999)]
Republic vs. Manila Electric Company, G.R. No. 141314, November 15,
2002, the regulation of rates to be charged by public utilities is founded upon the police
power of the State and statutes prescribing rules for the control and regulations of public
utilities are a valid exercise thereof. When a private property is used for a public
purpose and is affected with public interest, it ceases to be juris privati only and
becomes subject to regulation. The regulation is to promote the common good.
Submission to regulation may be withdrawn by the owner by discontinuing use; but as
long as the use of the property is continued, the same is subject to public regulation.
In regulating rates charged by public utilities, the State protects the public against
arbitrary and excessive rates while maintaining the efficiency and quality of services
rendered. However, the power to regulate rates does not give the State the right to
prescribe rates which are so low as to deprive the public utility of a reasonable return on
investment.
Philippine Press Institute (PPI) vs. COMELEC, 244 SCRA 272, Section 2 of
COMELEC Resolution No. 2772, which mandates newspapers of general circulation in
every province or city to provide free print space of not less than page as COMELEC
space, was held to be invalid exercise of police power there being no showing of the
existence of national emergency or imperious public necessity for the taking of print
space, nor that the resolution was the only reasonable and calibrated response to such
necessity.
Public purpose and use has broader concept now. It now includes VICARIOUS
BENEFITS that society may derive from a particular measure.
e.g. CONCERN FOR THE POORSC recognized this as one for public purpose
and use.
POWER OF EMINENT DOMAIN also known as the power of expropriation
The power of eminent domain is the power of the State to forcibly take private
property for public use upon payment of just compensation.
It is the right or power of a sovereign state to appropriate private property to
particular uses to promote public welfare.
It is governments right to appropriate, in the nature of a compulsory sale to the
State, private property for public use or purpose. (Moday vs. CA, 268 SCRA 586)
The ultimate right of the sovereign power to appropriate, not only the public, but
even the private property of all citizens within the territorial sovereignty, for public
purpose.
Power of Eminent Domain Destruction Due to Necessity
involves public rights
the property is converted to public use
there must be payment of just
compensation
undertaken by the State
involves private rights such as selfpreservation
and self-defense
Object of Expropriation:
1. anything that comes under the dominion of man
2. real, personal, tangible and intangible
3. property right
4. churches and other religious properties
5. property already devoted to public use
Except: money- because compensation is also money
Who may exercise?
Generally, the legislature, but also upon valid delegation to:
1. the President;
2. lawmaking bodies of LGUs;
3. administrative bodiespublic and quasi-public corporations
4. Private enterprises performing public services.
In the case of Republic vs. CA, G.R. No. 146587, July 2, 2002, the power of
eminent domain must, by enabling law, be delegated to local governments by the
national legislature, and thus, can only be as broad as the real authority would want it to
be. The grant of the power to local government units under RA 7160 cannot be
understood as equal to the pervasive and all encompassing power vested in the
legislative branch of government.
JIL School Foundation vs. Municipality of Pasig, G. R. No. 152230, August
9, 2005Sec. 19, of the LGC requires the LGU to tender a prior written definite and
valid offer to acquire the property before the filing of the complaint for eminent domain.
Filstream Intl Inc. vs. CA, 284 SCRA 716the exercise of the power of
eminent domain is clearly superior to the final and executor judgment rendered by the
court in an ejectment case.
RP vs. PLDT, 26 SCRA 620services were considered embraced in the
concept of property subject to taking under the power of eminent domain. Republic, in
the exercise of the sovereign power of eminent domain, may require the telephone
company to permit interconnection of the government telephone system and that of the
PLDT, as the needs of government service may require, subject to the payment of just
compensation to be determined by the court.
since there was an impairment of the use of the property, he is entitled to the payment
of just compensation.
The establishment of an easement is a form of compensable taking. In
NAPOCOR vs. Sps. Gutierrez, G.R. No. 60077, January 18, 1991, the owner of the
land was awarded full compensation against the NAPOCORs argument that the owners
were not totally deprived of the use of the land and could still plant the same crops as
long as they did not come into contact with the wires. The Court said: the right of way
easement perpetually deprives defendants of their proprietary rights as manifested by
the imposition by the plaintiff upon defendants that below said transmission lines no
plant higher than 3 meters is allowed. Furthermore, because of the high-tension current
conveyed through the transmission lines, danger to life and limbs that may be caused
beneath said wires cannot altogether be discounted, and to cap it all, plaintiff only pays
the fee to defendant once, while the latter shall continually pay the taxes due on said
affected portion of their property.
In People vs. Fajardo, 104 Phil. 44, a municipal ordinance prohibiting a building
which would impair the view of the plaza from the highway was considered taking. The
property owner was held to be entitled to payment of just compensation.
In Velarma vs. CA, 252 SCRA 400, the owner of the property can recover
possession of the property from squatters, even if he agreed to transfer the property to
the Government, until the transfer is consummated or the expropriation case is filed.
Taking under Eminent Domain
Proceeding
Taking under Police Power
Only private properties may be taken
The private property is taken in order to
convert it to public use
All properties are subject to taking
The purpose of taking is to destroy the
property because it is harmful or
obnoxious to the public.
Philippine Press Institute (PPI) vs. COMELEC, 244 SCRA 272, Section 2 of
COMELEC Resolution No. 2772, which mandates newspapers of general circulation in
every province or city to provide free print space of not less than page as COMELEC
space, was held to be an exercise of power of eminent domain, albeit invalid, because
the COMELEC would not pay for the space to be given to it by the newspapers.
TELEBAP, Inc. vs. COMELEC, 289 SCRA 1998, the constitutionality of Sec. 92
of BP 881 (requiring radio and television station owners and operators to give to the
COMELEC radio and television time free of charge) was challenged on the ground that
it violated the due process clause and the eminent domain provision of the Constitution
by taking airtime from radio and television broadcasting stations without payment of just
compensation. The SC held that all broadcasting, whether by radio or by television
stations, is licensed by the government. Airwaves frequencies have to be allocated as
there are more individuals who want to broadcast than there frequencies to assign. A
franchise is thus a privilege subject, among other things, to amendment by Congress in
accordance with the constitutional provision that any such franchise or right granted x x
x shall be subject to amendment, alteration or repeal by the Congress when the
common good so requires (Art. XII, Sec.11).
In the granting of the privilege to operate broadcast stations and thereafter
supervising radio and television stations, the State spends considerable public funds in
licensing and supervising such stations. It would be strange if it cannot even require the
licensees to render public service by giving free airtime. x x x As radio and television
broadcast stations do not own the airwaves, no private property is taken by the
requirement that they provide airtime to the COMELEC.
PPI vs. COMELEC TELEBAP vs. COMELEC
there was taking of property
newspaper space is the private property
of the newspaper owners
print media do not enjoy privilege
there was no taking of private property
airwaves are scarce resources, the use is
regulated by the State
franchise (privilege) is issued by the State
(Art. XII, Sec. 11)
Shifting argument alleged in TELEBAP: both PPI and TELEBAP are media of communication
and information. Equal protection clause was raised as an issue. The SC ruled that equal
protection clause does not guarantee absolute equality. There may be classification. Persons or
things ostensibly similarly situated may, nonetheless, be treated differently if there is a basis for
valid classification.
In Estate of Salud Jimenez vs. PEZA, 349 SCRA 240, public use is whatever
may be beneficially employed for the general welfare.
It has been broadened to include not only uses directly available to the public but
also those which redound to their indirect benefit; that only a few would actually benefit
from the expropriation of the property does not necessarily diminish the essence and
character of public use. (Manosca vs. CA, 252 SCRA 412)
In Filstream Intl Inc. vs. CA, 284 SCRA 716, the fact that the property is less
than hectare and that only a few could actually benefit from the expropriation does
not diminish its public use character, inasmuch as public use now includes the broader
notion of indirect public benefit or advantage, including, in particular, urban land reform
and housing.
By express legislative authority granted by Congress in Sec. 19, RA 7160, LGUs
may expropriate private property for public use, or purpose, or welfare, for the benefit of
the poor and the landless. Thus, in Moday vs. CA, 268 SCRA 568, the SC held that the
Sangguniang Panlalawigan of Agusan del Sur was without authority to disapprove
Bunawan Municipal Resolution No. 43-89 because, clearly, the Municipality of Bunawan
has authority to exercise the power of eminent domain and its Sanggguniang Bayan the
capacity to promulgate the assailed resolution.
However, in the case of Municipacility of Paraaque vs. V.M. Realty
Corporation, 292 SCRA 676, the SC declared that there was lack of compliance with
Sec. 19 of RA 7160, where the Municipal Mayor filed a complaint for eminent domain
over two (2) parcels of land on the strength of the resolution passed by the
Sangguniang Bayan, because what is required by law is an ordinance and not mere
resolution.
In Francia, Jr. vs. Municipality of Meycauayan, G.R. No. 170432, March 24,
2008, the Supreme Court held that the determination of a public purpose for the
expropriated property is not a condition precedent before a court may issue a writ of
possession. Once the requisite in Sec. 19 of the Local Government Code are satisfied,
the issuance of the writ becomes a ministerial matter for the court.
5. Just Compensationthe full and fair market value of the property taken; it is
the fair market value of the property. It is settled that the market value of the
property is that sum of money which a person, desirous but not compelled to
buy, and an owner, willing but not compelled to sell, would agree on a price to be
given and received therefor.
Medium: money except: payment other than money (Association of Small
Landowners vs. Secretary of Agrarian Reform, 175 SCRA 343), payment is
allowed
to be made partly in bonds, because under the CARP it deals with the revolutionary kind
of expropriation.
The determination of just compensation in eminent domain cases is a judicial
function and factual findings of the CA are conclusive on the parties and reviewable only
when the case falls within the recognized exceptions. (NAPOCOR vs. San Pedro, G.R.
No. 170945, September 26, 2006)
Land Bank vs. CA (and DAR vs. CA), 249 SCRA 149Sec. 16(e), RA 6657
the deposit of compensation must be in cash or in Land Bank bonds not in any other
form, and certainly not in a trust account.
Reckoning point of market value of the property:
FMV at the date of: a) filing of the complaint; or
b) the taking whichever is earlier.
Rules in Just Compensation-Rule 67, Sec. 6:
1. Determine the actual or basic value of the property.
2. If entire property not expropriated:
Value of property - consequential benefits + consequential
damages
(basic or actual) (CB) (CD)
Current value of like properties in particular case: size of lands, shape, location
and tax declaration
Consequential damagesinjuries directly caused on the residue of the private
property taken by reason of expropriation
Example: the property left is in odd shape or with area virtually unusable
Consequential Benefitsthe remainder is, as a result of the expropriation, placed in a
better location, such as fronting a street where it used to be an interior lot.
Association of Small Landowners vs. DAR, 175 SCRA 343 (1989) the power of
eminent domain could be used as an implement of police power. The expressed
objective of the law was the promotion of the welfare of the farmers, which came clearly
under the police power of the state. To achieve this purpose, the law provided for the
expropriation of agricultural lands (subject to minimum retention limits for the
landowners) to be distributed among the landless peasantry.
DARAB determines just compensation (exception to the general rule that courts decide
the value)
DAR may make initial valuation; owner goes to court if not satisfied.
Expropriation may be initiated by court action or by legislation. In both instances,
just compensation is determined by the courts.
In Republic vs. Salem Investment Corporation, et al., G.R. No. 137569, June
23,
2000, the Supreme Court held that it is only upon payment of just compensation that
title over the property passes to the government. Therefore, until the action for
expropriation has been completed and terminated, ownership over the property being
expropriated remains with the registered owner. Consequently, the latter can exercise
all rights pertaining to an owner, including the right to dispose of his property, subject to
the power of the State ultimately to acquire it through expropriation.
The Dela Ramas make much of the fact that ownership of the land was
transferred to the government because the equitable and the beneficial title were
already acquired by it in 1983, leaving them with only the naked title. However, xxx the
recognized rule, indeed, is that title to the property expropriated shall pass from the
owner to the expropriator only upon full payment of just compensation.
power, can reach every form of property which the State might need for public use. All
separate interests of individuals in property are held of the government under this tacit
agreement or implied reservation. Notwithstanding the grant to individuals, the eminent
domain, the highest and most exact idea of property, remains in the government, or in
the aggregate body of the people in their sovereign capacity; and they have the right to
resume the possession of the property whenever the public interest requires it. Thus,
the State or its authorized agents cannot be forever barred from exercising said right by
reason alone of previous non-compliance with any legal requirement.
While the principle of res judicata does not denigrate the right of the State to
exercise eminent domain, it does not apply to specific issues decided in a previous
case. For example, a final judgment dismissing an expropriation suit on the ground that
there was no prior offer precludes another suit raising the same issue; it cannot,
however, bar the State or its agent, from thereafter complying with this requirement, as
prescribed by law, and subsequently exercising its power of eminent domain over the
same property. [Municipality of Paraaque vs. V.M. Realty Corp., 292 SCRA 678
(1998)]
When may the property owner be entitled to the return of the expropriated
property in eminent domain cases?
In Provincial Government of Sorsogon vs. Villaroya, the unpaid landowners were
allowed the alternative remedy of recovery of the property. The Court ruled that under
ordinary circumstances, immediate return to the owners of the unpaid property is the
obvious remedy.
However, in cases where land is taken for public use, public interest must be
considered. (Estate of Salud Jimenez vs. PEZA, 349 SCRA 240)
Right of landowner in case of non-payment of just compensationas a rule, it
does not entitle the landowners to recover possession of the expropriated lots, but only
to demand payment of the fair market value of the property. (Republic vs. CA, G.R.
No. 146587, July 2, 2002; Reyes vs. NHA, G.R. No. 147511, January 20, 2003).
However, in RP vs. Vicente Lim, G.R. No. 161656, June 29, 2005, the SC said
that the facts of the case do not justify the application of the rule. In this case, the
Republic was ordered to pay just compensation twice; the f irst was in the expropriation
proceedings, and the second, in the action for recovery of possession. Fifty-seven (57)
years have passed since then. The Court construed the Republics failure to pay just
compensation as a deliberate refusal on its part. Under such circumstances, recovery of
possession is in order. It was then held that where the government failed to pay just
compensation within 5 years from the finality of the judgment in the expropriation
proceedings, the owners concerned shall have the right to recover possession of their
property.
Plaintiffs right to dismiss the complaint in Eminent Domain
In expropriation cases, there is no such thing as the plaintiffs matter-of-right to
dismiss the complaint, precisely because the landowner may have already suffered
damages at the start of the taking. The plaintiffs right to dismiss the complaint has
always been subject to court approval and to certain conditions. (NAPOCOR & Pobre
vs. CA, G.R. No. 106804, August 12, 2004)
Right to repurchase or re-acquire the property
The property owners right to repurchase the property depends upon the
character of the title acquired by the expropriator, e.g., if the land is expropriated for a
particular purpose with a condition that when the purpose is ended or abandoned, the
property shall revert to the former owner, then the former owner can re-acquire the
property. In this case, the terms of the judgment in the expropriation case were very
clear and unequivocal, granting title to the lot in fee simple to the Republic. No condition
on the right to repurchase was imposed. (Mactan-Cebu International Airport
Authority vs. CA, G.R. No. 139495, Novermber 27, 2000)
Republic vs. CA, G.R. No. 146587, July 2, 2002, in arguing for the return of
their property on the basis of non-payment, respondents ignored the fact that the right
of
the expropriatory authority is far from that of an unpaid seller in ordinary sales to which
the remedy is rescission may perhaps apply. Expropriation is an in rem proceeding, and
after condemnation, the paramount title is in the public under a new and independent
title.
POWER OF TAXATIONis the power to demand from the members of society their
proportionate share/contribution in the maintenance of the government.
It is the power by which the State raises revenue to defray the necessary
expenses of the Government.
Scope: covers persons, property or occupation to be taxed within the taxing jurisdiction.
It is so pervasive; it reaches even the citizens abroad and their income outside the
Philippines; all the income earned in the Philippines by a citizen or alien.
Basis: power emanating from necessity (lifeblood doctrine)
Importance of Taxation:
1. No constitutional government can exist without it;
2. It is one great power upon which the whole national fabric is based;
3. It is necessary for the existence and prosperity of the nation; and
4. It is the lifeblood of the nation.
Who may exercise? Generally, the legislature, but also upon valid delegation:
1. Lawmaking bodies of LGUs (Sec. 5, Art. X);
2. President (limited extent-delegated tariff powers), under Sec. 28 (2), Art. VI of
the Constitution or as an incident of emergency powers that Congress may
grant to him under Sec. 23 (2), art. VI.
Purpose: unavoidable obligation of the government to protect the people and extend
them benefits in the form of public projects and services.
Public purposeproceeds must be devoted to public use. It includes INDIRECT
public advantage/benefits. The mere fact that the tax will be directly enjoyed by private
individual does not make it INVALID so long as the same link to public welfare is
established.
Requisites:
1. It must be for public purpose;
2. It shall be uniform;
3. Person or property taxed shall be within the jurisdiction of the taxing authority;
4. In assessment & collection, notice and hearing shall be provided.
Limitations on the Power of Taxation
Inherent limitations:
1. Public purpose;
2. Non-delegability of power;
3. Territoriality or Situs of taxation;
4. Exemption of government from taxation;
5. International comitygenerally accepted principles of international law
Constitutional limitations:
1. Due process of lawtax should not be confiscatory.
Due process does not require previous notice and hearing before a law
prescribing fixed/specific taxes on certain articles may be enacted.
If the tax to be collected is to be based on the value of the taxable propertyad
valorem taxthe taxpayer is entitled to be notified of the assessment proceeding
and to be heard on the correct valuation.
2. Equal protection of lawtaxes should be uniform and equitable.
3. Uniformitypersons/things belonging to the same class shall be taxed at the
same rate
Equitabilitytaxes should be apportioned among the people according to their
capacity to pay
Progressivity
4. Non-impairment of contracts
5. Non-imprisonment for non-payment of poll tax
6. Revenue and tariff bills must originate in the HOR
7. Non-infringement of religious freedom
8. Delegation of legislative authority to the President to fix tariff rates, import and
export quotas, tonnage and wharfage dues
9. Tax exemption of properties actually, directly and exclusively used for religious,
charitable and educational purposes
10.Majority vote of all the members of Congress required in case of legislative
grant of tax exemptions
11.Non-impairment of the SCs jurisdiction in tax cases
12.Tax exemption of revenues and assets of, including grants, endowments,
donations, or contributions to, educational institutions.
Double taxationadditional taxes are laid:
1. On the same subject;
2. By the same taxing authority;
3. During the same taxing period; and
4. For the same purpose.
Double taxation is allowed by law. However, it will not be allowed if the same will
result in violation of the equal protection clause. What is prohibited is direct double
taxation.
In Punzalan vs. Municipal Board of Manila, 95 Phil. 46, there is no double
taxation if one tax is imposed by the LGU and the other by the National Government.
Taxesthe enforced proportional contributions from persons and property levied by the
State by virtue of its sovereignty for the support of the government and for all public
needs.
TAX LICENSE
1. AS TO BASIS
Power of taxationto raise revenue Police powerto regulate
2. AS TO LIMITATION
Rate or amount to be collected is unlimited
provided it is not confiscatory
Amount is limited to cost of: a)issuing the
license; and b)necessary inspection of
police surveillance
3. AS TO OBJECT
Imposed on persons or property Paid for privilege of doing something but
privilege is revocable
4. AS TO EFFECT OF NON-PAYMENT
Business or activity does not become
illegal
Business becomes illegal
Tax Debt
due to the government in its sovereign
capacity
due to the government in its corporate
capacity
Taxes cannot be subject to off-setting or compensation for the simple reason that the
government and the taxpayers are not creditors and debtors of each other.
(Philex Mining Corp. vs. CIR, 294 SCRA 687)
Tax exemptions:
-discretion of the legislature
1. Sec. 28 (4), Art. VI
2. Sec. 28 (3), Art. VI
Article III
BILL OF RIGHTS
2. S ubstantive Due Processit requires that the law itself, not merely the
procedures by which the law would be enforced, is fair, reasonable and just.
This serves as a restriction on the governments law and rule-making powers; a
prohibition of arbitrary laws.
The heart to substantive due process is the reasonableness, or the absence
of exercise of arbitrary power. These are necessarily relative concepts which
depend on the circumstances of every case.
As a general rule, when the State acts to interfere with life, liberty, or property,
the presumption is that the action is valid. In rare cases, as in prior restraint,
there is a presumption of invalidity.
Requisites:
a. Interest of the public;
b. Means employed are reasonably necessary for accomplishment of purpose
and not unduly oppressive.
The legislature may not, under the guise of protecting the public interest,
arbitrarily interfere with private business or impose unusual and unnecessary
restrictions upon lawful occupations.
Void-for-vagueness Rulea criminal statute that fails to give a person of
ordinary intelligence fair notice that his contemplated conduct is forbidden by the
statute, or is so indefinite that it encourages arbitrary and erratic arrests and convictions
is void for vagueness. The constitutional vice in a vague or indefinite statute is the
injustice to the accused in placing him on trial for an offense, the nature of which he is
given no fair warning.
A law is vague as not to satisfy the due process need for notice when it lacks
comprehensible standards that men of common intelligence must necessarily guess as
to its meaning and differ as to its application or is so indefinite that it encourages
arbitrary and erratic arrests and convictions.
It is injustice to the accused in placing him on trial for an offense, the nature of
which he is given no fair warning.
It is repugnant to the Constitution in 2 aspects:
1. It violates due process for failure to accord persons, especially the parties
targeted by it, fair notice of the conduct to avoid; and
2. It leaves law enforcers unbridled discretion in carrying out its provisions
and become an arbitrary flexing of the Government muscle.
The act must be utterly vague on its face, that is to say, it cannot be clarified by
either saving clause or by construction. (People vs. Dela Piedra, 350 SCRA 163,
January 24, 2001)
Overbreadth Doctrinedecrees that a governmental purpose may not be
achieved by means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms.
Facial Challengea facial challenge is allowed to be made to a vague statute
and to one which is overbroad because of possible chilling effect upon protected
speech.
On its face invalidation of statutes results in striking them down entirely on the
ground that they might be applied to parties not before the Court whose activities are
constitutionally protected. It constitutes a departure from the case and controversy
requirement of the Constitution and permits decisions to be made without concrete
factual settings and in sterile abstract contexts.
Tanada vs. Tuvera, 146 SCRA 446 (1986), Motion for reconsideration. xxx
[T]he clause "unless it is otherwise provided" refers to the date of effectivity and not to
the requirement of publication itself, w/c cannot in any event be omitted. This clause
does not mean that the legislature may make the law effective immediately upon
approval, or on any other date, w/o its previous publication.
Publication is indispensable in every case, but the legislature may in its discretion
provide that the usual 15-day period shall be shortened or extended.
It is not correct to say that under the disputed clause publication may be
dispensed w/ altogether. The reason is that such omission would offend due process
insofar as it would deny the public knowledge of the laws that are supposed to govern
it.
Conclusive presumption of knowledge of the law.-- The conclusive presumption that
every person knows the law presupposes that the law has been published if the
presumption is to have any legal justification at all.
The term laws should refer to all laws and not only to those of general
application, for strictly speaking all laws relate to the people in general albeit there are
some that do not apply to them directly. An example is a law granting citizenship to a
particular individual, like a relative of Pres. Marcos who was decreed instant
naturalization.
RULE: All statutes, including those of local application and private laws, shall
be published as a condition for their effectivity, w/c shall begin 15 days after publication
unless a different effectivity date is fixed by the legislature.
Coverage: Covered by this rule are PDs and EOs promulgated by the Pres. in
the exercise of legislative powers. Administrative rules and regulations must also be
published if their purpose is to enforce or implement existing law pursuant to a valid
delegation.
Interpretative regulations and those merely internal in nature, i.e., regulating only
the personnel of the administrative agency and not the public, need not be published.
Neither is publication required of the so-called letters of instructions issued by
administrative superiors concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties.
Publication must be in full or it is no publication at all since its purpose is
to inform the public of the contents of the laws. The mere mention of the number
of the PD, the title of such decree, its whereabouts, the supposed date of
effectivity, and in a mere supplement of the OG cannot satisfy the publication
requirement. This is not even substantial compliance.
Publication of laws is part of substantive due process. It is imperative to the validity of
laws, PDs, EOs, Administrative rules and regulations except interpretative legislations.
(Taada vs. Tuvera, No. L-63915, December 29, 1986)
Notes: In the original case Tanada vs. Tuvera, 136 SCRA 27 (1985), the SC ruled that
as a matter of substantive due process, any law must be published before the people can be
expected to observe them. But, according to a split decision, publication need not be made
in the Official Gazette. It is enough that it be published in a newspaper of general circulation.
After the EDSA revolution, upon the reconstitution of the SC, the original
judgment was reconsidered, and the SC now ruled that publication must be made in the
Official Gazette, pursuant to CA 638 and the Civil Code, unless a law "provides otherwise"
that is, a different mode of publication.
What must be published are (1) all laws of general application, and even those not of
general application like (2) private laws affecting only particular individuals, e.g., legislative
grant of citizenship, (3) laws of local application, and (4) rules and regulations of a
substantive character. This means not only the title but the entire law. When? Forthwith, that
is, immediately. Where? Only in the Official Gazette
Secretary of Justice vs. Lantion (2000), an extraditee is not entitled to notice and
hearing during the evaluation stage of the extradition process. PD 1069 affords an
extraditee sufficient opportunity to meet the evidence against him once the petition is
filed in court. During the evaluation stage, right to know is withheld to accommodate the
more compelling interest of the Stateto prevent escape of potential extradite which
may be precipitated by premature information on the basis of the request for extradition.
Roxas vs. Vasquez (2001), lack of notice to, participation of complainants at the
REINVESTIGATION does not render the resolution of the Ombudsman null and void.
(But in preliminary investigation, their participation is needed.)
Exceptions to Notice and Hearing Requirements
Philcomsat vs. Alcuaz (1989)without conducting any hearing, NTC ordered
PHILCOMSAT to reduce its rates by 15%. PHILCOMSAT challenged the validity of the
order on the ground that it is an exercise of a quasi-judicial power without the required
hearing. NTC replied that the order was merely interlocutory. The SC held that fixing
rates is quasi-judicial in nature. Hence, unlike in the exercise of quasi-legislative power,
it must be preceded by a hearing. The fact of the order being merely interlocutory does
not alter the situation because for all practical purposes it is final as to the period
covered.
BUT, in Radio Communications vs. NTC (1990)the Court upheld the temporary
rates granted by the NTC asserting that the law allows the NTC to approve temporary
rate requested by public service agency provided hearings are held within 30 days
thereafter.
As a general rule, notice and hearing, as the fundamental requirements of procedural
due process, are essential only when an administrative body exercises its QUASIJUDICIAL
function.
In the exercise of its EXECUTIVE or LEGISLATIVE functions, such as issuing rules and
regulations, an administrative body need not comply with the requirements of notice and
hearing.
Suntay vs. People (1957)the passport of a person sought for the commission of a
crime may be cancelled without notice and hearing.
Equitable Banking Corp. vs. Calderon, G.R. No. 156168, December 14, 2004, the
Sc
ruled that no malice or bad faith attended the Banks dishonor of Calderons credit card,
inasmuch as the dishonor was justified under its Credit Card Agreement which provided
that the cardholder agreed not to exceed his approved credit limit, otherwise the card
privilege would be automatically suspended without notice to the cardholder.
Appeal and due process
Appeal is not a natural right nor is it a part of due process; generally, it may be
allowed or denied by the legislature in its discretion. But where the Constitution gives a
person the right to appeal, denial of the right to appeal constitutes a violation of due
process. Where there is statutory grant of the right to appeal, denial of that remedy also
constitutes a denial of due process.
Preliminary Investigation and due process
Preliminary investigation is not a constitutional right, but is merely a right
conferred by statute (Serapio vs. Sandiganbayan, G.R. No. 148468, January 28,
2003). It may be waived expressly or by failure to invoke it (Benedicto vs. CA, G.R.
No. 125359, September 4, 2001). The right may be forfeited by inaction, and cannot
be
invoked for the first time on appeal (People vs. Lagao, G.R. No. 118457, April 8,
1997).
Go vs. CA, 206 SCRA 138, when there is statutory grant of the right to
preliminary investigation, denial of the same is an infringement of the due process
clause. The right to preliminary investigation is substantive, not merely formal or
technical. To deny it to the petitioner would deprive him of the full measure of his right to
due process. (Yusop vs. Sandiganbayan, G.R. No. 138859-60, February 22, 2001)
Prejudicial Publicity
To warrant a finding of prejudicial publicity there must be allegation and proof
that the judges have been unduly influenced, not simply that they might be, by the
barrage of publicity. Petitioners cannot just rely on the subliminal effects of publicity
because these are basically unbeknown and beyond knowing. (Webb vs. De Leon,
1995)
Does the due process clause encompass the right to be assisted by counsel
during an administrative inquiry?
No. The right to counsel, which cannot be waived unless the waiver is in writing and
in the presence of counsel, is a right afforded a suspect or an accused during custodial
investigation. It is not an absolute right and may, thus, be invoked or rejected in a
criminal proceeding and, with more reason, in an administrative inquiry.
While investigations conducted by an administrative body may at times be akin to
a criminal proceeding, the fact remains that under existing laws, a party in an
administrative inquiry may or may not be assisted by counsel, irrespective of the nature
of charges and of the respondents capacity to represent himself, and no duty rests on
such body to furnish the person being investigated with counsel. In an administrative
proceeding, a respondent has the option of engaging the services of counsel or not.
Thus, the right to counsel is not imperative in administrative investigations because
such inquiries are conducted merely to determine whether there are facts that merit
disciplinary measures against erring public officers and employees, with the purpose of
maintain the dignity of government service.
The right to counsel is not indispensable to due process unless required by the
Constitution or law. (Lumiqued vs. Exevea, 282 SCRA 125)
Is an extraditee entitled to notice and hearing before the issuance of a
warrant
of arrest once the petition for extradition is filed in court?
Both on statutory and constitutional grounds, the answer is no. In Government of
USA vs. Hon. Puruganan, G.R. No. 148571, September 24, 2002:
1. O n the basis of Extradition Law
Sec. 6 of PD 1069Extradition Law, uses the word immediate to qualify the
arrest of the accused. This qualification would be rendered nugatory by setting
for hearing the issuance of the arrest warrant. Hearing entails sending notices to
the opposing parties, receiving facts and arguments from them, and giving them
time to prepare and present such facts and arguments. Arrest subsequent to a
hearing can no longer be considered immediate. The law could not have
It simply requires that all persons or things, similarly situated should be treated
alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other
words, should not be treated differently, so as to give undue favor to some and unjustly
discriminate against others.
It does not require the universal application of the laws on all persons or things
without distinction. This might in fact sometimes result in unequal protection, as where,
for example, a law prohibiting mature books to all persons, regardless of age, would
benefit the morals of the youth but violate the liberty of adults. What the clause requires
is equality among equals as determined according to a valid classification. By
classification is meant the grouping of persons or things similar to each other in certain
particulars and different from all others in these same particulars. (Philippine Judges
Association vs. Prado, 227 SCRA 703)
Who are protectedall persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed. Natural and juridical persons
are entitled to this guarantee; but with respect to artificial persons, they enjoy the
protection only insofar as their property is concerned.
Scope:
Political, Economic and Social Equality
Art. XIII, Secs. 1&2 (social justice)political & economic
Section 1The Congress shall give highest priority to the enactment of
measures that protect and enhance the right of all the people to human dignity, reduce
social, economic, and political inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and
disposition of property and its increments.
Section 2The promotion of social justice shall include the commitment to
create economic opportunities based on freedom of initiative and self-reliance.
Art. XIII, Sec. 3 (protection to labor)
Article XII, Section 10 (nationalization of business) FILIPINO FIRST POLICYThe
Congress shall, upon recommendation of the economic and planning agency, when the
national interest dictates, reserve to citizens of the Philippines or to corporations or
associations at least sixty per centum (60%) of whose capital is owned by such citizens,
or such higher percentage as Congress may prescribe, certain areas of investments.
The Congress shall enact measures that will encourage the formation and operation of
enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy
and patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within
its national jurisdiction and in accordance with its national goals and priorities.
Art. XII, Sec. 2(2) (reservation of marine resources)economic
The State shall protect the nations marine wealth in its archipelagic waters, territorial
sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to
Filipino citizens.
Art. III, Sec. 11 (free access to the courts)political & economic
Free access to the courts and quasi-judicial bodies and adequate legal assistance shall
Bona fide candidates for any public office shall be free from any form of harassment
and discrimination.
Art. II, Sec. 26 (public service)The State shall guarantee equal access to
opportunities for public service, and prohibit political dynasties as may be defined by
law.
Art. II, Sec. 14 (equality of women and men)The State recognizes the role of
women in nation-building, and shall ensure the fundamental equality before the law of
women and men.
There are areas of economic activity which can be limited to Filipinos. The
Constitution itself acknowledges this in various places - exploitation of marine wealth
(Article XII, Section 2, paragraph 2), certain areas of investment (Article XII, Section 10),
to name a few.
In Ichong v. Hernandez, 201 Phil. 1155 (1937), the SC upheld the validity of
the law which nationalized the retail trade. For the protection of the law can be
observed by the national interest.
But there are areas where aliens cannot be kept away for the simple reason that
they cannot be deprived of a common means of livelihood, especially when they are
admitted to the country as immigrants.
Valid Classification:
Persons or things ostensibly similarly situated may, nonetheless, be treated
differently if there is a basis for valid classification. The requisites are:
1. Classification must be based on substantial distinctions which make for real
differences;
2. The distinction must be germane to the purpose of the lawthe distinctions which
are the bases for the classification should have a reasonable relation to the purpose of
the law;
67
2008 Political Law and Public International Law
Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R
review materials, www.pinoylaw.net, etc.)
Ma. Luisa Angeles Ramos
Olivares vs. Sandiganbayan, 248 SCRA 700, when the mayor issued permit in favor
of unidentified vendors while imposing numerous requirements upon Baclaran Credit
Cooperatives, he violated the equal protection clause when failed to show that the two
were not similarly situated.
Tiu vs. CA, G.R. No. 127410, January 20, 1999, the executive order granting tax and
duty incentives only to business and residents within the secured area of Subic
Special Economic Zone and denying them to those who live within the zone but outside
such fenced in territory is VALID.
The Constitution does not require absolute equality among residents. It is enough
that all persons under like circumstances or conditions are given the same privileges
and required to follow the same obligations.
Classification based on valid and reasonable standards does not violate the
equal protection clause.
International School Alliance of Educators vs. Quisumbing, G.R. No. 128845,
June 1, 2000, there were no reasonable distinctions between the services rendered by
foreign-hires and local-hires as to justify the disparity in salaries paid to those
teachers.
Relative Constitutionality:
Central Bank Employees Association vs. BSP, G.R. No. 148208, December 15,
2004, the constitutionality of a statute cannot, in every instance, be determined by a
mere comparison of its provisions of the Constitution since the statute may be
constitutionally valid as applied to one set of facts and invalid in application to another.
A statute valid at one time may become void at another time because of altered
circumstances. Thus, if a statute in its practical operation becomes arbitrary or
confiscatory, its validity, even though affirmed by a former adjudication, is open to
inquiry and investigation in the light of changed conditions.
In Dumlao v. Comelec, 95 SCRA 392 (1980), the SC upheld the validity of sec. 4 of
Batas Blg. 52 disqualifying retired elective local officials who have received retirement
benefits and would have been 65 years old at the start of the term. It does not violate
equal protection, for it gives younger blood the opportunity to run the local government.
In Igot v. Comelec, 95 SCRA 392 (1980), however, the disqualification of candidates
convicted or simply charged with national security offenses was struck down as
unconstitutional, for violating the presumption of innocence and thus ultimately the
equal political protection.
when the description expresses a conclusion of fact, not of law, by which the warrant
officer may be guided in making the search and seizure; or when the things described
are limited to those which bear direct relation to the offense for which the warrant is
being issued.
WARRANT OFARRESTsaid to particularly describe the person to be seized if it
contains the name of the person to be arrested.
Requisites of a valid warrant:
1. It must be based upon probable causesuch facts and circumstances
antecedent to the issuance of the warrant that in themselves are sufficient to
induce a cautious man to rely on them and act in pursuance thereof.
It consists of a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man in believing accused to be
committing the offense or to be guilty of the offense.
For a search warrantsuch 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 sought to
shall be inadmissible for any purpose in any proceeding. Such evidence is the fruit of
the poisonous tree. However, it is submitted that it may nonetheless be used in the
judicial or administrative action that may be filed against the officer responsible for its
illegal seizure.
It has also been held that where the accused did not raise the issue of the
admissibility of the evidence against him on the ground that it had been illegally seized,
such omission constitutes a waiver of the protection granted by Section 3, and the
illegally seized evidence could then be admitted against him. (People vs. Exala, 221
SCRA 494)
WARRANTLESS ARREST
1. When a person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
2. When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be
arrested has committed it; and
3. When the person to be arrested is an escapee or a detention prisoner. (Section
5, Rule 113, Rules of Criminal Procedure)
The Rule requires that the accused perform some overt act that would indicate
that he has committed, is actually committing, or is attempting to commit an offense.
The officer arresting a person who has just committed, is committing, or is about to
commit an offense must have personal knowledge of the fact. The offense must also be
committed in his presence or within his view. (People vs. Tudtud & Bolong, G.R. No.
144037, September 26, 2003)
WARRANTLESS SEARCHES AND SEIZURES
(a) When search is made of moving vehicles
The reason is the person may escape easily if a warrant has to be applied for
the mean time. In the Tariff and Customs Code, customs agents are specifically
authorized to search and seize vehicles even without a warrant.
Checkpoints are valid in some instances depending on the purpose (e.g.
apprehend a suspected criminal) and the circumstances (e.g. probable cause that the
criminal is inside the car). There is no question that when a child has been reported
kidnapped in a community, the police can stop all cars and check if the detained child is
in any one of them.
(b) When search is an incident to a valid arrest.
Rule 126, Sec. 12. Search incident to lawful arrest-- A person lawfully
arrested may be searched for dangerous weapons or anything which may be used as
proof of the commission of an offense, without a search warrant.
A person arrested may be searched for dangerous weapons or anything that
proves the commission of the offense. It follows that the search can only be made
within the area of control of the arrested person, and within the time of the arrest.
In Nolasco v. Cruz Pano, 139 SCRA 152 (1985), Milagros Roque and Cynthia
Nolasco were arrested at the intersection of Mayon and Margal Streets in QC at 11:30
a.m., having been wanted as high officers of the CPP. At 12:00 noon, Roque's
apartment located 2 blocks away, was searched and some documents seized. The SC
at first held that the search was valid even if the warrant issued was void for failing to
describe with particularity the things to be seized, because it was an incident of a valid
arrest.
But after the EDSA revolution, the reconstituted SC granted the motion for
reconsideration and held that just because there was a valid arrest did not mean that
the search was likewise valid. To be valid, the search must be "incidental" to the arrest,
i.e., not separated by time or place from the arrest. If the basis for allowing incidental
searches is looked into, one can see that this situation is not one involving a valid
incidental search.
The law allows the arresting officer to search a person validly arrested (by
frisking him for instance) because (1) a weapon held by the arrested person may be
turned against his captor and (2) he may destroy the proof of the crime, if the arrested
officer has to first apply for a search warrant from a judge.
If, in the Nolasco case, the search was conducted 30 minutes after the arrest,
there is no longer any danger that the captured may turn against the captor; and if the
documents in the apartment were 2 blocks away, the search would no longer be
justified since there is no way for Roque to go back to the apartment and destroy the
documents, having been arrested already.
In People vs. Chua Ho San, 308 SCRA 432, while a contemporaneous search
of a person arrested may be effected to discover dangerous weapons or proofs or
implements used in the commission of the crime and which search may extend to the
area within his immediate control where he might gain possession of a weapon or
evidence he can destroy, a valid arrest must precede the search. The process cannot
be reversed.
In a search incidental to a lawful arrest, as the precedent arrest determines the
validity of the incidental search, the legality of the arrest is questioned in a large
majority
of these cases, e.g., whether an arrest was merely used as a pretext for conducting a
search. In this instance, the law requires that there be first a lawful arrest before a
search can be madethe process cannot be reversed.
In the case of People vs. Go, 354 SCRA 338 (2001), the police saw the gun
tucked in appellants waist when he stood up. The gun was plainly visible. No search
was conducted as none was necessary. Accused-appellant could not show any license
for the firearm, whether at the time of his arrest or thereafter. Thus, he was in effect
committing a crime in the presence of the police officers. No warrant of arrest was
necessary in such a situation, it being one of the recognized exceptions under the
Rules.
As a consequence of appellants valid warrantless arrest, he may be lawfully
searched for dangerous weapons or anything which may used as proof of the
commission of an offense, without a search warrant, as provided in Rule 126, Section
12. This is a valid search incidental to a lawful arrest. The subsequent discovery in his
car of drug paraphernalia and the crystalline substance, which, was later identified as
shabu, though in a distant place from where the illegal possession of firearms was
committed, cannot be said to have been made during an illegal. As such, the seized
items do not fall within the exclusionary clause. Hence, not being fruits of the poisonous
tree, the objects found at the scene of the crime, such as the firearm, the shabu and the
drug paraphernalia, can be used as evidenced against appellant. Besides, it has been
held that drugs discovered as a result of a consented search is admissible in evidence.
In People vs. Molina, 352 SCRA 174 (2001), to constitute a valid in flagrante
delito arrest, two (2) requisites must concur: 1) the person to be arrested must execute
an overt act indicating that he has just committed, is actually committing, or is
attempting to commit a crime; and 2) such overt act is done in the presence or within
the view of the arresting officer.
In People vs. Estrella, G.R. Nos. 138539-40, January 21, 2003, the arresting
officer may take from the arrested individual any money or property found upon the
latters person that which:
1. Was used in the commission of the crime;
2. Was the fruit of the crime;
3. May provide the person arrested with the means of committing violence or
escaping;
4. May be used in evidence in the trial of the case.
The search, however, must be contemporaneous to the arrest and made within a
permissible area of search.
Requisite: the apprehending officer must have been spurred by probable cause in
effecting the arrest which could be considered as one in cadence with the instances of
permissible arrest enumerated in Section 5(a), Rule 113 of the Rules of Court.
In the case of People vs. Montilla, G.R. No. 123872, January 30, 1998, the
officer could reasonably assumesince the informant was by their side and had so
informed them and pointed out the culpritthat the drugs were in the appellants
luggage, and it would have been irresponsible, if not downright absurd, for them to
adopt a wait-and-see attitude at the risk of eventually losing their quarry.
(c) When things seized are within plain view of a searching party
People vs. Hedishi Suzuki, G.R. No. 120670, October 23, 2003, whenever the
right
against unreasonable search and seizure is challenged, an individual may choose
between invoking the constitutional protection or waiving his right by giving consent to
the search and seizure. A reasonable search is not to be determined by any fixed
formula but is to be resolved according to the facts of the case.
Plain View Doctrinefinds application only when the incriminating nature of the object
is in the plain view of the police officer.
The law enforcement officer must lawfully make an intrusion or properly be in a
position from which he can particularly view the area. In the course of such lawful
intrusion, he came inadvertently across a piece of evidence incriminating the accused.
The object must be open to eye and hand and its discovery inadvertent.
It is clear that an object is in plain view if the object itself is plainly exposed to
sight. The difficulty arises when the object is inside a closed container. Where the object
seized was inside a closed package, the object itself is not in plain view and therefore
cannot be seized without a warrant. However, if the package proclaims its contents,
whether by its distinctive configuration, its transparency, or if its contents are obvious to
an observer, then the contents are in plain view and may be seized. In other words, if
the package is such that an experienced observer could infer from its appearance that it
contains the prohibited article, then the article is deemed in plain view. It must be
immediately apparent to the police that the items that they observe may be evidence of
a crime, contraband or otherwise subject to seizure. (People vs. Doria, 301 SCRA
668)
Requisites:
1. Valid intrusion based on a valid warrantless arrest in which the police are
legally present in the pursuit of their official duties;
2. The evidence was inadvertently discovered by the police who have the right
to be where they are;
3. The evidence must be immediately apparent; and
4. Plain view justified mere seizure of evidence without further search.
(d) Stop-and-Frisk
It is defined as the vernacular designation of the right of a police officer to stop a
citizen on the street, interrogate him, and pat him for weapons where a police officer
observes an unusual conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the persons with whom he is
dealing may be armed and presently dangerous, where in the course of investigating
this behavior he identified himself as a policeman and make reasonable inquiries, and
where nothing in the initial stages of the encounter serves to dispel his reasonable fear
for his own or others safety, he is entitled for the protection of himself or others in the
area to conduct a carefully limited search of the outer clothing of such persons in an
attempt to discover weapons which might be used to assault him.
The interest of effective crime prevention and detection allows a police officer to
approach a person, in appropriate circumstances and manner, for purposes of
investigating possible criminal behavior even though there is insufficient probable cause
to make an actual arrest.
Requisites for Stop-and-Frisk
1. The police officer should properly introduce himself and make the initial inquiries,
approach and restrain a person who manifests unusual and suspicious conduct,
in order to check the latters outer clothing for possibly concealed weapons.
2. The apprehending officer must have a genuine reason to warrant the belief that
the person to be held has weapons or contraband concealed about him.
It should, therefore, be emphasized that a search and seizure should precede the
arrest for the principle of stop-and-frisk to apply.
(e) When there is a valid express waiver made voluntarily and intelligently.
Waiver cannot be implied from the fact that the person consented or did not
object to the search, for it many happen that he did so only out of respect for the
authorities. The waiver must be expressly made. It must be given by the person whose
right is violated.
In People vs. Bongcarawan, G.R. No. 143944, July 11, 2002, the shabu in the
baggage of the accused was found by (private) security officers of the interisland
passenger vessel who then reported the matter to the Philippine Coast Guard. The
search and seizure of the suitcase and contraband items were carried out without
government intervention. Accordingly, the exclusionary rule may not be invoked.
(f) Searches of vessel and aircraft for violation of fishery, immigration and customs law
(g) Searches of automobiles at borders or constructive borders for violation of
immigration and smuggling laws
(h) Inspection of buildings and other premises for the enforcement of fire, sanitary and
building regulations
(i) Conduct of areal target zoning and saturation drive in the exercise of military
powers of the President
(j) Visual search at checkpoints
Constitutionality of checkpoints and "areal target zonings"; doctrine of exigent
circumstances
The constitutional right against unreasonable searches and seizures is a
personal right and can be invoked only by those whose rights have been infringed, or
threatened to be infringed.
Not all searches and seizures are prohibited. Those which are reasonable are
not forbidden. Those which are warranted by the exigencies of public order and are
conducted in a way least intrusive to motorists are allowed. For, admittedly, routine
checkpoints do intrude, to a certain extent, on motorists right to free passage without
interruption, but it cannot be denied that, as a rule, it involves only a brief detention of
travellers during which the vehicles occupants are required to answer a brief question
or two. For 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, said routine
checks cannot be regarded as violative of an individuals right against unreasonable
search. In fact, these routine checks, when conducted in a fixed area, are even less
intrusive.
The checkpoint herein conducted was in pursuance of the gun ban enforced by
the COMELEC. The COMELEC would be hard put to implement the ban if its deputized
agents were limited to a visual search of pedestrians. It would also defeat the purpose
for which such ban was instituted. Those who intend to bring a gun during said period
would know that they only need a car to be able to easily perpetrate their malicious
designs.
There is no need for checkpoints to be announced. Not only it would be
impractical, it would also forewarn those who intend to violate the ban. Even so, badges
of legitimacy of checkpoints may still be inferred from their fixed location and the
regularized manner in which they are operated. (People vs. Usana, 323 SCRA 754)
Knock and Announce Principle
General Rule: Police officers are obliged to give notice, show their authority and
demand that they be allowed entry. They may only break open any outer or inner door
or window of a house to execute the search warrant if, after such notice and demand,
such officers are refused entry to the place of directed search.
Exceptions: Unannounced intrusion into the premises is permissible when:
1. A party whose premises or is entitled to the possession thereof refuses, upon demand,
to open it;
2. When such person already knew of the identity of the officers and of their authority and
persons;
3. When the officers are justified in the honest belief that there is an imminent peril to life or
limb;
4. When those in the premises, aware of the presence of someone outside, are then
engaged in an activity which justifies the officers to believe that an escape or the
destruction of evidence is being attempted. (People vs. Huang Zhen Hua and Lee,
In the case of People vs. Leila Johnson, G.R. No. 138881, December 18,
2000, persons may lose the protection of the search and seizure clause by exposure of
their persons or property to the public in a manner reflecting a lack of subjective
expectation of privacy, which expectation society is prepared to recognize as
reasonable. Such recognition is implicit in airport security procedures. With increased
concern over airplane hijacking and terrorism has come increased security at the
nations airports. Passengers attempting to board an aircraft routinely pass through
metal detectors; their carry-on baggage as well as checked luggage, are routinely
subjected to x-ray scans. Should these procedures suggest the presence of suspicious
objects, physical searches are conducted to determine what the objects are. There is
little question that such searches are reasonable, given their minimal intrusiveness, the
gravity of the safety interests involved, and the reduced privacy expectations associated
with airline travel. Indeed, travelers are often notified through airport public address
systems, signs, and notices in their airline tickets that they are subject to search and, if
any prohibited materials or substances are found, such would be subject to seizure.
These announcements place passengers on notice that ordinary constitutional
p rotection against warrantless searches and seizures d o not apply to routine airport
procedures.
People vs. Susan Canton, G.R. No. 148825, December 27, 2002, a search made
pursuant to a routine airport security procedure is allowed under RA 6235, which
provides that every airline ticket shall contain a condition that hand-carried luggage,
etc., shall be subject to search, and this condition shall form part of the contract
between the passenger and the air carrier. To limit the action of the airport security
personnel to simply refusing the passenger entry into the aircraft and sending her home
(as suggested by the appellant), and thereby depriving the security personnel of ability
and facility to act accordingly, including to further search without warrant, in light of
such
circumstances, would be sanctioned impotence and ineffectiveness in law enforcement,
to the detriment of the society. The strip search in the ladies room was justified under
the circumstances.
Procedure for Seizure of Pornographic Materials:
To justify a warrantless search as an incident to a lawful arrest, the arrest must
be on account of a crime having been committed;
1. There must be a criminal charge against the person for purveying the porno
materials;
2. Application for search warrant must be obtained from the judge;
3. Materials must be brought to court in the prosecution of the accused for the crime
charged;
4. Determination whether the items confiscated are pornographic materials;
5. Judgment rendered by the court. (Pita vs. CA, 178 SCRA 362)
Sec. 3, Article III
(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 proceeding.
The guarantee includes within the mantle of its protection tangible, as well as
intangible objects. (See RA 4200 below)
Exceptions to inviolability:
1. Lawful order of the court;
2. When public safety or orders requires otherwise, as may be provided by law.
Is there a constitutional right to privacy?
Yes. The essence of privacy is the right to be left alone. It is expressly recognized in
Section 3(1) of Article III. Other facts of the right to privacy are protected in various
provisions of the Bill of Rights, i.e., Sections 1 (right to due process clause), 2 (right
against unreasonable searches and seizures), 6 (right to liberty of abode and of
changing the same, as well as the right to travel), 8 (freedom of association) and 17
(right against self-incrimination). (Ople vs. Torres, G.R. No. 127685, July 23, 1988)
Zones of privacy recognized and protected in our laws:
1. The Civil Code provides that every person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and other persons and punishes as
actionable torts several acts by a person of meddling and prying into the privacy
of another. It also holds a public officer or employee or any private individual
liable for damages for any violation of the rights and liberties of another person,
and recognizes the privacy of letters and other private communications.
2. The Revised Penal Code makes a crime the violation of secrets by an officer, the
revelation of trade and industrial secrets, and trespass to dwelling.
3. A nti-Wiretapping Law (RA 4200)invasion of privacy.
4. S ecrecy of Bank Deposits (RA 1405)
5. I ntellectual Property Law (RA 8293)
6. R ules of Courton privileged communication likewise recognize the privacy of
certain information [Sec. 24, Rule 130(c), Revised Rules on Evidence]
RA 4200 Anti-Wire Tapping Act
It prohibits any person not being authorized by all parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or
arrangement to secretly overhear, intercept or record the same, or to communicate the
content thereof to any person.
The use of said record may be permitted in the following instances:
1. In civil or criminal proceedings involving certain specified offenses principally
affecting national security; and
2. When authorized by the court which may be issued under the following
conditions:
a. The constitutional requirements for the issuance of a warrant should be
complied with; and
b. The authority shall be effective only for sixty (60) days.
Any evidence obtained in violation of this law is not admissible in any proceeding.
RA 4200 clearly and unequivocally makes it illegal for any person, not authorized
by all parties to any private communication, to secretly record such communications by
means of a tape recorder. The law does not make any distinction. A telephone
extension is not among the devices covered by this law. (Gaanan vs. IAC, 145 SCRA
112)
Navarro vs. CA, G.R. No. 121087, August 26, 1999, two local media men in Lucena
City went to the police station to report alleged indecent show in one night
establishment in the City. At the station, there was a heated argument between police
officer Navarro and Lingan, one of the two media men, which led to fisticuffs. Lingan fell
and his head hit the pavement which caused his death. During the trial, Jalbuena, the
other media man, testified. Presented in evidence to confirm his testimony was a voice
recording he had made of the heated discussion at the police station between accused
police officer Navarro and the deceased, Lingan, which was taken without the
knowledge of the two. The SC held that Jalbuenas testimony is confirmed by the voice
recording he had made. It may be asked whether the tape is admissible in view of RA
4200, which prohibits wire tapping. The answer is in the affirmative. The law prohibits
the overhearing, intercepting or recording of private communications. Since the
exchange between petitioner Navarro and Lingan was not private, its tape recording is
not prohibited.
Exempted acts:
A. Use of such record or any copies thereof as evidence in any civil, criminal
investigation or trial of offenses mentioned below: [Secs. 1, par. 2]
B. Any peace officer, who is authorized by the written order of the Court (RTC
within whose territorial jurisdiction the acts for which authority is applied for are to be
executed), to execute any of the acts declared to be unlawful in cases involving the
crimes of: [Sec. 3, par. 1]
1. treason
2. espionage
3. provoking war and disloyalty in case of war
4. piracy
5. mutiny in the high seas
6. rebellion
7. conspiracy and proposal to commit rebellion
8. inciting rebellion
9. sedition
10. conspiracy to commit sedition
11. inciting to sedition
12 kidnapping as defined by the RPC
13.violations of CA 616, punishing espionage and other offenses against
national security
The WRITTEN ORDER shall only be issued or granted upon written application
with the examination under oath or affirmation of the applicant and the witnesses he
may produce and must show:
a) That there are reasonable grounds to believe that any of the crimes
enumerated herein has been committed or is being committed provided, that in cases
involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting
to rebellion, sedition, conspiracy to commit sedition, such authority shall be granted only
upon prior proof that a rebellion or acts of sedition, as the case may be, have actually
been or are being committed;
b) That there are reasonable grounds to believe that evidence may be obtained
essential to the conviction of any person for, or to the solution of, or to the prevention of,
any of such crimes;
c) That there are no other means readily available for obtaining such evidence.
Contents:
1. The identity of the person or persons whose communications, conversations,
discussions, or spoken words are to be overheard, intercepted, or recorded and, in the
case of telegraphic or telephonic communications, the telegraph line and the telephone
ADMISSIBILITY
Any communication or spoken word, or the existence contents, substance,
purport, effect or meaning of the same or any part thereof, or any information therein
contained, obtained or secured by any person in violation of this Act shall not be
admissible in evidence in any judicial, quasi-judicial, or administrative hearing or
investigation.
Exclusionary Rule
Art. III, Sec. 3. xxx
(2) Any evidence obtained in violation of this (privacy of communication and
correspondence) or the preceding section (unreasonable searches and seizures) shall
be inadmissible for any purpose in any proceeding.
One of the remedies of one who was victimized by an illegal search is to ask for
the suppression of the things seized and the evidence illegally taken.
The exclusionary rule prohibits the use of any evidence obtained in violation of
Sections 2 and 3 (1), Art. III for "any purpose" and in "any proceeding." The evidence is
absolutely useless. This has not always been the case.
In Moncado v. People's Court (1948), the SC, following the U.S. case of Wolf
V. Colorado, rules that evidence illegally obtained is not necessarily excluded if is
otherwise admissible under the rules of evidence. In such case, the evidence admitted,
without prejudice to any criminal, civil or administrative liability of the officer who
illegally
seized it. In other words, the admissibility of the evidence is not effected by the illegality
of the means by which it was acquired.
It was in Stonehill v. Diokno, supra, following the U.S. case of Maop v. Ohio
1969, when the exclusionary rule was first adopted in the Philippines, the SC noting that
the total suppression of the thing seized is the only effective means of ensuring the
constitutional right which it seeks to preserve. The Court noted, the insufficiency of the
other remedies (e.g. action for damages, criminal punishment, resistance), especially in
the Philippines where violations were committed by those in power and were thus
equipped with the pardoning power to water down the gravity of the other penalties
imposed to violators of those constitutional rights.
The victim may or may not get back the thing seized, depending on whether it is
contraband or not. It the thing is contraband, it would not be returned, and only its
suppression can be asked for. But if the thing is legal, the party can ask for its return,
even if no criminal prosecution has yet been filed, as in the Stonehill case.
yet no pending litigation before any court of competent authority. What is existing is an
investigation by the Office of the Ombudsman. In short, what the Office of the
Ombudsman would wish to do is to fish for additional evidence to formally charge
Amado Lagdameo, et al., with the Sandiganbayan. Clearly, there was no pending case
in court which would warrant the opening of the bank account for inspection.
Human Security Act of 2007
Section 3, HAS of 2007, provides that the authorities may, upon a written order
of the Court of Appeals, listen to, intercept and record, with the use of any mode, form,
kind or type of electronic or other surveillance equipment or intercepting and tracking
devices, or with the use of any suitable ways and means for that purpose, any
communication, message, conversation, discussion, or spoken or written words
between members of terrorist group. Provided, That surveillance, interception and
recording of communications between lawyers and clients, doctor and patients,
journalists and their sources and confidential business correspondence shall not be
authorized.
Sec. 4, Article III
No law shall be passed abridging the freedom of speech, of expression, or the
press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
The rule on privileged communications has its genesis not in the nations penal
code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of
the press. As early as 1918, in US vs. Caete, 38 Phil 253, the SC ruled that
publications which are privileged for reasons of public policy are protected by the
constitutional guaranty of freedom of speech. This constitutional right cannot be
abolished by the mere failure of the legislature to give it express recognition in the
statute punishing libel. (Borjal vs. CA, 301 SCRA 1)
The freedom to speak includes the right to be silent. This freedom includes also
includes the right to an audience, in the sense that the State cannot prohibit the people
from hearing what a person has to say, whatever be the quality of his thoughts. This
right, however, is not demandable against those unwilling to listen, who may not be
herded by the government into a captive audience.
Types of Privileged Communications:
1. Absolutely privileged communicationsthose which are not actionable even
if the author acted in bad faith. An example is found in Article VI, Section 11
which exempts a member of Congress from liability for any speech or debate in
1. Clear and Present Danger Rulewhen words are used in such circumstance
and of such nature as to create a clear and present danger that will bring about
substantive evil that state has the right to prevent.
2. Dangerous Tendency Rulewords uttered create a dangerous tendency of an
evil which State has the right to prevent.
3. Balancing of Interest Testwhen particular conduct is regulated in interest of
public order, and the regulation results in an indirect, conditional, partial
abridgment of speech, the duty of the courts is to determine which of the 2
conflicting interests demand greater protection under the particular
circumstances presented.
In the case of Adiong vs. COMELEC, 207 SCRA 713, the SC held that the
posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving
vehicles needs the consent of the owner of the vehicle. Hence, the preference of the
citizens becomes crucial in this kind of propaganda, not the financial resources of the
candidate. The owner can even prepare his own decals or stickers for posting on his
personal property. To strike down this right and enjoin it is impermissible encroachment
of his liberties. The prohibition on posting of decals and stickers on mobile places
whether public or private except in authorized areas designated by the COMELEC
becomes censorship which cannot be justified by the Constitution.
Doctrine of Fair Comment
Fair commentaries on matters of public interest are privileged and constitute a
valid defense in an action for libel or slander. It means that while in general every
discreditable imputation publicly made is deemed false, because every man is
presumed innocent until his guilt is judicially proved, and every false imputation is
deemed malicious, nevertheless, when the discreditable imputation is directed against a
public person in his public capacity, it is not necessarily actionable. In order that such
discreditable imputation to a public official may be actionable, it must either be a false
allegation of fact or a comment based on a false supposition. If the comment is an
expression of opinion, based on established facts, it is immaterial that the opinion
happens to be mistaken, as long as it might reasonably inferred from the facts. (Borjal
vs. CA, 301 SCRA 1)
Right to Assemble and Petition Government
The right to assemble is not subject to prior restraint and may not be conditioned
upon the prior issuance of a permit or authorization from the government authorities.
However, the right must be exercised in such a way as will not prejudice the public
welfare.
If assembly is to be held at a public place, permit for the use of such place, and
not for the assembly itself may be validly required. Power of local officials is merely for
regulation and not for prohibition. (Primicias vs. Fugoso, L-1800, January 27, 1948)
Permit for public assembly is not necessary if meeting is to be held in:
a. A private place;
b. The campus of a government-owned or operated educational institution; or
c. A freedom park.
The provisions of BP 880 (Public Assembly Act of 1985) are not absolute ban on
public assemblies but a restriction that simply regulates the time, place and manner of
the assemblies. The Court referred to it as content-neutral regulation.
Test for Lawful Assembly:
1. Purpose Testthe purpose for which the assembly is held regardless of the
auspices under which it is organized; and
2. Auspices Test.
In the case of Bayan vs. Ermita, G.R. No. 169838, April 25, 2006, Calibrated
Pre-emptive Response (CPR) serves no valid purpose if it means the something else.
Accordingly, what is to be followed is and should be that mandated by the law itself,
namely, maximum tolerance, which specifically means the highest degree of restraint
that the military, police and other peace keeping authorities shall observe during a
public assembly or in dispersal of the same.
Sec. 5, Article III
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.
Religionany specific system of belief, worship, conduct, etc., often involving a code of
ethics and a philosophy
It is a profession of faith to an active power that binds and elevates man to his
Creator. (Aglipay vs. Ruiz, 64 Phil 201)
Freedom of Religion
1. Non-Establishment Clause
Scope:
a. State cannot set-up church;
b. Cannot pass laws which aid one religion, all religions or prefer one over
another;
c. Nor influence a person to go to or remain away from church against his will;
nor
continues to be a volatile area of concern in our society today. For sure, we shall
continue to subject any act pinching the space for the free exercise of religion to a
heightened scrutiny but we shall not leave its rational exercise to the irrationality of a
man. For when religion divides and its exercise destroys, the State should not stand
still.
Taruc vs. Bishop Dela Cruz, G.R. No. 144801, March 10, 2005,
expulsion/excommunication of members of a religious institution/organization is a matter
best left to the discretion of the officials, and the laws and canons, of said
institution/organization. It is not for the courts to exercise control over church authorities
in the performance of their discretionary and official functions. Rather, it is for the
members of the religious institution/organization to conform to just church regulations.
Religious Tests
The constitutional prohibition against religious tests is aimed against clandestine
attempts on the part of the government to prevent a person from exercising his civil or
political rights because of his religious beliefs.
Sec. 6, Article III
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.
Liberty of Abode and Travel
The purpose of the guaranty is to further emphasize the individuals liberty as
safeguarded in general terms by the due process clause. Liberty under that clause
includes the right to choose ones residence, to leave it whenever he pleases, and to
travel where he wills.
Limitation on Liberty of Abode: upon Lawful order of the court
Restrictions on Right to Travel:
1. Interest of national security;
2. Public safety;
3. Public health; or
4. Any person on bail.
In Caunca vs. Salazar, 82 Phil 851, a maid has the right to transfer to another
residence even if she had not yet paid the amount advanced for her transportation from
the province by an employment agency which was then effectively detaining her.
Villavicencio vs. Lukban, 39 Phil 778, the Mayor of Manila was not sustained by the
SC when he deported some 170 women of ill-repute to Davao, for the admittedly
commendable purpose of ridding the city for serious moral and health problems. These
women are nevertheless not chattels but Philippine citizens protected by the same
constitutional guarantees as are other citizensto change their domicile from Manila to
another locality.
Rubi vs. Board of Mindoro, 39 Phil 660, the respondents were justified in requiring
the
members of certain non-Christian tribes to reside in a reservation, for their better
education, advancement and protection. The measure was held to be a legitimate
exercise of police power.
Lorenzo vs. Director of Health, 50 Phil 595, health officers may restrict access to
contaminated areas and also quarantine those already exposed to the disease sought
to be contained.
Zemel vs. Rusk, 381 US 1, the Secretary of State may regulate or even prohibit the
travel of citizens to hostile countries to prevent possible international misunderstanding
and conflict.
Section 26 of HAS of 2007cases where evidence of guilt is not strong, and the
person charged with the crime of terrorism as therein defined is entitled to bail and if
granted the same, the court, upon application by the prosecutor, shall limit the right to
travel of the accused to within the municipality or city where he resides or where the
case is pending, in the interest of national security and public safety.
Sec. 7, Article III
The right of the people to information on matters of public concerned shall be
recognized. Access to official records, and to documents, and papers
pertaining
to official acts, transactions, or decisions, as well as to government research
data used as basis for policy development, shall be afforded the citizens,
subject
to such limitations as may be provided by law.
Right of the People to Information on Matters of Public Concern
The citizen has a right to know what is going on in the country and in his
government so he can express his views thereon knowledgeably and intelligently. One
cannot question the extravagance of the government, for example, if is denied
examination of official vouchers. A citizen may not expose anomaly if those responsible
for it may validly prevent him from investigating their activities. In the interest of truth
and fairness, the citizen should not be made to guess only at what is being done by
public functionaries and to base his views and conclusions on mere rumors, half-truths,
conjectures and even canards.
Recognized restrictions:
1. National security matters and intelligence informationthis jurisdiction
recognizes the common law holding that there is a governmental privilege
against public disclosure with respect to state secrets regarding military,
diplomatic and other national security matters;
2. Trade or industrial secrets(pursuant to the Intellectual Property Code, RA
8293 and other related laws and banking transactionspursuant to the Secrecy
of Bank Deposits Act, RA 1405);
3. Criminal matters, such as those relating to the apprehension, the prosecution
and the detention of criminals, which courts may not inquire into prior to such
arrest, detention and prosecution; and
4. Other confidential information. The Ethical Standards Act further prohibits
public officials and employees from using or divulging confidential or classified
information to the public. [Section 7 (c), RA 6713] Other acknowledged
limitations to information access include diplomatic correspondence, closed door
Cabinet meetings and executive sessions of either House of congress, as well as
the internal deliberations of the SC. (Chavez vs. PCGG, 299 SCRA 744)
Rights guaranteed:
1. Right to information on matters of public concern; and
2. Corollary right of access to official records and documents
BA-RA 7941 vs. COMELEC, G.R. Nos. 177271 and 177314, May 4, 2007, the right
to
information is a public right where the real parties in interest are the public, or the
citizens to be precise. The peoples right to know is limited to matters of public concern
and is further subject to such limitation as may be provided by law. Similarly, the policy
of full disclosure is confined to transactions involving public interest and is subject to
reasonable conditions prescribed by law.
Valmonte vs. Belmonte, Jr., 170 SCRa 256the information sought must be matters
of public concern, access to which may be limited by law. The information sought by
petitioners is the truth of reports that certain Members of the Batasan Pambansa
belonging to the opposition were able to secure clean loans from the GSIS immediately
before the February 7, 1986 election through the intercession of the former First Lady
Imelda Marcos. x x x The public nature of the loanable funds of the GSIS and the public
office held by the alleged borrowers make the information sought clearly a matter of
public interest and concern.
Legaspi vs. Civil Service Commission, the SC affirmed the right of the petitioner to
secure from the Civil Service Commission information regarding the civil service
eligibility of certain persons employed in the health department of the Cebu City
government.
Sec. 8, Article III
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.
not penalized for the exercise of their right to assemble peacefully and to petition the
government for a redress of grievances. Rather, the Civil Service Commission found
them guilty of conduct prejudicial to the best interest of the service for having absented
themselves without proper authority, from their school during regular school days, in
order to participate in the mass protest, their absence ineluctably resulting in the
nonholding
of classes and in the deprivation of students of education, for which they were
responsible. Had petitioners availed themselves of their free timerecess, after
classes, weekends or holidaysto dramatize their grievances and to dialogue with the
proper authorities within the bounds of law, no onenot the DECS, the CSC or even
the SCcould have held them liable for the valid exercise of their constitutionally
guaranteed rights. As it was, the temporary stoppage of classes resulting from their
activity necessarily disrupted public services, the very evil sought to be forestalled by
the prohibition against strikes by government workers. Their act by their nature was
enjoined by the Civil Service Law, rules and regulations, for which they must, therefore,
be made answerable.
GSIS vs. Kapisanan ng mga Manggagawa sa GSIS, G. R. No. 170132, December
6,
2006, it was against the backdrop of the provisions of the Constitution that the Court
resolved that employees in the public service may not engage in strikes or in concerted
and unauthorized stoppage of work; that the right of government employees to organize
is limited to the formation of unions or associations, without including the right to strike.
It may be, as the appellate court urged, that the freedom of expression and assembly
and the right to petition the government for a redress of grievances stand on a level
higher than economic and other liberties.
Sec. 9, Article III
Private property shall not be taken for public use without just compensation.
(See discussions Under Eminent Domain)
Sec. 10, Article III
No law impairing the obligation of contract shall be passed.
The freedom to contract is not absolute; all contracts and all rights are subject to
the police power of the State and not only may regulations which affect them be
established by the State, but all such regulations must be subject to change from time to
time, as the general well-being of the community may require, or the circumstances may
change, or as experience may demonstrate the necessity.
The purpose of the impairment clause is to safeguard the integrity of valid
contractual agreements against unwarranted interference by the State. As a rule, they
should be respected by the legislature and not tampered with by subsequent laws that
will change the intention of the parties or modify their rights and obligations. The will of
the obligor and the obligee must be observed; the obligation of their contract must not
be impaired.
However, the protection of the impairment clause is not absolute. There are
instances when contracts valid at the time of their conclusion may become invalid, or
some of their provisions may be rendered inoperative or illegal, by virtue of supervening
legislation.
Limitations:
1. Police powerprevails over contracts;
2. Eminent domainmay impair obligation of contracts; and
3. Taxationcannot impair obligation of contracts.
Impairmentanything that diminishes the efficacy of a contract
There is impairment when there is change in the terms of a legal contract
between parties, either in the time or mode of performance, or imposes new conditions,
or dispenses with those expressed, or authorizes for its satisfaction something different
from that provided in its terms. (Clemons vs. Nolting, No. 17959, January 24, 1922)
Hon. Heherson Alvarez vs. PICOP Resources, Inc., G.R. No. 162243, November
29, 2006, in unequivocal terms, the SC have consistently held that such licenses
concerning the harvesting of timber in the countrys forests cannot be considered
contracts that would bind the Government regardless of changes in policy and the
demands of public interest and welfare. Since timber licenses are not contracts, the
non-impairment clause cannot be invoked.
Sec. 11, Article III
Free access to the courts and quasi-judicial bodies and adequate legal
assistance shall not be denied to any person by reason of poverty.
Inspired by t social justice policy and covered by the equal protection clause, this
rule has been implemented by several provisions of the Rules of Court in favor of the
pauper litigant. The IBP provides deserving indigents with free legal aid, including
representation in court, and similar services available from the DOJ to litigants who
cannot afford retained counsel, like the accused in a criminal case who can ask for the
assistance of counsel de officio. There are also private legal assistance organizations
now functioning for the benefit of penurious clients who otherwise might be unable to
resort to the courts of justice because only of their misfortune of being poor. This
provision makes them the equal of the rich before the law.
Sec. 12, Article III
(1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have a
but has begun to focus on a particular suspect, the suspect has been taken into police
custody, the police carry out a process of interrogation that tend to elicit incriminating
statements.
Custodial Investigation
Any questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any significant way.
It shall include the practice of issuing invitation to a person who is investigated
in connection with an offense he is suspected to have committed, without prejudice to
the liability of the inviting officer for any violation of the law. (RA 7438)
People vs. Lugod, G.R. No. 136253, February 21, 2001, the accused should
have been entitled to Miranda rights, because even assuming that he was not yet under
interrogation at the time he was brought to the police station, his confession was elicited
by a police officer who promised to help him if he told the truth. Furthermore, when he
allegedly pointed out the body of the victim, the atmosphere was highly intimidating and
not conducive to a spontaneous response as the whole police force and nearly 100
townspeople escorted him there. Not having the benefit of counsel and not having been
informed of his rights, the confession is inadmissible.
Miranda rights
(Miranda vs. Arizona, 384 US 436)
x x x The prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates the use of
Applies only from the moment the investigating officer begins to ask questions for the
purpose of eliciting admissions, confessions or any information from the accused.
People vs. Baloloy, G.R. No. 140740, April 12, 2002, it was held that this guarantee
does not apply to spontaneous statement, not elicited through questioning by the
authorities but given in an ordinary manner whereby the suspect orally admitted having
committed the offense. Neither can it apply to admissions or confessions made by a
suspect before he was placed under custodial investigation. In this case, the narration
before the Barangay Captain prior to custodial investigation was admissible in
evidence, but not the admissions made before Judge Dicon, inasmuch as the
questioning by the judge was done after the suspect had been arrested and such
questioning already constituted custodial investigation.
Rights guaranteed:
1. Right to remain silent;
2. Right to have a competent and independent counsel preferably of his own choice
at all stages of the investigation;
Independent and competent counselwilling to safeguard the constitutional rights of
the accused
Rationale:
a. to make him aware of it;
b. to overcome the inherent pressure o the interrogating atmosphere; and
c. to show the individual that his interrogators are prepared to recognize his
privilege should he choose to invoke it.
These rights cannot be waives except in writing and in the presence of counsel; it is not
required in a police-line up as the latter is not part of a custodial inquest.
3. Express; and
4. In writing.
Investigations not considered custodial interrogation
1. Those conducted by an audit examiner
2. Those conducted by the Court Administrator
3. Those conducted by the employer
For the reason that these people are not law enforcement officers
However, in the case of People vs. Salonga, G.R. No. 131131, June 21, 2001, after
an
audit, the accused was summoned to appear before the Assistant Accountant of
MetroBank and, in the course of the interview, accused admitted having issued the
subject cashiers checks without any legitimate transaction, the written confession was
held admissible in evidence inasmuch as the interview did not constitute custodial
investigation.
Ladiana vs. People, G.R. No. 144293, December 24, 2002, the counter-affidavit
evidence because the originally obtained evidence taints all evidence subsequently
obtained.
Sec. 13, Article III
All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable
by
sufficient sureties, or be released or recognizance as may be provided by law.
The right to bail shall not be impaired even when the privilege of the writ of
habeas corpus is suspended. Excessive bail shall not be required.
Right to Bail
Bailthe security given for the release of a person in custody of the law, furnished by
him or a bondsman, conditioned upon his appearance before any court as may be
required.
The right to bail may be invoked by any person once detention commences even
if no formal charges have yet to be filed;
It can availed of by a person who is in custody of law or otherwise deprived of his
liberty;
Suspension of the writ of the privilege of habeas corpus does not suspend the
right to bail;
Even when the accused has previously jumped bail, still he cannot be denied bail
before conviction if it is a matter of right. The remedy is to increase the amount of
bail;
Right to bail has not been recognized and is not available to the military.
Standards for fixing amount of bail:
1. Financial ability of the accused;
2. Nature and circumstances of the offense;
3. Penalty for the offense charged;
4. Character and reputation of the accused;
5. Age and health of the accused;
6. Weight of evidence against the accused;
7. Probability of appearance at trial;
8. Forfeiture of other bonds by him;
9. He was a fugitive from justice when arrested; and
10.Pendency of other cases where he is also under bail.
Bail as a matter of right
All persons in custody shall be admitted to bail as a matter of right, with sufficient
sureties, or be released on recognizance as prescribed by law:
101
2008 Political Law and Public International Law
Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R
review materials, www.pinoylaw.net, etc.)
Ma. Luisa Angeles Ramos
Without a hearing, the judge could not possibly asses the weight of the evidence
against the accused before granting the latters application for bail.
(See the cases of Government of USA vs. Hon. Purganan and
Government of Hongkong vs. Judge Olalia)
(1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the Congress hereafter
provides for it. Any death penalty already imposed shall be reduced to
reclusion perpetua.
(2) The employment of physical, psychological, or degrading punishment
against
any prisoner or detainee or the use of substandard or inadequate penal
facilities under subhuman conditions shall be dealt with by law.
Prohibited Punishments
Mere severity does not constitute cruel or unusual punishment. To violate
constitutional guarantee, penalty must be flagrant and plainly oppressive,
disproportionate to nature of offense as to shock senses of community.
Sec. 20, Article III
No person shall be imprisoned for debt or non-payment of a poll tax.
Coverage:
1. Debtany civil obligation arising from contract
2. Poll taxa specific sum levied upon any person belonging to a certain class
without regard to property or occupation.
A tax is not a debt since it is an obligation arising from law hence, its non-payment
may be validly punished with imprisonment.
Sec. 21, Article III
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.
Right against Double Jeopardy
Requisites:
1. A valid complaint or information;
2. Filed before competent court;
3. To which defendant has pleaded; and
4. Defendant was previously acquitted or convicted or the case dismissed or
otherwise terminated without his express consent.
Two (2) types:
1. No person shall be twice put in jeopardy of punishment for the same offense;
2. 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.
To substantiate a claim of double jeopardy, the following must be proven:
1. A first jeopardy must have attached prior to the second;
2. The second jeopardy must be for the same offense, or the second offense
includes or is necessarily included in the offense charged in the first
People vs. Perlita J. Tria-Tirona, et al., G.R. No. 130106, July 15, 2006, after trial
on
the merits, an acquittal is immediately final and cannot be appealed on the ground of
double jeopardy. The only exception where double jeopardy cannot be invoked is where
there is finding of mistrial resulting in a denial of due process.
Sec. 22, Article III
No ex-post facto law or bill of attainder shall be enacted.
Right against Ex-Post Facto Law and Bill of Attainder
Ex-Post Facto Law
The equivalent of the impairment clause in criminal matters is the prohibition
against the passage of the ex post facto law. This is because the ex post facto law, like
the law impairing the obligation of the contracts, operates retroactively to affect
antecedent acts. A law can never be considered ex post facto as long as it operates
prospectively since its structures would cover only offenses committed after and not
before its enactment. Basically, an ex post facto law is one that would make a previous
act criminal although it was not so at the time it was committed.
Kinds:
1. Law criminalizing act done before its passage;
Example: A law passed in 1990 raising the age of seduction from 18 to 25
years, effective 1980
2. Law aggravating penalty for crime committed before passage;
Example: A law passed in 2000 designating the crime of homicide through
reckless imprudence as murder, effective 1990
3. Law that changes punishment, and inflicts greater or more severe punishment
than the law annexed to the crime when committed;
Example: A law passed in 2000 increasing the penalty for libel from prision
correccional to prision mayor, effective 1990
4. Law altering legal rules of evidence and receives less or different testimony than
law required at the time of commission, in order to convict accused;
Example: A law passed in 2000 requiring for conviction merely preponderance
of evidence instead of proof beyond reasonable doubt, effective 1990
5. Law assuming to regulate civil rights and remedies only, in effect imposes a
penalty of deprivation of right for something which when done was lawful; and
Example: A law passed in 2000 depriving professionals of the right to practice
for failure or refusal to vote, effective 1990.
6. Law depriving accused of some lawful protection to which he had been entitled,
such a protection of a former conviction or acquittal, or of a proclamation of
amnesty.
Article IV
CITIZENSHIP
Historically, she was born a year before the 1935 Constitution took into effect
and at that time, what served as the Constitution of the Philippines were the organic
acts by which the US governed the country. These were the Philippine Bill of July 1,
1902 and the Philippine Autonomy Act of August 29, 1916, also known as the Jones
Law.
These laws defined who were deemed to be citizens of the Philippine Islands.
Xxx Under both organic acts, all inhabitants of the Philippines who were Spanish
subjects on April 11, 1899 and resided therein including their children are deemed to be
Philippine citizens. Private respondents father, Telesforo, was born on January 5, 1879
in Daet, Camarines Norte, a fact duly evidenced by a certified true copy of an entry in
the registry of Births. Thus, under the Philippine Bill of 1902 and the Jones Law,
Telesforo Ybasco was deemed to be a Philippine citizen. By virtue of the same laws,
which were the law in force at the time of her birth, Rosalind Ybasco Lopez is likewise a
citizen of the Philippines.
The signing into law of the 1935 Constitution has established the principle of jus
sanguinis as basis for the acquisition of Philippine citizenship xxx. This principle confers
citizenship by virtue of blood relationship. It was subsequently retained under the 1973
and 1987 Constitutions.
Thus, herein private respondent, Rosalind Ybasco Lopez, is a Filipino citizen,
having been born to a Filipino father. The fact of her being born in Australia is not
tantamount to her losing her Philippine citizenship. If Australia follows the principle of
jus soli, then at most, private respondent can also claim Australian citizenship resulting
to her possession of dual citizenship. (Valles vs. COMELEC, 337 SCRA 543, August
9, 2000)
Maria Jeanette Tecson vs. COMELEC, G.R. No. 161434, March 3, 2004 (on the
controversy surrounding the citizenship of FPJ) The Court took note of the fact that
Lorenzo Pou (grandfather of FPJ), who died in 1954 at the age of 84 years of age,
would have been born sometime in 1870, when the Philippines was under the Spanish
rule, and that San Carlos, pangasinan, his place of residence upon his death in 1954, in
the absence of any other evidence, could have well been his place of residence before
death, such that Lorenzo Pou would have benefited from the en masse Filipinization
that the Philippine Bill of 1902 effected. That Filipino citizenship of Lorenzo Pou, if
acquired, would thereby extend to his son, Allan F. Poe (father of FPJ). The 1935
Constitution, during which regime FPJ has seen first light, confers citizenship
to
all persons whose fathers are Filipino citizens regardless of whether such
children are legitimate or illegitimate.
Marriage by Filipino to an alien: Citizens of the Philippines who marry aliens shall
retain their citizenship, unless by their act or omission they are deemed, under the law,
to have renounced it [Sec.4, Art. IV].
Re: Application for Admission to the Philippine Bar, Vicente D. Ching, Bar
Matter
No. 914, October 1, 1999 Vicente Ching, a legitimate child, having been born on
April 11, 1964 of Filipino mother and an alien father, was already 35 years old when he
complied with the requirements of CA 625 on June 15, 1999, or over 14 years after he
had reached the age of majority. By any reasonable yardstick, Chings election was
clearly beyond the allowable period within which to exercise the privilege. All his acts
(passing the CPA and Bar Exams) cannot vest in him citizenship as the law gives him
the requirement for election of Filipino citizenship which he did not comply with. (He was
not allowed to take the Lawyers Oath)
The proper period for electing Philippine citizenship was, in turn, based on the
pronouncements of the Department of State of the US government to the effect that the
election should be made within a reasonable time after attaining the age of majority.
The phrase reasonable time has been interpreted to mean that the election should be
made within three (3) years from reaching the age of majority except when there is
justifiable reason to delay.
The span of 14 years that lapsed from the time he reached 21 until he finally
expressed his intention to elect Philippine citizenship is clearly way beyond the
contemplation of the requirement of electing upon reaching the age of majority.
(If his parents were not married, he will follow the citizenship of his mother and he need not elect Philippine citizenship. )
Caram provision. Those born in the Philippines of foreign parents who, before the
adoption of the 1935 Constitution, had been elected to public office in the Islands are
considered citizens of the Philippines. In Chiongbian vs. de Leon, the SC held that the
right acquired by virtue of this provision is transmissible.
Re: 1973 Constitution: Those whose mothers are citizens of the Philippines. Provision is
prospective in application; to benefit only those born on or after January 17, 1973 (date
of effectivity of 1973 Constitution).
If born before January 17, 1973, of Filipino mothers, the person must elect Philippine
citizenship upon reaching the age of majority. [Within reasonable time=3 years
except
when there is justifiable reason to delay]
Procedure for election of Philippine citizenship:
1. Election is expressed in a statement to be signed and sworn to by the party
concerned before any official authorized to administer oaths.
2. Statement to be filed with the nearest Civil Registry accompanied with the
Oath of Allegiance to the Constitution and the Government of the Philippines
[Sec. 1, CA 625].
Those whose fathers or mothers are citizens of the PhilippinesProspective
application, consistent with the 1973 Constitution.
The right to elect Philippine citizenship is an inchoate right; during his minority, the
child is an alien [Villahermosa vs. Commissioner of Immigration 80 Phil. 541].
The constitutional and statutory requirements of electing Filipino citizenship apply only
to legitimate children. In Republic vs. Chule Lim, G.R. No. 153883, January 13,
2004,
it was held that the respondent, who was concededly an illegitimate child considering
that her Chinese father and Filipino mother were never married, is not required to
comply with said constitutional and statutory requirements. Being an illegitimate child of
a Filipino mother, respondent became a Filipino upon birth. Record shows that
respondent elected Filipino citizenship when she reached the age of majority. She
registered as a voter in Misamis Oriental when she was 18 years old. The exercise of
the right of suffrage and the participation in election exercises constitute a positive act
of electing Philippine citizenship.
Naturalized citizens are those who have become Filipino citizens through
naturalization, generally under CA No. 473, otherwise known as the Revised
Naturalization Law, which repealed the former Naturalization Law (Act No. 2927), and
by RA 530.
To be naturalized, an applicant has to prove that he possesses all the qualifications and
none of the disqualifications provided by law to become a Filipino citizen. The decision
granting Philippine citizenship becomes executor only after 2 years from its
promulgation when the court is satisfied that during the intervening period, the
applicant:
b. Those resided in the Philippines for 30 years or more before the filing of
the petition, and enrolled their children in elementary and HS recognized
by the government and not limited to any race or nationality;
c. Those widows and minor children of aliens who have declared their
intention to become citizens of the Philippines and die before they are
actually naturalized.
2. Filing of the Petition, accompanied by the affidavit of 2 credible persons, citizens
of the Philippines, who personally know the petitioner, as character witness;
3. Publication of the Petition in the O.G. or in a newspaper of general circulation
once a week for 3 consecutive weeks. Failure to comply is fatal. (Po Yo Bi vs.
Republic, 205 SCRA 400)
4. Actual residence in the Philippines during the entire proceedings.
5. Hearing of the Petition.
6. Promulgation of the decision.
7. Hearing after 2 years. During the 2-year probation period, applicant has:
a. Not left the Philippines;
b. Dedicated himself continuously to a lawful calling or profession;
c. Not been convicted of any offense or violation of rules; and
d. Not committed an act prejudicial to the interest of the nation or contrary to any
government-announced policies.
8. Oath taking and issuance of Certificate of Naturalization.
Modes of Naturalization:
1. D IRECT- through:
d. Judicial or administrative proceedings- e.g. RA 9139 The Administrative
Naturalization Law of 2000grants Philippine citizenship to aliens born
and residing in the Philippines
e. Special act of legislature- this is discretionary on Congress; usually
conferred on an alien who has made an outstanding contribution to the
country
f. Collective change of nationality, as a result of cessation or subjugation
g. Some cases, by adoption of orphan minors as nationals of the State
where they are born
2. D ERIVATIVE-Citizenship conferred on:
a. Wife of naturalized husband;
b. Minor children of naturalized person;
c. Alien woman upon marriage to a national.
Edison So vs. RP, G.R. No. 170603, January 29, 2007Naturalization signifies the
act of formally adopting a foreigner into the political body of a nation by clothing him or
her with privileges of a citizen. Under current and existing laws, there are 3 ways by
which an alien may become a citizen by naturalization:
a. Administrative naturalization pursuant to RA 9139;
b. Judicial naturalization pursuant to CA No. 473, as amendedcovers all aliens
regardless of class; and
c. Legislative naturalization in the form of a law enacted by Congress bestowing
Philippine citizenship to an alien.
It is the burden of the applicant to prove not only his own good moral character
but also the good moral character of his/her witnesses, who must be credible persons.
A naturalization proceeding is nota judicial adversary proceeding, and the decision
rendered therein does not constitute res judicata. A certificate of naturalization may be
cancelled if it is subsequently discovered that the applicant obtained it by misleadintg
the court upon any material fact.
RA 9139not all aliens may avail of this remedy. Only native born aliens who have
been residing here in the Philippines all their lives, who never saw any other country
and all along thought that they were Filipinos; who have demonstrated love and loyalty
to the Philippines, and affinity to the customs and traditions of the Filipinos.
Naturalization Repatriation
-mode for both acquisition and
reacquisition of citizenship
-governed by CA 473 (for acquisition) and
CA 63 (for reacquisition)
-consists a lengthy process
-mode for reacquisition for those who lost
their citizenship
-governed by various statutes
-consists of taking of an oath of allegiance
to the RP and registering said oath in the
LCR of the place where the person
concerned resides or last resided
Effects of Naturalization:
1. Vests citizenship on wife if she herself may be lawfully naturalized; (She need not
go through the naturalization process; if she doesnt suffer from any disqualification, no need to
prove the qualifications)
their status as dual citizens. It may be that, from the point of view of the foreign state
and of its laws, such an individual has not effectively renounced his foreign citizenship.
That is of no moment.
The filing of a COC suffices to renounce foreign citizenship, effectively removing
any disqualification as dual citizen. This is so because in the COC, one declares that he
is a Filipino citizen and that he will support and defend the Constitution and will maintain
true faith and allegiance to the same. Such declaration under oath operates as an
effective renunciation of foreign citizenship. In this case, the Court adopted the liberal
interpretation of the rule. Manzano is not really prohibited to run due to dual citizenship.
Dual allegiance is the one prohibited. Dual citizenship referred to under Section 40 (d)
of the Local Government Code refers to dual allegiance under Section 5 of Article IV of
the 1987 Constitution.[Mercado vs. Manzano, 307 SCRA 630, May 26, 1999]
Section 5, Article IVDual allegiance of citizens is inimical to the national interest and
shall be dealt with by law.
This section is not a self-executing law. It needs an implementing law.
Section 40 (d), LGCDisqualifications.The following persons are disqualified from
running from any elective local election:
xxx
(d) Those with dual citizenship.
x x x.
The provision prohibits dual citizenship but the Supreme Court ruled that it refers to
prohibition on dual allegiance.
Doctrine of INDELIBLE ALLEGIANCE: an individual may be compelled to retain his
original nationality even if he has already renounced or forfeited it under the laws of the
second State whose nationality he has acquired.
Dual Citizenship Dual Allegiance
arises as a result of the concurrent
application of the different laws of 2 or
more states, a person is simultaneously
considered as a national of said states
involuntary
refers to a situation in which a person
simultaneously owes, by some positive
act, loyalty to 2 or more states
voluntary
Calilung vs. Datumanong, G.R. No. 160869, May 11, 2007, what RA 9225 does is
allow dual citizenship to natural-born citizens who have lost their Philippine citizenship
by reason of their naturalization as citizens of a foreign country. On its face, it does not
recognize dual allegiance. By swearing to the supreme authority of the Republic, the
person implicitly renounces its foreign citizenship. Plainly, from Section 3, RA 9225
stayed clear out of the problem of dual allegiance and shifted the burden of confronting
the issue of whether or not there is dual allegiance to the concerned foreign country.
What happens to the other citizenship was not made a concern of RA 9225.
Instances when a citizen of the Philippines may possess dual citizenship:
1. Those born of Filipino fathers and/or mothers in foreign countries which follow
the principle of jus soli;
2. Those born in the Philippines of Filipino mothers and alien fathers if by the laws
of their fathers country such children are citizens of that country;
3. Those who marry aliens if by the laws of the latters country the former are
considered citizens, unless by their act or omission they are deemed to have
renounced Philippine citizenship. [Mercado vs. Manzano, 307 SCRA 630, May
26, 1999]
Res judicata in cases involving citizenship:
General Rule: It does not apply to questions of citizenship.
Exception: In Burca vs. Republic, 51 SCRA 248, an exception to the general rule was
Article V
SUFFRAGE
Section 1
Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen (18) years of age, and who shall
have resided in the Philippines for at least one year and in the place wherein
they
propose to vote for at least six months immediately preceding the election. No
literacy, property, or other substantive requirement shall be imposed on the
exercise of suffrage.
Section 2
The Congress shall provide a system for securing the secrecy and sanctity of
the
ballots as well as a system for absentee voting by qualified Filipinos abroad.
The Congress shall also design a procedure for the disabled and illiterates to
vote without the assistance of other persons. Until then, they shall be allowed
to
vote under existing laws and such rules as the Commission on Elections may
promulgate to protect the secrecy of the ballot.
Right of Suffrage
Right to vote in election of officers chosen by people and in the determination of
questions submitted to people.
ELECTIONis the embodiment of the popular will, the expression of the sovereign
power of the people.
It is the means by which the people choose their officials for a definite and fixed
period and to whom they entrust for the time being the exercise of the powers of
government.
Kinds:
1. REGULAR ELECTIONrefers to an election participated in by those who
possess the right of suffrage and not disqualified by law and who are registered
Aquino vs. COMELEC, 248 SCRA 400, the meaning and purpose of residency
requirementthe place where a party actually or constructively has his permanent
home, where he, no matter where he may be found at any given time, eventually
intends to return and remain, i.e., his domicile, is that to which the constitution refers
when it speaks of residence for the purposes of election law.
In Marcita Mamba Perez vs. COMELEC, G.R. No. 133944, October 28, 1999, the
fact
that a person is registered as a voter in one district is not proof that he is not domiciled
in another district. Thus, in Faypon vs. Quirino, the SC held that the registration of a
voter in a place other than his residence of origin is not sufficient to consider him to
have abandoned or lost his residence.
Disqualifications:
1. Sentence by final judgment to suffer imprisonment for not less than one year,
unless pardoned or granted amnesty; but right is reacquired before expiration of
5 years after service of sentence
2. Conviction by final judgment of any of the following crimes:
a. Crime involving disloyalty to the government
b. any crime against national security
c. Firearms laws
But right is reacquired before expiration of 5 years after service of sentence.
3. Insanity or incompetence declared by competent authority (Section 18, OEC)
REGISTRATION
It refers to the act of accomplishing and filing a sworn application for registration
by a qualified voter before the election officer of the city or municipality wherein he
resides and including the same in the book of registered voters upon approval of the
Election Registration Board (ERB).
Registration does not confer the right to vote; it is but a condition precedent to
the exercise of the right. Registration is a regulation, not a qualification. (Yra vs. Abano,
52
Phil 380)
In the case of Akbayan Youth vs. COMELEC, G.R. No. 147066, March 26,
2001, the SC upheld the COMELECs denial of the request for two (2) additional
registration days in order to enfranchise more than 4 million youth who failed to register
on or before December 27, 2000. It is an accepted doctrine in administrative law that
the determination of administrative agencies as to the operation, implementation and
application of law is accorded great weight, considering that these specialized
government bodies are, by their nature and functions, in the best position to know what
they can possibly do or not do under prevailing circumstances.
Petition for Inclusion (Sec. 34, RA 8189) and Exclusion (Sec. 35, RA 8189) of Voters in
the List
1. Jurisdiction
a. MTCoriginal and exclusive
b. RTCappellate jurisdiction
c. SCappellate jurisdiction over RTC on question of law
2. Petitioner
a. Inclusion
Private person whose application was disapproved by the ERB or
whose name was stricken out from the list of voters
COMELEC
b. Exclusion
Any registered voter in the city or municipality
Ututalum vs. COMELEC, 181 SCRA 335, annulment of the list of voters shall
not constitute a ground for a pre-proclamation contest.
Overseas Absentee Voting Act of 2003 (RA 9189)
Absentee Votingprocess by which qualified citizens of the Philippines abroad
exercise their right to vote pursuant to the constitutional mandate that Congress shall
provide a system for absentee voting by qualified Filipinos abroad(Sec. 3a, RA 9189
and Section 2, Article V of the Constitution)
It is an exception to the 6-month/1-year residency requirement.
Overseas Absentee Votercitizens of the Philippines who is qualified to register and
vote under this Act, not otherwise disqualified by law, who is abroad on the day of
election
Coverage: All citizens of the Philippines abroad, who are not otherwise disqualified by
law at least 18 years of age on the day of elections, may vote for President, VP,
Senators and Party-List Representatives. (Sec. 4)
Disqualifications:
1. Those who have lost their Filipino citizenship in accordance with Philippine laws;
2. Those who have expressly renounces their Philippine citizenship and who have
pledged their 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 1 year,
including those who have committed and been found guilty of disloyalty, 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 5 years after service of
sentence;
4. An immigrant or a permanent resident who is recognized as such in the host
country, unless he executes, upon registration, an affidavit for the purpose by the
COMELEC declaring that he shall resume actual physical residence not later
than 3 years from approval of his registration. Such affidavit shall also state that
he has not applied for citizenship in another country; and
5. Any citizen of the Philippines abroad previously declared insane or incompetent
by competent authority in the Philippines or abroad, as verified by Philippine
embassies, consulate or foreign service establishment concerned.
Requirements for registration:
1. Valid passport
2. Accomplished registration form containing the following information:
a. Last known residence of the applicant in the Philippines before leaving for
abroad;
b. Address of applicant abroad or forwarding address in the case of
seafarers;
2. Any person sentenced by final judgment for any of the following offenses:
a. Subversion, insurrection or rebellion
b. Offense for which he was sentenced to penalty of more than 18 months
c. Crime involving moral turpitude
Villaber vs. COMELEC, G.R. No. 148326, November 15, 2001, violation of BP
22 is a crime involving moral turpitude, because the accused knows at the time of the
issuance of the check that he does not have sufficient funds in, or credit with, the
drawee bank for the payment of the check in full upon presentment. A conviction thereof
shows that the accused is guilty of deceit, and certainly relates to and affects the good
moral character of the person.
Dela Torre vs. COMELEC, 258 SCRA 483, violation of the Anti-Fencing Law
involves moral turpitude, and the only legal effect of probation is to suspend the
implementation of the sentence. Thus, the disqualification still subsists.
Removal of DQ: plenary pardon, amnesty, lapse of 5 years after service of
sentence
3. A permanent resident to or immigrant to a foreign country unless he waives such
status (OEC, Sections 12 and 68)
In the case of Caasi vs. COMELEC, 191 SCRA 229, the SC said that a green
card is ample proof that the holder thereof is a permanent resident of, or immigrant to,
the United States.
4. One who has violated provisions on:
a. Campaign period;
b. Removal, destruction of lawful election propaganda;
c. Prohibited forms of propaganda;
d. Regulation of propaganda through mass media; and
e. Election offenses.
In Pangkat Laguna vs. COMELEC, G.R. No. 148075, February 4, 2002, the
acts of Laguna Governor Lazaro in ordering the purchase of trophies, basketballs,
volleyballs, chessboard sets, and the distribution of medals and pins to various schools,
did not constitute a violation of Section 80 on premature campaigning. Respondent
Lazaro was not in any way directly or indirectly soliciting votes; she was merely
performing the duties and tasks imposed upon her by law, which duties she had sworn
to perform as Governor of Laguna.
Codilla vs. De Venecia, G.R. No. 150605, December 10, 2002, when a
candidate has not yet been disqualified by final judgment during the election day and
was voted for, the votes cast in his favor cannot be declared stray. To do so would
amount to disenfranchising the electorate in whom sovereignty resides.
U nder Local Government Code ( RA 7160)
1. Those sentenced by final judgment for an offense involving moral turpitude or an
offense punishable by imprisonment for at least 1 year, within 2 years after
service of sentence;
2. Those removed from office as a result of an administrative case;
Reyes vs. COMELEC, 254 SCRA 514, the Mayor who had been ordered
removed from office by the Sangguniang Panlalawigan, was disqualified, even as he
alleged that the decision was not yet final because he had not yet received a copy of the
decision, inasmuch as it was shown that he merely refused to accept delivery of the
copy of the decision.
3. Those convicted by final judgment for violating the oath of allegiance to the
Republic;
4. Those with dual citizenship;
(See the case of Mercado vs. Manzano and Valles vs. COMELEC)
5. Fugitives from justice in criminal or nonpolitical cases here or abroad;
A fugitive from justice includes not only those who flee after conviction to avoid
punishment, but likewise those who, after being charged, flee to avoid prosecution. In
the case of Rodriguez vs. COMELEC, G.R. No. 120099, July 24, 1996, petitioner
cannot be considered a fugitive from justice, because his arrival in the Philippines from
the US preceded the filing of the felony complaint in LA Court and the issuance of the
arrest warrant by the same foreign court, by almost 5 months.
6. Permanent residents in foreign country or those who have acquired the right to
reside abroad and continue to avail of the same right after the effectivity of this
Code.
See Caasi vs. COMELEC, 191 SCRA 229.
7. The insane or feeble-minded. (Sec. 40, LGC)
(Section 73,
OEC)
In Fr. Cayat vs. COMELEC, G.R. Nos. 163776 and 165736, April 24, 2007, the
law expressly declares that a candidate disqualified by final judgment before an election
cannot be voted for, and votes cast for him shall not be counted. This is a mandatory
provision of law under Section 6 of RA 6646, the Electoral Reforms Law of 1987. The
SC did not apply this doctrine of the rejection of second placer which triggers the rule on
succession. There was no second placer because Palileng is not a second-placer but
the only placer. There is only one candidate.
Withdrawal of the COCshall effect the disqualification of the candidate to be elected
for the position. (Ycain vs. Caneja, 81 Phil 773)
The withdrawal of the withdrawal, for the purpose of reviving the COC must be
made within the period provided by law for the filing of COC. (Monsale vs. Nico, 83
Phil 758)
The affidavit of withdrawal can be filed directly with the main office of the
COMELEC, the office of the Regional Election Director concerned, office of the
provincial election supervisor of the province to which the municipality belongs, or the
office of the municipal election officer of the municipality.
Nuisance Candidates
They are candidates who have no bona fide intention to run for the office for
which the COC has been filed and would thus prevent a faithful election.
COMELEC may refuse to give due course to or cancel a COC of a nuisance
candidate. This can be done motu proprio or upon verified petition of an interested
party.
There should be a showing that:
1. The COC has been filed to put the election process in mockery/dispute;
2. The intent for filing is to cause confusion among the voters by the similarity of
the names of the registered candidates;
3. There are other circumstances which clearly demonstrate that the candidate
has no bona fide intention to run for the office.
Garcia vs. COMELEC, G.R. No. 121139, July 12, 1996, proclamation of the
winning candidate renders moot and academic a motion for reconsideration filed by a
candidate who had been earlier declared by the COMELEC as nuisance candidate.
Petition to Deny Due Course to or Cancel COC (Sec. 78, OEC)a verified petition
seeking to deny due course or to cancel a COC may be field by any person exclusively
on the ground that any material representation contained therein as required in Section
74 hereof is false. The petition may be filed at any time not later than 25 days from the
time of filing the COC and shall be decided, after due notice and hearing, not later than
15 days before the election.
Jurisdiction over a petition to cancel a COC lies with the COMELEC in division, not
with the COMELEC en banc. (Garvida vs. Sales, G.R. No. 122872, September 10,
1997)
Salcedo vs. COMELEC, G.R. No. 135886, August 16, 1999, material
misrepresentation contemplated in Section 78, OEC refers to qualifications for elective
office. Aside from that, false representation must consist of a deliberate attempt to
mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. It
must be made with an intention to deceive the electorate as to ones qualifications for
public office. The use of surname, when not intended to mislead or deceive the public
as to ones identity, is not within the scope of the provision.
Lone Candidate Law (RA 8295)
Upon expiration of the deadline for filing of COC in a special election called to fill
a vacancy in an elective position other that for President and VP, when there is only one
qualified candidate for such position, the lone candidate3 shall be proclaimed elected to
the position by proper proclaiming body of the COMELEC without holding the special
election upon certification by the COMELEC that he is the only candidate for the office
and is thereby deemed elected.
The lone candidate so proclaimed shall assume office not earlier than the
scheduled election day, in the absence of any lawful ground to deny due course or
cancel the COC in order to prevent such proclamation, as provided for under Section 69
and 78 of OEC.
Loong vs. COMELEC, 216 SCRA 760, the petition for cancellation of the COC of
Loong for alleged misrepresentation as to his age, filed by Ututalum beyond the 25-day
period from the last day for filing COC cannot be given due course. Neither can it be
treated as quo warranto petition since there has been no proclamation yet.
The evident purpose of the law in requiring the filing of the certificate of
candidacy, and in fixing the time limit therefor are:
1. To enable the voters to know, at least 60 days before the regular election, the
candidates among whom they are to make the choice; and
2. To avoid confusion and inconvenience in the tabulation of the votes cats. For if
the law did not confine the choice or election by the voters to the duly registered
candidates, there might be as many persons voted for as there are voters, and
votes might be cast even for unknown or fictitious persons as a mark to identify
the votes in favor of a candidate for another office in the same election. (Miranda
vs. Abaya, G.R. No. 136351, July 28, 1999)
CAMPAIGN
Election and Campaign Periods (Sec. 3, OEC)
Election period begins 90 days before the day of election and ends 30 days
thereafterperiod of time with respect to a scheduled date of election when the conduct
of certain political activities are regulated by election laws, and the violation of which
constitutes election offense subject to penalties.
Campaign Periods:
1. President and VP90 days before the day of election
2. Members of Congress, Senatorial, Provincial and City/Municipal45 days
3. Barangay Election15 days
4. Special Election45 days (Section 5, paragraph 2, Article VIII)
The campaign period shall no include the day before and the day of the election.
Period of time within the election period specified by law when bona fide candidates
can legally conduct campaign activities and other election propaganda in relation to the
scheduled date of election.
Fair Election Act of 2001 (RA 9006)
Lawful Election Propaganda
1. Written/printed materials which does not exceed 8 inches x 14 inches
2. Handwritten/printed letters
3. Posters not exceeding 2x3 feet
4. Print ads
1/4 page in broadsheets and page for tabloids published 3x a week per
newspaper during the campaign period
5. Broadcast ads on TV and radio
(See the cases of PPI vs. COMELEC, G.R. No. 119694, May 22, 1995 and TELEBAP vs.
COMELEC, G.R. No. 132922, April 21, 1998page 45 of this review notes)payment of just
compensation is now expressly provided under Section 7 of RA 9006; payment of just
compensation is not necessary since it is a valid exercise of police power.
Prohibited Campaign:
1. Public exhibition of movie, cinematograph or documentary portraying the life or
biography of a candidate during the campaign period.
2. Public exhibition of a movie, cinematograph or documentary portrayed by an
actor or media personality who is himself a candidate.
3. Use of airtime for campaign of a media practitioner who is official of any party or
member of the campaign staff of a candidate of political party.
Limitation on Expenses
Candidates:
1. President and VPP10/voter
2. Other candidate with partyP3/voter
3. Other candidate without partyP5/voter
Statement of Contribution and Expenses
Every candidate and treasurer of a political party shall, within 30 days after the
day of election, file with the COMELEC the full, true and itemized statement of all
contribution and expenditures in connection with the election.
Election Surveys
Sec. 5.4 of RA 9006surveys affecting national candidates shall not be
published within 15 days before an election and surveys affecting local candidates shall
not be published 7 days before an election. This section was declared unconstitutional
in the case of Social Weather Station vs. COMELEC, G.R. No. 147571, May 5,
2001,
for it violated the constitutional rights of speech, expression and the press.
Reasons:
1. It imposes a prior restraint on the freedom of expression
2. It is direct and total suppression of a category of expression even though such
suppression is only for a limited period.
3. The government interest sought to be promoted can be achieved by means other
than the suppression of freedom of expression.
Substitution of Candidates
In case of valid substitution after the official ballots have been printed, the votes
cast for the substituted candidates shall be considered as stray votes but shall not
invalidate the whole ballot. This rule shall not apply if the substitute candidate is of the
same family name. (Section 12, RA 9006) See the case of Luna vs. COMELEC
A disqualified candidate may only be substituted if he had a valid certificate of
candidacy in the first place because, if the disqualified candidate did not have a valid
and seasonably filed COC, he is and was not a candidate at all. If a person was not a
candidate, he cannot be substituted under Section 77 of the OEC. (Miranda vs. Abaya,
G.R. No. 136351, July 28, 1999)
Rule Against Premature Campaigning
The use of lawful election propaganda is subject to the supervision and
regulation of the COMELEC in order to prevent premature campaigning and to equalize,
as much as practicable, the situation of all candidates by preventing popular and rich
candidates from gaining undue advantage in exposure and publicity on account of their
resources and popularity.
Chavez vs. COMELEC, G.R. No. 162777, August 31, 2004, all propaganda materials
including advertisements on print, in radio, or on television showing image or
mentioning the name of a person, who subsequent to the placement or display thereof
becomes a candidate for public office, be immediately removed, otherwise, this shall be
presumed as premature campaigning in violation of Section 80 of the OEC.
CASTING OF VOTES
(Read Sections 190-198 of OEC)
Postponement of Election (Sec. 5, OEC)
Causes:
1. Violence;
2. Terrorism;
3. Loss or destruction of election paraphernalia or records;
4. Force majeure;
5. Other analogous causes.
COMELEC can postpone the election:
1. Motu proprio; or
2. Upon a verified petition by any interested party, after due notice and hearing.
COMELEC shall call for the holding of the election on a date reasonably close to the
date of the election not held, suspended or which resulted in a failure to elect but not
later than 30 days after the cessation of the cause for such postponement or
suspension of the election or failure to elect.
Failure of Election (Section 6, OEC)
Pre-conditions for declaring failure of elections
1. No voting has been held or election has been suspended before the hour
fixed by law for the closing of the voting in any precinct because of:
a. Force majeure
b. Violence
c. Terrorism
d. Fraud
e. Other analogous cases.
2. Votes not cast are sufficient to affect the results of the elections. (Tan vs.
COMELEC, G.R. Nos. 148575-76, December 10, 2003)
COMELEC shall call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date reasonably close to the date
of the election not held, suspended or which resulted in a failure to elect but not later
than 30 days after the cessation of the cause of such postponement or suspension of
the election or failure to elect.
The cause for the declaration of a failure of election may occur before or after the
casting of votes or on the day of the election. (RA 7166, Synchronized National and
Local Elections Act)
The postponement, declaration of a failure of election and the calling of special
elections shall be decided by the COMELEC sitting en banc by a majority vote of its
members. (Section 4, RA 7166, Synchronized National and Local Elections Act)
Batabor vs. COMELEC, G.R. No. 160428, July 21, 2004, the power to declare
a failure of election is vested exclusively upon the COMELEC. x x x There is failure of
election only when the will of the electorate has been muted and cannot be ascertained.
Loong vs. COMELEC, the petition for annulment of election results or to declare
failure of election in Parang, Sulu, on the ground of STATISTICAL IMPROBABILITY
and massive fraud was granted by the COMELEC. Even before the technical
examination of election documents was conducted, the cOMELEC already observed
badges of fraud just by looking at the election results in Parang. Nevertheless, the
COMELEC dismissed the petition for annulment of election results or to declare failure
of elections in the municipalities of Tapul, Panglima Estino, Pata, Siasi and
Kalinggalang Calauag. The dismissal was on the ground of untimeliness of the petition,
despite a finding that the same badges of fraud evident from the results of the election
based on the certificates of canvass of votes in Parang, are also evident in the election
results of the five (5) mentioned municipalities. The SC ruled that the COMELEC
committed grave abused of discretion in dismissing the petition as there is no law which
provides a reglementary period to file annulment of elections when there is yet no
proclamation. The election resulted in a failure to elect on account of fraud. Accordingly,
the Court ordered the COMELEC to reinstate the aforesaid petition.
Banaga, Jr. vs. COMELEC, 336 SCRA 701, the circumstances in the above
case are not present in this case so that reliance in Loong by petitioner Banaga is
misplaced. A prayer to declare failure of election and a prayer to annul the election
results are actually of the same nature. Whether an action is for the declaration of
failure of elections or for annulment of election results, based on allegations of fraud,
terrorism, violence or analogous cases, the OEC denominates them similarly.
Petition to Declare Failure of Election Election Protest
A special action under Rule 26, Comelec
Rules of Procedure
Docket number starts with SPA
An En Banc decision of the COMELEC in
a special action becomes final and
executory after 5 days from promulgation,
unless restrained by the SC
An ordinary action under Rule 20,
Principle of Ballot Secrecyvoters are prohibited from exhibiting the contents of their
official ballots to other persons, from making copies thereof, or from putting
distinguishing marks thereon so as to be identified. The reason behind this is to avoid
vote buying through voter identification.
Rules for the Appreciation of Ballots: (Section 211, OEC)a function of the Board
of Election Inspectors
In reading and appreciation of ballots, every ballot shall be presumed valid unless
there is clear and good reason to justify its rejection. In the appreciation of the ballots,
the object should be to ascertain and carry into effect the intention of the voter, if it
could
be determined with reasonable certainty. (Ferin vs. Gonzales, 53 SCRA 237)
A ballot which has been cast carries the presumption that it reflects the will of the
voter. And the purpose of the election law is to give effect, rather than frustrate, that will.
For this reason, extreme caution should be observed before a ballot is invalidated and
doubts are to be resolved in favor of their validity.
1. Where only first name or surname is writtenthe vote for such candidate is
valid, if there is no other with the same name or surname for the same office.
Gonzaga vs. Seo, 7 SCRA 741, where there are 2 or more candidates having
the same first name or the same surname, writing only the first name or the surname is
not a valid vote for either of the candidates. In order that his vote may be counted, the
voter should add the correct name, surname, or middle initial that will identify the
candidate for whom he is voting.
2. Where only first name is surname of another, or where incumbents full
name, first name or surname is same as anotherthe first part of the rule, the
vote is counted in favor of the candidate whose surname corresponds to the
word. The second part refers to a situation where there are 2 or more candidates,
one of whom is an incumbent or re-electionist whose full name, first name, or
surname is the same as the full name, first name, or surname of the other
candidate or candidates.
Example: the incumbents name is Jose Santos, while the others candidates name
is Jose Santos, or Jose Cruz, or Ronaldo Santos. A vote for Jose Santos will be
counted for the incumbent candidate; a vote for Jose will be counted in favor of the
incumbent; or a vote for Santos will be counted in favor of the incumbent candidate.
3. Where candidate is a woman using her maiden or married surname or both
which is same surname of incumbenta ballot bearing only such surname
shall be counted in favor of the candidate who is an incumbent. Where none of
the candidates is an incumbent, a ballot bearing only such surname cannot be
counted for any of them.
Where a ballot contains only the maiden surname of a candidate, and there is
another candidate bearing the same surname, such ballot shall be counted in her favor.
(Conui-Omega vs. Samson, 9 SCRA 493)
4. Where 2 or more words are surnames of 2 or more candidateswhen 2 or
more words are written on the same line on the ballot, all of which are the
surnames of 2 or more candidates, the same shall not be counted for any of
them.
Exceptions:
a. Unless one is a surname of an incumbent in which case it shall be
counted in favor of the latter.
b. If the word or words written on the appropriate blank on the ballot is the
identical name or surname or full name, as the case may be, of 2 or more
candidates for the same office none of whom is an incumbent, the vote
shall be counted in favor of the candidate to whose ticket all the other
candidates voted for in the same ballot for the same constituency belongs.
c. When 2 or more words are written on different lines on the ballot all of
which are the surnames of 2 or more candidates bearing the same
surname for an office for which the law authorizes the election of more
than one and there are the same number of surnames written as there are
candidates with that surname, the vote shall be counted in favor of all
candidates bearing the surname.
5. Where single word is first name of candidate and surname of his opponent
the vote shall be counted in favor of the latter (surname of the opponent).
(Corpus vs. Ibay, 84 Phil. 184)
6. Where 2 words are written, one of which is the first name of the candidate
and the other is the surname of his opponentthe vote shall not be counted
for either.
7. Idem sonama name or surname incorrectly written which, when read, has a
sound similar to the name or surname of a candidate when correctly written shall
be counted in his favor. It is based on the principle that the misspelling of a name
or lack of skill in writing it, should not be taken as a ground for rejecting the votes
apparently intended for a candidate, so long as the intention of the voter appears
to be clear. This rule is liberally construed.]
8. Repetition of names in 2 or more linewhen the name of a candidate appears
in a space of the ballot for an office which he is a candidate and in another space
for which he is not a candidate, it shall be counted in his favor for the office for
which he is a candidate and the vote for the office for which he is not a candidate
shall be considered as stray, except when it is used as a means to identify the
voter, in which case the whole ballot shall be void.
9. Erroneous initialthe erroneous initial of the first name accompanied by the
correct surname of a candidate or the erroneous initial of the surname
accompanied by the correct first name of a candidate shall not annul the vote in
his favor.
10.Prefixes or suffixesballots containing prefixes such as Sr., Mr., Datu,
Hon., Don, or suffixes Jr., II are valid. The use of these prefixes does not
invalidate the ballot, the vote is counted in favor of the candidate whose name is
with a prefix, the rule does not apply where the prefixes are used as identifying
marks.
11.Use of nicknames and appellationsif accompanied by the first name or
surname of the candidate, does not annul such vote, except when they are used
as a means to identify the voter, in which case the whole ballot is invalid.
However, if the nickname used is unaccompanied by the name or surname of a
candidate and it is the one by which he is generally or popularly known in the
locality, the name shall be counted in favor of said candidate, if there is no other
candidate for the same office with the same nickname.
12.Descriptio Personaeit does not invalidate the ballot.
13.Vote in favor of disqualified candidateit shall be considered as stray vote
and shall not be counted, but it shall not invalidate the ballot.
evidenced not only of tampering, alteration, falsification or any other anomaly in the
preparation of the election returns but also of the votes obtained by the candidates.
Garay vs. COMELEC, 261 SCRA 222, the CV can never be a valid basis for
canvass; it can only be evidence to prove tampering, alteration, falsification or any other
anomaly in the preparation of the election returns concerned, when duly authenticated.
A CV does not constitute sufficient evidence of the true and genuine results of the
elections; only election returns are. In like manner, neither is the tally board sufficient
evidence of the real results of the election.
CANVASSING
Canvassing Bodies:
1. Congressfor President and VP
2. COMELECSenators and Regional Officials
3. Provincial Board of Canvassersfor Congressmen, Municipal Officials
4. District Board of CanvassersCongressmen, Municipal officials
5. City and Municipal BOCCongressmen, City and Municipal officials
6. Barangay Board of CanvassersBarangay officials
COMELEC has direct control and supervision over the Board of Canvassers
except Congress. It may motu proprio relieve at any time and substitute any member of
the board of canvassers. (Section 227, OEC)
Prohibited Relationship: Related within the 4th civil degree by consanguinity or affinity
to any of the candidates whose votes will be canvassed by the Board, or to any member
of the same Board
Agujetas vs. CA, 261 SCRA 17, petitioners, members of the Board of Canvassers,
who proclaimed as the 8th winning candidate one who did not obtain the 8th highest
number of votes, may be criminally prosecuted for violation of Section 231 of the OEC,
failure to proclaim the winning candidate.
3. The ERs were prepared under duress, threats, coercion, or intimidation, or they
are obviously manufacture, or not authentic.
canvassed, the results of which materially affected the standing of the aggrieved
candidates. (Section 243, OEC)
Issues #s 2, 3 and 4 are not applicable to election of President, VP, Senators and Members of the House of
Representatives. Only #1 is applicable to them.
General Rule: Candidates and registered political parties involve in an election are
allowed to file a pre-proclamation cases before the COMELEC.
Exception: Pre-proclamation cases are not allowed in elections for President, VP,
Senators, and Members of the HOR. However, this does not preclude the authority of
the appropriate canvassing body motu proprio or upon written complaint of an interested
person to correct manifest errors, question the composition or proceeding of the board
of canvassers and to determine the authenticity and due execution of certificates of
canvass as provided in Section 30 of RA 7166, as amended by RA 9369. (Pimentel III
vs. COMELEC, G.R. No. 178413, March 13, 2008)
manifest errorsthe error must appear on the face of the Certificates of Canvass or
Election Returns sought to be corrected. It is one that is visible to the eye or obvious to
the understanding; that which is open, palpable, incontrovertible, needing no evidence
to make it more clear. (OHara vs. COMELEC, G.R. No. 148941-42, March 12, 2002)
Correction of manifest errors has reference to errors in the election returns, in the
entries of the statement of votes by precinct per municipality, or in the certificate of
canvass. Some of the definition given for the word manifest are that it is evident to
the
eye and understanding, visible to the eye, that which is open, palpable, and
incontrovertible, needing no evidence to make it more clear, not obscure or hidden.
(Dela Llana vs. COMELEC, G.R. No. 152080)
Espidol vs. COMELEC, G.R. No. 164922, October 11, 2005, COMELEC is with
authority to annul any canvass and proclamation illegally made. The fact that a
candidate illegally proclaimed has assumed office is not a bar to the exercise of such
power. It is also true that as a general rule, the proper remedy after proclamation of the
winning candidate for the position contested would be to file a regular election protest or
quo warranto except where the proclamation is null and void, the proclaimed
candidates assumption of office cannot deprive the COMELEC of the power to declare
such proclamation a nullity.
Sandoval vs. COMELEC, G.R. No. 133842, January 26, 2000, the authority to rule
on
petitions for correction of manifest error is vested in the COMELEC EN BANC. Section
7 of Rule 27 of the 1993 COMELEC Rules of Procedure provides that if the error is
discovered before proclamation, the board of canvassers may motu proprio, or upon
verified petition by any candidate, political party, organization or coalition of political
parties, after due notice and hearing, correct the errors committed. The aggrieved party
may appeal the decision of the board to the COMELEC and said appeal shall be heard
and decided by the COMELEC EN BANC. Section 5, however, of the same rule states
that a petition for correction of manifest errors may be filed directly with the Commission
en banc provided that such errors could not have been discovered during the
canvassing despite the exercise of due diligence and proclamation of the winning
candidate had already been made.
Pre-Proclamation Controversy Petition for Failure of Election
There was election
Jurisdiction: Division of a COMELEC
Once proclaimed, the pre-proclamation
shall be dismissed
There was no election
Jurisdiction: COMELEC En Banc
Lagumbay vs, COMELEC, 16 SCRA 175, the election return was an obviously
manufactured return. The returns were palpably false as it was indeed statistically
improbable that all the eight candidates of one party garnered all the votes each of them
received exactly the same number, whereas all the 8 candidates of the other party got
precisely nothing. The Supreme Court enunciated the DOCTRINE OF STATISTICAL
IMPROBABILITY. It states that where there exists uniformity of tallies in favor of
candidates belonging to one party and the systematic blanking out of the opposing
candidates, as when all the candidates of one party received all the votes, each of
whom exactly the same number, and the opposing candidates got zero votes, the
election returns are obviously manufactured, contrary to all statistical probabilities, and
utterly improbable and clearly incredible.
The doctrine applies only when the improbability is shown on the face of the ER itself
and without regard to evidence aliunde or to evidence outside of the return.
4. Coercion of subordinates;
5. Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion;
6. Coercion of election officials and employees;
7. Appointment of new employees, creation of new position, promotion, giving of salary increases;
8. Intervention of public officers and employees;
9. Undue influence;
10. Unlawful electioneering;
11. Others.
Good faith is not a defense. Election offenses are generally mala prohibita. Proof of
criminal intent is necessary. Good faith, ignorance or lack of malice is not a defense; the
commission of the prohibited act is sufficient.
Jurisdiction:
1. Investigation and prosecutionCOMELECthe investigating officer shall
resolve the case within five (5) days from submission.
2. Trial and decisions:
RTCexclusive original jurisdiction any criminal action or proceedings for
violation of OEC
Exception: offenses relating to failure to register or failure to vote (MTC)
Prescription: 5 years from the date of their commission
ELECTION CONTEST
(2) distinct post-election remedies. They have one objective, i.e., to unseat
the winning candidate.
2. Senate Electoral Tribunal (SET)
Senators
3. House of Representatives Electoral Tribunal (HRET)
Congressmen
4. COMELEC
Regional officials
Provincial officials
City officials
5. Regional Trial Court
Municipal officials
6. Metropolitan Trial court, Municipal Circuit Trial Court, and Municipal Trial Court
Barangay officials
Sangguniang Kabataan
HRET Rules of Procedure shall prevail over the provisions of the Omnibus Election
Code. (Lazatin vs. HRET, 168 SCRA 391)
Pimentel III vs. COMELEC, G.R. No. 178413, March 13, 2008, the SC has no
jurisdiction to entertain a petition for certiorari and mandamus on matters which may be
threshed out in an election contest. It is the SET which has exclusive jurisdiction to act
on the complaint involving, as it does, a contest relating to the election of a now
member of the Senate.
Appellate Jurisdiction
1. For decisions of RTC and MTCappeal to COMELEC whose decision shall be
final and executor
2. For decisions of COMELECPetition for Review on Certiorari with SC within 30
days from receipt of decision on ground of grave abuse of discretion amounting
to lack or excess of jurisdiction or violation of due process
3. For decisions of Electoral TribunalPetition for Review on Certiorari with SC on
ground of grave abuse of discretion amounting to lack or excess of jurisdiction or
violation of due process
ACTIONS WHICH MAY BE FIELD:
1. ELECTION PROTESTfiled by any candidate who has filed a COC and has
been voted upon for the same office on the grounds of:
Fraud;
Terrorism;
Irregularities; or
Illegal acts, committed before, during or after casting and counting of
votes
Filed within 10 days from proclamation of results of election
Poe vs. Arroyo, PET Case No. 002, March 29, 2005, the widow of the
protestant has no status of real party in interest to substitute or intervene for the latter
who died during the pendency of the election protest.
De Castro vs. COMELEC, G.R. No. 125249, February 7, 1997, an election
protest is imbued with public interest which raises it onto a plane over and above
ordinary civil actions, because it involves not only the adjudication of the private interest
of the rival candidates but also the paramount need of dispelling once and for all the
uncertainty that beclouds the real choice of the electorate with respect to who shall
discharge the prerogatives of the office within their gift.
Villamor vs. COMELEC, G.R. No. 169865, July 21, 2006, the filing of an
election protest or a petition for quo warranto precludes the subsequent filing of a
preproclamation
controversy or amounts to the abandonment of one earlier filed, thus
depriving the COMELEC of the authority to inquire into and pass upon the title of the
protestee or the validity of his proclamation.
2. QUO WARRANTOfiled by any registered voter in the constituency on the
grounds of:
Ineligibility; or
Disloyalty to the Republic
Filed within 10 days from proclamation of results of election
to be observed is within five (5) days from the time of the receipt of the copy of the
protest. The 5-day period is not only mandatory requirement of the law but also
jurisdictional so that the court is ousted to entertain counter-protest belatedly filed.
(Kho vs. COMELEC, 279 SCRA 463, September 25, 1997)
Francis King Marquez vs. COMELEC, G.R. No. 127318, August 25, 1999, any
contest relating to the election of members of the Sangguniang Kabataan (SK),
including the Chairmanwhether pertaining to their eligibility or the manner of their
electionis cognizable by MTCs, MCTCs, and MeTCs. Section 6 of COMELEC
Resolution No. 2824 which provides that cases involving the eligibility or qualification of
SK candidates shall be decided by the City/Municipal Election Officers whose decision
shall be final, applies only to proceedings before the election. Before proclamation,
cases concerning the eligibility of SK Officers and members are cognizable by the
Election Officer. But after the election and proclamation, the same cases become quo
warranto cases cognizable by MTCs, MCTCs, and MeTCs. The distinction is based on
the principle that it is the proclamation which marks off the jurisdiction of the courts from
the jurisdiction of election officials.
Gementiza vs. COMELEC, 353 SCRA 724, March 6, 2001, the COMELEC EN BANC
shall decide motions for reconsideration only for decisions of a Division, meaning
those acts of final character. The interlocutory order ruled by the Division of
COMELEC should be brought up to the Supreme Court thru Certiorari.
Rule 3, Section 5c of COMELEC Rules of ProceduresAny motion to
reconsider a decision, resolution, order or ruling of a Division shall be resolved by the
Commission en banc except motions on interlocutory orders of the division, which shall
be resolved by the divisions which issued the order.
Only final orders of a Division may be raised before the COMELEC en banc is in
accordance with Article IX-C, Section 3 of the Constitution which mandates that only
motions for reconsideration of final decisions shall be decided by the COMELEC en
banc.
Counter-Protest erroneously filed and accepted by the COMELECremedy:
1. Erase from the record;
2. Certiorari.
Execution Pending Appealthe trial court may grant a motion for execution pending
appeal because the mere filing of an appeal does not divest the trial court of its
jurisdiction over a case and to resolve pending incidents. Since the court and jurisdiction
to act on the motion at the time it was filed, that jurisdiction continued until the matter
was resolved, and was not lost by the subsequent action of the opposing party.
(Edding vs. COMELEC, 246 SCRA 502)
Dulce Ann Hofer vs. HRET, G.R. No. 158833, May 12, 2004, by the very nature and
given the public interest involved in the determination of the result of an election, the
controversies arising from the canvassing must be resolved speedily, otherwise, the will
of the electorate will be frustrated.
Procedural rules in election cases are designed to achieve not only a correct but
also an expeditious determination of the popular will of the electorate.
Article VI
LEGISLATIVE DEPARTMENT
Legislative Power
It is the power or competence of the legislative to propose, enact, ordain,
amend/alter, modify, abrogate or repeal laws. It is vested in the Congress which shall
consist of a Senate and a House of Representatives, except to the extent reserved to
the people by the provision on initiative and referendum.
SENATE HOUSE OF REPRESENTATIVES
Composition: Twenty-four (24),
elected at large by the qualified voters
of the Philippines, as may be provided
by law.
Qualifications:
Composition: not more than 250 members,
unless otherwise provided by law, consisting
of:
a. District Representatives
elected from legislative districts
apportioned among the
a. Natural-born citizen of
the Philippines;
b. At least thirty-five (35)
years of age on the day
of the election;
c. Able to read and write;
d. Registered voter;
e. Resident of the
Philippines for not less
than 2 years immediately
preceding the day of the
election.
Term of office: 6 yearsshall
commence, unless otherwise provided
by law, at noon on the 30th day of June
next following their election.
Disqualifications:
a. No Senator shall serve for
more than 2 consecutive
terms. Voluntary
renunciation of the office for
any length of time shall not
be considered as an
interruption in the continuity
of his service for the full term
for which he was elected.
(Section 4, Article VI)
b. One who has been declared
by competent authority as
insane or incompetent
c. One who has been
sentenced by final judgment
for:
i. Subversion;
ii. Insurrection;
iii. Rebellion;
iv. Any offense for which
he has been sentenced
to a penalty of not more
than 18 months; or
provinces, cities and the
Metropolitan Manila area. (Sec.
5, par. 1, Article VI)
b. Party-List Representatives
constitutes 20% of the total
number of representatives
elected through a party-list
system of registered national,
regional and sectoral parties or
organization.
c. Sectoral Representatives1/2
of the seats allocated to party-list
representatives shall be filled, as
provided by law, by selection or
i. Labor;
ii. Peasant;
iii. Urban poor;
iv. Indigenous cultural
communities;
v. Women;
vi. Youth; and
vii. Such other sectors as may be
provided by law, except the
religious sector.
881Omnibus Election
Code)
d. For Party-List Representatives:
i. It is a religious sect or
denomination,
organization or
association organized for
religious purposes;
ii. It advocates violence or
unlawful means to seek its
goal;
iii. It is a foreign party or
organization;
iv. It is receiving support from
any foreign government,
foreign political party,
foundation, organization,
whether directly or
through any of its officers
or members or indirectly
through third parties for
partisan election
purposes;
v. It violates or fails to
comply with laws, rules or
regulations relating to
elections;
vi. It declares untruthful
statement in its petition;
vii. It has ceased to exist for
at least one (1) year;
viii. It fails to participate in the
last two preceding
elections or fails to obtain
at least 2% of the votes
cast under the party-list
system in the two
preceding elections for the
constituency in which it
had registered. (Section 6, RA
7941)
them. It would gut the substance of the party-list system. Instead of generating hope,
merely on the ground that they are political parties, they must show, however,
that they represent the interests of the marginalized and underrepresented.
3. In view of the objections directed against the registration of Ang Buhay Hayaang
Yumabong, which is allegedly a religious group, the Court notes the express
constitutional provision that the religious sector may not be represented in the
party-list system. The prohibition is on any religious organization registering as
political party not against a priest running as a candidate.
4. A party or organization must not be disqualified under section 6 of RA 7941
which enumerates the grounds for disqualification.
5. The party or organization must not be an adjunct of, or a project organized or an
entity funded or assisted by the government. The party or organization must be a
group of citizens, organized by citizens and operated by citizens. It must be
independent of the government.
6. The party must not only comply with the requirements of the law; its nominees
must likewise do so;
7. Not only the candidate party or organization must represent marginalized and
underrepresented sectors; so also must its nominees; and
8. The nominee must likewise be able to contribute to the formulation and
enactment of appropriate legislation that will benefit the nation as a whole. (Ang
Bagong BayaniOFW Labor Party vs. COMELEC, G.R. No. 147589, June
26, 2001)
Aklat vs. COMELEC, G.R. No. 162203, April 24, 2004, the COMELEC has the
power to promulgate the necessary rules and regulations to enforce and administer
election laws. This power includes the determination, within the parameters fixed by
law, of appropriate periods for the accomplishment of certain pre-election acts like filing
petitions for registration under the party-list system. This is exactly what the COMELEC
did when it issued its Resolution No. 6320 declaring September 30, 2003, as the
deadline for filing petitions for registration under the party-list system.
Mariano vs. COMELEC, G.R. No. 118627, March 7, 1995, the Court held that the
Constitution does not preclude Congress from increasing its membership by passing a
law other than a general apportionment law. In fact, in Tobias vs. Abalos, 239 SCRA
106, the case involved the division of San Juan and Mandaluyong into two (2)
representative districts. With the elevation of Mandaluyong from municipality into a
highly urbanized city, both Mandaluyong and San Juan were recognized by RA 7675 as
distinct representative districts. This was challenged on the ground that RA 7675 did not
mention any census indicating that San Juan and Mandaluyong had the minimal
requirement of 250,000 inhabitants needed to constitute a district. Neither did the
challengers, however, give any evidence that the respective populations of each of the
two political units were less than the number required. Hence the court presumed that
Congress had made due consideration of the minimum requirement. It ruled that
reapportionment of legislative districts may be made through a special law. To hold that
reapportionment can be made only through a general law would create an inequitable
situation where a new city or province created by Congress will be denied legislative
representation for an indeterminate period of time. That intolerable situation would
deprive the people in the city or province a particle of that sovereignty. Sovereignty
cannot admit subtraction; it is indivisible. It must be forever whole or it is not
sovereignty.
In Montejo vs. COMELEC, it was held that while concededly the conversion of Biliran
into a regular province brought about an imbalance in the distribution of voters and
inhabitants in the 5 districts of Leyte, the issue involves reapportionment of legislative
districts, and Petitioners remedy lies with Congress. This Court cannot itself make the
reapportionment as petitioner would want.
SESSIONS (Section 14, Article VI)
1. Regularconvene once every year. The 4th Monday of July until 30 days before
the start of new regular session (Section 14, Article VI)adjournment is allowed
30 days before the opening of its next regular sessionthis is compulsory;
2. Special
a. Called by the President (Sec. 15, Article VI)the President has the power
to call special session; without the call of Presidentimpeachment
the 3rd day after the vacancies (Sec. 10, Article VII)
c. Decide on the disability of the President because the majority of all the
members of the Cabinet has disputed his assertion that he is able to
discharge the powers and duties of his office (Section 11, par. 3, Article
VII)
d. To revoke or extend the Presidential Proclamation of Martial Law or
suspension of the Writ of Habeas Corpus (Section 18, article VII)
3. Joint
a. Voting separately
i. Choosing the President (Section 4, Article VII);
ii. Determine the Presidents disability (Section 11, Article VII);
iii. Confirming nomination of Vice-President (Section 9, Article VI);
iv. Declaring existence of state of war (Section 23, Article VI); and
v. Proposing constitutional amendments (Section 1, Article XVII).
b. Voting jointly
i. To revoke or extend proclamation suspending the privilege of writ
of habeas corpus (Section 18, Article VII); and
ii. To revoke or extend declaration of martial law (Section 18, Article
VII).
4. AdjournmentNeither Chamber during session, without consent of the other,
adjourn for more than 3 days, nor any other place than that in which the two
Chambers shall be sitting (Section 16, par. 5, Article VI)
Adjournment Sine Diethe interval between the session of one Congress and that of
another; congress must stop the clock at midnight of the last day of session in order to
validly pass a law
A Senator or member of the HOR shall, in all offenses punishable by not more
than 6 years imprisonment, be privileged from arrest while the Congress is in session.
No member shall be questioned nor be held liable in any other place for any speech or
debate in the Congress or in any other committee thereof.
Two (2) Kinds:
a. Freedom from arrest or detentionwhile Congress is in session for
offense punished by not more than 6 years imprisonment (Article 145, RPC;
Sec. 11, Art. VI)it is intended to ensure representation of the constituents of
the member of the Congress by preventing attempts to keep him from
attending its sessions. The present Constitution adheres to the restrictive rule
minus the obligation of Congress to surrender the Member of the House of
Representatives to the custody of law. The requirement that he should be
attending sessions or committee meetings has also been removed. For
relatively minor offenses, it is enough that Congress is in session. (People
vs. Jalosjos, 324 SCRA 689, February 20, 2000)
in sessionnot day to day; refers to the entire duration of the session from
its opening until its adjournment.
b. Speech and Debate clausenot to be questioned nor held liable in any
other place for any speech or debate in Congress or in any committee
thereof. (Section 11, Article VI)it enables the legislator to express views
bearing upon the public interest without fear of accountability outside the halls
of the legislature for his inability to support his statements with the usual
evidence required in the court of justice.
in any other placebut not in the Senate or Congress itself
Section 16, par. 3, Article VIEach House may determine the rules of its
proceedings, punish its Members for disorderly behavior, and, with the
concurrence of 2/3 of all its members, suspend or expel a Member. A penalty of
suspension, when imposed, shall not exceed 60 days.
People vs. Jalosjos, 324 SCRA 689, the immunity from arrest or detention of
Senators and Members of the HOR arises from a provision of the Constitution. The
history of the provision shows that the privilege has always been granted in a restrictive
sense. The provision granting an exemption as a special privilege cannot be extended
beyond the ordinary meaning of its term. It may not be extended by intendment,
implication or equitable considerations. x x x
Because of the broad coverage of felony and breach of the peace, the exemption
applied only to civil arrests. A congressman like the accused-appellant, convicted under
Title 11 of the Revised Penal Code could not claim parliament immunity from arrest. He
was subject to the same general laws governing all persons still to be tried or whose
convictions were pending appeal.
The present Constitution adheres to the same restrictive rule minus the obligation
of Congress to surrender the subject Congressman to the custody of law. The
requirement that he should be attending sessions or committee meetings has also been
removed. For relatively minor offenses, it is enough that Congress is in session.
Accused-appellant argues that a member of Congress function to attend
sessions is underscored by Section 16 (2), Article VI of the Constitution which
states
that
(2) A majority of each House shall constitute a quorum to do business, but
a smaller number may adjourn from day to day and may compel the
attendance of absent Members in such manner, and under such
penalties, as such House may provide.
However, the accused-appellant has not given any reason why he should be
exempted from the operation of Section 11, Article VI. The members of Congress
cannot compel absent members to attend sessions if the reason for absence is
legitimate a one. The confinement of a Congressman charged with a crime punishable
by imprisonment of more than 6 years is not merely authorized by law, it has
constitutional foundations.
When the voters of his district elected the accused-appellant to Congress, they
did so with full awareness of the limitations on his freedom of action. They did so with
the knowledge that he could achieve only such legislative results which he could
accomplish within the confines of prison. To give a more drastic illustration, if voters
elect a person with full knowledge that he is suffering from a terminal illness, they do so
knowing that any time, he may no longer serve his full term in office.
EXECUTIVE PRIVILEGE; Varieties of:
It is the power of the government to withhold information from the public, the
courts, and the Congress. (Schwartz)
It is also the right of the President and high-level executive branch officers to
withhold information from Congress, the courts, and ultimately the public. (Rozell)
1. State secret privilegeinvoked by Presidents on the ground that the
information is of such nature that its disclosure would subvert crucial military
or diplomatic objective.
2. Informers privilegeprivilege of the government not to disclose the identity of
persons who furnish information in violations of law to officers charged with
the enforcement of the law.
3. Generic privilegefor internal deliberations has been said to attach to
intragovernmental
documents reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental decisions
and policies are formulated.
In determining the validity of a claim of privilege, the question that must be asked
is not only whether the requested information falls within one of the traditional
privileges,
but also whether that privilege should be honored in a given procedural setting.
Senate vs. Ermita, G.R. No. 169777, April 20, 2006, executive privilege,
whether asserted against Congress, the courts, or the public, is recognized only in
relation to certain types of information of a sensitive character. While executive privilege
is a constitutional concept, a claim thereof may be valid or not depending on the ground
invoked to justify it and the context in which it is made. Noticeably absent is any
recognition that executive officials are exempt from the duty to disclose information by
the mere fact of being executive officials. Indeed, the extraordinary character of the
exemptions indicates that the presumption inclines heavily against executive secrecy
and in favor of disclosure.
General rule: DISCLOSURE(policy on transparency)
Exceptions: Disclosure would subvert crucial diplomatic or military objective.
1. Supreme Court
2. Executive Secretary
3. Presidentmust invoke executive privilege
are not, technically, employees of Congress. It has the power to promulgate its own
rules of proceedings.
Powers: Act on all appointments submitted to it within 30 session days of Congress
from their submission; to act on Presidential appointments; has power to promulgate its
own rules of proceedings.
Composition:
Senate Presidentacts as Ex-Officio Chairman
12 Senators and 12 Members of the House of Representatives, elected by each house
on the basis of proportional representation from the political parties and organizations
registered under the party-list system represented therein.
Chairman shall not vote except in case of a tie.
In Guingona vs. Gonzales, 214 SCRA 789, a political party must have at least
two (2) elected senators for every seat in the Commission on Appointments. Thus,
where there are two or more political parties represented in the Senate, a political
party/coalition with a single senator in the Senate cannot constitutionally claim a seat in
the Commission on Appointments. It is not mandatory to elect 12 senators to the
Commission; what the Constitution requires is that there must be at least a majority of
the entire membership.
POWERS OF CONGRESS
Classification:
1. LEGISLATIVE
b. Implied:
2. PROCEDURAL
a. O nly one subject, to be stated in the title of the bill (Sec. 26, par. 1, Article VI);
b. T hree (3) readings on separate days; printed copies of the bill in its final form
Page 1777/12/2008
say
177
when the President certifies to the necessity of its immediate enactment to meet a
public calamity or emergency.
ENROLLED BILL DOCTRINE
It is one duly introduced and finally passed by both houses, authenticated by the
proper officer of each, and approved by the President. It is conclusive upon the courts
as regards the tenor of the measure passed by Congress and approved by the
President.
Once the bill becomes an enrolled bill, it is conclusive upon the court of its due
enactment. Courts may no longer validly inquire into the bill because of the doctrine of
separation of powers.
Casco (Phil) Chemical Co. vs. Gimenez, 7 SCRA 347, if a mistake was made
in the printing of the bill before it was certified by Congress and approved by the
President, the remedy is amendment or corrective legislation, not a judicial decree.
Avelino vs. Cuenco, 83 Phil 17, the basis in determining the existence of a
quorum in the Senate shall be the total number of Senators who are in the country and
within the coercive jurisdiction of the Senate.
Arroyo vs. De Venecia, G.R. No. 127255, June 26, 1998, the SC declared that
the question of quorum cannot be raised repeatedly, especially when a quorum is
obviously present for the purpose of delaying the business of the House.
LEGISLATIVE JOURNALregarded as conclusive with respect to matters that are
required by the Constitution to be recorded therein. With respect to other matters, in the
absence of evidence to the contrary, the journals have also been accorded conclusive
effects. Thus, in US vs. Pons, this Court spoke of the imperatives of public policy for
regarding the Journals as public memorials of the most permanent character, thus:
They should be public, because all are required to conform to them; they should be
permanent, that rights acquired today upon the faith of what has been declared to be
law shall not be destroyed tomorrow, or at some remote period of time, by facts resting
only in memory of individuals. (Arroyo vs. De Venecia, 277 SCRA 268)
Matters that are required to be entered on the Journal:
1. The yeas and nays on the 3rd and final reading of a bill;
2. The yeas and nays on any question, at the request of 1/5 of the members
present;
3. The yeas and nays upon re-passing a bill over the Presidents veto; and
4. The Presidents objection to a bill he had vetoed. (Arroyo vs. De Venecia, 277
SCRA 268)
Journal entry vs. enrolled bill
Enrolled bill prevails, except to matters, which under the Constitution, must
entered into the Journal. (Morales vs. Subido, 26 SCRA 150)
Presidents Options:
1. Sign and the bill becomes a law.
2. Vetoes the bill, it does not become a law.
2/3 votes of all its Members (for Congress to override)
3. Inactionthe bill automatically becomes a law within 30 days upon receipt of the
bill from Congress.
There is no such thing as pocket veto here in the Philippines because inaction by
the President for 30 days never produces a veto even if Congress is in recess. The
President must still act to veto the bill and communicate his veto to the Congress
without need of returning the vetoed bill with his veto message.
Pocket veto occurs when:
a. The President fails to act on the bill;
b. The reason he does not return the bill to the Congress is that Congress is not
in session.
PRESIDENTIAL VETO
VETOSection 27, Article VI
1. General veto of the Presidentparagraph 1 of Section 27, Article VI
2. Item/Line veto of the Presidentparagraph 2 of Section 27, Article VI
The act of the Executive in vetoing the particular provisions is an exercise of a
constitutionally vested power. But even as the Constitution grants the power, it also
provides limitations to its exercise. The veto power is not absolute.
xxx
The OSG is correct when it states that the Executive must veto a bill in its
entirety or not at all. He or she cannot act like an editor crossing out specific lines,
provisions, or paragraphs in a bill that he or she dislikes. In the exercise of the veto
power, it is generally veto, however, when it comes to appropriation, revenue or tariff
bills, the Administration needs the money to run the machinery of the government and it
can not veto the entire bill even if it may contain objectionable features. The President
is, therefore, compelled to approve into law the entire bill, including its undesirable
parts. It is for this reason that the Constitution has wisely provided the item veto
power
to avoid inexpedient riders being attached to an indispensable appropriation or revenue
measures.
The Constitution provides that only a particular item or items may be vetoed. The
power to disapprove any item or items in an appropriation bill does not grant the
authority to veto a part of an item and to approve the remaining portion of the same
item. (Bengzon vs. Drilon, 208 SCRA 133, April 15, 1992)
General rule: Selective/partial veto is not allowed. The President may not veto a
provision of the bill without vetoing the whole/entire bill itself.
Exception: Paragraph 2 of Section 27, Article VIItem/Line veto
Only Appropriation, Revenue and Tariff Bills (ART)selective veto is
allowed here provided the vetoed bill shall not affect the items which was not vetoed.
ItemRefers to the particulars, the details, the distinct and severable parts of the bill. It
is an indivisible sum of money dedicated to a stated purpose.
Exceptions to the Exception:
1. DOCTRINE OF INAPPROPRIATE PROVISIONSection 25 (2), Article VI
A provision that is constitutionally inappropriate for an appropriation bill may be
singled out for veto even if it is not an appropriation or revenue item.
It was invoked in the case of Gonzalez vs. Macaraig wherein President Aquino
vetoed a provision of the general appropriation bill. The Supreme Court ruled in favor of
the veto power of the President. Section 25 (2), Article VINo provision or enactment
shall be embraced in the general appropriation bill unless it relates specifically to some
particular appropriation therein.Items which the President does not object, otherwise it
becomes an inappropriate provisionit may be treated as an itemsubject to the item
veto of the President.
2. Executive Impoundmentrefusal 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. This power is derived from Section 38 of the
Administrative Code of 1987 on suspension.
Appropriation Reserves
Section 37 of the Administrative Code authorizes the Budget Secretary to
establish reserves against appropriations to provide for contingencies and
emergencies which may arise during the year. This is merely expenditure
deferral, not suspension, since the agencies concerned can still draw on the
reserves if the fiscal outlook improves.
3. Legislative Vetoa congressional veto is a means whereby the legislature can
block or modify administrative action taken under a statute. It is a form of
HRETalthough attached to the Congress, has separate and distinct personality. It was
created as a non-partisan court. It must be independent of Congress and devoid of
partisan influence and consideration. Members of HRET, once appointed thereto, they
shall be accorded thereto of security of tenure to ensure their impartiality and
independence.
Bondoc vs. Pineda, 201 SCRA 792, Disloyalty to the party and Breach of party
discipline are not valid grounds for the expulsion of a member. HRET members enjoy
security of tenure; their membership may not be terminated except for a just cause such
as the expiration of congressional term, death, resignation from the political party,
formal affiliation with another political party, or removal for other valid causes.
Pimentel vs. HRET, G.R. No. 141489, November 29, 2002, the SC said that even
assuming that the party-list representatives comprise a sufficient number and have
agreed to designate common nominees to the HRET and Commission on
Appointments, their primary recourse clearly rests with the House of Representatives
and not with the Court. Only if the House fails to comply with the directive of the
Constitution on proportional representation of political parties in the HRET and
Commission on Appointments can the party-list representatives seek recourse from this
Court through judicial review. Under the doctrine of primary administrative jurisdiction,
prior recourse to the House is necessary before the petitioners may bring the case to
Court.
Imelda Romualdez-Marcos vs. COMELEC, 248 SCRA 300As to the HRETs
supposed assumption of jurisdiction over the issue of petitioners qualifications after the
May 8, 1995 elections, suffice it to say that HRETs jurisdiction as the sole judge of all
contests relating to the elections, returns and qualifications of members of Congress
begins only after a candidate has become a member of the House of Representatives
(Article VI, Section 17 1987 Constitution). Petitioner not being a member of the House
of Representatives, it is obvious that HRET at this point has no jurisdiction over the
question. COMELEC is not ousted of jurisdiction. See also Section 6 of RA 6646.
Guerrero vs. COMELEC, 336 SCRA 458 (July 26, 2000) While the Congress is
vested with the power to declare valid or invalid certificate of candidacy, its refusal to
exercise the power following the proclamation and assumption of Farias is a
recognition of the jurisdictional boundaries separating the COMELEC and the HRET.
Under Article VI, Section 17 of the Constitution, the HRET has the sole and exclusive
jurisdiction over all contests relative to the elections, returns and qualifications of
members of the House of Representatives. Thus, once a winning candidate has been
proclaimed, taken his oath, and assumed office as a member of the HOR, COMELECs
jurisdiction over election contests relating to his elections, returns and qualifications
ends, and the HRETs own jurisdiction begins. Thus, the COMELECs decision to
discontinue exercising jurisdiction over the case is justifiable, in deference to the
HRETs own jurisdiction and functions.
Appeal from SET or HRET Decision
The Constitution mandates that the HRET and the SET shall each, respectively,
be the sole judge of all contest relating to the elections, returns and qualifications of
their respective members.
The Court has stressed that so long as the Constitution grants the HRET the
power to be the sole judge of all contests relating to the elections, returns and
qualifications of members of the House of Representatives, any final action taken by the
HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by the Supreme
Court. The power granted to the Electoral Tribunal excludes the exercise of any
authority on the part of this Court that would in any wise restricts it or curtail it or even
affect the same.
In Robles vs. HRET, the Court has explained that while the judgments of the
Tribunal are beyond judicial interference, the Court may do so, however, but only in the
exercise of the SCs so-called extraordinary jurisdiction upon determination that the
Tribunals decision or resolution was rendered without or in excess of its jurisdiction, or
with grave abuse of discretion, or upon a clear showing of such arbitrary and
improvident use by the Tribunal of its power as constitutes a denial of due process of
law, or upon demonstration of a very clear unmitigated error, manifestly constituting
such grave abuse of discretion that there has to be remedy for such abuse.
The Court does not venture into the perilous area of correcting perceived errors
of independent branches of government; it comes in only when it has to vindicate a
denial of due process or correct an abuse of discretion so grave or glaring that no less
than the Constitution itself calls for remedial action. (Libanan vs. HRET, 283 SCRA
520)
Section 21, Article VIThe Senate or the HOR or any of its respective committees
may conduct inquiries in aid of legislation in accordance with its duly published rules
and procedure. The right of persons appearing in or affected by such inquiries shall be
respected.
Constitutional limitation on inquiries in aid of legislation
POWER OF LEGISLATIVE INVESTIGATION(Section 21, Article VI)
Power to conduct inquiries in aid of legislationInvestigatorial Powernot
absolute; subject judicial review in view of the expanded power of the court to determine
whether there has been grave abuse of discretion amounting to lack or excess of
jurisdiction.
Limitations:
1. The inquiry must be in aid of legislation;
2. It must be in accordance with duly published rules and procedure of the House
concerned; and
3. The right of persons appearing in or affected by such inquiries shall be
respected.
Remedy: invoke the Right against Self-Incrimination
questions, but may cover matters related thereto. When the scrutiny of the State or the
public interest so requires, the appearance shall be conducted in executive session
Arnault vs. Nazareno, 87 Phil. 29the inquiry, to be within the jurisdiction of the
legislative body making it, must be material or necessary to the exercise of a power in it
vested by the Constitution, such as to legislate or to expel a member.
(The power to conduct Inquiry is integral and implied of legislative power)
Standard Chartered Bank vs. Senate Committee on Banks, G.R. No. 167173,
December 27, 2007, the mere filing of a criminal or an administrative complaint before
a court or a quasi-judicial body should not automatically bar the conduct of legislative
investigation. Otherwise, it would be extremely easy to subvert any intended inquiry by
Congress through the convenient ploy of instituting a criminal or administrative
complaint.
Congressional Oversight Functions (Makalintal vs. COMELEC, G.R. No. 157013,
July 10, 2003)
It embraces all activities undertaken by Congress to enhance its understanding
of and influence over the implementation of legislation it has enacted. Clearly, oversight
concerns post-enactment measures undertaken by Congress:
a. To monitor bureaucratic compliance with program objectives;
b. To determine whether agencies are properly administered;
c. To eliminate executive waste and dishonesty;
d. To prevent executive usurpation of authority; and
e. To assess executive conformity with the congressional perception of public
interest.
The power of oversight has been held to be intrinsic in the grant of legislative
power itself and integral to the checks and balances inherent in a democratic system of
government.
The oversight power has also been used to ensure the accountability of
regulatory commissions like the SEC. Unlike other ordinary administrative agencies,
these bodies are independent from the executive branch and are outside the executive
department in the discharge of their functions.
POWER OF CONCURRENCE
The Constitution requires the concurrence of the Congress to an amnesty and to
a treaty.
THE WAR POWER
The Congress, by a vote of 2/3 of both houses in joint session assembled, voting
separately, shall have the sole power to declare the existence of a state of war.
LAW-MAKING POWERS OF CONGRESS
Pertinently, the power to make lawslegislative poweris vested in Congress.
Congress may not escape its duties and responsibilities by delegating that power to any
other body or authority. Any attempt to abdicate the power is unconstitutional and void,
on the principle of delegari potesta non potest delegaridelegated power may not be
delegated. The rule which forbids the delegation of legislative power, however, is not
absolute and inflexible. It admits of exceptions. An exception sanctioned by immemorial
practice permits the legislative body to delegate its licensing power to certain persons,
municipal corporations, towns, boards, councils, commissions, commissioners, auditors,
bureaus and directors. Such licensing power includes the power to promulgate
necessary rules and regulations. (Chavez vs. Romulo, G.R. No. 157036, June 9,
2004)
Article VII
EXECUTIVE DEPARTMENT
EXECUTIVE POWER
It is the legal and political functions of the President involving the exercise of
discretion. It is vested in the President of the Philippines. It is the power to enforce and
administer laws.
The executive power shall be vested in the President of the Philippines. (Section
1, Article VII) In National Electrification Administration vs. CA, G.R. No. 143481,
February 15, 2002, the President is vested with the power to execute, administer, and
carry out laws into practical operation. Executive power, then, is the power of carrying
out the laws into practical operation and enforcing their due observance.
The President may not veto a law enacted thirty-five (35) years before his or her
term of office. Neither may the President set aside or reverse a final and executory
judgment of the Supreme Court through the exercise of veto power. (Bengzon vs.
Drilon, 208 SCRA 133, April 15, 1992)
PRESIDENT VICE-PRESIDENT
Q U A L I F IC A T I O NS
1. Natural-born citizen;
2. Registered voter;
3. Able to read and write;
4. At least 40 years of age on the day of election; and
5. Resident of the Philippines for at least 10 years immediately preceding the
election.
TERMOFOFFICE
Six (6) years
DISQUALIFICATIONS
1. Not eligible for any re-election;
2. No person who has succeeded as
President and has served as such
for more than 4 years shall be
qualified for election to the same
office at any time (Sec. 4, Art. VII);
1. Shall not serve for more than two (2)
consecutive terms (Sec. 4, Art. VII)
General Disqualifications*
has completed its functions it is rendered functus officio. (Pimentel, Jr. vs. Joint
Committee of Congress to Canvass the votes cast for President and VP, G.R.
No.
163783, June 22, 2004)
There is no constitutional or statutory basis for COMELEC to undertake a
separate and an unofficial tabulation of results, whether manually or electronically. By
conducting such unofficial tabulation, the COMELEC descends to the level of a private
organization, spending public funds for the purpose. This not only violates the exclusive
prerogative of NAMFREL to conduct an unofficial count, but also taints the integrity of
the envelopes containing the election returns and the election returns themselves. Thus,
if the COMELEC is proscribed from conducting an official canvass of the votes cast for
the President and VP, the COMELEC is, with more reason, prohibited from making an
unofficial canvass of said votes. (Brillantes vs. COMELEC, G.R. No. 163193, June
15, 2004)
Immunity from suit:
After his tenure, the President cannot invoke immunity from suit for civil damages
arising out of acts done by him while he was President which were not performed in the
exercise of his official duties. (Estrada vs. Desierto, G.R. Nos. 146710-15, March
2001)
Rules on Succession:
a. V acancy at the beginning of the term
i. Death or permanent disability of the President-elect: VP-elect shall become
President
ii. President-elect fails to qualify: VP-elect shall act as President until the
President-elect shall have qualified
iii. President shall not have been chosen: VP-elect shall act as President until a
President shall have been chosen and qualified.
iv. No President and VP chosen nor shall have qualified, or both shall died or
become permanently disabled: The President of the Senate, or in case of his
disability, the Speaker of the House of Representatives, shall act as President
until a President or a VP shall have been chosen and qualified. In the event of
inability of the officials mentioned, Congress shall, by law, provide for the
manner in which one who is to act as President shall be selected until a
President or VP shall have qualified.
At 10 oclock in the morning of the 3rd day after the vacancy occurs, Congress
shall convene without need of a call, and within 7 days enact a law calling for
a special election to elect a President and a VP to be held not earlier than 45
nor later than 60 days from the time of such call. The bill shall be deemed
certified and shall become a law upon its approval on 3rd reading by
Congress. The convening of the Congress cannot be suspended nor the
special election postponed. No special election shall be called if the vacancy
occurs within 18 months before the date of the next presidential election.
b. V acancy during the term
i. Death, permanent disability, removal from office, or resignation of the
President: VP shall become the President
Estrada vs. Arroyo, G.R. No. 146738, March 2, 2001, the SC declared that
the resignation of President Estrada could not be doubted as confirmed by his
leaving Malacaan Palace. In the press release containing his final statement,
1. He acknowledged the oath-taking of the respondent as President;
2. He emphasized he was leaving the Palace for the sake of peace and in
order to begin the healing process (he did not say that he was leaving due
to any kind of disability and that he was going to reassume the Presidency
as soon as the disability disappears);
3. He expressed his gratitude to the people for the opportunity to serve them
as President (without doubt referring to the past opportunity);
4. He assured that he will not shirk from any future challenge that may come
in the same service of the country;
5. He called on his supporters to join him in promotion of a constructive
national spirit of reconciliation and solidarity.
The Court declared that the elements of a valid resignation are:
1. Intent to resign;
2. Act of relinquishment.
Both were present when President Estrada left the Palace.
Intent to resignmust be accompanied by act of relinquishmentact or omission
before, during and after January 20, 2001.
196
2008 Political Law and Public International Law
Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R
review materials, www.pinoylaw.net, etc.)
Ma. Luisa Angeles Ramos
4. Calling-out power, power to place the Philippines under martial law and power to
suspend the privilege of the writ of habeas corpus (Section 18, Article VII)
5. Pardoning power, reprieves, commutations, amnesty, remit fines and forfeitures
(Section 19, Article VII)
6. Borrowing power (Section 20, Article VII)
7. Diplomatic/Treaty-making power (Section 21, Article VII)
8. Budgetary power (Section 22, Article VII)
9. Informing powerState of the Nation Address (Section 23, Article VII)
10.Veto power (Article VI)
11. Power of general supervision over local governments (Section 4, Article X)
12.Power to call special session (Section 15, Article VI)
13.Unstated Residual Powernot found in the Constitution
14.Power to Reorganize the Office of the President (Administrative Code)
15.Power of Impoundment
APPOINTING POWERcarries with it the Removal Power
Appointmentis the selection, by the authority vested with the power, of an individual
who is to exercise the functions of a given office.
5. All other officers of the government whose appointments are not otherwise
provided by law
6. Those whom he may be authorized by law to appoint.
Sarmiento vs. Mison, 156 SCRA 549, not all appointments made by the President
need CA confirmation. Only those enumerated in paragraph 1 of Section 16, Article VII
Soriano vs. Lista, G.R. No. 153881, March 24, 2003, the Philippine Coast Guard
(PCG) is no longer part of the Philippine Navy or the AFP but is not under the DOTC, a
civilian agency, the promotion and appointment of respondent officers of the PCG will
not require confirmation by the CA.
Calderon vs. Carale, 208 SCRA 254, Article 215 of the Labor Code as amended by RA
6715, insofar as it requires the confirmation by the CA of the appointment of the NLRC
Chairman and commissioners, is unconstitutional because it violates Section 16 of
Article VII. The Congress, when they enacted the law, added to the exclusive list
another category of officers to be appointed by the President that need the confirmation
of the CA.
Manalo vs. Sistoza, 312 SCRA 239a law was enacted creating the PNP, RA 6795. It
provides that the Director, Deputy Director General, and other top officials of the PNP
shall be confirmed by the Commission on Appointments. The SC declared it as
unconstitutional.
In the above two cases, Congress cannot add/remove anything from the list of
officers to be appointed by the President that require confirmation of the CA. The list is
exclusive. The Congress cannot add or remove anything by a mere legislative act.
Officials subject to the Appointment of the President:
A. With the confirmation by the Commission on Appointments
1. Heads of the executive department
2. Ambassadors, other public ministers and consuls
3. Officers of the armed forces from the rank of colonel or naval captain
4. Other officers whose appointments are vested in him in the Constitution
B. Prior recommendation or nomination by the Judicial and Bar Council (JBC)
1. Members of the Supreme Court and all lower courts
2. Ombudsman and hid 5 Deputies
C. Appointment of VP as Member of the Cabinet
D. Appointment solely by the President
1. Those vested by the Constitution on the President alone
2. Those whose appointments are not otherwise provided for by law
3. Those who may be authorized by law to appoint;
4. Those other officers lower in rank whose appointment is vested by law in the
President alone
Appointing Procedure:
1. Nomination by the President;
2. Confirmation by the Commission on Appointments;
3. Issuance of commission; and
4. Acceptance by appointee. Deemed complete upon acceptance. Pending such
acceptance, which is optional to the appointee, the appointment may still be
validly withdrawn. Appointment to a public office cannot be forced upon citizen
except for purposes of defense of the State under Section 4, Article II of the
Constitution, as an exception to the rule against involuntary servitude.
Classifications:
1. Permanentthose extended to persons possessing the requisite eligibility and
are thus protected by the constitutional guarantee of security of tenure.
2. Temporarythose given to persons without such eligibility, revocable at will and
without necessity of just cause or a valid investigation, made on the
understanding that the appointing power has not yet decided on a permanent
appointee and that the temporary appointee may be replaced at any time a
permanent choice is made.
Temporary appointment and Designation are not subject to confirmation by the
Commission on Appointments. Such confirmation, if given erroneously, will not
make the incumbent permanent appointee. (Valencia vs. Peralta, 8 SCRA 692)
3. RegularAppointment by the President when Congress is in session. It takes
effect only after confirmation by the CA, and once approved, continues until the
end of the term of the appointee.
4. Ad Interim( 2 n d paragraph of Section 16, Article VII)Appointment by the
President when Congress is not in session. It takes effect immediately but
ceases to be valid if disapproved by the CA or upon the next adjournment of
Congress. It is deemed by-passed through inaction. It is intended to prevent
interruptions in vital government services that would otherwise result from the
prolonged vacancies in government offices.
It is a permanent appointment because it takes effect immediately and can
no longer be withdrawn by the President once the appointee has qualified into
office. The fact that it is subject to confirmation by the Commission on
Appointments does not alter its permanent character. The Constitution itself
Ad Interim regular
Takes effect immediately
Appointee assumes office immediately
three respondents will result in any of the evils intended to be exorcised by the
twin prohibition of the Constitution. The continuing renewal of the ad interim
appointment of these three respondents for so long as their term of office expires
on February 2, 2008 does not violate the prohibition on reappointments in
Section 1 (2), Article IX-C of the Constitution.
Four (4) Situations where Section 1 (2), Article IX-C will apply:
Section 1 (2), Article IX-C of the Constitution provides: The Chairman and the
Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment.
Of those first appointed, three Members shall hold office for seven years, two
Members for five years, and the last Member for three years, without
reappointment. Appointment to any vacancy shall be only for the unexpired term
of the predecessor. In no case shall any Member be appointed or designated in
a temporary or acting capacity.
1. Where an ad interim appointee to the COMELEC, after confirmation by
the CA, serves his full 7-year term. Such person cannot be reappointed to
the COMELEC, whether as a member or as a chairman, because he will then
be actually serving more than 7 years.
2. Where the appointee, after confirmation, serves a part of his term and
then resigns before his 7-year term of office ends. Such person cannot be
reappointed. Whether as a member or as a chairman, to a vacancy arising
from retirement because a reappointment will result in the appointee also
serving more than seven years.
3. Where the appointee is confirmed to serve the unexpired term of
someone who died or resigned, and the appointee completes the
unexpired term. Such person cannot be reappointed, whether as member or
chair, to a vacancy arising from retirement because a reappointment will
In Pimentel, Jr. vs. Ermita, G.R. No. 164798, October 13, 2005,
Congress commenced their regular session on July 26, 2004, the Commission
on Appointments was constituted on August 25, 2004. Meanwhile, President
Arroyo issued appointments to respondents as acting secretaries of their
respective departments. Respondents took their oath and assume duties as
acting secretaries. Congress adjourned on September 22, 2004. On September
23, 2004, President Arroyo issued ad interim appointments to respondents as
secretaries of the departments to which they were previously appointed in an
acting capacity. A petition was filed to declare unconstitutional the appointments
issued by the President to the respondents as acting secretaries of their
respective departments without the consent of the Commission on Appointments
while Congress is in session. The SC held that as a rule, the writ of prohibition
will not lie to enjoin acts already done. However, an exception to the rule on
mootness, courts will decide a question otherwise moot if it is capable of
repetition yet evading review. In the present case, the mootness of the petition
does not bar its resolution. The question of constitutionality of the Presidents
appointment of department secretaries in an acting capacity while Congress is in
session will arise in every such appointment. The office of a department
secretary may become vacant while Congress is in session. Since a department
secretary is an alter ego of the President, the acting appointee to the office must
necessarily have the Presidents confidence. Thus, by the very nature of the
office of a department secretary, the President must appoint in an acting capacity
a person of her own choice even while Congress is in session. The person may
or may not be the permanent appointee, but practical reasons may make it
expedient that the acting appointee will also be the permanent appointee. The
law expressly allows the President to make such acting appointment. Section
17, Chapter 5, Title I, Book III of EO 292 (Administrative Code of 1987) states
that: The President may temporarily designate an officer already in the
government service or any competent person to perform the functions of an
office in the executive branch. Thus, the President may even appoint in an acting
capacity a person not yet in the government service, as long as the President
deems that person competent.
Ad interim appointment Appointment in an acting capacity
Made if congress is not in session Made any time there is vacancy, i.e.,
whether Congress is in session or not
Requires confirmation of CA
Permanent in nature
Appointee enjoys security of tenure
Does not require confirmation of CA
Temporary in nature
The appointee does not enjoy security
of tenure
Limitations on Appointing Power:
1. Prohibition against nepotism(Section 13, par. 2, Article VII) The spouse and
relatives by consanguinity or affinity within the 4th civil degree of the President
shall not during his tenure be appointed as Members of the Constitutional
appointments and those presumed made for the purpose of influencing the
outcome of the presidential election.
a. If made within the 2-month election period=election offense
b. If made by an outgoing President before his term of office ends, it is MIDNIGHT
appointment.
Exception: temporary appointment to executive positions
Case of First Impression
De Rama vs. Court of Appeals, 353 SCRA, 94, Mayor Evelyn Abeja run for reelection
but lost. Before she vacated her office, though, she extended permanent appointments
to 14 new employees of the municipal government. The incoming mayor, upon
assuming office, recalled said appointments contending that these were midnight
appointments and, therefore, prohibited under Section 15, Article VII of the
Constitution. The SC held that the records reveal that when the petitioner brought the
matter of recalling the appointments of the 14 private respondents before the Civil
Service Commission, the only reason he cited to justify his actions was that these were
midnight appointments that are forbidden by the Constitution. However, the CSC
ruled, and correctly so, that the said prohibition applies only to presidential
appointments. In truth and in fact, there is no law that prohibits local elective officials
from making appointments during the last days of his or her tenure.
Rufino vs. Endriga, G.R. Nos. 139554 and 139565, July 21, 2006, a statute cannot
circumvent the constitutional limitations on the power to appoint by filling vacancies in a
public office through election by the co-workers in that office. Such manner of filling
vacancies in a public office has no constitutional basis. And since the pertinent section
is unconstitutional, the President has the power to appoint the trustees by virtue of
Section 16, Article VII which gives the President the power to appoint officers whose
appointments are not provided for by the law.
POWER OF REMOVAL
General Rule: This power is implied from the power to appoint.
Exceptions: Those appointed by him where the Constitution prescribes certain
methods for separation from public services.
Example: Members of the Constitutional Commissions, Justices of the SCmay
only be removed through impeachment
Members of the career service of the Civil Service who are appointed by the
President may be directly disciplined provided that the same is for cause and in
accordance with the procedure prescribed by law.
Members of the Cabinet and such officers whose continuity in office depends
upon the pleasure of the President may be replaced at any time, but legally speaking,
their separation is effected not by removal but by expiration of their term. (Aparri vs.
Court of Appeals, 127 SCRA 231)
POWER OF CONTROL
Sec. 17, Article VII: The President shall have control of all the executive departments,
bureaus and offices. He shall ensure that the laws be faithfully executed.
Faithful Execution Clause
As Chief Executive, the President holds the steering wheel that controls the
course of her governmentshe lays down policies in the execution of her plans and
programs, and whatever policy, she chooses, she has her subordinates to implement
them. (Chavez vs. Romulo, G.R. No. 157036, June 9, 2004)
Controlis the power to alter or modify or nullify or set aside what a subordinate had
done in the performance of his duties and to substitute the judgment of the former for
that of the latter.
Supervisionmeans overseeing, or the power or authority of an officer to see that
subordinate officers perform their duties, and if the latter fail or neglect to fulfill them,
then the former may take such action or steps as prescribed by law to make them
perform these duties.
Doctrine of Qualified Political Agency or the Alter Ego Doctrine
Acts of the Secretaries of executive departments when performed and promulgated in
the regular course of business or unless disapproved or reprobated by the Chief
Executive, are presumptively the acts of the Chief executive.
In the case of DENR vs. DENR Region XII Employees, G.R. No. 149724,
August 19, 2003, the power of the President to reorganize the National Government
may validly be delegated to his Cabinet members exercising control over a particular
executive department. Accordingly, in this case, the DENR Secretary can validly
reorganize the DENR by ordering the transfer of the DENR Regional Offices from
Cotabato City Koronadal, South Cotabato. The exercise of this authority by the DENR
Secretary, as an alter ego of the President, is presumed to be the act of the President
because the latter had not expressly repudiated the same.
However, in the case of Gloria vs. Court of Appeals, G.R. No. 119903, August
15, 2000, the SC held that even if the DECS Secretary is an alter ego of the President,
he cannot invoke the Presidents immunity from suit in a case filed against him,
inasmuch as the questioned acts are not those of the President.
The power of control may be exercised by the President only over the acts not
over the actor (Angangco vs. Castillo, 9 SCRA 619)
POWER OF GENERAL SUPERVISION OVER LOCAL GOVERNMENTS (Section 4,
Article X)the President can only interfere in the affairs and activities of a LGU if he
finds that the latter acted contrary to law. The President or any of his alter egos, cannot
interfere in local affairs as long as the concerned LGU acts within the parameters of the
law and the Constitution. Any directive, therefore, by the President or any of his alter
egos seeking to alter the wisdom of a law-conforming judgment on local affairs of a LGU
is a patent nullity, because it violates the principle of local autonomy, as well as the
doctrine of separation of powers of the executive and the legislative departments in
governing municipal corporations. (Judge Dadole vs. COA, G.R. No. 125350,
December 3, 2002)
The President exercises general supervision, not control, over local governments. The
power is generally to see to it that the LGUs perform their powers and functions in
accordance with law.
MILITARY POWERS
Section 18, Article VII:
1. The Commander-in-Chief Clause
To call out the Armed forces to prevent or suppress lawless violence, invasion
or rebellion.
Organize courts martial for the discipline of the armed forces and create military
commissions for the punishment of war criminals.
Calling-out powerlawless violence declare martial law & suspend the writ of HC
d. Congress may, by majority vote of all its members voting jointly, revoke
the proclamation, and the President cannot set aside the revocation;
e. By the same vote and in the same manner, upon initiative of the
President, Congress may extend the proclamation if the invasion or
rebellion continues and public safety requires it;
f. The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus or the
extension thereof, and must promulgate its decision thereon within 30
days from its filing;
g. It does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the
confinement of jurisdiction on military courts and agencies over civilians
where civil courts are able to function, nor automatically suspend the
privilege of the writ.
Olaguer doctrineaka OPEN COURT DOCTRINEcivilians cannot be tried by
military courts if the civil courts are open and functioning (Olaguer vs. Military
Commission No. 34, G.R. No. L-54448, May 22, 1987)
4 ways for the proclamation or suspension to be lifted:
1. Lifting by the President himself;
2. Revocation by Congress;
3. Nullification by the SC;
4. Operation of law after 60 days.
PARDONING POWER
Exercise by the President: Discretionary; may not be controlled by the legislature
or reversed by the courts unless there is violation of the Constitution.
Section 19, Article VII is simply the source of power of the President to grant
reprieves, commutations, and pardons and remit fines and forfeitures after conviction by
final judgment. This provision, however, cannot be interpreted as denying the power of
courts to control the enforcement of their decisions after the finality. In truth, an accused
that has been convicted by final judgment still possesses collateral rights and these
rights can be claimed in the appropriate courts. For instance, a death convict who
becomes insane after his final conviction cannot be executed while in the state of
insanity. (See Article 79 of the Revised Penal Code)
Article 81 of the Revised Penal code, as amended, which provides that the
death sentence shall be carried out without prejudice to the exercise by the President of
his executive clemency powers at all times. For instance, the President cannot grant
reprieve, i.e., postpone the execution of a sentence to a day certain in the absence of a
precise date to reckon with. The exercise of such clemency power, at this time, might
even work to the prejudice of the convict and defeat the purpose of the Constitution, and
the applicable statute as when the date of execution set by the President would be
earlier than that designated by court. (Echegaray vs. Secretary of Justice, 301
SCRA
96)
1. Pardonan act of grace which exempts the individual on whom it is bestowed
from punishment which the law inflicts for a crime he has committed.
a. Plenary or partial
b. Absolute or conditional
Conditional pardonis in the nature of a contract between the sovereign power
or the Chief Executive and the convicted criminal to the effect that the former will
release the latter subject to the condition that if he does not comply with the
terms of the pardon, he will be recommitted to prison to serve the unexpired
portion of the sentence or an additional one.
2. Commutationreduction or mitigation of penalty
3. Reprievepostponement of sentence or stay of execution
4. Parolerelease from imprisonment, but without full restoration of liberty, as
parolee is in custody of the law although not in confinement
5. Amnestyact of grace, concurred in by the Legislature, usually extended to
groups of persons who committed political offenses, which puts into oblivion the
offense itself.
Limitations:
a. Cannot be granted in cases of impeachment;
b. Cannot be granted in violations of election laws without favorable
recommendations of the COMELEC;
c. Can be granted only after conviction by final judgment (except amnesty);
d. Cannot be granted in cases of legislative contempt or civil contempt;
e. Cannot absolve convict of civil liability;
f. Cannot restore public offices forfeited.
Amnesty Pardon
addressed to political offenses refers to infractions of laws of the state or
provided by law. The Monetary Board shall submit to the Congress report on loans
within 30 days from end of every quarter.
Limitations:
1. There must be prior concurrence of the Monetary Board
2. It is subject to such other limitations
DIPLOMATIC/TREATY-MAKING POWER (Section 21, Article VII)
No treaty or international agreement shall be valid and effective unless concurred
in by at least 2/3 of all the members of the Senate.
In our jurisdiction, the power to ratify is vested in the President and not, as
commonly believed, in the legislature. The role of the Senate is limited only to giving or
withholding its consent, or concurrence, to the ratification. (Bayan vs. Zamora, G.R.
No. 138570, October 10, 2000)
This provision lays down the general rule on treaties or international agreements
and applies to any form of treaty with a wide variety of subject matter. All treaties or
international agreements entered into by the Philippines, regardless of subject matter,
coverage, or particular designation or appellation, requires the concurrence of the
Senate to be valid and effective.
But see Section 25 of Article XVIII. Under this provision, the concurrence of the
Senate is only one of the requisites to render compliance with the constitutional
requirements and to consider the agreement binding on the Philippines.
BUDGETARY POWER
Within 30 days from opening of every regular session, President shall submit to
Congress a budget of expenditures and sources of financing, including receipts from
existing and proposed revenue measures.
The Congress may not increase the appropriation recommended by the
President. However, its form, content, manner of preparation of the budget shall be
prescribed by Congress.
INFORMING POWERState of the Nation Address (Section 23, Article VII)
The President shall address Congress at the opening of its regular session (4th
Monday of July). He may also appear before it at any other time.
President desist from implementing the law if doing so would prejudice public interest.
An example given is when through efficient and prudent management of a project,
substantial savings are made. In such a case, it is sheer folly to expect the President to
spend the entire amount budgeted in the law. (PHILCONSA vs. Enriquez, 235 SCRA
506)
Article VIII
JUDICIAL DEPARTMENT
3. May exercise such other functions as may be assigned by the Supreme Court.
SUPREME COURT
Composition:
Chief Justice and 14 Associates Justices
May sit:
o En Banc; or
o In its discretion, in divisions of 3, 5, or 7 members
Any vacancy shall be filled within 90 days from occurrence thereof.
Powers of the Supreme Court
A. Original Jurisdiction
1. Over cases affecting ambassadors, other public ministers and consuls;
2. Over petition for Certiorari, Prohibition, mandamus, Quo Warranto, and
Habeas Corpus;
Certiorari Jurisdiction of the SClimited to decisions rendered in actions or
proceedings taken cognizance of by the Commissions in the exercise of their
adjudicatory or quasi-judicial functions.
It does not refer to purely executive powers. Hence, questions arising from the
award of a contract for construction of voting booths can be brought before the
trial court. (Ambil vs. COMELEC, G.R. No. 143398, October 5, 2000)
3. Review of factual basis for the declaration of martial law or suspension of the
privilege of writ of habeas corpus.
B. Appellate Jurisdiction
Over final judgments and orders of lower courts in:
a. All cases in which constitutionality or validity of any treaty international
or executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question;
b. All cases involving the legality of any tax impost, assessment, or toll, or
any penalty imposed in relation thereto;
c. All cases in which the jurisdiction of any lower courts is in issue;
d. All criminal cases in which the penalty imposed is reclusion perpetua
or higher; and
e. All cases in which only a question of law is involved.
C. Electoral Tribunal for Presidential and Vice-Presidential Contests, over all
contests relating to the election, return and qualification of the President or VicePresident.
D. Temporary assignment of judges of lower courts to other stations as public
interest may require. Not to exceed 6 months without the consent of the judge
concerned.
E. Order change of venue or place of trial, to avoid miscarriage of justice
F. Rule-making powerpromulgates rules concerning:
1. Protection and enforcement of constitutional rights;
2. Pleading, practice, and procedure in all courts;
3. Admissions to the practice of law;
4. IBP; and
5. Legal assistance to the underprivileged.
Limitations on rule-making power:
a. Provide a simplified and inexpensive procedure for speedy disposition of
cases;
b. Uniform for all courts of the same grade;
c. Shall not diminish, increase or modify substantive rights.
In Re: Request for Creation of a Special Division, A.M. No. 02-1-09-SC,
January 21, 2002, it was held that it is within the competence of the Supreme
Court, in the exercise of its power to promulgate rules governing the enforcement
and protection of constitutional rights and rules governing pleading, practice and
procedure in all courts, to create a Special Division in the Sandiganbayan which
will hear and decide the plunder case against former President Estrada.
Echegaray vs. Secretary of Justice, G.R. No. 132601, January 19,
1999, Congress cannot amend the Rules of Court. The SC declared that the
220
2008 Political Law and Public International Law
Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R
review materials, www.pinoylaw.net, etc.)
Ma. Luisa Angeles Ramos
The conclusions of the SC in any case submitted to it for decision en banc or in division
shall be reached in consultation before the case is assigned to a Member for the writing of the
opinion of the Court. A certification to this effect signed by the Chief Justice shall be issued and
a copy thereof attached to the record of the case and served upon the parties. Any Member
who took no part, or dissented, or abstained from a decision or resolution must state the reason
therefor. The same requirements shall observe by all lower collegiate courts. Section 13,
Article VIII
This requirement does not apply to administrative cases
Section 14, Article VIIINo decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on which it is based.
It does not apply to a minute resolution dismissing a petition for habeas corpus, certiorari and
mandamus, provided a legal basis is given therein. Neither will it apply to administrative
cases.
People vs. Baring, G.R. No. 137933, January 28, 2002, the trial courts
decision may cast doubt on the guilt of the accused, not by the lack of direct evidence
against the accused but by:
1. the trial courts failure to fully explain the correlation of the facts;
2. the weight of the admissibility of the evidence;
3. the assessments made from the evidence; and
4. The conclusion drawn therefrom, after applying the pertinent law as basis of the
decision.
Lack of merit is sufficient declaration of the legal basis for denial of petition for review
or motion for reconsideration.
Tichangco vs. Enriquez, G.R. No. 150629, June 30, 2004, when the Court, after
deliberating on a petition and any subsequent pleadings, manifestations, comments or
motions, decides to deny due course to a petition, and statesin a minute resolution
that the questions raised are factual or no reversible error in the respondent courts
decision is shown or some other legal basis stated in the resolution, there is sufficient
compliance with the constitutional requirement.
WRIT OF AMPARO
The Rule on Writ of Amparo (A.M. No. 07-9-12-SC)
It was drafted pursuant to the constitutional power of the Supreme Court to
promulgate rules and regulations for the protection and enforcement of constitutional
rights.
WRIT OF AMPAROit is a remedy available to any person whose right to life, liberty,
and security has been violated or is threatened with violation by an unlawful act or
omission of a public official or office, or of a private individual or entity. The writ covers
extralegal killings and enforced disappearances or threats thereof.
It is a writ which may be issued by the courts based on this constitutional power
of the SC to promulgate rules for the protection and enforcement of constitutional
rights. It is a remedy to enforce fundamental rights.
It would compel state agents to look for the missing person and the agents would
be held liable if they did not exert adequate effort in finding the person.
amparomeans protection, from amparar meaning to protect
Who may file?
The petition may be filed by the aggrieved party or by any qualified person or
entitiy in the following order:
Any member of the immediate family, namely:
i. Spouse
ii. Children
iii. Parents of the aggrieved party
Any ascendant, descendant or collateral relative of the aggrieved party
within the 4th civil degree of consanguinity or affinity, in default of those
mentioned above; or
Any concerned citizen, organization, association, or institution, if there is
no known member of the immediate family or relative of the aggrieved
party.
The filing of a petition by the aggrieved party suspends the right of all other
authorized
parties to file similar petitions. Likewise, the filing of the petition by an authorized party
on behalf of the aggrieved party suspends the rights of all others, observing the order
established by the law.
person who refuses to serve the same, shall be punished by the court, justice or judge
for contempt without prejudice to other disciplinary actions.
Return of the Writthe respondent shall file a verified written return together with the
supporting affidavits within seventy-two (72) hours.
If he fails to file a return, the court, justice or judge shall proceed to hear the
petition ex parte or even without the appearance of the respondent.
RTCreturnable before such court or judge
Returnable before such court or any justice thereof; or
SB/CA To any RTC of the place where the threat, act or omission was
committed or any of its elements occurred
Returnable before such court or any of its justices;
SC Before the SB or CA or any of their justices; or
To any RTC of the place where the threat, act or omission was
committed or any of its elements occurred
Hearing on the Petition
The hearing shall be summary in nature. However, the court, justice or judge
may call for a preliminary conference to clarify or simplify some issues and determine
the possibility of obtaining stipulations and admissions from the parties.
When a criminal action is filed subsequent to the filing of a petition for the writ,
prescribe
(4) The emergency power must be exercised to carry out a national policy
declared by Congress
Let it be emphasized that while the President alone can declare a state of
national emergency, however, without legislation, he has no power to take over
privately-owned public utility or business affected with public interest. The President
cannot decide whether exceptional circumstances exist warranting the take over of
privately-owned public utility or business affected with public interest. Nor can he
determine when such exceptional circumstances have ceased. Likewise, without
legislation, the President has no power to point out the types of businesses affected
with public interest that should be taken over. In short, the President has no absolute
authority to exercise all the powers of the State under Section 17, Article XII in the
absence of an emergency powers act passed by Congress.
*emergency power must be authorized by Congress (thru an enactment of law)
*she is not exercising emergency power because there was no law enacted by
Congress authorizing her to exercise such power
General rule: POTESTA DELEGATA NON DELEGARE POTEST- what has been
delegated cannot be re-delegated. It is based on ethical principle that delegated
powers constitutes not only a right but a duty to be performed by the delegate through
the instrumentality of his own judgment and not through the intervening mind of
another.
While PAGCOR is allowed under its charter to enter into operators and/or
management contracts, it is not allowed to relinquish or share its franchise, much less
grant a veritable franchise to another entity such as SAGE. In Lim vs. Pacquing, 240
SCRA 649, the Court clarified that since ADC has no franchise from Congress to
operate jai-alai, it cannot, even if it has license or permit from the City Mayor, operate
jai-alai in the City of Manila. By the same token, SAGE has to obtain a separate
legislative franchise, and not ride on PAGCORs franchise if it were to legally operate
on-line internet gambling (Jaworski vs. PAGCOR, G.R. No. 144463, January 14,
2004).
Exceptions: Permissible Delegation of Powers (PETAL)
P-eople power thru plebiscite and initiative- (Sec. 32, ART VI; Sec. 10, Art. X; Sec. 2,
Art. XVII; RA 6735) Under the 1987 Constitution, there are specific provisions where the
people have reserved to themselves the function of legislation.
Referendum vs. Plebiscite
Referendum Plebiscite
-the power of the electorate to approve or
reject legislation through an election called
-the electoral process by which an initiative
on the Constitution is approved or rejected
Philippine courts may not render advisory opinion. There must always be an
actual case or controversy EXCEPT: Int'l Court of Justice-principal judicial organ of the
United Nations- ICJ may render advisory opinions. Its 2 main functions are: (a) to
decide contentious cases; and (b) to render advisory opinions upon request of the
General Assembly, or the Security Council, or the other organs of the UN when
authorized by the General Assembly.
A request for an advisory is not an actual case or controversy. But an action for
declaratory relief is proper for judicial determination.
The issue raised in the case must not be moot and academic, or because of
subsequent developments, have become moot and academic.
MOOT and ACADEMIC PRINCIPLE
General Rule: Court will have to dismiss the case. There is no more actual case to be
resolved.
Exceptions: (David vs. GMA)
a. Grave violation of the Constitution
b. The exceptional character of the situation and the paramount public interest is
involved
c. Constitutional issue raised requires formulation of guiding and controlling
constitutional principles, precepts, doctrines or rules and the symbolic function to
educate the bar and bench and the people on the extent of protection given by the
constitutional guarantees
d. Case is capable of repetition yet evading reviewit presupposes that:
i. The life of the controversy is too short to be fully litigated prior to its termination,
and
ii. That there is a reasonable expectation that the plaintiff will again be subjected
to the same problem
2. The constitutional question must be raised by the proper partyA proper
party
is one who has sustained or is in imminent danger of sustaining an injury as a result of
the act complained of. (LOCUS STANDI)
"Legal Standing"- personal and substantial interest in the case such that the party has
sustained or will sustain direct injury as a result of governmental act.
A party's standing in court is a procedural technicality which may be set aside by the
Court in view of the importance of the issues involved. Thus, where the issues raised by
the petitioners are of paramount public interest, the Court may, in the exercise of its
discretion, brush aside the procedural barrier. (Kilosbayan vs. Guingona, 232 SCRA
110)
In Sanlakas vs. Executive Secretary, G.R. No. 159085, February 3, 2004, Rep.
Suplico, et al., and Senator Pimentel were considered as proper parties to contest the
constitutionality of Pres. Arroyos proclamation of a state of rebellion after the
Oakwood incident.
In IBP vs. Zamora, G.R. No. 141284, August 15, 2000, the petition seeking to nullify
the order of Pres. Estrada for the deployment of the Philippine Marines to join the PNP
in visibility patrols around Metro Manila area, was dismissed on the ground that the IBP
had no legal standing to question the presidential act.
Lim vs. Executive Secretary (2002)Because of the paramount importance and the
constitutional significance of the issues raised in the Petition, the Court, in the exercise
of its sound discretion, brushed aside the procedural barrier and took cognizance of the
petitions.
Information Technology Foundation vs. COMELEC (2004) the subject matter of
the case is a matter of public concern and imbued with public interest; it is of paramount
public interest and of transcendental importance.
Kilosbayan vs. Morato, 246 SCRA 540, the petitioners do not posses the legal
capacity to institute the action for annulment of the Equipment Lease Agreement (ELA)
because they are without a present substantial interest, as distinguished from mere
expectancy, or future, contingent, subordinate or consequential interest.
present substantial interest means such interest of a party in the subject
matter of the action as will entitle him, under substantive law, to recover if the evidence
is sufficient, or that he has a legal title to defend and the defendant will be protected in
payment to or recovery from him.
In Domingo vs. Carague, G.R. No. 161065, April 15, 2005, the petitioners failed to
show any direct and personal interest in the COA Organizational Restructuring Plan;
there was no indication that they have sustained or are in imminent danger of sustaining
some direct injury as a result of its implementation; and they admitted that they do not
seek any affirmative relief nor impute any improper or improvident act against the
respondents. Clearly, then, they do not have any legal standing to file the instant suit.
In Cutaran vs. DENR, G.R. No. 134958, January 31, 2001, the SC refused to give
due
course to a petition seeking to enjoin the DENR from processing the ancestral land
claim of private respondent over a property located at Camp John Hay reservation in
Baguio, on the ground that there is no actual or imminent violation of the petitioners
asserted right. Court will not touch an issue involving the validity of a law unless there
has been a governmental act accomplished or performed that has a direct adverse
effect on the legal right of the person contesting its legality. Until such time, petitioners
are simply speculating that they might be evicted from the premises at a future time.
General rule: A party can question the validity of a statute only if, as applied to him,
it
is unconstitutional.
Exception: FACIAL CHALLENGE. The statute is absolutely unconstitutional under
no circumstance. But the only time a facial challenge to a statute is allowed is when it
operates in the area of freedom of expression.
Invalidation of the statute on its face, rather than as applied is permitted in
the interest of preventing a chilling effect on freedom of expression.
Overbreadth Doctrinepermits a party to challenge the validity of a statute
even though as applied to him, it is not unconstitutional, but it might be if applied to
others not before the Courts whose activities are constitutionally protected.
In Francisco, Jr. vs. Bayani Fernando, G.R. No. 166501, November 16, 2006,
a citizen can raise a constitutional question only when 1) he can show that he has
personally suffered some actual or threatened injury because of the allegedly illegal
conduct of the government; 2) the injury is fairly traceable to the challenged action; and
3) a favorable action will likely redress the injury.
3. The constitutional question must be raised at the earliest opportune time
generally, the question must be raised in he pleadings; however, in criminal cases, the
question can be raised at any time at the discretion of the court; in civil cases, the
question can be raised at any stage of the proceedings if necessary for the
determination of the case itself; and in every case, except where there is estoppel, it
can be raised at any stage if it involves the jurisdiction of the court.
In Umali vs. Guingona, G.R. No. 131124, March 21, 1999, the question of
constitutionality of the Presidential Commission on Anti-Graft and Corruption (PCAGC)
was not entertained because the issue was raised by the petitioner only in his motion for
reconsideration before the RTC of Makati. It was too late to raise the issue for the first
time at that stage of the proceedings.
4. The decision on the constitutional question must constitute the very LIS
MOTA
Article IX
CONSTITUTIONAL COMMISSIONS
year.
Certiorari Jurisdiction of the Supreme Court
Limited to decisions rendered in actions or proceedings taken cognizance of by the
Commissions in the exercise of their adjudicatory or quasi-judicial functions. It does not
refer to purely executive powers. Hence, questions arising from the award of a contract
for construction of voting booths can be brought before the trial court. (Ambil vs.
COMELEC, G.R. No. 143398, October 5, 2000)
c. Security of tenure.
Kinds of Career Service:
O pen Career Positionsprior qualification via examination;
C losed Career Positionsthose highly technical position;
C areer Executive ServiceUndersecretaries, Bureau Directors;
C areer Officersthose appointed by the President like those in the
foreign service;
C ommissioned Officers and enlisted men of the AFPgoverned by
Tanjay Water District vs. Quinit, Jr. G.R. No. 160502, April 27, 2007, it is an
established rule that the tenure of office of those holding primarily confidential positions
ends upon loss of confidence, because their term of office lasts only as longs as
confidence in them endures. Their termination can be justified on the ground of loss of
confidence, in which case, their cessation from office involves no removal but the
expiration of their term of office.
Power to approve/disapprove appointments
The authority of CSC to approve appointmentsto check whether or not the
appointee possesses the appropriate civil service eligibility or the required qualification
does not include the authority to make the appointment itself or to direct the
appointing authority to change the employment status of an employee. The CSC can
only inquire into the eligibility of the person chosen to fill a position and if it finds the
person qualified, it must so attest. If not, the appointment must be disapproved.
(Province of Camarines Sur vs. CA, G.R. No. 104639, July 14, 1995)
In the case of Lopez vs. CSC, 194 SCRA 269, the SC held that the CSC has no power
to revoke an appointment simply because it believes that the person protesting the
appointment or somebody is better qualified, for that will constitute an encroachment of
the discretion vested solely in the appointing authority.
COMMISSION ON ELECTION
Composition:
One (1) Chairman
Six (6) Commissioners
Qualifications:
1. Natural-born citizen;
2. At least 35 years of age at the time of appointment;
3. With proven capacity for public administration; and
4. Not a candidate for any elective position in the election immediately preceding
the appointment.
5. Majority, including the Chairman, must be members of the Philippine Bar who
have been engaged in the practice of law for at least ten (10) years.
The COMELECs exercise of its quasi-judicial powers is subject to Section 3, Article IXC
which expressly requires that:
1. All elections cases, including pre-proclamation controversies, shall be
decided by the COMELEC in division, and
2. The motion for reconsideration shall be decided by the COMELEC en banc.
The prosecution of election law violators involves the exercise of the
COMELECs administrative powers. Thus, the COMELEC en banc can directly approve
the recommendation of its Law Department to file the criminal information for double
registration against violators. There is no constitutional requirement that the filing of the
criminal information be first decided by any of the divisions of the COMELEC. (Baytan
vs. COMELEC, G.R. No. 153945, February 4, 2003)
In Vinzons-Chato vs. COMELEC, G.R. No. 172131, April 2, 2007, once the
winning candidate has been proclaimed, taken his oath, and assumed office as a
Member of the House of Representatives, the COMELECs jurisdiction over election
contests relating to his election, returns, and qualifications ends, and the HRETs own
jurisdiction begins.
In Quizon vs. COMELEC, G.R. No. 177927, February 17, 2008, the denial of
due course or cancellation of ones certificate of candidacy is not within the
administration powers of the Commission, but rather calls for the exercise of its
quasijudicial
functions. Hence, the Court may compel COMELEC to exercise such discretion
and resolve the matter but it may not control the manner of exercising such discretion.
Powers and Functions:
1. Enforce and administer law and regulations relative to the conduct of elections,
plebiscite, initiative, referendum or recall;
2. Exclusive original jurisdiction over all contests relating to election, returns and
qualifications of all elective regional, provincial, and city officials;
3. Exclusive appellate jurisdiction over all contests involving elective municipal
officials decided by the RTC, or involving elective barangay officials by MTC;
4. Decide, except those involving right to vote, all questions affecting elections,
including the determination of number and location of polling places, appointment
COMMISSION ON AUDIT
Composition:
One (1) Chairman
Two (2) Commissioners
Qualifications:
1. Natural-born citizen;
2. At least 35 years of age at the time of appointment;
3. CPA with at least ten (10) years auditing experience or members of the
Philippine Bar with at least ten (10) years practice of law; at no time shall all
members belong to the same position; and
4. Not a candidate for any elective position in the election immediately preceding
the appointment.
Term: Seven (7) years without reappointment
Fiscal Autonomy
The 1987 Constitution expressly and unambiguously grants fiscal autonomy only
to Judiciary, the constitutional commissions, and the Office of Ombudsman. The
Commission on Human Rights has no fiscal autonomy. (CHR Employees Association vs.
CHR, G.R. No. 155336, July 21, 2006)
Article X
LOCAL GOVERNMENT
Requisites:
1. Valid law authorizing incorporation;
2. Attempt in good faith to organizing under it;
3. Colorable compliance with law; and
4. Assumption of corporate powers.
might impose.
Section 7, Article XAnother source of revenue for local governments is the share in
the proceeds from the exploitation and development of natural resources found within
the locality. This can take the form of financial benefits for the local units coming from a
share in fees, charges, and other incomes coming from development, and it can also
take the form of direct benefit for the population coming in the form, for instance, of
cheaper electric power rates of energy sourced in the locality, or priority in employment.
This can be effected either through national or local laws.
Section 8, Article Xthe term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years and no such officials
shall serve for more than three consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected.
Section 8 cannot be more clear and explicitthe term of office of elected local
officials, shall be 3 years and no such officials shall serve for more than 3 consecutive
terms. Upon the other hand, Section 43 (d) of the Local Government Code clearly
provides than no local official shall serve for more than three (3) consecutive terms in
the same position. (Atty. Rivera III vs. COMELEC, G.R. Nos. 167591 and 170577,
May 9, 2007)
Section 10Creation, division, merger, abolition, substantial change of boundaries are
not only subject to the criteria established in the local government code but also subject
to approval by a majority of the votes cast in a plebiscite in the political units directly
affected.
Authority to Create Local Government
A local government unit may be created, divided, merged, abolished, or its
boundaries substantially altered:
1. Province, City, Municipality or any other political subdivisiononly by Act of
Congress
2. Barangaysordinance passed by the Sangguniang Panlalawigan or
Panglungsod concerned in the case of any barangay within its territorial
jurisdiction
The creation or conversion of an LGU from one level to another level shall be based on
verifiable indicators:
a. Incomemust be sufficient, to provide for all essential facilities and
services commensurate with the size of its population;
b. Populationbased on total number of inhabitants within the territorial
jurisdiction of the LGU;
c. Land areamust be contiguous, unless it comprises two or more islands
or is separated by an LGU; properly identified by metes and bounds; and
be created
composed of 2
or more islands)
100 sq. kms.
Requisites before a province, city, municipality, or barangay may be created,
divided, merged, abolished, or its boundary substantially altered:
1. It must be in accordance with the criteria established in the Local Government
Code;
2. It is subject to approval by a majority of the votes cast in a plebiscite in the
political units directly affected. (Section 10, Article X)
Classification of Cities:
1. Highly urbanized cities as determined by law;
2. Cities not raised to the highly urbanized category but whose existing charters
prohibit their voters from voting in provincial elections; and
3. Component citiescities which still are under a province in some way. They
cannot be denied a vote in the election of provincial officials.
Those in numbers 1 and 2 do not vote in provincial elections, they are independent of
the province. Residents are not qualified to run for provincial positions.
Abolitionwhen the income, population or land area has been irreversibly reduced to
less than the minimum standards prescribed for its creation, the LGU, thru a law or
ordinance, may be abolished.
LOCAL OFFICIALS
1. Governor
2. Vice-Governor
3. Members of the Sangguniang Panlalawigan
4. Members of the Sangguniang Panlungsod
5. Mayor
6. Vice-Mayor
7. Members of the Sangguniang Bayan
8. Punong Barangay
9. Members of the Sangguniang barangay
10.Sangguniang Kabataan
QUALIFICATIONS:
1. Citizens of the Philippines;
2. Registered voter in the barangay, municipality, city or province, or in the case of
a member of the SG Panlalawigan, Panlungsod, or Bayan, in the district where
he intends to be elected;
3. Resident therein for at least 1 year immediately preceding election;
4. Able to read and write Filipino or any other local language or dialect;
5. On election day, age must at least be:
a. 23 yearsfor governor, vice-governor, member of the SG panlalawigan,
mayor, vice-mayor, or member of the SG panlungsod of HUC;
b. 21 yearsfor mayor, vice-mayor of independent component cities (ICC),
component cities (CC), or municipalities;
c. 18 yearmembers of the SG panlungsod or SG Bayan, Punong
Barangay, member of the Sangguniang Pambarangay
d. 15 years but not more than 18 yearsfor SK
TERM OF OFFICE: THREE (3) YEARS
MANNER OF ELECTION:
1. For governor, vice-governor, city or municipal mayor and vice-mayor, punong
barangayelected at large in their respective units;
2. For the SG panlalawigan, panlungsod and bayan of HUCelected in their
respective district;
3. For SK Chairman and Memberselected by the registered voters of the
Katipunan ng mga kabataan.
enacted by virtue of the general welfare clause is valid, unless it contravenes the
fundamental law of the Philippines, or an act of the Legislature, or unless it is against
public policy, or is unreasonable, oppressive, partial, discriminating, or in derogation of
common right.
A local government unit cannot enact an ordinance or approve a resolution in
violation of a general law. Municipal authorities, under a general grant of power, cannot
adopt ordinances which infringe the spirit of a state law or repugnant to the general
policy of the state. It is clear that in the absence of constitutional or legislative
authorization, municipalities have no power to grant franchises.
SJS vs. Atienza, Jr. G.R. No. 156052, March 7, 2007, the Sangguniang Panlungsod
shall enact such ordinances as may be necessary to carry into effect and discharge the
responsibilities conferred upon it by law, and such as shall be necessary and proper to
provide for the health and safety, comfort and convenience, maintain peace and order
and promote the general welfare of the community and inhabitants. There is a duty to
enforce the Ordinance as long as it has not been repealed by the Sanggunian or
annulled by the courts.
DAR vs. Saranggani Agricultural Co., January 24, 2007, while the DAR retains the
responsibility for approving or disapproving applications for land use conversion filed by
individual landowners on their landholdings, the exercise of such authority should be
confined to compliance with the requirements and limitations under existing laws and
regulations. The DARs power in such cases may not be exercised in such a manner as
to defeat the very purpose of the LGU concerned in reclassifying certain area to achieve
social and economic benefits in pursuit of its mandate towards the general welfare.
Police power of the Local Government
A local government is considered to have properly exercised its police powers
Public Officethe 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 creating power, an
individual is invested with some sovereign functions of government to be exercised
by him for the benefit of the public. (Fernandez vs. Sto. Tomas, 234 SCRA 546)
Public office is a public trustthis requires that all government officials 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.
Public trustimplies a fiduciary relationship between a public officer, who is a trustee,
and the people, who are the beneficiaries, of a public office. Said relationship makes the
public officer the servant of the people, requires of him:
a. Utmost responsibility;
b. Integrity;
c. Loyalty;
d. Efficiency;
e. Fidelity;
f. Good faith; and
g. Accountability in the discharge of his duties
and demands that he takes no advantage of his position for his personal benefit or to
the prejudice of the public.
Created by:
1. The Constitutione.g. Office of the President;
2. Valid statutory amendments;
3. By authority of law.
Elements of Public Office:
1. Created by law or ordinance authorized by law;
2. Possesses sovereign functions of the government;
3. Functions defined expressly or impliedly by law;
4. Functions exercised by an officer directly under the control of law, not under a
superior officer unless they be those of an inferior or subordinate office created
or authorized by the legislature, and by it placed under the general control of a
superior office or body; and
5. Must have permanency or continuity.
Characteristics:
1. Public office is a public trust;
2. Public office is not a property and is outside the commerce of man. It cannot be
subject of a contract.
PUBLIC OFFICERSindividuals vested with public office.
Under RPC, Art. 203any person who, by direct provision of law, popular
election or appointment by competent authority, shall take part in the performance of
public functions in the Government of the Philippine Islands, or shall perform in said
Government or in any of its branches, public duties as an employee, agent or
subordinate official, of any rank or class, shall be deemed to be a public officer.
Under Sec. 2, RA 3019the term includes elective and appointive officials and
employees, permanent or temporary, whether in the classified, unclassified or exempt
service, receiving compensation, even nominal, from the government.
Khan, Jr. vs. Office of the Ombudsman, G.R. No. 125296, July 20, 2006, in the
case
of officers/employees in GOCCs, they are deemed public officers if their corporations
are tasked to carry out governmental functions.
Examples: Sec. 17 (2) Art. XIII (Human Rights) The Commission shall be
composed of a Chairman and four Members who must be natural-born citizens of
the Philippines and a majority of whom shall be members of the Bar. The term of
office and other qualifications and disabilities of the Members of the Commission
shall be provided by law.
Section 7 (2), Article VIII The Congress shall prescribe the qualifications
of judges of lower courts, but no person may be appointed judge thereof unless he
is a citizen of the Philippines and a member of the Philippine Bar.
2. StatuteCongress has the plenary power to prescribe the qualification but such
must be:
a. Germane to the purpose of the office;
b. Not too specific so as to refer to only one individual.
In Lecaroz vs. Sandiganbayan, G.R. No. 130872, March 25, 1999, an oath of
office is a qualifying requirement for public office. Only when the public officer has
satisfied this prerequisite can his right to enter into the position be considered plenary
and complete. Until then, he has none at all, and for as long as he has not qualified, the
holdover officer is the rightful occupant. An oath of office taken before one who has no
authority to administer is no oath at all.
However, in Mendoza vs. Laxina, G. R. No. 146875, July 14, 2003, once
proclaimed and duly sworn in office, a public officer is entitled to assume office and to
exercise the functions thereof. The pendency of an election protest is not sufficient
basis to enjoin him from assuming office or from discharging his functions.
Sec. 5 (1), Art. XVIAll members of the armed forces shall take an oath or
affirmation to uphold and defend this Constitution.
Q: A was elected/appointed to public office. He assumed office without taking the oath
of office as prescribed by the Constitution and relevant CSC rules and regulations. Are
his acts valid?
A: Yes, As acts are considered valid, insofar as third parties and the general public are
concerned/rely on his actsacts of a De Facto officer.
(See the case of Office of the Ombudsman vs. CSC, G.R. No. 162215, July 30, 2007)
DISQUALIFICATIONS
The legislature has the right to prescribe disqualifications in the same manner
that it can prescribe qualifications, provided that the prescribed disqualifications do not
violate the Constitution.
G eneral Disqualifications under the Constitution
1. Sec. 6, Art. IX-B No candidate who has lost in any election shall, within one
year after such election, be appointed to any office in the Government or any
GOCCs or in any of its subsidiaries.
2. Sec. 7 (1), Art. IX-Brefers to elective officialsNo elective official shall be
eligible for appointment or designation in any capacity to any public office or
position during his tenure.
In the case of Flores vs. Drilon, G.R. No. 104732, June 22, 1993, RA
7227creating the SBMA, one provision states that Mayor Dick Gordon shall be
appointed as Chairman and Chief Executive of the SBMA. The SC ruled for the
constitutionality of his appointment as the first Administrator of the SBMA. He
was allowed to act as Chairman in an ex-officio capacity. Section 7(1) of Article
IX-B of the Constitution refers to elective officials. The second paragraph, refers
to appointive officials, made two exceptions:
a. Unless otherwise allowed by law; or
b. Unless otherwise allowed by the primary function of his position.
Hence, Mayor Gordons appointment is valid.
functions of his position, no appointive officials shall hold any other office or
employment in the Government or any subdivision, agency or instrumentality
thereof, including GOCCs or their subsidiaries.
National Amnesty Commission vs. COA, G.R. No. 156982, September 8, 2004,
when another office is held by a public officer in an ex-officio capacity, as provided by
law and as required by the primary functions of his office, there is no violation, because
such other office does not comprise any other position. The ex-officio position is
actually and, in legal contemplation, part of the principal office. But the official
concerned is not entitled to receive additional compensation for his services in the said
position because his services are already paid for and covered by the compensation
attached to his principal office.
S pecific D isqualifications under the Constitution
1. Sec. 13, Art. VIIThe President, VP, Member of the Cabinet, and their deputies
or assistants shall not, unless otherwise provided in the Constitution, hold any
other office or employment during their tenure.
2. Sec. 13, Art. VI No Senator or Member of the HOR may hold any other office
or employment in the government, or any subdivision, agency or instrumentality
thereof, including GOCCs or their subsidiaries, during his term without forfeiting
his seat. Neither, shall he be appointed to any office which may have been
created or the emoluments thereof increased during the term for which he was
elected.
Incompatible Office Forbidden Office
- No Senator or Member of the HOR
may hold any other office or
employment in the government, or any
subdivision, agency or instrumentality
thereof, including GOCCs or their
subsidiaries, during his term without
forfeiting his seat.
- The purpose is to prevent him from
owing loyalty to another branch of the
government, to the detriment of the
independence of the legislature and the
doctrine of separation of powers.
-what is prohibited is the simultaneous
holding of that office and the seat in
- Neither, shall he be appointed to any
office that has been created or the
emoluments thereof have been
increased during the term for which he
was elected.
-the purpose is to prevent trafficking in
public office.
-what is prohibited is the appointment
to the office during the term for which
7. Sec. 1 (2), Art. IX-B; Sec. 1 (2), Art. IX-C; Sec. 1 (2), Art. IX-D; Sec. 11, Art.
1. Those sentenced by final judgment for an offense involving moral turpitude or for
an offense punishable by one year or more of imprisonment, within two (2) years
after serving sentence;
2. Those removed from office as a result of an administrative case;
3. Those convicted by final judgment for violating the oath of allegiance to the
Republic;
4. Those with dual citizenship;
5. Fugitive from justice in criminal or non-political cases here or abroad;
6. Permanent residents in a foreign country or those who have acquired the right to
reside abroad and continue to avail of the same right after the effectivity of this
Code;
7. The insane or feeble-minded.
Caasi vs. COMELEC, 191 SCRA 229, to be qualified to run for elective office, the law
requires that the candidate who is a green card holder must have waived his status as a
permanent resident or immigrant of a foreign country. The waiver should be manifested
by some act or acts independent of and done prior to filing his certificate of candidacy
for elective office. The reason is that residence in the municipality where he intends to
run for elective office which is at least one (1) year at the time of the filing of his
certificate of candidacy, is one of the qualifications that a candidate must possess. The
mere filing of his COC for elective office in the country is not sufficient. The election of a
candidate who is a green card holder or who has not validly waived his status as a
green card holder is null and void.
Rodriguez vs. COMELEC, 259 SCRA 296, the term fugitive from justice includes not
only those who flee after conviction to avoid punishment but likewise those who, after
being charged in the Philippines or abroad, flee to avoid prosecution. Intent to evade on
the part of a candidate must be established by proof that there has already been a
conviction or at least, a charge has already been filed, at the time of flight. He is not a
fugitive from justice when, at the time of departure from abroad to the Philippines, there
is yet no complaint filed against him abroad. In this case, it was established that the
case was filed against Rodriguez five (5) months after he had returned to the
Philippines. What is controlling is the intent to evade the California court.
DE FACTO OFFICERS
One who has reputation of being an officer that he assumes to be, and yet is not
an officer in point of law.
Requisites:
c. To owe the State and the Constitution allegiance at all times (Section 18,
Article XI).
B. Specific Cases:
a. The Solicitor Generals duty to represent the government, its offices and
instrumentalities and its officials and agentsexcept in criminal cases or
civil cases for damages arising from felonyis mandatory. Although he
has discretion in choosing whether or not to prosecute a case or even
withdraw therefrom, such discretion must be exercised within the
parameters set by law and with the best interest of the State as the
ultimate goal. (Gonzales vs. Chavez, 205 SCRA 817)
b. The government is not stopped from questioning the acts of its officials,
more so if they are erroneous or irregular (Sharp Intl Mktg. vs. CA, 154
SCRA 88).
Prohibitions:
1. Engaging in partisan political party except to vote
2. Additional or double compensation
3. Prohibition against loans
4. Laborersshall not be assigned to perform clerical duties
5. Detail or reassignment
6. Nepotism
Rights of public officers:
1. Right to office
2. Right to salary
3. Right to preference in promotion
4. Right to vacation and sick leave
5. Right to maternity leave
6. Right to retirement pay
7. Othersright to reimbursement for expenses incurred in the due performance of
his duty; right to be indemnified; right to longevity pay.
COMMENCEMENT OF OFFICIAL RELATIONS
A. By Appointment
B. By Election
APPOINTMENT
The selection, by authority vested with power, of individual who is to perform
functions of a given office. (Binamira vs. Garrucho, G.R. No. July 30, 1990)
It is an unequivocal act of designating or selecting by one having the authority
therefor of an individual to discharge and perform the duties and functions of an office or
trust. The appointment is deemed complete once the last act required of the appointing
authority has been complied with and its acceptance thereafter by the appointee in
order to render it effective. Appointment necessarily calls for an exercise of discretion
on the part of the appointing authority.
Bermudez vs. Torres, 311 SCRA 733, the right of choice is the heart of the
power to appoint. In the exercise of power to appoint, discretion is an integral thereof.
Commissionis the written evidence of appointment.
Designationis the imposition of additional duties, usually by law, on a person
already in public office.
It presupposes that the person has already been appointed and merely given
additional function/tasks.
definite tenure and is dependent upon the pleasure of the appointing power;
4. Provisionalone which may be issued upon:
The next-in-rank rule neither grants a vested right to the holder nor imposes a
ministerial duty on the appointing authority.
The next-in-rank rule applies only if the vacancy is filled by promotion
Transfera lateral movement in the same position
Promotionis a vertical movement of position
No. he has been elected for 3 consecutive times for the same position. Section
40 (b) of the LGC provides for his disqualificationremoved as a result of administrative
case. However, if he appealed, he is still qualified because there is no finality of
judgment yet.
---------------------1992
1995 X was elected as Mayor
1998
On December 1, 2000, he was removed for grave misconduct. He was able to
appeal seasonably. In May 2001, he filed his certificate of candidacy for mayor. His
opponent filed a disqualification case. The COMELEC did not act immediately on the
DQ case. He won as mayor.
Held:
1. The DQ filed in COMELEC should be dismissed as there was no finality yet of
the administrative case.
2. The administrative case should also be dismissed. His re-election should be
2004
2007 he was elected as Mayor
2004Ong ran again. Alegre questioned. Ong alleged that his proclamation as
mayorelect
in the May 1998 election was contested and eventually nullified by the RTC of
Daet.
Issue: Whether or not Ongs assumption of office as Mayor from July 1, 1998 to June
30, 2001 may be considered as one full term service in the context of the consecutive 3term limit rule?
Held: The assumption of office from July 1, 1998 to June 30, 2001 constitutes service
for the full term and should be counted as a full term served in contemplation of the 3term limit prescribed by the Constitution and LGC, barring local elective officials from
being elected and serving more than 3-consecutive term for the same position. x x x His
proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected
mayor in the 1998 mayoralty election coupled by his assumption of office and his
continuous exercise of the functions thereof from start to finish of the term, should
legally be taken as service for a full term in contemplation of the 3-term rule.
There was no interruption or break in the continuity of Ongs service respecting
the 1998-2001 term. Ong was never unseated during the term in question; he never
ceased discharging his duties and responsibilities as Mayor of San Vicente, Camarines
Norte for the entire period covering the 1998-2001 term.
In the case of Lonzanida vs. COMELEC, 311 SCRA 602 (1999), Lonzanida was
elected and served for 2 consecutive terms as mayor of San Antonio, Zambales prior to
the May 8, 1995 elections. He then ran again for the same position in the May 1995
elections, won and discharged his duties as Mayor. However, an election protest was
filed before RTC of Zambales. In a decision dated July 9, 1997, it was held that there
was a failure of elections and the position for mayor as vacant. Lonzanida assumed the
office and performed his duties up to March 1998 only. During the 1998 elections,
Lonzanida ran again for mayor. A petition to disqualify under the three-term limit rule
was filed and was eventually granted. The Court held that Lonzanida cannot be
considered as having been duly elected to the post in the May 1995 election, and that
he did not fully serve the 1995-1998 mayoralty term by reason of involuntary
relinquishment of office. He cannot be deemed to have served the May 1995 to 1998
term because he was ordered to vacate (and in fact vacated) his post before the
expiration of the term. There was an involuntary severance from office as a result of
legal processes. In fine, there was an effective interruption of the continuity of service.
VACANCIES AND SUCCESSION
Concept of Vacancy:
Two (2) Principles to consider:
1. One who illegally terminated, by legal fiction, is deemed not to have vacated his
position
2. One, no matter how qualified, may not filled a position which is not vacant
Rule on Automatic Succession (Section 44, LGC)
A permanent vacancy arises when an elective local official:
1. Fills a higher vacant office;
2. Refuses to assume office;
3. Fails to qualify;
4. Dies;
5. Is removed from office;
6. Voluntarily resigns;
7. Or is otherwise permanently incapacitated to discharge the functions of his office.
Ranking in the Sanggunian shall be determined on the basis of the proportion of votes
obtained by each winning candidate to the total number of registered voters in each
district in the immediately preceding local election.
Governor Mayor Punong Barangay
Vice Governor Vice Mayor
Highest ranking sanggunian member/2nd highest ranking sanggunian member
(in case of permanent inability of the highest ranking member)
In Case of tie between or among the highest ranking sanggunian membersit shall
be resolved by the drawing of lots.
The successors shall serve only the unexpired terms of their predecessors.
Section 44, LGCFilling the vacancy
Last-in-rankthe one who will replace him must come from the same political party of
the one who caused the vacancy, upon nomination of the party.
Who shall appoint?
1. Presidentthrough the Executive Secretaryin case of permanent vacancies in
the Sangguniang Panlalawigan and the Sangguniang Panlungsod of HUC and
independent component cities;
2. Governorin case of the Sangguniang Panglungsod of component cities and
the Sangguniang Bayan;
3. City or municipal mayorin case of Sanggguniang Barangayupon
recommendation of the Sangguniang Barangay concerned.
a. Appointing authority;
b. Recommending authority;
c. Chief of the bureau of office; and
d. Person exercising immediate supervision.
In the last situations (c and d), it is immaterial who the appointing or
recommending authority is. To constitute a violation of the law, it suffices that an
appointment is extended or issued in favor of a relative within the 3rd civil degree of
consanguinity or affinity of the chief of the bureau or office, or the person exercising
immediate supervision over the appointee. (CSC vs. Dacoycoy, G.R. No. 135805,
April 29, 1999)
Exemptions:
1. Persons employed in confidential capacity;
2. Teachers;
3. Physicians;
4. Members of the AFP;
5. Member of any family who, after his appointment to any position in an office or
bureau, contracts marriage with someone in the same office or bureau, in which
event the employment or retention therein of both husband and wife may be
allowed.
In Section 79 of the Local Government Code, the prohibition is up to the 4th civil
degree of consanguinity or affinity.
Laurel V vs. CSC, Governor Laurel appointed his brother as Civilian Security
Officer, hence it is exempted, no violation as it is primarily confidential in character.
However, the governor subsequently designated the same brother as Acting Provincial
Administrator. The SC ruled that appointment and designation are two different matters.
But for purposes of the law on nepotism, the two are now the same. Hence, there is
now a violation of the law on nepotism.
Debulgado vs. CSC, it was alleged that the law applies only to original appointment
and not to promotional appointment. The SC did not agree. The law applies to all kinds
of appointment. The law does not distinguish.
TERMINATION OF OFFICIAL RELATIONSHIP:
1. Expiration of term or tenure
2. Reaching the age limitcompulsory retirement age: 70 years of age for members of the
Judiciary; 65 for other government officers and employees
3. Resignation
4. Recall
5. Removal
6. Abandonment
7. Acceptance of an incompatible office
8. Abolition of office
9. Prescription of the right to office
10.Impeachment
11.Death
12.Failure to assume elective office within 6 months from proclamation
13.Conviction of a crime
14.Filing a certificate of candidacy
Termthe period of time during which a public officer has the right to hold the public
office
Tenurethe period of time during which the public officer actually held office
Hold-over principle[See the case of Lecaroz vs. SB (1999)]in the absence of any
express or implied constitutional or statutory provision to the contrary, the public officer
is entitled to hold his office until his successor shall have been duly chosen and shall
have qualified. The purpose is to prevent a hiatus in public office.
It implies that the office has a fixed term and the incumbent is holding onto the
succeeding term. Where this provision is found, the office does not become vacant
upon the expiration of the term if there is no successor elected and qualified to assume
it, but the present incumbent will carry over until his successor is elected and qualified,
even though it be beyond the term fixed by law.
Indeed, the law abhors a vacuum in public offices, and courts generally indulge in
the strong presumption against a legislative intent to create, by statute, a condition
which may result in an executive or administrative office becoming, for any period of
time, wholly vacant or unoccupied by one lawfully authorized to exercise its functions.
This is founded on obvious considerations of public policy, for the principle of holdover
is specifically intended to prevent public convenience from suffering of a vacancy and to
avoid a hiatus in the performance of government functions. (Lecaroz vs.
Sandiganbayan, 305 SCRA 397, March 25, 1999)
RECALLthe termination of official relationship of an elective official for loss of
confidence prior to expiration of his term through the will of the electorate.
It is exercised by the registered voters of a local government unit to which the
local elective official subject to such recall belongs (Section 69, LGC)
Prohibition from resignation:
The elective local official sought to be recalled shall not be allowed to resign while the
recall process is in progress.
Limitations on Recall (Section 74, LGC)
1. Any elective local official may be the subject of a recall election only once during
his term of office for loss of confidence.
2. No recall shall take place within one year from the date of the officials
assumption to office or one year immediately preceding a regular local election.
Paras vs. COMELEC, G.R. No. 123169, November 4, 1996, it was held that the
SK Election is not a regular election within the contemplation of the LGC as
would bar the holding of a recall election. Neither will the recall election of the
Mayor be barred by the Barangay Election.
Angobung vs. COMELEC, G.R. No. 126571, March 5, 1997, the regular local
election referred to in Section 74, LGC, means that the approaching local
election must be one where the position of the official to be recalled is actually
contested and to be filled by the electorate.
RESIGNATION is the act of giving up or the act of a public officer by which he
declines his office and renounces the further right to use it. It is an expression of the
incumbent in some form, expressed or implied, of the intention to surrender, renounce,
and relinquish the office and the acceptance by competent and lawful authority.
To constitute a complete and operative resignation from public office, there must
be:
1. An intention to relinquish a part of the term;
2. An act of relinquishment;
created in its place have similar functions, the abolition lacks good faith. The abolition
which merely changes the nomenclature of positions is invalid and does not result in the
removal of the incumbent.
The above notwithstanding, and assuming that the abolition of the position of the
PGH Director and the creation of the UP-PGH Medical center Director are valid, the
removal of the incumbent is still not justified for the reason that the duties and functions
of the two positions are basically the same.
Canonizado vs. Aguirre, G.R. No. 133132, January 25, 2000, the substantial
identity
in the functions between the two offices was indicia of bad faith in the removal of
petitioner pursuant to a re-organization.
REORGANIZATIONtakes place when there is alteration of the existing structure of
government offices or units therein, including the lines of control, authority and
responsibility between them. It involves a reduction of personnel, consolidation of
offices, or abolition thereof by reason of economy or redundancy of functions. Naturally,
it may result in the loss of ones position through removal or abolition of an office.
1. Grave Offenses
2. Less Grave offenses
3. Light Offenses
Preventive Suspension
It is not a penalty itself. It is merely a measure of precaution so that the employee
who is charged may be separated, for obvious reasons, from the scene of his alleged
misfeasance while the same is being investigated. It is not an action by itself but merely
an incident in an action.
It is different from administrative penalty of suspension from office. The latter is
the penalty which may only be meted upon the respondent at the termination of the
investigation or the final disposition of the case. Preventive suspension is imposed on
the respondent during the investigation of charges against him.
Governing Laws:
1. Preventive Suspension in Administrative Cases
a. Civil Service Law
Maximum duration: 90 days
After 90 days: automatic reinstatement
Gov. Plaza vs. CA, G.R. No. 138464, January 18, 2008, the law provides for
preventive suspension of appointive local official and employees pending investigation
of the charges against them. The suspension given to private respondents, cannot,
therefore, be considered unjustified for it is one of those sacrifices which holding a
public office requires for the public good. To be entitled to back salaries, private
respondents must not only be found innocent of the charges, but their suspension must
likewise be unjustified.
b. Local Government Code
i. Sec. 63those holding local elective office
Preventive Suspension placed by:
1. Mayorconcerning the elective barangay officials
2. Governor municipal elective officials
Component city elective official
3. President highly urbanized/independent component city officials
Provincial officials
Article XI
ACCOUNTABILITY OF PUBLIC OFFICERS
Section 1, Article XI
Public office is a public trust. Public officers and employees must at all times
be
accountable to the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency, act with patriotism and justice, and lead modest lives.
Public office is a public trust, and as such, the same is governed by law, and
cannot be made the subject of personal promises or negotiations by private persons.
Security of tenure of employees in the career executive service (except first and second
level employees in the civil service), pertains only to rank and not to the office or to the
position to which they may be appointed. (Collantes vs. CA, G.R. No. 169604, March
6, 2007)
Who are impeachable officers?
(The list is exclusive)
1. President
2. Vice-President
3. Members of the Constitutional Commission
4. Justices of the Supreme Court
5. Ombudsman
Justices of the Sandiganbayan cannot be removed by impeachment.
Impeachment of Presidentthe Chief Justice of the Supreme Court will preside; the
proceed.
4. The Committee, after hearing, and by majority vote of all its members, shall
submit its report to the House together with the corresponding resolution;
5. Placing on calendar the Committee resolution within ten (10) days from
submission;
6. Discussion on the floor of the report;
7. A vote of at least 1/3 of all the members of the House shall be necessary either
to affirm a favorable resolution with the Articles of Impeachment of the
Committee or override its contrary resolution.
Trial and Decision
1. The Senators take an oath or affirmation;
2. When the president is on trial, the Chief Justice of the Supreme Court shall
preside but shall not vote;
3. A decision of conviction must be concurred in by at least 2/3 of all the members
of the Senate.
Effect of Conviction
1. Removal from office;
2. Disqualification to hold any other office under the Republic of the Philippines;
3. Party convicted shall be liable and subject to prosecution, trial and punishment
according to law.
Limitation:
1. Not more than one impeachment case shall be initiated against the same official
in this instance, BP 195, providing for a 15-year prescriptive period and thereby
modifying to the above extent the 10-year prescriptive period under RA 3019.
In Francisco vs. House of Representatives, G.R. No. 160261, November 10,
2003, an impeachment case is the legal controversy that must be decided by the
Senate while an impeachment proceeding is one that is initiated in the House of
Representatives. For purposes of applying the one-year bar rule, the proceeding is
initiated or begins when a verified complaint is filed and referred to the Committee on
Justice for action.
Legislative bodies cannot impose the administrative punishment of removal from
office because the power to remove local elective officials has been exclusively granted
to the proper courts. (Sanggguniang Barangay of Don Mariano Marcos vs.
Martinez, G.R. No. 170626, March 3, 2008)
SANDIGANBAYAN
The anti-graft court shall continue to function and exercise its jurisdiction as now
and hereafter may be provided by law.
Composition:
One (1) Presiding Justice
Fourteen (14) Associate Justices with the rank of Justice of the Court of Appeals
Sits in five (5) Divisions of three (3) members each
Decision and Review
Unanimous vote of all three (3) members shall be required for the
pronouncement of judgment by a division. Decision shall be reviewable by the SC on
petition for certiorari.
Jurisdiction:
O riginal Jurisdiction
B. Violation of RA 3019; RA 1379; and Chapter II, Section 2, Title VII of the
RPC where one or more of the accused are officials occupying the following
positions in the government, whether in a permanent, acting or interim
capacity at the time of the commission of the offense:
5. Officials of the Executive branch with the position of Regional Director or
higher, or with SG Level 27 according to RA 6758, specifically including:
i. Provincial governors, vice-governors, board members, provincial
treasures, assessors, engineers and other provincial departments
head;
ii. City mayors, vice-mayors, city councilors, city treasurers,
THE OMBUDSMAN
The champion of the citizens and protector of the people.
Tasked to entertain complaints addressed to him against erring public officers
and take all necessary actions thereon.
Composition:
An Ombudsman known as the Tanodbayan
One (1) Overall Deputy;
At least one (1) Deputy e3ach for Luzon, Visayas and Mindanao;
One (1) separate Deputy for the military establishment may likewise be
appointed
Qualifications:
1. Natural-born citizen;
2. At least 40 years of age;
3. Of recognized probity and independence;
4. Member of the Philippine Bar; and
5. Must not have been candidates for any elective office in the immediately
preceding election.
Term: Seven (7) years without reappointment
Disqualifications and Inhibitions
A. During their tenure:
1. Shall not hold any other office or employment;
2. Engage in the practice of any profession or in the active management and
control of any business which in any way may be affected by the functions of
his office;
3. Shall not be financially interested, directly or indirectly, in other contract with,
or in any franchise or privilege granted by the government, any of its
subdivision, agencies or instrumentalities, including GOCCs or their
subsidiaries.
4. Shall not be qualified to run for any office in the election immediately
succeeding their cessation from office.
The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual
appropriations shall be automatically and regularly released. (Section 14, Article XI)
Buenesada vs. Flavier, G.R. No. 106719, September 21, 1993, the power to
investigate also includes the power to impose preventive suspension. This is different
from the power to recommend suspension. The latter is suspension as a penalty;
preventive suspension is not a penalty.
Powers, Functions and Duties:
1. The Constitution and RA 6770 (Ombudsman Act of 1989) has endowed the
Office of the Ombudsman with a wide latitude of investigatory and prosecutor
powers virtually free from legislative, executive or judicial intervention. The
Supreme Court consistently refrains from interfering with the exercise of its
powers, and respects the initiative and independence inherent in the
Ombudsman who, beholden to no one, acts as the champion of the people and
the preserver of the integrity of public service. (Loquias vs. Office of the
Ombudsman, G.R. No. 139396, August 15, 2000)
and prosecute all criminal cases involving public officers and employees, not only
those within the jurisdiction of the Sandiganbayan but those within the jurisdiction
of the regular courts as well. (Uy vs. Sandiganbayan, G.R. No. 105965-70,
March 20, 2001)
Office of the Ombudsman vs. CSC, G.R. No. 162215, July 30, 2007, since the
responsibility for the establishment, administration and maintenance of qualification
standards lies with the concerned department or agency, the role of the CSC is limited
to assisting the department or agency with respect to these qualification standards and
approving them. The CSC cannot substitute its own standards for those of the
department or agency, specially in a case like this in which an independent
constitutional body is involved.
Perez vs. Sandiganbayan, G. R. No. 166062, September 26, 2006, the incumbent
Tanodbayan (called Special Prosecutor under the 1987 Constitution and who is
supposed to retain powers and duties NOT GIVEN to the Ombudsman) is clearly
without authority to conduct preliminary investigations and to direct the filing of criminal
cases with the Sandiganbayan, except upon orders of the Ombudsman.
Suspension under the Ombudsman Act vis--vis the Local Government Code:
o In order to justify the preventive suspension of a public official under Section 24
of RA 6770, the evidence of guilt should be strong, and:
The charge against the officer or employee should involve dishonesty,
oppression or grave misconduct or neglect in the performance of duty;
The charges should warrant removal from the service; or
The respondents continued stay in the office would prejudice the case
filed against him.
o The Ombudsman can impose the 6-month preventive suspension to all public
officials, whether elective or appointive, who are under investigation.
o On the other hand, in imposing the shorter period of sixty (60) days of preventive
suspension prescribed under the LGC of 1991 on an elective local official (at any
time after the issues are joined), it would be enough that:
d. There is a reasonable ground to believe that the respondent has
committed the act or acts complained of;
e. The evidence of culpability is strong;
f. The gravity of the offense so warrants; or
g. The continuance in the office of the respondent could influence the
witnesses or pose a threat to the safety and integrity of the records and
ruled in Estarija case that under RA 6770 and the 1987 Constitution, the Ombudsman
has the constitutional power to directly remove from the government service an erring
public official, other than a member of Congress and the Judiciary.
Article XII
NATIONAL ECONOMY AND PATRIMONY
some commercial enterprise with all of them generally contributing assets and sharing
risks. Considering more of a partnership, a joint venture is governed by the laws on
contracts and on partnership. The joint venture created between National Investment
and Development Corporation (NIDC) and Kawasaki falls within the purview of an
association pursuant to Section 5 of Article XIV of the 1973 Constitution and Section
11 of Article XII of the 1987 Constitution. Consequently, a joint venture that would
engage in the business of operating a public utility, such as shipyard, must observe the
proportion of 60%-40% Filipino-Foreign capitalization. (JG Summit Holdings, Inc. vs.
CA, 345 SCRA 143)
Temporary Take Over of Business Affected with Public Interest
The State may temporarily take over or direct the operation of any privately
owned public utility or business affected with public interest:
1. In times of national emergency;
2. When the public interest so requires; and
3. During the emergency and under reasonable terms prescribed by it.
The temporary take over by the government extends only to the operation of the
business and not to the ownership thereof. As such, the government is not required to
compensate the private entity-owner of the said business as there is no transfer of
ownership, whether permanent or temporary. The private entity-owner affected by the
temporary take over cannot, likewise, claim for just compensation for the use of the said
business and its properties as the temporary takeover by the government is in exercise
of its police power and not of its power of eminent domain. (Agan vs. PIATCO, G.R.
No. 155001, May 5, 2003)
4. Section 6, Article XIIIthe State shall apply the principles of agrarian reform
conquest or colonization, who have been displaced from their traditional territories or
who may have resettled outside their ancestral domains.
It recognizes the existence of the indigenous cultural communities or indigenous
peoples (ICCs/IPs) as a distinct sector in Philippine society. It grants these people the
ownership and possession of their ancestral domains and ancestral lands, and defines
the extent of these lands and domains. The ownership given is the indigenous concept
of ownership under customary law which traces its origin to native title.
Within their ancestral domains and ancestral lands, the ICCs/IPs are given the
right to self-governance and empowerment, social justice and human rights; the right to
preserve and protect their culture, traditions, institutions and community intellectual
rights, and the right to develop their own sciences and technologies.
The concept of native title in the IPRA was taken from the 1909 case of Cario
vs. Insular Government, 41 Phil 935. Cario firmly established a concept of private
land title that existed irrespective of any royal grant from the State.
The concept of native title to natural resources, unlike native title to land, has
not been recognized in the Philippines. In the case of Reavies vs. Fianza, 40 Phil
1017, the Court merely upheld the right of the indigenous peoples to claim ownership of
minerals under the Philippine Bill of 1902.
Ownership by virtue of native titlepresupposes that the land has been held by its
possessor and his predecessor-in-interest in the concept of an owner since time
immemorial. The land is not acquired from the State, that is, Spain or its successorininterest,
the US and the Philippines Government. There has been no transfer of title
from the State as the lands has been regarded as private in character as far back as
memory goes.
Ownership of the land by acquisitive prescriptionagainst the State involves a
conversion of the character of the property from alienable public land to private land,
which presupposes a transfer of title from the State to a private person.
Jus Regaliaprivate title to the land must be traced to some grant, express or implied,
from the Spanish Crown or its successors, the American Colonial government and
thereafter, the Philippine Republic. The belief that the Spanish Crown is the origin of all
land titles in the Philippines has persisted because title to land must emanate from
some source for it cannot issue forth from nowhere.
It refers to royal grants, or those rights which the King has by virtue of his prerogatives.
[Isagani Cruz vs. Secretary of DENR, et al., G.R. No. 135385, December 6,
2000,
En banc, (Puno and Kapunan, Separate Opinions)]
Lands
Public domain Private Lands
1. Forest/timber (A certificate of title had been
2. Mineral lands issued to a Filipino individual)
3. National parks
4. a gricultural
Same rules as alienable
The only land (Public Domain) lands as to who may acquire
which may be alienated (Only Filipinos)
Article XIII
SOCIAL JUSTICE AND HUMAN RIGHTS
1. Social Justice
2. Labor
3. Agrarian and Natural Resources Reform
4. Urban Land Reform and Housing
5. Health
6. Women
7. Role and Rights of Peoples Organization
8. Human Rights
Section 1
The Congress shall give highest priority to the enactment of measures that
protect and enhance the right of all the people to human dignity, reduce
social,
economic, and political inequities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and
disposition of property and its increments.
Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R
review materials, www.pinoylaw.net, etc.)
Ma. Luisa Angeles Ramos
Section 2
The promotion of social justice shall include the commitment to create
economic
opportunities based on freedom of initiative and self-reliance.
Labor
Section 3
The State shall afford full protection to labor, local and overseas, organized
and
unorganized, and promote full employment and equality of employment
opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective
bargaining and negotiations, and peaceful concerted activities, including the
right to strike in accordance with law. They shall be entitled to security of
tenure,
humane conditions of work, and a living wage. They shall also participate in
policy and decision-making processes affecting their rights and benefits as
may
be provided by law.
The State shall promote the principle of shared responsibility between workers
and employers and the preferential use of voluntary modes in settling
disputes,
including conciliation, and shall enforce their mutual compliance therewith to
foster industrial peace.
The State shall regulate the relations between workers and employers,
recognizing the right of labor to its just share in the fruits of production and
the
right of enterprises to reasonable returns on investments, and to expansion
and
growth.
Article XIV
EDUCATION, SCIENCE AND TECHNOLOGY, ARTS,
CULTURE, AND SPORTS
Section 4 (1), Article XIV of the Constitution recognizes the States power to regulate
educational institutions:
The State recognizes the complementary roles of public and
private institutions in the educational system and shall exercise
reasonable supervision and regulation of all educational institutions.
As may be gleaned from the above provision, such power to regulate is subject
to the requirements of reasonableness. Moreover, the Constitution allows merely the
regulation and supervision of educational institutions, not the deprivation of their rights.
(Miriam College Foundation, Inc. vs. CA, 348 SCRA 265)
Section 5 (2), Article XIV provides that: Academic freedom shall be enjoyed in all
institutions of higher learning.
Academic Freedom
The right of the school or college to decide for itself, its aims and objectives, and
how best to attain themfree from outside coercion or interference save possibly when
the overriding public welfare calls for some restraint. It has a wide sphere of autonomy
certainly extending to the choice of students. Said constitutional provision is not to be
construed in a niggardly manner or in a grudging fashion. That would be to frustrate its
purpose and nullify its intent.
The essential freedoms subsumed in the term academic freedom encompass
Article XV
THE FAMILY
Familyis the basic social institution. The State recognizes the Filipino family as the
foundation of the nation.
Care for the elderly
The duty to care for the elderly is given to both the family and the State. An
effective social security system is an indispensable component of any effective caring
for the elderly.
Article XVI
GENERAL PROVISIONS
Flag
The design of our flag may be changed only by constitutional amendment.
There can be no legal right against the authority which makes the law on which
the right depends (Republic vs. Villasor, 54 SCRA 83). However, it may be sued if it
gives consent, whether express or implied.
Does this doctrine apply as well to foreign government? YES, because of the
sovereign equality of all the state. Immunity is enjoyed by other States, consonant with
the public international law principle of PAR IN PAREM NON HABET IMPERIUM. The
head of State, who is deemed the personification of the State, is inviolable, and thus,
enjoys immunity from suit.
USA vs. Guinto, 182 SCRA 644 Fabian Genove filed a complaint for damages
against petitioners Lamachia, Belsa, Cartalla and Orascion for his dismissal as cook in
the US Air Force Recreation Center at Camp John Hay Air Station in Baguio City. It had
been ascertained after investigation, from the testimony of Belsa, Cartalla and Orascion
that Genove had poured urine into the soup stock used in cooking the vegetables
served to the club customers. Lamachia, as club manager, suspended him and
thereafter referred the case to a board of arbitrators conformably to the collective
bargaining agreement between the center and its employees. The board unanimously
found him guilty and recommended his dismissal. Genoves reaction was to file his
complaint against the individual petitioners.
SC: The rule that a State may not be sued without its consent is one of the generally
accepted principles of international law that we have adopted as part of our law. Even
without such affirmation, we would still be bound by the generally accepted principles of
international law under the doctrine of incorporation. Under this doctrine, as accepted by
the majority of states, such principles are deemed incorporated in the law of every
civilized state as a condition and consequence of its membership in the society of
nations. All states are sovereign equals and cannot assert jurisdiction over one another.
When the government enters into a contract, it is deemed to have descended to
the level of the other contracting party and divested of its sovereign immunity is
expressed with more specificity in the RP-US Bases Treaty. There is no question that
the US, like any other state, will be deemed to have impliedly waived its non-suability if
it has entered into a contract in its proprietary or private capacity. It is only when the
contract involves its sovereign or governmental capacity that no such waiver may be
implied.
Q: How may consent be given?
General Law
e.g. Act No. 3083 where the Philippine government consents and submits to be
sued upon any money claim involving liability arising from contract, express or implied,
which could serve as a basis of a civil action between the private parties.
(correlate Act 3083 with CA 327 as amended by PD 1445)
Commonwealth Act 327 (General Auditing Law, as amended by PD 1445,
requires that all money claims against the government must first be filed with the COA
which must act upon it within 60 days. Rejection of the claim will authorize the claimant
to elevate the matter to SC on certiorari and, in effect, sue the State thereby.
Department of Agriculture vs. NLRC, 227 SCRA 693, DA may be sued for
money claims based on a contract entered into in its governmental capacity, because of
the express consent contained in Act 3083 provided that the claim be first brought to the
COA in accordance with CA 327, as amended.
Ministerio vs. City of Cebu, 40 SCRA 464, Suit may lie because the doctrine of
State immunity cannot be used to perpetrate an injustice.
Delos Santos vs. IAC, 223 SCRA 11, public respondents belief that the
property is public, even if buttressed by statements of other public officials, is no reason
for the unjust taking of the petitioners property; after all, the TCT was in the name of the
petitioner.
USA vs. Ruiz, 136 SCRA 487, where the questioned transaction dealt with the
improvements on the wharves in the naval installation at Subic Bay, SC held that the
traditional rule of immunity exempts a state from being sued in the courts of another
state without its consent or waiver. This rule is a necessary consequence of the
principle of independence and equality of states. However, the rules of International
Law are not petrified; they are constantly developing and evolving.
Acta Jure Imperii Acta Jure Gestionis
-There is no waiver. The State is acting in
its sovereign governmental capacity.
-There is waiver of State immunity from
suit. The State entered into a contract in its
commercial or proprietary capacity. The
State descended to the level of a private
entity.
RESTRICTIVE DOCTRINE OF STATE IMMUNITY FROM SUITnot all contracts
entered into by the government constitute a waiver.
The restrictive application of State immunity is proper only when the proceedings
arise out of commercial transactions of the foreign sovereign, its commercial activities or
economic affairs. Stated differently, a state may be said to have descended to the level
of an individual and can thus be deemed to have tacitly given its consent to be sued
only when it enters into business contracts. It does not apply where the contracts relate
to the exercise of its sovereign functions. In this case, the projects are integral parts of
the naval base which is devoted to the defense of both US and Philippines, indisputably
a function of the government of the highest order; they are not utilized for nor dedicated
to commercial or business purposes.
The contract for the repair of wharves was a contract in JUS IMPERII because
the wharves were to be used in national defense, a governmental function. There is no
waiver. Only the American government can waived. Act 3083 is not applicable. The
remedy is to convince the Department of Foreign Affairs to take up the claim to the US
government (state to state).
USA vs. Guinto, 182 SCRA 644, a contract for restaurant services within the Camp
John Hay Air Station was held commercial in character. The case should not be
dismissed. The cafeteria caters not only Americans but also the general public. There is
waiver of State Immunity from suit. This is a case of Acta Jure Gestionis.
Republic vs. Sandiganbayan, 204 SCRA 212, Even if, in exercising the power of
eminent domain, the State exercises a power jus imperii, as distinguished from its
proprietary right of jus gestionis, where property has been taken without just
compensation being paid, the defense of immunity from suit cannot be set up in an
action for payment by the owner.
Special Law
This form of consent must be embodied in a statute and cannot be given by a
mere counsel.
e.g. Articles 2180 and 2189 of the Civil Code
Article 2180 of the Civil Code(paragraph 6) The State is responsible in like
manner when it acts through a special agent; but not when the damage has been
caused by the official to whom the task done properly pertains, in which case what is
provided in Article 2176 shall be applicable.
Article 2189: Provinces, cities and municipalities shall be liable for damages for
the death of, or injuries suffered by, any person by reason of the defective condition of
roads, streets, bridges, public buildings, and other public works under their control and
supervision.
Teotico vs. City of Manila, a man fell in a manhole. Sec. 24, Local
Government Code:
Local government units and their officials are not exempt from liability for death or
injury to persons or damage to property.
299
2008 Political Law and Public International Law
Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R
review materials, www.pinoylaw.net, etc.)
Ma. Luisa Angeles Ramos
The rule does not apply where the public official is charged in his official
capacity for acts that are unlawful and injurious to the rights of others. Public officials
are not exempt, in their personal capacity, from liability arising from acts committed in
bad faith.
Neither does it apply where the public official is clearly being sued not in his
official capacity but in his personal capacity, although the acts complained of may have
been committed while he occupied a public position. (Llansang vs. CA, Feb. 23, 2000)
In this case, petitioner was sued for allegedly personal motives in ordering the
ejectment of the general Assembly of the Blinds, Inc. (GABI) from the Rizal Park; thus,
the case was not deemed a suit against the state.
Larkins vs. NLRC, 241 SCRA 598, private respondents were dismissed from
their employment by Lt. Col. Frankhauser acting for and in behalf of the US government
which, by right of sovereign power, operated and maintained the dormitories at the
Clark Airbase for USAF Members.
Instances when a suit against a State is proper:
1. When the Republic is sued by name
2. When the suit is against an unincorporated government agency--inquire into the
principal functions of the agency
a. if governmental, NO SUIT WITHOUT CONSENT
b. if proprietary, SUIT WILL LIE.
3. When the suit is on its face against a government officer but the case is such that
ultimate liability will belong not to the officer but to the government.
Republic vs. Sandoval, 220 SCRA 124, this is not a suit against the state with its
consent. Even as the SC dismissed the suit against the RP, the action for the damages
against the military personnel and the policemen responsible for the 1989 Mendiola
Massacre was upheld inasmuch as the initial findings of the Davide Commission
showed that there was, at least, negligence on their part when they fired their guns.
They exceeded their authority. The military personnel and the policemen were held to
be liable in their individual capacity.
*hauling lumber for the repair of the public marketbusiness enterprise of the
government (local government)
*celebration of town fiestaTorio vs. Fontanillanot a governmental function but a
proprietary function
The doctrine of State immunity from suit extends only up to rendition of the judgment.
When it comes to execution to satisfy the judgment, it will require another waiver. The
remedy is to make the necessary representation with the lawmaking authority.
*duty to appropriatediscretionary and therefore cannot be compelled by mandamus.
However, in Mun. of Makati vs. CA, 190 SCRA 206, where the municipality fails or
refuses, without justifiable reasons, to effect payment of a final money judgment
rendered against it, the claimant may avail of the remedy of mandamus in order to
compel the enactment and approval of the necessary appropriation ordinance and the
corresponding disbursement of municipal funds therefor.
Amigable vs. Cuenca, 43 SCRA 360, an action for the recovery of the value of the
property taken by the government and converted into a public street without payment of
just compensation was allowed despite the failure of the property owner to file his claim
with the Auditor General. The government should have followed first its own rule (it
should have filed an expropriation case) before it entered the property. Had it done so,
the suit can be waived. The state opened itself to a possible suit against it.
SCOPE OF CONSENT
Consent to be sued does not include consent to the execution of judgment
against it.
a. Such execution will require another waiver, because the power of the court
ends when the judgment is rendered.
b. But funds belonging to government corporations (whose charters provide that
they can sue and be sued) that are deposited with a bank are not exempt
from garnishment.
Exceptions: Municipality of San Miguel, Bulacan vs. Fernandez, 130
SCRA 56, funds of a municipality are public in character and may not be
garnished UNLESS there is a corresponding appropriation ordinance duly
passed by the Sangguniang Bayan.
PNB vs. Pabalan, 83 SCRA 595, funds belonging to
government corporations which can sue and be sued that are deposited with
a bank.
Unincorporated Agency Incorporated Agency
-it has no legal personality separate and
distinct from the government. When sued,
it is deemed a suit against the State, there
is no waiver of State immunity.
-it does not have its own charter like
Bureau of Customs, BIR, DA, NBI
-performs governmental functions: not
-It has a personality separate and distinct
from the government
-it has its own charter such as SSS, GSIS,
Land Bank, DBP
-if its charter provides that it has the right
ARTICLE XVII
AMENDMENTS OR REVISIONS
Amendment vs. Revision
Amendment Revision
-piecemeal or isolated change in the
Constitution. It is the generic term used to
denote change in the Constitution.
- revamp or rewriting of the entire
Constitution. It means overhauling of the
government.
**Lambino vs. COMELEC -changing the form of government from presidential to
parliamentary involves a revision and not amendment.
2 Stages of Amendment:
1. P roposal (Secs. 1-3, Art. XVII)-the adoption of the suggested change in the
Constitution. A proposed amendment may come from(3 ways of proposing
amendments to, or revision of, the Constitution under Article XVII) :
(a) Congress
i. (Sec. 1, Art. XVII) Acting as Constitutional Assembly and not as a
legislative body. -One of the non-legislative powers;
ii. By a vote of 3/4 of all its members. (3/4 of the Senate, 3/4 of the House
of Representatives
(b) Constitutional Convention- which may be called into existence either:
i. By directly calling a Constitutional Convention by a 2/3 vote of all the
Members of Congress, or;
ii. By submitting the issue to the people in a plebiscite [if the two-thirds
(2/3) vote is not obtained] by a majority vote of all the members of Congress
with the question of whether or not to call a Convention to be resolved by the
people in a plebiscite. (Sec.3, Art. XVII)
superior- people; Theory of Conventional Sovereignty
inferior- it is a mere creation of Congress;
Article XVIII
TRANSITORY PROVISIONS
votes cast by the pe0ple in a national referendum held for the purpose; and
3. Said treaty should be recognized as a treaty also by the other contracting
State. (Section 25, Article XVIII)
ADMINISTRATIVE LAW
E.O. 292
That branch of public law which fixes the organization, determines the
competence of administrative authorities who executes the law, and indicates to the
individual remedies for the violation of his right.
Kinds:
1. Statutes setting up administrative authorities.
other charges, etc. (Camporedondo vs. NLRC, G.R. No. 129049, August 6, 1999)
PSDSA vs. Sec. De Jesus, G.R. No. 157286, June 16, 2006, it must be
stressed that the power of administrative officials to promulgate rules in implementation
of a statute is necessarily limited to what is provided for in the legislative enactment.
The implementing rules and regulations of a law cannot extend the law or expand its
coverage, as the power to amend or repeal a statute is vested in the legislature. It bears
stressing, however, that the administrative bodies are allowed under their power of
subordinate legislation to implement the broad policies laid down in a statute by filling
in the details. All that is required is that the regulation be germane to the objectives and
purposes of the law; that the regulation does not contradict but conforms with the
standards prescribed by law.
Under the law, it is the DOTC which is authorized to administer and enforced all
laws, rules and regulations in the field of transportation and to regulate related activities.
Since the DPWH has no authority to regulate activities related to transportation, the
Tollways Regulatory Board cannot derive its power from the DPWH to issue regulations
governing limited access facilities. (Ames Mirasol vs. DPWH, G.R. No. 158793,
2006)
Necessity of Notice and Hearing
There is no constitutional requirement for a hearing in the promulgation of a
general regulation by an administrative body.
In Corona vs. United Harbor Pilots Association of the Philippines, G.R. No.
111953, December 12, 1997, the SC reiterated the rule that prior hearing is not
necessary for the issuance of an ARR.
Doctrine of Legislative Approval by Re-Enactmentthe rules and regulations
promulgated by the proper administrative agency implementing the law are deemed
confirmed and approved by the Legislature when said law was re-enacted by later
legislation or through codification. The Legislature is presumed to have full knowledge
of the contents of the regulations then at the time of re-enactment.
Determinative Powers
1. Enablingto permit or allow something which the law undertakes to regulate
2. Directingillustrated by the power of assessment of the BIR or Bureau of
Customs
3. Dispensingto exempt from a general prohibition, or relieve an individual or
corporation from an affirmative duty
4. Examininginvestigatory powerconsists in requiring production of books,
papers, etc.
5. Summarypower to apply compulsion or force against persons or property to
effectuate a legal purpose without a judicial warrant to authorize such action
Quasi-Judicial or Adjudicatory Power
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administrative due process, as enumerated in Ang Tibay vs. CIR, 40 O.G. 7th
Supp. 128 are:
7 Cardinal/Primary Rights in ADP:
a. There must be a hearing;
b. The tribunal must consider the evidence presented;
c. Decision must have something to support itself;
d. The evidence must be substantialquantum of evidence;
e. The decision must be based on the evidence adduced at the hearing, or at
least contained in the record and disclosed to the parties;
f. The Board or its judges must act on its or their independent consideration
of the facts and the law of the case, and not simply accept the views of a
subordinate in arriving at a decision; and
g. The decision must be rendered in such a manner that the parties to the
controversy can know the various issues involved and the reason for the
decision rendered.
Montemayor vs. Araneta University Foundation (1977)Montemayor was a
full-time professor. Charged with immoral advances, he was investigated with the
assistance of counsel, and dismissed in accordance with the Manual of policies of the
University. On appeal to the NLRC, he was ordered reinstated. The SC held that his
removal was with due process. There was no violation of due process in the labor
proceeding but it did not preclude Montemayor from suing the University for damages.
In Lumiqued vs. Exevea, G.R. No. 117565, November 18, 1997, the CAR
Regional Director was charged administratively. He was asked several times if he would
like to be assisted by counsel but he refused alleging that he can handle his case as he
was from UP. After he was found guilty, he died. The heirs now claimed that the entire
proceeding was null and void. They alleged that Lumiqued was not properly assisted by
counsel. It is the right of the accused to be assisted by counsel. The SC held that the
right of the accused that was being alleged by the heirs is a right of the accused during
custodial investigation which is part of a criminal proceeding. This is not a criminal
proceeding. Administrative due process does not necessarily require the assistance of
counsel. A party in an administrative proceeding has the option of engaging a counsel
or not. He may or may not be assisted by counsel. In this case, the Regional Director
was even asked if he would like to be assisted by counsel but he refused to. The right to
counsel is not indispensable to due process unless required by the Constitution or the
law.
In Gonzales vs. NLRC and Ateneo de Davao University, G.R. No. 125735,
August 26, 1999, the SC held that there was a violation of administrative due process
where the teacher was dismissed by the university without having been given full
opportunity to confront the witnesses against her.
The essence of due process is simply an opportunity to be heard or, as applied
to administrative proceedings, an opportunity to seek reconsideration of the action or
ruling complained of (Dela Cruz vs. Abille, G.R. No. 130196, February 26, 2001),
or
an opportunity to explain ones side (Pilipinas Loan Company vs. SEC, G.R. No.
104720, April 4, 2001).
In administrative proceedings, procedural due process simply means the
opportunity to explain ones side or the opportunity to seek a reconsideration of the
action or ruling complained of. To be heard does not mean only verbal arguments in
court; one may also be heard through pleadings. Where opportunity to be heard, either
through oral arguments or pleadings, is accorded, there is no denial of procedural due
process (Casimiro vs. Tandog, G.R. No. 146137, June 8, 2005).
CSC vs. CA, G.R. No. 161086, November 24, 2006, in administrative
proceedings, the filing of charges and giving reasonable opportunity for the person so
charged to answer the accusations against him constitute the minimum requirements of
due process. As long as a party was given opportunity to defend his interests in due
course, he was not denied due process.
Power of Contemptjudicial; inherent power of the court. It must be used on
the preservative not on the vindictive principle. An administrative body may exercise the
power of contempt if expressly granted/vested by law to the administrative agency. The
doctrine of necessary implication cannot be applied here.
In Guevarra vs. COMELEC, 104 Phil. 268, the power to punish contempt must
be expressly granted to the administrative body; and when so granted, may be
exercised only when the administrative body is actually performing quasi-judicial
functions.
In Simon, Jr. vs. CHR, 229 SCRA 117, the CHR is constitutionally authorized to
adopt its operational guidelines and rules of procedure, and cite for contempt for
violations thereof in accordance with the Rules of Court. Accordingly, the CHR acted
within its authority in providing in its revised rules, its power to cite or hold any person
in direct or indirect contempt, and to impose the appropriate penalties in accordance
with the procedure and sanctions provided for in the Rules of Court. That power to cite
for contempt, however, should be understood to apply only to violations of its adopted
operational guidelines and rules of procedure essential to carry out its investigatorial
powers. To exemplify, the power to cite for contempt could be exercised against
persons who refuse to cooperate with the said body, or who unduly withhold relevant
information, or who decline to honor summons, and the like, in pursuing its investigative
work. The order to desist (a semantic interplay for a restraining order) is not
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investigatorial in character but prescinds from an adjudicative power that it does not
possess.
In this case, the power of contempt arose from an erroneous assumption of
jurisdiction. It is not valid. There is grave abuse of discretion to both issues.
Administrative determinations where notice and hearing are not necessary for
due process:
1. Grant of provisional authority for increased rates, or to engage in a particular line
of business
2. Summary proceedings of distraint and levy upon the property of a delinquent
taxpayer
3. Cancellation of a passport where no abuse of discretion is committed by the
Secretary of Foreign Affairs
4. Summary abatement of a nuisance per se which affects the immediate safety of
persons or property
5. Preventive suspension of a public officer or employee pending investigation of
administrative charges filed against him
In PBC vs. CIR, G.R. No. 112024, January 28, 1999, Article 8 of the Civil Code
recognizes judicial decisions applying or interpreting statutes as part of the legal
system of the country. But administrative decisions do not enjoy that level of
recognition. A memorandum-circular of a bureau head could not operate to vest a
taxpayer with a shield against judicial action. For there are no vested rights to speak of
respecting a wrong construction of the law by administrative officials and such wrong
interpretation could not place the Government in estoppel to correct or overrule the
same.
Administrative Appeal and Review
a. Where provided by law, appeal from an administrative determination may be
made to a higher or superior administrative officer or body.
b. By virtue of the power of control by which the President exercises over all
executive departments, the Presidentby himselfor through the Department
Secretaries (pursuant to the Alter-Ego Doctrine), may affirm, modify, alter, or
reverse the administrative decision of subordinate officials and employees.
(Araneta vs. Gatmaitan, 101 Phil. 328).
c. The appellate administrative agency may conduct additional hearings in he
appealed case, if deemed necessary. (Reyes vs. Zamora, 90 SCRA 92).
Doctrine of Res Judicata
It does not apply to administrative decisions.
It forbids the reopening of a matter once determined by competent authority
acting within their exclusive jurisdiction. (Ysmael vs. Deputy Executive Secretary,
190
SCRA 673)
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patently illegal manner, because only the Secretary of DILG could act on the appeal
and the NAPOLCOM, being a collegial body, cannot be bound by the act of an
individual Commissioner.
6. When there is irreparable injury or threat thereof, unless judicial recourse is
immediately made.
7. When it would amount to a nullification of the claim.
8. When the subject matter is a private land in land case proceeding.
9. When there are circumstances indicating the urgency of judicial intervention.
10.When due process of law is clearly violated.
11.When there is estoppel on the part of the administrative agency concerned.
In Vda de Tan vs. Veterans Backpay Commission, 105 Phil. 377, petitioner,
as widow of a Chinese guerilla veteran who rendered military service during the
Japanese occupation, filed an application for back pay before the Veterans Back Pay
Commissions. xxx The respondent Commission is in estoppel considering that in its
resolution: The opinions promulgated by the Secretary of Justice are advisory in
nature, which may either be accepted or ignored by the office seeking the opinion, and
any aggrieved party has the court for recourse xxx. thereby leading the petitioner to
conclude that only final judicial ruling in her favor would be accepted by the
Commission.
Non-exhaustion of administrative remedies is not jurisdictional. It only renders the action
premature, i.e., claimed cause of action is not ripe for judicial determination and for that
reason a party has no cause of action to ventilate in court. (Carale vs. Abarintos, 269
SCRA 132)
The doctrine of exhaustion of administrative remedies and the corollary doctrine
of primary jurisdiction, which are based on sound policy and practical considerations,
are not inflexible rules. There are many accepted exceptions such as unreasonable
delay or official inaction that will irretrievably prejudice the complainant and when the
question involved is purely legal and will ultimately have to be decided by the courts of
justice. (RP ETC vs. Lacap, G.R. No. 158253, March 2, 2007)
Judicial Review of Administrative Decisions; When Made:
1. To determine constitutionality or validity of any treaty, law, ordinance, executive
order or regulation;
2. To determine jurisdiction of any administrative board, commission or officer;
Law that deals with the conduct of States and international organizations,
3. The duty of States not to intervene in matters within the domestic jurisdiction of
any State.
4. The duty of States to cooperate with one another.
5. The principle of equal rights and self-determination of peoples.
6. The principle of sovereign equality of States.
7. States shall fulfill in good faith the obligations assumed by them.
Sources of International Law
a. International treaties and conventions, whether general or particular, establishing
rules expressly recognized by the contesting States;
Vienna Convention on the Law of Treaties, Hague Convention
Treaty
Elements:
1. International agreement
2. States
3. Written
4. Governed by international law
Making: General rule: Full powers needed
Exceptions: 1. Heads of states/governments
2. Foreign affairs
3. Heads of diplomatic missions-limited
4. Representatives to international conferenceslimited
JUS COGENSa (peremptory) norm which States cannot derogate or deviate from in
their agreements. It is therefore a mandatory norm and stands on a higher category
than a jus dispositivum norm which states can set aside or modify by agreement.
General Rule: Parties cannot enter into a treaty contrary to jus cogens or norms
recognized and accepted by international community; non-derogable
Examples: unlawful use of force, commission of a criminal act, trade in slaves, piracy,
genocide, human rights violations, equality of states, and self-determinations
Principles which determine the order of precedence in the application of rules
or
norms of International Law:
1. Lex superior derogate inferiorirules from one source of law prevail over those
derived from another source.
2. Lex posterior derogate priorilater rules prevail over the earlier.
3. Lex specialis derogate generaliparticular rules prevail over the general.
International Law Municipal Law
Law of coordination
regulates relation of states and other
international persons
derived principally from treaties,
international customs and general
principles of law
resolved thru state-to-state transactions
collective responsibility because it
attaches directly to the state and not to its
nationals
Law of subordination (issued by political
superior)
regulates relations of individuals among
themselves or with their own states
consists mainly of statutory enactments,
and to a lesser extent executive orders
and judicial pronouncements
redressed thru local administrative and
judicial processes
breach of which entails individual
responsibility
Rules in case of conflict between IL and ML:
Efforts should first be exerted to harmonize them, so as to give effect to both
since it is to be presumed that municipal law was enacted with proper regard for the
generally accepted principles of international law in observance of the Incorporation
Clause in Section 2, Article II of the Constitution.
If a local court is deciding:
If conflict is with the Constitution, the latter prevails. Sec. 5(2a), Article VIII of
the Constitution provides that the SC has the power to declare a treaty or executive
agreement unconstitutional.
If conflict is with a statute, IL should be given equal standing with, but not
superior to, national legislative enactments.
If a n international tribunal is deciding:
International law is superior to municipal law, because international law provides
the standard by which to determine the legality of a States conduct. By the doctrine of
pacta sunt servanda, a state may not invoke its internal law to avoid a treaty obligation.
Relation of IL to ML: (2 Views)
1. MonistIL is the same as ML
2. Dualistthey are disctinct from each other by purpose. IL becomes part of
ML by incorporation or transformation.
INCORPORATION CLAUSESection 2, Article II of the Constitution-- The
Philippine renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land and
adheres
to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
Under the doctrine 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.
How is it applied by local courts?
The doctrine is applied whenever municipal tribunals (or local courts) are confronted
with situations in which there appears to be a conflict between a rule of international law
and the provisions of the Constitution or statute of the local state. Efforts should first be
exerted to harmonize them, so as to give effect to both since it is to be presumed that
municipal law was enacted with proper regard for the generally accepted principles of
international law in observance of the Incorporation Clause in Section 2, Article II of the
Constitution. In a situation, however, where the conflict is irreconcilable and a choice
has to be made between a rule of international law and municipal law, jurisprudence
dictates that municipal law should be upheld by the municipal courts for the reason that
such courts are organs of municipal law and are accordingly bound by it in all
circumstances. The fact that international law has been made part of the law of the land
does not pertain to or imply the primacy of international law over national or municipal
law in the municipal sphere. The doctrine of incorporation, as applied in most countries,
decrees that rules of international law are given equal standing with, but are not
superior to, national legislative enactments. Accordingly, the principle of lex posterior
derogate priori takes effecta treaty may repeal a statute and a statute may repeal a
treaty. In states where the Constitution is the highest law of the land, such as the
Republic of the Philippines, both statutes and treaties may be invalidated if they are in
conflict with the Constitution. (Secretary of Justice vs. Hon. Ralph Lantion, G.R.
No.
139465, January 18, 2000)
The incorporation clause assumes the existence of international law which binds
the Philippines as a State. It thus becomes a method by which the Philippines can carry
out its obligations under international law within its territorial jurisdiction.
It creates legal rights and obligations within Philippine territory and regulates the
conduct of government official and organs as well as the relations of individual citizens
with each other and with the government. Questions of international law may be
submitted to Philippine courts for decision. The outcome of litigation, however, does not
affect the binding nature of international law in the relation of the Philippines with other
States and other international persons.
Judicial notice dispenses with the burden of proving generally accepted
principles of international law. Theoretically at least, its cumulative effect as combined
with the incorporation clause is to require no proof at all for the application of generally
accepted principles of international law to become operative as Philippine law in a case
before a Philippine court. In short, it is as good as statutory law in terms of probative
value.
Identified Parts of Domestic Law as Derived from Generally Accepted
Principles
of International Law:
1. Rules and principles of land warfare and of humanitarian law under Hague and
Geneva Conventions
2. Pacta sunt servanda
3. Human rights
4. A foreign army allowed to march through a friendly country or to be stationed in
it, by permission of its government or sovereign, is exempt from the civil and
criminal jurisdiction of the place
Declaration of Human Rights and the Alma Conference Declaration of 1978 recognizing
health as a fundamental human right. Thus, the authority of the LLDA to issue a cease
and desist order to prevent pollution of Marilao River was upheld on the basis of the
principle of necessary implication.
Provisions of the Constitution which concern International Law
1. Article INational Territory
2. Article II, Section 2Incorporation Clause
3. Article II, Section 4defense of state
4. Article II, Section 7independent foreign policy
5. Article II, Section 8freedom from nuclear weapons
6. Article III, Section 6liberty of abode
7. Article IVCitizenship
If an entity is not a subject of international law as such, it may still assume certain
characteristics of international personality but in a special or restricted context such as
that defined by agreement, recognition or acquiescence.
An individual may be a subject of international law (independently of his State, an
individual may be tried for terrorism (Bin Laden), war crimes. The Rome Statute has
created a permanent international criminal court.
May individuals assume the status of subjects of international law?
Yes, but on the basis of agreement or in specific context, and not in accordance with
general or customary international law.
Government of Hong Kong Special Administrative Region vs. Hon. Olalia, Jr.
G.R.
No. 153675, April 19, 2007 (See Atty. Sandovals 2008 handouts in International Law, page 1)
Are international organizations considered subjects of international law?
Yes, their status is determined by agreement and not by general or customary
international law. The criteria of a legal personality have to be met.
1. A permanent association of states, with lawful subjects, equipped with organs;
2. A distinction, in term of legal powers and purposes, between the organization
and its member states;
3. The existence of legal powers exercisable on the international plane and not
solely within the national systems of one or more states.
STATEa community of persons, more or less numerous, permanently occupying a
definite portion of territory, independent of external control, and possessing a
government to which a great body of inhabitants render habitual obedience. (CIR vs.
Campos Rueda, 42 SCRA 23)
It is a group of people living together in a fixed territory, organized for political
ends under an independent government, and capable of entering into international
relations with other states.
Basic Criteria for Statehood (elements):
1. Permanent population;
Peoplea group of individuals, of both sexes, living together as a community. They
must be sufficient in number to maintain and perpetuate themselves.
2. Defined territorya fixed portion of the earths surface occupied by the inhabitants ;
3. Governmentmust be organized, exercising control over and capable of maintaining
law and order within the territory ; and
4. Capacity to enter into relations with other Statesrefers to independence, that is,
freedom from outside control in the conduct of its foreign (and internal) affairs, which
many highly qualified publicists consider as the decisive criterion of statehood.
5. Civilization other suggested/additional
6. Recognition elements
Creation of State:
1. By revolution;
2. Unification;
3. Secession;
4. Assertion of independence;
5. Agreement; and
6. Attainment of civilization.
Extinction of States:
Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R
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Ma. Luisa Angeles Ramos
that they form a single international person through which they act
as one entity. The states retain their separate identities, but their
respective international personalities are extinguished and blended
in the new international person.
ii. Federal Unioncombination of 2 or more states which, upon
merger, ceased to be states, resulting in the creation of new state
with full international personality to represent them in their external
relations as well as a certain degree of power over their domestic
affairs and their inhabitants.
Authority over internal affairs: divided between federal authorities
and the member-states;
Authority over external affairs: handled solely by federal authorities.
B. DEPENDENTalthough theoretically a state, does not have full freedom in the
direction of its external affairs, such as a protectorate (which is established at
the request of the weaker state for the protection by a strong power, e.g.
Panama, Andorra, Monaco) or a suzerainty (which is the result of a concession
from a state to a former colony that is allowed to be independent subject to the
retention by the former sovereign of certain powers over the external affairs of
the latter, e.g. Bulgaria and Rumania, both suzerainties of Sultan of Turkey by
virtue of Treaty of Berlin of 1878)
C. NEUTRALIZEDwhose independence and integrity are guaranteed by an
international treaty on the condition that such state obligates itself never to take
up arms against other state (except in self-defense), or to enter into an
international obligation as would indirectly involved it in war. e.g. Switzerland
and Austria
Constitution & Article 51, UN Charterrecognize the inherent right to individual or collective selfdefense
if an armed attack occurs against such state;
Estrada Doctrineit provides that if a state will deal with representatives of the
government in actual control of another country for the protection of its citizens in the
territory of the later state, this does not necessarily mean recognition of the said
government.
Stimson Doctrineno recognition of a government established through external
aggression.
Kinds of Recognition:
1. De Facto(of fact) extended by the recognizing state which believes that
some of the requirements for recognition are absent. The recognition is
generally provisional and limited to certain juridical relations; it does not bring
about full diplomatic intercourse and does not give title to assets of the state
held/situated abroad.
2. De Jure(of Law) extended to a government fulfilling the requirements for
recognition. When there is no specific indication, recognition is generally de
jure. The recognition is relatively permanent; bring about full diplomatic
intercourse and observance of diplomatic immunities; and confers title to
assets abroad.
Effects of Recognition:
1. Diplomatic relations;
2. Right to sue in the courts of recognizing state;
In the case of Banco Nacional de Cuba vs. Sabattino, 376 US 398, unfriendly
relations or the lack of reciprocity was held immaterial.
3. Immunity from jurisdiction;
4. Entitlement to property within the recognizing state; and
5. Retroactive validation of the acts of the recognized sate/government.
Conditions for recognition of a belligerent state:
1. Organized civil government having control and supervision over the armed
struggle
2. Serious and widespread struggle
3. Occupation of a substantial portion of the national territory
4. Willingness on the part of the rebels to observe rules/customs of war
Absence of any of the above conditions, there is no belligerency but only state of
insurgency, which is rarely recognized, because this will be intervention in the domestic
affairs of another state.
4. Recognition is only provisional (for the duration of the armed struggle) and
only for the purpose of hostilities.
Jurisdiction of Statesit is the power, authority, sovereignty or legal control exercised
by a state over land, persons, property, transactions, and events in its territory.
1. As a conceptit is the capacity to:
a. Legislate or to prescribe laws/rules
b. Enforce laws/rules
2. As powerit is exercised over:
a. Persons
b. Property
c. Events
Jurisdiction over Territory
i. Title to Territory
Island of Palmas Case (Netherlands vs. USA, 2 RIAA 829) test of title in
international law is continuous and peaceful display of territorial sovereignty;
forms of acquisition of title are:
a. Occupation coupled with effectiveness
b. Conquest
c. Cession; and
d. Accretion
Title is not sufficient without the first element of display of State functions
ii. Airspace (flight space)
Paris Convention, October 13, 1919State with exclusive sovereignty
Convention on International Civil Aviationsprohibits entry of state aircraft
without authorization by special agreement
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The Philippines is not liable for death or injury to alien hostages of the abu
sayyaf, unless it is shown to have participated directly or was remiss or negligent in
taking measures to prevent injury, investigating the case, punishing the guilty, or to
enable the victim or his heirs to pursue civil remedies.
In case of injuries inflicted upon foreigner in the course of quelling a rebellion,
state responsibility will attach only if rebellion succeeds and the rebels will take control
of the state, but not when the legitimate government remains in power as the act of
quelling a rebellion is a valid exercise of defense. State liability will attach only if it fails
to observe the minimum international standard for the protection of aliens.
Calvo doctrineprovision frequently inserted in contracts where nationals of another
state renounce any claim upon his national state for protection. Such waiver can only be
made, legally, by aliens state.
Right of the State to admit and expel aliens
No state is under obligation to admit aliens
State imposes conditions on the admission of aliens
State can expel aliens from its territorydeportation/reconduction
Alien must accept the institutions of the State as he finds them
Aliens may be deprived of certain rights
Local law may grant aliens certain rights, privileges based on
a. Reciprocity
b. Most-favored-nation treatment
c. National treatment
Privileges conferred may be revoked
Deportationexpulsion of an alien considered undesirable by local state, usually but
not necessarily, to his own state.
Reconductionforcible conveying of aliens back to their home state without any
formalities
ASYLUM in International Law
The right of asylum is the competence of every State inferred from its territorial
supremacy to allow a prosecuted alien to enter and to remain on its territory, under its
protection, and thereby to grant asylum to him.
The right of asylum is not a right possessed by an alien to demand that a State
protect him and grant him asylum. At present, it is just a privilege granted by a State to
allow an alien escaping from the persecution of his country for political reasons.
Diplomatic asylumrefuge in diplomatic premises
Political asylumrefuge in another state for political offenses, danger to life or no
assurance of due process
Who is a Refugee?
A refugee is a person who is outside the country of his nationality, or if he has no
nationality, the country of his former habitual residence, because he has or had
wellfounded
fear of persecution by reason of his race, religion, nationality or political opinion
and is unable or, because of such fear, is unwilling to avail himself of the protection of
the government of the country of his nationality, or, if he has no nationality, to return to
the country of his former habitual residence.
To be considered a refugee, the person:
1. Is outside the country of his nationality, or, in the case of stateless persons,
outside the country of habitual residence;
2. Lacks national protection; and
3. Fears persecution by reason of his race, religion, nationality or political
opinion.
Because of the 2nd element, a refugee is considered a stateless person.
Only a person who is granted asylum by another State can apply for refugee
status; thus, the refugee treaties imply the principle of asylum.
Non-Refoulement PrincipleArticle 33 of The Convention Relating to the Status of
Refugees provides that no contracting State shall expel or return (refouler) a refugee, in
any manner whatsoever, to the frontiers of territories where his life or freedom would be
threatened.
This principle was declared to be a generally accepted principle by The
Convention Relating to the Status of Stateless Persons.
Most-Favored-Nation Clausea pledge by a contracting party to a treaty to grant to
the other party treatment not less favorable than that which has been or may be granted
to the most favored among other countries. The clause has been commonly included
in treaties of commercial nature.
Purpose: To grant to the contracting party treatment not less favorable than that
which has been or may be granted to the most favored among other countries. The
most favored nation clause is intended to establish the principle of equality of
international treatment by providing that the citizens or subjects of the contracting
nations may enjoy the privileges accorded by either party to those of the most favored
nation. (CIR vs. S. C. Johnson & Sons, Inc., 309 SCRA 87, June 25, 1999)
2 Types of Most-Favored-Nation Clause:
1. Conditional
2. Unconditional
According to the clause in its unconditional form, any advantage of whatever kind
which has been or may in future be granted by either of the contracting parties to a third
State shall simultaneously and unconditionally be extended to the other under the same
or equivalent conditions as those under which it has been granted to the third State.
UNITED NATIONS
The international organization which succeeded the League of Nations
Organs of UN
1. General assemblyAssembly
2. Security Council
3. Economic & Social Council (ECOSOC) Council
4. Trusteeship Council
5. Secretariat
6. ICJ organs
2 Functions of International Court of Justice
1. To resolve contentious cases;
2. To render advisory opinions to the General Assembly, the Security Council, and
other organs of the United Nations.
Legal disputes which the ICJ may resolve under the optional clause of its
Statute:
1. The Interpretation of a treaty;
2. Any question of international law;
3. The existence of any fact which, if established, would constitute a breach of an
international obligation;
4. The nature and extent of the reparations to be made in case of breach of an
international obligation.
International Criminal Court (ICC) International Court of Justice (ICJ)
it is a criminal tribunal
has criminal jurisdiction to prosecute
individuals
it prosecutes individuals for genocide,
crimes against humanity, war crimes and
the crimes of aggression
it is independent of the United nations
it is a civil tribunal
does not have criminal jurisdiction over
individuals
it is a civil tribunal that deals primarily
with disputes between States
it is a principal organ of the United
Nations
ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
The Rome Statute established the ICC which shall have the power to exercise
its jurisdiction over persons for the most serious crimes of international concern x x x
and shall be complementary to the national criminal jurisdictions. (Article I, Rome
Statute) Its jurisdiction covers the following crimes:
1. Genocide;
2. Crimes against humanity;
3. War crimes; and
4. Crime of aggression. (Article 5, Rome Statute)
General Principles:
1. Nullum crimen sine lege (Ex post Facto law)
2. Nullum poena sine lege (void for vagueness)
3. Double Jeopardy
4. Non-retroactivity
3. Ratificationis the formal act by which a state confirms and accepts the
Martens Clauseprovides that in cases not covered by this protocol or by any other
international agreements, civilians and combatants remain under the protection and
authority of the principles of international law derived from established customs, from
the principles of humanity and from the dictates of public conscience (Article I,
paragraph 2, Protocol additional to the Geneva Conventions of August 12, 1949).
Hors de combat
1. The person is in the power of an adverse party to the conflict
2. He clearly expresses his intention to surrender
3. He is incapable of defending himself provided he abstains from any hostile act
and does not attempt to escape
JURISDICTION
It is the competence of a state under international law to prescribe and enforce
norms of law, as well as adjudicate over persons, property, events and relations within
its territory.
Components of Territory:
1. Terrestrial domain (Land)
2. Fluvial and Maritime domain
3. Aerial domain
LAND TERRITORY (Terrestrial Domain)
Modes of acquisition: (See page 7 of this notes)
MARITIME TERRITORY (Fluvial and Maritime Domain)
(See Discussion under the National Territory and UNCLOS on pages 9 and 370, respectively)
AIR TERRITORY (Aerial Domain)this refer to the airspace above the land and waters
of the State.
Five (5) Freedoms for Scheduled International Services:
2. Freedom to fly across foreign territory without landing;
3. Freedom to land for non-traffic purposes;
4. Freedom to put down traffic originating in state of aircraft;
6. Freedom to embark traffic destined for, or to put down traffic coming from, third
state.
Three (3) International Theories on Aerial Jurisdiction:
1. Free zone theoryThe atmosphere over the country is free and not subject to
the jurisdiction of the subjacent state, except for the protection of its national
security and public order.
If a crime is committed on board a foreign aircraft at the atmosphere of a
country, the law of that country does not govern unless the crime affects the
national security.
2. Relative theorythe subjacent state exercises jurisdiction over the atmosphere
only to the extent that it can effectively exercise control thereof.
If a crime was committed on an aircraft that is already beyond the control of the
subjacent state, the law of the state will not govern anymore. But if the crime is
committed in an aircraft within the atmosphere over a subjacent state that
exercises control, then its law will govern.
3. Absolute theoryadopted by the Philippines
The subjacent state has complete jurisdiction over the atmosphere above
it subject only to the innocent passage by aircraft of a foreign country.
If the crime is committed in an aircraft, no matter how high, as long as it can be
established that it is within the Philippine atmosphere, our law will govern.
Outer Spaceis the region beyond the earths atmosphere.
Outer Space Treatyprovides for the exploration and use of outer space as the
province of mankind and provides accordingly that the exploration and use of outer
space, including the moon and other celestial bodies, shall be carried out for the benefit
and in the interest of all countries, irrespective of their degree of economic or scientific
development.
Outer space is not subject to national appropriation by claim of sovereignty, by
means of use or occupation, or by any other means, and thus, it is provides that it shall
be free for exploration and use by all states without discrimination of any kind. The
States parties to the Treaty are to consider astronauts or cosmonauts as envoys of
mankind.
Leading principles:
1. TERRITORIALITYthe Philippines possesses absolute (but may not be
exclusive) jurisdiction over persons, property, relations, and events by reason of
the fact that they are within or they take place in its territory, without regard to the
nationality of the person responsible. (Article 14 of the Civil CodePenal laws
and those of public security and safety shall be obligatory upon all who live or
sojourn in Philippine territory, subject to the principles of public international law
and to treaty stipulations.)
A State may exercise jurisdiction only within its territory.
General rule: A state has criminal jurisdiction only over offenses
committed within its territory.
Exceptions: a. Continuing offenses;
b. acts prejudicial to the national security or vital interest of the
State;
c. Universal crimes
d. Offenses covered by special agreement
2. NATIONALITY PRINCIPLEthe Philippines exercises jurisdiction over persons
by reason of their connection to the Philippine state as its citizens. (Article 15 of
the Civil CodeLaws relating to family rights and duties, or to status, condition
and legal capacity of persons are binding upon citizens of the Philippines, even
though living abroad.)
Vest jurisdiction in State of offender
3. PROTECTIVE PRINCIPLEthe Philippines takes jurisdiction over persons who
committed acts outside its territorial jurisdiction but with consequences prejudicial
to its interests or inimical to its national security. (Read Article 2 of the Revised
Penal Code)
4. UNIVERSALITY PRINCIPLEvest jurisdiction in state which has custody of
offender of universal crimes (piracy, genocide)
A state has jurisdiction over offenses considered as universal crimes regardless
A State has jurisdiction over crimes against its own nationals even if committed
outside the territory.
Exemption from Jurisdiction:
1. Doctrine of State Immunity
2. Act of State Doctrine
3. Diplomatic Immunity
4. Immunity of the UN, its Organs, Specialized Agencies, Other International
Organizations, and its Officers
5. Foreign merchant vessels exercising the right of innocent passage or arrival
under stress
6. Foreign armies passing through or stationed in the territory with the permission of
the State
7. Warships and other public vessels of another State operated for non-commercial
purposes
SOVEREIGN IMMUNITY
1. Heads of States and the state itself
Basis: equality and independence of states
Act of State Doctrine
a. Broad senseit is an exercise of sovereign power, which cannot be
challenged, controlled or interfered with by the court of law. It refers to the
political acts of a State which are exercised as exclusive prerogatives by the
political departments of the government and not subject to judicial review and
for the consequences of which, even when affecting private interests, they will
not hold legally responsible those who command or performed them.
b. Limited senseit refers to the acts taken by the State concerning as affecting
aliens, like the inherent right of every sovereign state to exclude resident
aliens from the territory when their continued presence is no longer desirable
from the standpoint of its domestic interest and tranquility.
Doctrine of State Immunityas a consequence independence, territorial
supremacy and equality, a state enjoys immunity from the exercise of jurisdiction
(legislative, executive or judicial) by another state, unless it has given its consent,
waived its immunity, or voluntarily submitted to the jurisdiction of the court
concerned.
(Read Also Discussions under State Immunity from Suit)
representatives
Agents of Diplomatic Intercourse:
1. Head of Stateenjoys the right to special protection for his physical safety and
the preservation of his honor and reputation
Principle of Exterritorialityhis quarters, archives, property and means of transportation are
inviolate. He is immune from criminal and civil jurisdiction, except when he himself is the plaintiff,
and is not subject to tax or exchange of currency restrictions.
of mission.
4. Waiver of this privilege, however, does not include waiver of the immunity in
respect of the execution of judgment; a separate waiver of the latter is necessary.
Termination of diplomatic mission:
1. Death
2. Resignation
3. Removal
4. Abolition of office
5. Recall of the sending State
6. Dismissal by the receiving state
7. War
8. Extinction of the State
CONSULAR RELATIONS
Consul A state agent residing abroad for various purposes but mainly in the interest
of commerce and navigation.
Kinds:
1. Consules missiprofessional and career consuls, nationals of the appointing
state
2. Consul electiselected by the appointing state either from its own citizens or
from among nationals abroad
Rank:
1. Consul-generalheads several consular districts, or one exceptionally large
consular district
2. Consultakes charge of small district, town or port
3. Vice-consulassist the consul
4. Consular agentusually entrusted with the performance of certain functions by
the consul.
Two (2) Documents Necessary for the Assumption of Consular Functions
1. Letters Patent (letter de provision)letter of appointment or commission which
is transmitted by the sending state to the Secretary of Foreign Affairs of the
country where the consul is to serve
2. Exequaturauthorization given to the consul by the sovereign of the receiving
state, allowing him to exercise his function within the territory
Immunities and Privileges:
1. Inviolability of their correspondence, archives and other documents
2. Freedom of movement and travel
3. Immunity from jurisdiction for acts performed in official capacity except
infractions
4. Exemption from certain taxes and customs duties, military or jury service
5. Right to display national flag and emblem in the consulate
Immunities and privileges are also available to the members of the consular post, their
families and their private staff.
Waiver of immunitiesmay be made by the appointing state
Crimes against diplomatic agents are International, not political, in nature
Termination of consular mission:
1. Usual mode of terminating official relationship
2. Withdrawal of the exequatur
3. Extinction of the State
4. War
Severance of consular relations does not necessarily terminate diplomatic relations.
EXTRADITION
It is the surrender of an individual accused or convicted of a crime by a State
within whose territory he is found and his delivery to the State where he allegedly
committed crime or was convicted of a crime.
Sec. 2(a), PD 1069extradition is the removal of an accused from the
Philippines with the object of placing him at the disposal of foreign authorities to enable
the requesting state or government to hold him in connection with any criminal
investigation directed against him or the execution of a penalty imposed on him under
the penal or criminal law of the requesting state or government.
Without a treaty, extradition is left to diplomatic negotiation between the states
involved. In such case, extradition relies on the consent of the requested state that may
be given out of comity and good relations.
In international law, extradition is a form of jurisdictional assistance.
Secretary of Justice vs. Lantion, G.R. No. 139465, October 17, 2000, Mark
Jimenez
is without any right to notice and hearing during the evaluation stage of an extradition
process by the DFA under RP-US Extradition Treaty.
Extradition court may adjudge a person as extraditable but the President has the final
say. Extradition is not criminal in natureit is sui generis; thus, Bill of Rights provisions
on aspects of due process in criminal proceedings are not applicable)
Secretary of Justice vs. Muoz, G.R. No. 140520, December 18, 2000, provisional
arrest of respondent was valid noting that the requirements of the Agreement on
documentation and the finding of probable cause have been complied with.
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Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R
review materials, www.pinoylaw.net, etc.)
Ma. Luisa Angeles Ramos
The internal waters of the Philippines are now subject to right of innocent
passage as well as to sea lanes for all foreign ships under the right of archipelagic sea
lanes passage. The airspace above the internal waters within the archipelagic sea lanes
passage is subject to the air routes for all foreign aircraft.
But Philippine sovereignty over the archipelagic waters of the Philippines is
restricted under UNCLOS. Ships of all states enjoy the right of innocent passage
through archipelagic waters.
Philippine archipelagic waters may also be subject to the continuous and
expeditious passage of foreign ships and aircraftknown as the right of archipelagic
sea lane passage. All ships and aircraft enjoy this right through designated sea lanes
and air routes.
What is the legal status of the waters enclosed by the archipelagic baselines
of
the Philippines?
Philippine sovereignty extends to these waters which are called archipelagic waters
under UNCLOS. It also extends to the airspace over archipelagic waters as well as their
bed and subsoil, including the resources therein.
Two (2) Kinds of Archipelago:
1. Coastal Archipelagosituated close to a mainland and may be considered a
part thereof.
2. Mid-Ocean Archipelagosituated in the ocean at such distance from the
coasts of firm land. The Philippines is classified as mid-ocean archipelago just
like Indonesia. The Philippines is not in any way connected physically with the
Asia mainland.
Maritime zones of the Philippines: (See also discussion under National Territory)
1. Territorial Seathe belt of the sea located between the coast and the internal
waters of the coastal state on the other hand, and the high seas on the other,
extending up to 12 nautical miles from the low-water mark, or in the case of
archipelagic states, from the baselines.
Jurisdiction: criminal jurisdiction over foreign merchant vessels shall be determined by
the application of either the English rule or French rule. Innocent passage and
involuntary entrance are recognized exceptions, provided that in case of involuntary
entrance, the distress on the vessel must be real.
Baselineis a line from which the breadth of the territorial sea, the
contiguous zone and the exclusive economic zone is measured in order to
determine the maritime boundary of the coastal state.
Types of baseline:
ii. Normal Baseline Method
iii. Straight Baseline method
The territorial sea is a zone of Philippine sovereignty. However, it is subject to the
right of innocent passage by ships of all states.
It is restricted by the right of archipelagic sea lane passage but only such
portions of the territorial sea adjacent to the Philippine archipelagic waters traversed by
the archipelagic sea lanes.
Innocent passagemeans navigation through the territorial sea of a state for
the purpose of traversing that sea without entering internal waters, or of
proceeding to or from internal waters. Passage is innocent if it is not prejudicial to
the peace, good order or security of the coastal state. It is required that passage
be continuous and expeditious, although a ship is allowed to stop and anchor if
this is incidental on account of force majeure or is required in order to assist
persons, ships or aircraft in danger or distress.
Innocent passage Transit passage
Pertains only to navigation of ships
Requires submarine and other
underwater vehicles to navigate on the
surface and to show their flag
Can be suspended
Submarines and other underwater craft are required to navigate on the surface and to
show their flag.
2. Contiguous Zoneextends up to 12 nautical miles from the territorial sea; this
shall not exceed 24 nautical miles from the archipelagic baselines.
Jurisdiction: Adjacent to the territorial sea, it is a zone where Philippines may exercise
certain protective jurisdiction. The coastal state may exercise limited jurisdiction over
the contiguous zone:
a. To prevent infringement of customs, fiscal immigration or sanitary laws
and regulations within its territory or territorial sea; and
b. To punish violation of the above laws and regulations committed within its
territory or in territorial sea.
The Philippines does not have sovereignty over the contiguous zone. It is a zone
of jurisdiction, not of sovereignty.
This contiguous zone is not appurtenant to Philippine territory. For a coastal state
to assume pertinent rights, it must make a specific claim to its contiguous zone. If no
contiguous zone is claimed or declared, the rights that may otherwise pertain to the
contiguous are deemed to be subsumed in those pertaining to the territorial sea.
3. Exclusive Economic Zone (EEZ)shall not extend beyond 200 nautical miles
from the archipelagic baselines. The Philippines has sovereign rights over EEZ
for the purpose of exploring, exploiting, conserving and managing the natural
resources in this zone. In addition, it has jurisdictional rights with regard to
artificial islands, environmental protection, and marine scientific research.
The resources covered by the sovereign rights of the Philippines over its EEZ are
the living and non-living resources in the superjacent waters of the sea-bed, as well as
the resources of the sea-bed and its subsoil.
The Philippines is required to grant other states access to living resources in its
EEZ. It must determine its capacity to harvest the living resources. If it does not have
the capacity to harvest the entire allowable catch, it shall give other states access to the
surplus of the allowable catch by means of agreements consistent with the UNCLOS.
Philippine territory is not enlarged by reason of EEZ. The legal regime of the EEZ
limits Philippine rights to specified sovereign rights and to particular jurisdictional rights.
No territorial acquisition is involved.
In the EEZ, all states continue to enjoy the freedom of the high seas, subject to
the rights of the Philippines as thus mentioned. Generally, the rules of international law
pertaining to the high seas apply to EEZ.
Continental shelfit is the seabed and subsoil of the submarine areas extending
beyond the Philippine territorial sea throughout the natural prolongation of the land
territory. It extends up to:
Deep Sea(as part of the common heritage of mankind) resources of the deep seabed
owned by all States. All rights to the resources of the area are vested in mankind as a
whole. The Enterprise (organ of the Deep Sea Bed Authority) shall explore and exploit
the area.
Open for peaceful purposes and for exploitation for the benefit of mankind; right
of a coastal state to prevent or mitigate any grave and imminent danger to its coastline
or environment; governed by the International Seabed Authority.
High Seastreated as res communes, thus, not territory of any particular State. These
are the waters which do not constitute the internal waters, archipelagic waters, territorial
sea and exclusive economic zones of a state. They are beyond the jurisdiction and
sovereign rights of States.
The traditional view is freedom of the high seas, i.e., they are open and available,
without restriction, to the use of all states for the purpose of navigation, overflight,
submarine cables/pipelines, construction of artificial islands or any installations, fishing,
mining, research, etc. however, this rule is subject to regulation arising from treaty
stipulations.
Jurisdiction: may be exercised by the State on the high seas over the following:
a. Its vesselsthe flag State has jurisdiction over its public vessels wherever
they are, and over its merchant vessels on the high seas. However, UNCLOS
considered the flag of convenience controversy.
b. Piratesthey are enemies of mankind; they may be captured on the open
seas by the vessels of any State, to whose territory they may be brought for
trial and punishment.
c. Drug trafficking and slave tradeall States shall cooperate in the suppression
of illicit traffic in narcotics and slave trade.
d. Right to visit and searchuse the law of neutralitythe vessels or aircraft of
a belligerent State may visit and search any neutral merchant vessel on the
open seas and capture it if found to be engaged in activities favorable to the
other belligerent.
e. Hot pursuit the State authorities can pursue an offender up to high seas
until he enters the territorial sea of another State.
1. The pursuit must commence from internal waters, territorial sea or
contiguous zone, of pursuing State
2. The pursuit must be uninterrupted
3. It must be conducted by warship, military aircraft, or government ships
authorized for the purpose
361
2008 Political Law and Public International Law
Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R
review materials, www.pinoylaw.net, etc.)
Ma. Luisa Angeles Ramos
Freedom of navigationrefers to the right to sail ship on the high sea, subject
to international law and the laws of the flag of the state.
Philippine ship
A ship may assume Philippine nationality if it flies Philippine flag and thus
become the flag state. A ship has the nationality of the state whose flag it is entitled to
fly. It is for the Philippines to decide the conditions by which it will accord a ship the right
to fly its flag.
It is required that there be genuine link between the Philippines and the ship.
However, so far, no objective criteria have been established to determine the existence
of a genuine link. If no genuine link is found to exist, no legal consequences have been
defined. The result is that the genuine link requirement fails to command broad
compliance.
The Philippines has exclusive jurisdiction over a Philippine ship on the high seas.
Duties of the Philippines as a flag state with respect to the ship:
1. To maintain a registry of ships authorized to fly its flag;
2. To take jurisdiction over the internal affairs of the ship;
3. To ensure safety at sea of the ship with respect to construction, equipment, and
seaworthiness as well as in regard to labor conditions, training of crew,
maintenance of communication, and prevention of collisions;
4. To ensure that the ship is surveyed by a qualified surveyor of ships and is
equipped with navigation equipment, nautical publications, and charts;
5. To ensure that the ship is manned by qualified master, officers and crew; and
6. To ensure that the officers and crew are conversant with and are required to
observe international regulations concerning safety at sea, prevention of
collisions, prevention, reduction and control of pollution, and maintenance of
radio regulations.
General theory of criminal jurisdiction:
General rule: Vessels on high seas are subject to authority of flag-state
Exceptions: piracy, slave trade, hot pursuit, right of approach
Article 97, UNCLOSthe rule today is that no penal or administrative proceedings may
be instituted against the master of the ship except before the judicial or administrative
authorities either of the:
a. Flag-State; or
b. State of which such person is a national.
Arrival under Stressinvoluntary entrance; it may be due to lack of provisions,
unseaworthiness of the vessel, inclement weather, or other cases of force majeure,
such as pursuit of pirates.
Flag Statethe state whose nationality the ship possesses; for it is nationality that
gives the right to fly a countrys flag.
Flag of Convenienceforeign flag under which a merchant vessel is registered for
purposes of reducing operating costs or avoiding government regulations. It is a flag of
one country, flown by a ship owned by a citizen of another country. A vessel shall have
the nationality of the flag it flies, provided there is a genuine link between the State
(whose flag is flown) and the vessel, i.e., the State must effectively exercise jurisdiction
and control in administrative, technical and social matters over the ship.