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Primary Jurisdiction.
THE JUDICIARY
ART. VIII Sec. 1 Par. 1- ThejudicialpowershallbevestedinoneSupreme
Courtandinsuchlowercourtsasmaybeestablishedbylaw
Q. SB?
*Since quasi-judicial bodies are not strictly courts, their jurisdiction is strictly
construed against them.
*QUASI JUDICIAL BODIES- strictly speaking, they are not courts- do not
form part of the judicial system.
They
are
administrative
DUTY
-The provision uses the word DUTY
bodies
-if it was only a power, then the courts has the discretion to exercise it or not.
-Since it is a duty, there is no such discretion- the exercise of the power is
obligatory and mandatory upon the courts.
TWO PARTS OF THE DEFINITION
-The legislative and the executive are called POLITICAL BRANCHES of the
government, where policies are formulated, enacted and implemented.
-Questions of policy that are formulated by the political branches and thus
cannot be the subject of judicial review. This includes questions involving the
wisdom, propriety, efficacy or morality of an act.
*After all, the initiation of the recall process is not the recall itself.
*In the recall election, the people will decide whether or not they have lost
their confidence in the official concerned.
-In turn, this principle is the result of our Presidential System of Government.
(In a Parliamentary government, the executive and the legislative branches
are welded together)
-Thus, legislative power is given to Congress; executive power is given to
the President and judicial power is given to the Supreme Court- 3 great
powers distributed among 3 branches of government.
government
for
redress
of
grievances which only affected the
Office of the President.
-Extra-constitutional
and
the
legitimacy of the new government
that resulted from it cannot be the
subject of judicial review.
-Intra-constitutional
and
the
resignation of the sitting President
that it caused and the succession of
the Vice President as president are
subject to judicial review.
*Oliver Lozano filed a petition before the Supreme Court questioning the
legitimacy of the Cory government.
*According to the petition, most of the people who went to EDSA are not
really serious in overthrowing the Marcos government. (Most were vendors)
SC: dismissed the petition.
*No matter, We will no longer inquire into the motives of the people in going
to EDSA. The facts were: because of the magnitude of the people who were
in EDSA, Marcos fled to Hawaii, so that the Cory government was able to
take effective control of the machinery of the State without resistance from
the people. Furthermore, the international community has recognized the
Cory Government. Hence, there can be no more question as to the de jure
status of the said government.
2.
*The Aquino government was the result of a successful revolution by the
sovereign people-it was installed through a direct exercise of the power of
the Filipino people, in defiance of the provisions of the 1973 Constitution.
The legitimacy of a government sired by a successful revolution by people
power is beyond judicial scrutiny; such government automatically orbits out
of the constitutional loop.
*IBP asks that the exercise of such power be subjected to judicial review.
EDSA 2
SC: No.
*When the President calls the armed forces to prevent or suppress lawless
violence, invasion or rebellion, he necessarily exercises a discretionary
power solely vested in his wisdom. This is clear from the intent of the
framers and from the text of the Constitution. Thus, the Court cannot be
compelled upon to overrule the Presidents wisdom or substitute its own.
However this does not prevent an examination of whether such power was
exercised within permissible constitutional limits or whether it was exercised
in a manner constituting grave abuse of discretion.
3 powers under Art. VII, Sec. 18
1.
2.
3.
*Unlike in the past, the power to declare martial law and to suspend the
privilege of the writ of habeas corpus were expressly made subject of judicial
review.
*Article VII, Sec. 18, Par 3- 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 or the extension thereof, and must promulgate its decision within
thirtydaysfromitsfiling.
A. Calling out power is the lesser and more benign power while the power to
declare martial law and to suspend the privilege of the writ of habeas corpus
are the greater powers which involve direct curtailment of civil liberties
thereby necessitating safeguards of Congress and judicial review of the
Court. (IBP VS. ZAMORA)
DAVID VS. GMA
*PGMA exercised the calling out power when she issued GO 5 and PP
1017, not the martial law power. The acts taken purportedly to carry out the
issuances were ultra vires, hence, unconstitutional. The exercise of the
calling out power does not involve the direct curtailment and suppression of
civil liberties and individual freedoms. However GO 5 and PP1017 are
constitutional. Petitioners failed to counteract the factual bases therefore as
alleged by the Solgen.
SC: It is the unclouded intent of the Court to grant to the President full
discretionary authority. The hands of the President should not be tied;
otherwise, this could be a veritable proscription for disaster. Unless grave
abuse of discretion is shown, the Presidents exercise of the power should
not be questioned. Mere abuse of discretion will not suffice. To doubt is to
sustain.
A. 1. Checking
2. Legitimizing
3. Symbolic
SYMBOLIC FUNCTION OF THE COURT
2.
*The moot and academic principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide
cases, otherwise moot and academic, if:
1.
2.
3.
4.
2.
It is not the date of the filing of the petition that determines whether
the constitutional issue was raised at the earliest opportunity. The
earliest opportunity to raise a constitutional issue is to raise it in the
pleadings before a competent court that can resolve the same,
such that, if it is not raised in the pleadings, it cannot be
considered at the trial, and if not considered at the trial, it cannot be
considered on appeal. (Matibag vs. Benipayo)
2.
3.
REVISION
2.
Proposal
2.
Ratification
Constitutional convention
b.
3.
PeoplesinitiativeontheConstitution(RA6735)
A.
RATIFICATION
No. Note the second sentence says- The Congress shall provide
for the implementation of theexerciseofthisright.ThusCongress
should enact a law implementing this provision.
1.
2.
Initiative on Statutes
AnyamendmentunderSec.2hereof(ConCom)
shall be valid when ratified by a majority of the votes cast in a plebiscite
which shall be held not earlier than 60 days nor later than 90 days after the
certificationbytheComelecofthesufficiencyofthepetition.
3.
*Article XVII, Sec. 2 remains to be non self executing. The implementing law
was declared unconstitutional. (Santiago vs. Comelec)
*Peoplesinitiativeislimitedonlytoamendments.
DOCTRINE OF STATE IMMUNITY FROM SUIT
Article XVI, Sec. 3- TheStatemaynotbesuedwithoutitsconsent.
Q. What if the Constitution does not provide for state immunity?
A. Through the DOCTRINE OF INCORPORATION (Article II, Sec. 2), the
Philippines have adopted the generally accepted principles of international
law as part of the law of the land. State immunity from suit is a generally
accepted principle of international law. Hence we are bound by it.
Q. Ethical basis?
A.Therecanbenolegalrightagainsttheauthoritywhichmakesthelawon
whichtherightdepends.(JusticeHolmes)
Q. Does the Doctrine of State Immunity form Suit apply also to foreign
agreements?
A. No. It will be dismissed for lack of cause of action. He failed to exhaust all
administrative remedies provided for by law under CA 327 as amended by
PD 1445.
A. A State may not be sued without its consent. Hence, you can actually sue
the State, for as long as the State gives its consent.
Q. How does a State waive its immunity from suit?
2. SPECIAL LAWS
1.
2.
*Here, the government is deemed to have gone down into the level of a
private entity; there is parity now with the contracting parties; therefore,
it is deemed to have waived its immunity from suit.
*This rule used to be absolute. (US vs. Lyons)
*However, this rule is no longer absoluteUS VS. RUIZ
*This involved the construction of wharves in Subic Bay at the time
Subic was still under the US pursuant to a treaty.
*Contractor was not paid so he sued the Subic Naval Authorities.
*Subic Naval Authorities moved to dismiss invoking State Immunity from
Suit.
*On the other hand, the contractor contends that the State entered into
a contract (relying on the old rule).
SC: The traditional rule of immunity exempts a state from being sued in
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, rules of international law are not petrified; they are
constantly developing and evolving. And because the activities of the
states have multiplied, it has been necessary to distinguish them
between sovereign and governmental acts (jure imperii) and private,
commercial and proprietary acts (jure gestionis). The result is that state
immunity now extends only to acts jure imperii. The restrictive
application of state immunity is now the rule in the US, UK and other
states in Western Europe.
*He filed a complaint for damages against the US Air Force Recreation
Center at Camp John Hay who operates the restaurant.
*The latter invoked the Doctrine of Immunity from Suit and moved to dismiss.
Q. What if the dump truck was then hauling lumber for the repair of a public
market instead of gravel for the repair of municipal road?
Distinguish:
1.
UNINCORPORATED AGENCIES:
charter.
These
*This case does not qualify as a suit against the State. xxx While the
Republic in this case is sued by name, the ultimate liability does not pertain
to the government. Although the military officers and personnel were
discharging their official functions when the incident occurred, their functions
ceased to be official the moment they exceeded their authority. Based on the
commission findings, there was lack of justification by the government forces
in the use of firearms. Moreover, the members of the police and military
crowd dispersal units committed a prohibited act under BP 180 as there was
unnecessary firing by them in dispersing the marchers.
agencies
have
no
SC: Where the government takes away property from a private landowner
for public use without going through the legal process of expropriation or
negotiated sale. The aggrieved party may properly maintain a suit against
the government without thereby violating the doctrine of governmental
immunity from suit without its consent.
REASON-MINISTERIO VS. CFI OF CEBU
*The doctrine of governmental immunity from suit cannot serve as an
instrument of perpetration of injustice on a citizen. Had the government
followed the procedure indicated by the governing law (Rule 87) at the time,
a complaint would not have been filed by it and only upon payment of
compensation fixed by the judgement or after tender of the party entitled to
such payment of the amount fixed. May it have the right to enter in and
upon the land so condemned, to appropriate the same to the public use
definedinthejudgement.
*Actually, in Amigable and Ministerio cases there is an implied waiver. This
implied waiver lies in the failure to commence the proper action. The action
filed by the petitioners amount to a counterclaim, had the government fled
the proper action. It only became a petition because the government did not
follow the legal procedure.
citizens. [This is the first time that there came to be Filipino citizens. It was
anenmassecitizenshipbecauseofachangeofsovereignty].
CITIZENSHIP
*This results in complications when the country where you are born
applies the principle of jus soli.
1. Those who are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine citizenship.
2. Those who elect Philippine citizenship in accordance with par (3), Sec. 1
-In this case, the person has to perform an act to perfect his
Philippine citizenship.
-Thus, this constitutes an exception to the 1
Natural-Born Citizens.
kind of
st
1. Birth
2. Naturalization
1. As to Nature
Naturalization
Repatriation
-A mode of acquisition
and reacquisition of
Philippine citizenship.
-A
mode
of
reacquisition of Philippine
citizenship.
*As
a
mode
acquisition- CA
governs
of
473
*As a mode of
acquisitionCA
governs.
re63
-Simpler process
(2.) Service in the Armed Forces of Allied Forces during WW 2 (RA 965)
c.Thosewhomarryaliensifbythelawsofthelatterscountrytheformerare
considered citizens, unless by their act or omission they are deemed to have
renounced their Philippine citizenship.
A.No.Itsaysshallbedealtwithbylaw.Itmeansafuturelaw.
Q. Is there now a law that prohibits dual allegiance?
Dual Allegiance
Dual Citizenship
1. As to how it results
-A situation where a
person simultaneously
owes, by some positive
act, loyalty to 2 or more
states.
2. As to voluntariness
-Voluntary.
Involuntary.
*Edu Manzano was born in the US, of Filipino parents. In 1998 he ran for
vice-mayor of Makati. His qualification was challenged. Note that RA 7160,
Sec. 40 (d) disqualifies those with dual citizenship from running for local
elective office.
Effect of Re-Acquisition on Civil and Political Rights- the following rights can
be exercised, subject to certain conditions:
1. Right to vote- RA 9225 Sec. 5 (1) - must meet requirements of Sec. 1, Art.
V and of RA 9189 (Overseas Absentee Voting Act of 2003)
2. Elective Public Office RA 9225 Sec. 5 (2) must renounce foreign
citizenship before any public officer authorized to administer oath.
-Done at the time of the filing of the certificate of candidacy.
-Thus, he will lose his dual citizenship- will have just 1 citizenship.
3. Appointive Public Office RA 9225 Sec. 5 (3) must also renounce.
Structure of Government
-Art. 12, Sec. 14, 2 par., 1987 Constitution- The practice of all
professions in the Philippines shall be limited to Filipino citizens, save in
casesprescribedbylaw.
Q. X was born in the USA on Jan. 10, 1973, of a Filipino mother and
American father. He studied and worked in the Philippines. Can he run for
Mayor?
A.(1)Underthe1935Constitution,whichwasgoverningatthetimeofXs
birth, he should elect Philippine citizenship upon reaching the age of
majority.
(2) Under RA 9225, he is also a dual citizenhence, he should first
renounce his American citizenship.
Article VI, Sec 1 The legislative power shall be vested in the congress of
thePhilippines
The legislative and the executive branches are called the POLITICAL
BRANCHES.
The standard will guide the delegate in the exercise of the delegated power
which standards must be determinate/determinable.
A. It is one that defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it.
Ex: (1) Power to organize agencies was delegated to the President
Operativeword,ormeantequivalentterms
delegation
to
the
delegate
Completeness Test
The standards need not be found in the law delegating the power. Instead,
standards may be found in other laws what is important is that the
standards are determinate or at least determinable (Chong Bian vs Ci-Bos)
The law delegating the power must be complete in itself in the sense that the
body on whom the power is delegated must have no discretion to exercise
the power but to enforce it.
The law must be complete in all its terms and conditions, such that there is
nothing more to be done by the body but to enforce it.
The law must set forth the policy to be executed, carried out or implemented
by the delegate.
This is no self-executing.
Initiative on Statutes
Senate
House of Representatives
Valid
totheextentreservedtothePeoplebyinitiativeandreferendum
Article VI, Sec. 32 The Congress shall, as early as possible, provide for a
system of initiative and referendum, and the exceptions there from.
PARTICIPATION
IN
THE
Art VI, sec 27 Every bill passed by Congress shall before it becomes a
law, be presented to the president. If he approves the same, he shall sign
it
The president performs the last operative act for a bill to become a law.
LAW-MAKING
When the president prepares a budget which is the basis of the GENERAL
APPROPRIATIONS ACT.
Art VII, Sec 22 The president shall submit to the congress x x x as basis
of the general appropriations bill a budget for expenditures and sources of
financing, including receipts from existing and proposed revenue measures.
Whenthepresidentvetoesabill,thatbilldoesntbecomealaw.
Art VI, Sec 21 The senate or the house of representatives or any of its
respective committees may conduct inquiries in aid of legislation or in
accordancewithitsdulypublishedrulesofprocedure
Art VI. Sec 15 The president may call a special session at any time
In effect, he will initiate the process
When the president certifies as the urgency of the bill to meet a public
calamity or emergency.
ArtVI,sec26(2)No bill passed by either house shall become a law unless
it has passed three (3) readings on separate days x x x except when the
president certifies as to the necessity of its immediate enactment to meet a
public calamity or emergency.
The president hastens the process by dispensing with 3 separate readings
on 3 separate days rule.
Senator
Power to punish for contempt
- Incidental to the power to conduct inquiries in aid of legislations.
Representative
(1) Citizenship
Natural born
(2) LIteracy
(3) Voter
Registered voter
(4) Age
35 years of age on
the day of election
(5) Residence
2 years residence
(6) Term
6
years,
2
consecutive
termlimit
Composition of CONGRESS
Senate 24 senators elected at large;
Term: 6 years
Term limit: 2 Consecutive terms
House of Representatives
Term: 3 years
Within 3 years following the term of every census, the congress shall make a
re-apportionment of legislative districts based on the standards provided in
thissection.
Qualifications:
District representatives
Party-list representatives
this absorbed the sectoral representatives
Art VI, Sec 5(2) xxxfor3consecutivetermsaftertheratificationsofthis
constitution, of the seats allocated to the party-list representatives shall be
filled as provided by law, by selection or election from the labor, peasant,
urban poor, indigenous cultural communities, women, youth, and such other
sectorsasmaybeprovidedbylaw,exceptthereligioussector.
The party list system is one such tool intended to benefit those who hae less
in life. It gives the great masses of our people the genuine hope and genuine
power. It is a message to the destitute and the prejudiced, and even to those
in the underground (e.g. rebels), that change is possible. It is an invitation for
them to come our of their limbo and seize the opportunity.
Q: Is it open to all?
A: No. It is not open to all but only to the marginalized and the
underrepresented.
However, it demonstrates the clear intent of the law that NOT all sectors can
be represented under the party-list system.
Allowing all individuals and groups, including those which now dominate
district elections, to have the same opportunity to participate in the party-list
elections would desecrate this lofty. Objective and mongrelize the social
justice mechanism into an atrocious veneer for traditional politics (nose
bleed!)
While political parties may participate in the party-list system, then must
comply with the declared statutory policy of enabling Filipino citizens
belonging to the marginalized and underrepresented sectors x x x to be
enelcted to the HOR.
They must show that they represent the interests of the marginalized and the
underrepresented.
To make it open to all, without qualifications would not only weaken the
electoral chances of the marginalized and the underrepresented it also
prejudices them. To allow the non-marginalized and the overrepresented to
vie under the party list system would not only dilute, but also prejudice the
chance of the marginalized and underrepresented contrary to the laws
intention to enhance it. It would gut the substance of the party-list system.
Instead of generating hope, it would create a mirage. Instead of enabling the
marginalized, it would further weaken them and aggravate their
marginalization.
Uphold Social Justice principle to give those who have less life, more in
law.
The party must not only comply with the requirements of the law; its
nominees must likewise do so x x x
The nominee must also be qualified.
By the very nature of the party-list system, the party or organization must be
a group of citizens, organized and operated by citizens.
Resident of the Philippines for a perioud of not less than 1 year immediately
preceding the day of the electon.
Bar
In the case of Labo vs. COMELEC, reaffirmed in the case of Grego vs.
COMELEC, the court declred that the votes case for an ineligible or
disqualified candidate cannot be considered stray, because this would
disenfranchise the voters/majority; valid votes.
However, votes cast for a notoriously disqualified candidate may be
considered stray and excluded from the canvass.
This does not apply to the party-list elections!
Because of the express rule in Sec 10, RA 7941 xxxthatavotecastfor
a party, sectoral organization or coalition not entitled to be voted for shall not
becountedxxx
The LABO doctrine applies only to SINGLE ELECTIVE POST/ELECTIONS
nd
rd
(e.g. Mayor); In the party-list system, even the 2 , 3 , etc... candidate may
get seats.
See RA 7941.
The three (3) seat limit
Each qualified part, regardless of the number of votes actually obtained, is
entitled to a maximum of 3 seats 1 qualifying and 2 additional seats.
Rationale: To avoid domination/monopoly will go against the purpose of
the party-list system.
Proportional Representation
The additional seats to which a qualified party is entitled to shall be
computed in proportion to their total number of votes.
Q: To determine the total votes cast for the party-list system, should the
votes tallied to the disqualified candidates be deducted/excluded in
computing the 2% threshold?
A: Three categories:
Ex: Budget hearings usual means of renewing policy and auditing the use
of previous appropriation to ascertain whether they have been disbursed for
purposes authorized in an appropriation act.
Ex: GSIS.
Sec 11, Article VI A senator of 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 Congress or in any
committee thereof.
3 Privileges:
session is for a fixed period of 100 days. It was patterned after the American
Constitution.
Q:WhatisAsremedy?
A: Ask the house to punish the congressman.
Inanyotherplace
This includes the courts!
the opening of the session is also the time the President delivers his STATE
OF THE NATION ADDRESS (SONA) part of the informing power of the
President (Art VII, Sec 23)
This is a deviation from the 1935 constitution, under which the opening of
th
the regular session is every 4 Monday of January and the duration of the
Absolutely privileged
absolutely not actionable even if the author is in bad faith
Qualifiedly privileged
Not actionable unless the author acted in bad faith.
RulesofCourtsays
Rule 114 Sec 4 Bail, a matter of right; exception:
Therefore:
Matter or Right before conviction, punishable by penalty lower than
reclusion perpetua
Intendment
Implication
Equitable considerations
Q: During pendency of his appeal from conviction of RTC, should he be
allowed to post bail?
A. NO. Evidence of guild is strong; should wait for decision on appeal inside
the penitentiary.
1987Constitutionsays
ArtIII,Sec13Allpersons,except those charged with offenses punishable
by reclusion perpetua, when the evidence of guilt is strong, shall, before
The right against self incrimination (Art III sec 17) may be invoked.
Inaidoflegislation
Q: May members of Cabinet and other top executive officials validly refuse
to appear before congressional inquiries without the consent of the President
by invoking EO 464 (prohibiting members of the cabinet and other Executive
officials from appearing in Congressional Inquiries) promulgated by the
President?
Section 21
Section 22
- attendance
compulsory*
- attendance
discretionary
is
meant
to
be
is
meant
to
be
Example:
Senate composition:
K4 = 10
KNP = 8
LOP = 4
LAKAS = 2
Formula to determine seats per party in the Commission on
Appointments:
# of senators of party
Commission on Appointments
Section 18, Art VI There shall be a commission on Appointments
consisting of the President of the Senate as ex officio chairman, twelve
senators and twelve members of the House of Representatives, elected by
each House on the basis of proportional representation from the political
parties and parties and parties or organizations registered under the partylist system represented therein. The chairman of the Commission shall not
vote, except in case of a tie. The commission shall act on all appointments
submitted to it within thirty session days of the Congress from their
submission. The commission shall rule by a majority vote of all the
members.
Organization
Q:
A: 25
How
many
Senate President ex officio chairman
members?
12 Senators
12 Representatives (from the House of Representatives)
Q: How are the 24 members chosen?
A: based on proportional representation from political parties (including party
list) having membership in the senate or House of representatives.
x 12
Total # of senators
LOP = 2
LAKAS = 1
Q: What if there are decimal places?
A: Disregard (drop) the fraction. Otherwise, rounding off would violate the
rule on proportional representation! Although some seats would not be filled,
it is not mandatory that all seats be filled up. What is necessary is that there
be a quorum (Guingona vs. Gonzales)
A: Only when the congress is in Session. (Art VI, Sec 19. 2 sentence)
The commission on Appointments shall meet only while the Congress is in
session at the call of its chairman and a majority of all its members, to
dischargesuchpowersandfunctionsasarehereinconferreduponit
- Thus, ad interim appointments are allowed (see Section 16, 2
nd
Electoral Tribunals
Section 17, Art VI The Senate and the House of Representatives shall
each have an Electoral Tribunal which shall be the sole judge of all contests
relating to the election, returns, and qualifications of their respective
members. Each Electoral Tribunal shall be composed of nine members.
Three of whom shall be Justices of the Supreme Court to be designated by
the Chief Justice, and the remaining six shall be members of the Senate or
the House of Representatives, as the case may be, who shall be chosen on
the basis of proportional representation from the political parties and the
parties or organizations registered under the party-list system represented
therein. The senior Justice in the Electoral Tribunal shall be its chairman.
Two Electoral Tribunals
A:NO.Sec17ofArticleVIprovidesthattheSET/HRETisthesolejudgeof
allcontestsxxx.Hence,fromitsdecision,thereisnoappeal.Appealisnot
a constitutional but merely a statutory right.
Membership 9 members
A: YES. A special civil action (an original action not a mode of appeal) for
certiorari under Rule 65 may be filed. This is based on grave abuse of
discretion amounting to lack or excess of jurisdiction. This will be filed before
the SC.
General Rule: A bill may be introduced and may originate either from the
Senate or the HOR.
Exceptions: Bills that must originate exclusively with the HOR [APRIL]
Appropriations bill
Private bills
Revenue or Tariff bills
Source:
[Thus, once a winning candidate has been proclaimed, taken his oath of
office and assumed office as a member of the HOR, the COMELECs
jurisdiction over election contests relating to his election returns and
qualificationsends,andtheHRETsownjurisdictionbegins.]
Amendment by substitution is
allowed.
HELD: The dismissal (of the case) is incorrect. This is a recognition of the
jurisdictional boundaries between COMELEC and HRET. In an electoral
contest where the validity of the proclamation of a winning candidate who
has taken his oath of office and assumed his post as congressman is raised,
the issue is best addressed to the HRET. This avoids duplicity of
proceedings and a dash of jurisdiction between constitutional bodies.
EVAT is a revenue
FACTS: There were 2 versions of the EVAT the HOR and the Senate
version. The HOR bill was first filed and the Senate suspended its own
deliberations until the HOR version was sent to the Senate. Then, the senate
passed its own version. Both versions were sent to the Bicameral
Conference Committee. What eventually became the EVAL law was the
senatesversion.
HELD: It is not the law, but the revenue bill that is required to originate
exclusively in the HOR. What the constitution simply means is that the
INITIATIVE for filing revenue, tariff bills, etcmust comefrom the HOR on
the theory that since the HOR members are elected from the districts, they
can be expected to be more sensitive to the local needs and problems. A bill
originating in the HOR may undergo such extensive changes in the Senate.
The result may be a rewriting of the whole. To insist that the revenue statute
must be substantially the same as the house bill would deny the senates
power to concur and propose amendments. This would violate the coequality of the legislative power between the HOR and the Senate. Thus, the
[Here, when a statute repeals a former law, such repeal is the effect not
the subject of the law and it is the subject and not the effect that is required
to be briefly expressed in the title.]
2 rules:
1) One-subject-one-title rule
Sec 26(1), Art VI Every bill passed by the Congress shall embrace only 1
subject,whichshallbeexpressedinthetitlethereof.
Objectives (De Guzman Jr. vs. COMELEC)
To prevent hodge-podge or log-rolling legislation;
To prevent surprise or fraud upon the legislature by means of provisions in
bills of which the title gives no information and which might thus be
overlooked and carelessly and unintentionally adopted; and
To fairly appraise the people, through such publication of legislative
proceedings as usually made, of the subjects of legislation that are being
considered, in order that they may have the opportunity of being heard
thereon by petition or otherwise, if they shall so desire.
In general, the rule seeks to prevent riders provision which is totally
unrelated to the subject matter of the legislation being considered and may
be the subject of a separate legislation.
This rule is interpreted liberally!
This, for as long as various provisions are germane to the subject matter
which is expressed in the title the rule is complied with.
no deliberations yet
In the committee to which the bill was referred to, it may die a natural death
if said committee sits on it.
After 3 readings, the bill will be sent to the other house where it will
undergo the same cumbersome process.
If the members of the committee endorse the bill to the plenary, it will be
nd
calendared for 2 reading.
If both houses have different versions of the Bill, said versions will be sent
to the Bicameral Conference Committee for reconciliation.
Second Reading
The bill is sent back to the plenary.
In the plenary, it will be discussed in its entirety; there will be sponsorship
speech, interpellations, deliberations; amendments may also be introduced.
Third Reading
rd
Power of each house of Congress to have rules of proceedings under Art VI,
Section 16(3) Each house may determine the rules of its proceedings x x
x; and
The fact that we have a bicameral Congress Art VI, Sec 1 The
legislative power shall be vested in the Congress x x x which shall consist of
asenateandaHoR.
Nature and Functions of the Bicameral Conference Committee
Source: Philippine Wages Association vs. Prado
Primarily, it is a mechanism for compromising differences between the
senate and the HoR; this is because we have a bicameral Congress.
It is capable of producing unexpected results which can even go beyond its
mandate.
rd
Referral back to the Senate and the HoR from the bicameral conference
committee, the consolidated bill will be sent back to each House.
There, the consolidated bill will be subject to voting; no more readings
If the yeas prevail over the nays the bill is passed and will be sent to the
Senate Predient and the HoR speaker for signing.
If the nays prevail over the yeas another bicameral conference committee
will be created until an acceptable version of the bill is created; the court did
not say that the bill is killed.
A: Once a bill has become an enrolled bill, it becomes conclusive upon the
courts as to its enactment*, so that the courts will not inquire into whether
that Bill was regularly enacted or not.
Art VI. Sec 26(2) Upon the last reading of a bill x x x the vote thereon shall
be taken immediately thereafter, and the yeas and nays entered in the
Journal.
The yeas and nays on any question at the request of 1/5 of the members
present
Art VI, Sec 16(4) Each house shall keep a journal of its proceedings x x x
and the yeas and nays on any question shall, at the request of 1/5 of the
members present, be entered in the journal.
rd
the same with his objections to the House where it originated, which shall
enter the objections at large in its journal x x x
bill
does
not
automatically
Q: Can Congressoverthrowtheveto(repassthelaw)?
HELD: The court went beyond the enrolled bill and looked into the Journal to
determinewhetherthereslegalinsertionornot.
A: YES! With a 2/3 vote as provided under Sec 27(1) Art VI If after such
reconsideration, 2/3 of all members of such House agree to pass the bill, it
shall be sent, together with the objections to the other house by which it shall
likewise be considered, and if approved by 2/3 of all members of that house,
it shall become a law.
Last stage
Kinds of Veto
many
options
does
the
president
have?
tariff bill, but the veto shall not affect the item or items to which he does not
object.
Q: Do Local Chief Executives have veto power?
A: NO.
General Rule: President may not veto a provision without vetoing the entire
bill.
The president may not veto a bill without vetoing the entire bill. The
executive must veto a bill in its entirety or not at all. He cannot be an editor
crossing our provisions which she dislikes. (Bengzon vs. Drilon)
Appropriation bills
Revenue Bills
Chief Executive
Tariff Bills
Lupong Tagapamayapa
[UP]
Ultra-vires/
Q: Is the Chief executive of Baranggay an agent, or a person-in-authority?
[PAL]
Appropriation Ordinance
Adopting a local development plan
Ordinance Authorizing Payment of money/creating Liability
Lupong taga-pamayapa
Persons-in-
Q:Ispocketvetovalidorpracticedinourjurisdiction?
A:NO.ThereisnotsuchthingaspocketvetointhePhilippines.Unlikein
the US if within 10 days, the president fails to act on the Bill and Congress
adjourns, the bill does not become a law. In our jurisdiction, the bill
automatically becomes a law if the President does not act within 30 days
after receipt of the Bill.
HELD: The Court sustained the validity of the exercise by the President of
her veto power, invoking the doctrine of inappropriate provision.
ExampleofBillswhichlapsedintolawbythePresidentsinaction:
BarFlunkersAct President Quirino
Changing the name of Manila Intl Airport to Ninoy Aquino Intl Airport
President Aquino
EXECUTIVE DEPARTMENT
- 6 years, to begin at noon of June 30 next following the day of the election
and to end at noon of the same date 6 years thereafter.
EXECUTIVE POWER
ARTICLEVII,Sec.1:TheexecutivepowershallbevestedinthePresident
ofthePhilippines.
nd
sentence:xxxheshallensurethatthelawsbe
nd
par. NoVicePresidentshallserveformorethan
PRESIDENTIAL SUCCESSION
- Enumeration is exclusive!
- The Constitution specifically provided that the Congress cannot add nor
subtract from the list.
4 INSTANCES:
(1) Death
(2) Permanent disability
(3) Removal
II.
SPECIFIC
CONSITUTION
POWERS
FOUND
SOMEWHERE
ELSE
IN
THE
commission. The authority of local executives over the police units in their
jurisdiction shall be provided by law.
(3) Officers of the armed forces from the rank of colonel or naval captain
Q: What about officers of PNP of equivalent ranks?
A: No.
MANALO VS. SISTOZA
- President Aquino promoted 15 police officers by appointing them
to positions in the PNP with the rank of Chief Superintendent to Director.
Without their names submitted to the Commission on Appointments for
confirmation, the said police officers took their oath and assumed their
respective positions. Manalo questioned this on the ground that both under
Sec. 16, ARTICLE VII of the 1987 Constitution and RA. 6975 (Local Govt
Act of 1990) require their appointments to be submitted for confirmation and
that PNP is akin to the AFP.
(4) Other officers of the government whose appointments are vested in him
in this Constitution
EX: Chairmen and members of CSC, Comelec, COA (by express provision)
Regular members of JBC (ARTICLE VII, Sec. 8, Par. 2)
EXCEPTION: Judges, Justices, Ombudsman (by the creation of
the JBC, their appointments no longer require confirmation)
Sectoral representatives in Congress (Teresita Quintos deles et al vs.
Commision on Constitutional Commission)
SECOND SENTENCE
INSTANCES WHEN CONFIRMATION IS NO LONGER REQUIRED
- The PNP is separate and distinct from the AFP. The Constitution
no less, sets forth the distinction.UnderSec.4,ARTICLEXVII,thearmed
forces of the Philippines shall be composed of a citizen armed force which
shall undergo military training and service, as may be provided by law. It
shall keep a regular force necessary for the security of the state. On the
other hand, Sec. 6 of the same article ordains that: The state shall
establish and maintain one police force, which shall be national in scope and
civilian in character to administered and controlled by a national police
(1) All other officers of the government whose appointments are not
otherwise provided by law
A:ADINTERIMliterallymeansinthemeantimeorforthetimebeing.
nd
SC: The NLRC Chairman and Commissioners fall within the 2 sentence of
Sec. 16, ARTICLE VII of the Constitution more specifically under the third
groupofappointees those whom the President may be authorized by law
to appoint. Undeniably, the chairman and members of the NLRC are not
st
among the officers mentioned in the 1 sentence of Sec. 16, ARCTICLE VII
whose appointments require confirmation by the Commission on
Appointments. To the extent that RA. 6715 requires confirmation by the
Commission on Appointments of the appointments of respondent chairman
and members of NLRC, it is unconstitutional.
REGULAR
Commission on Appointments
c) where the appointee is confirmed to serve the unexpired term of
someone who died or resigned and the appointee completes the unexpired
term;
- 2
nd
Q: What if the appointments were actually disapproved and not simply bypassed, can they still be validly reappointed?
A: No. The disapproval is actually a judgment on the merits of their
qualification. The principle of checks and balances will come into play.
(2) There are four situations where ARTICLE IX-C, Sec. 1, Par. 2 will apply:
a)
where an ad interim appointee to the Comelec, after
confirmation by the Commission on appointment, serves his full seven-year
term;
- Appointment is discretionary.
Acting Appointments
permanent in nature
merely temporary
requires
confirmation
by
Commission on Appointments
the
(1) those made for buying votes (to influence the outcome of
Presidential elections)
(1) ARTICLE VII, Sec. 13, Par. 2 The spouse and relative by
consanguinity or affinity within the fourth civil degree of the President shall
not, during his tenure be appointed as member of the Constitutional
Commissions, or the Office of the Ombudsman, or as secretaries,
undersecrataries, chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and their subsidiaries.
(nepotic appointments)
Q: To what positions?
(3) ARTICLE VII, Sec. 13, Par. 1 The President, Vice President, the
Members of the Cabinet and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or employment
during their tenure. They shall not, during said tenure, directly or indirectly,
practice any other profession, participate in any business, or be financially
interested in any contract with, or in any franchise, or special privilege,
granted by the Government or any subdivision, agency or instrumentality
thereof, including government-owned and controlled corporations or their
subsidiaries.Theyshallstrictlyavoidconflictintheconductoftheiroffice.
- This is a prohibition against HOLDING MULTIPLE POSITIONS.
DE RAMA VS. CA
- Ma. Evelyn S. Abeja was a municipal Mayor. When her term is about to
end, she filled up all the positions before she vacated her position. When
her successor sit, there was no more vacancy and all the appointments were
nullified by the latter on the ground that they were midnight appointments.
SC: The records reveal that when De Rama brought the matter of recalling
the appointments of the 14 respondents before the CSC, the only reason he
cited to justify his action was that these were midnight appointments that
are forbidden under ARTICLE VII, Sec. 15 of 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.
(2) If they will hold that other office in an ex-officio capacity. (Civil
Liberties Union vs. Exec. Sec.)
CIVIL LIBERTIES UNION VS. EXECUTIVE SECRETARY
President Aquino issued EO 284 allowing member of cabinet to hold not
more than 2 other positions in the government including government-owned
and controlled corporations. EO 284 was issued when President Aquino still
exercises legislative powers. The idea was to have them earn more.
- This was a reaction to what happened during the Marcos Regime. There
was proliferation of newly created agencies, instrumentalities, and
government-owned or controlled corporations created by presidential
decrees and other modes of presidential issuances where cabinet members,
their deputies and assistants were designated to head or sit as member of
the board with the corresponding salary, emoluments, per diems,
allowances, and other perquisites of the office. This practice of holding
multiple offices or positions in the government soon led to abuses by
unscrupulous public officials who took advantage of this scheme for
purposes of self-enrichment.
INCOMPATIBLE OFFICE
FORBIDDEN OFFICE
is automatic.
CONTROL
more of an inhibition
more of a prohibition
A: Yes.
exercised
over
all
executive
departments bureaus, and offices
GENERAL SUPERVISION
exercised over local governments
ARTICLE X, Section 4 The
President of the Philippines shall
exercise general supervision over
local governmentsxxx
ARTICLE II, Section 25 TheState
shall ensure the autonomy of local
governments.
Q: What is CONTROL?
A: (1) to direct the performance of a duty;
(2) to restrain the commission of acts;
(3) to review, reverse, revise, alter, or modify the decisions of his
subordinates; or
(4) to substitute his own decision over that of his subordinates.
CONTROL POWER
ARTICLE VII, Sec. 17 ThePresidentshallhavecontrolofalltheexecutive
departments, bureaus, and offices. He shall ensure that the laws be
faithfullyexecuted.
MILITARY POWERS
ARTICLE VII, Sec 18
3 DISTINCT MILITARY POWERS OF THE PRESIDENT
(1) Calling out power as the Commander-in-chief of the Armed Forces of the
Philippines
(2) Power to proclaim martial law
(3) Power to suspend the privilege of the writ of habeas corpus
SC: Such withholding clearly contravenes the Constitution and the law. The
Constitution vests the President with the power of supervision, not control,
over LGUs. Such power enables him to see to it that LGUs and their
officials execute their tasks in accordance with law. While he may issue
advisories and seek their cooperation in solving economic difficulties, he
cannot prevent them from performing their tasks and using available
resources to achieve their goals. He may not withhold or alter any authority
or power given them by law. Thus, the withholding of a portion of internal
revenue allotments legally due them cannot be directed by administrative
fiat.
GANZON VS. CA
(2) rebellion }
Other Limitations
- For a period not exceeding 60 days
- Expressly been made subject to judicial review under ARTICLE VII, Sec.
18, Par. 3 TheSupremeCourtmayreview,inanappropriateproceeding
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 thirty
daysfromitsfiling.(LANSANGVS.GARCIA)
- Within 48 hours from the proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus, the President shall submit a report
in person or in writing to the Congress.
- The Congress, voting jointly, by a vote of at least a majority of all its
members in regular or special session,, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President.
squad)
- sentence was not carried out but he died just the same
- Several Filipinos abroad were against the decision in Aquino vs.
Commission they were known as Olaguer group.
- They were out to embarrass the Marcos Government.
- Unfortunately, the Lovely brothers, among their con-conspirators
accidentally detonated a bomb.
- They did not die and the group was arrested.
- All were sentenced to die by musketry.
- While the case was pending before the SC, EDSA I happened.
- Upon the initiative of the President, the Congress, may in the same
manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and
public safety requires it.
- A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies, NOR
authorize the conferment of jurisdiction on military courts and agencies over
civilians, where civil courts are able to function, (OLAGUER DOCTRINE)
Nor automatically suspend the privilege of the writ.
OLAGUER DOCTRINE
PARDONING POWER
ARTICLE VII, Sec.19 Except in cases of impeachment, or as otherwise
provided in this Constitution, the President may grant reprieves,
commutations, and pardons and remit fines and forfeitures, after conviction
by final judgment.
He shall also have the power to grant amnesty with the concurrence of a
majority of all the Members of the Congress.
FIVE MATTERS COVERED
(1)
(2)
(3)
(4)
(5)
To grant reprieves
To grant commutations
To grant pardons
To remit fines and forfeitures
To grant amnesty
- On the other hand, pardon, being a private act of the President, requires
proof and the convict who was granted such pardon has the burden of proof.
(1) does not apply in cases of impeachment (ARTICLE VII, Sec. 19)
AMNESTY
conviction
required
is
not
by
final
judgment
but
(2) there must first be conviction by final judgment (ARTICLE VII, Sec. 19)
(3) not applicable to legislative contempt
(4) not applicable to election offenses without favorable recommendation of
Comelec (ARTICLE IX-C, Sec. 5)
it encroached on the power of the President to grant reprieve under Sec. 19,
ARTICLE VII of the 1987 Constitution.
SC: Sec. 19, ARTICLE VII of the 1987 Constitution is simply the source of
power of the President to grant reprieves, commutations, and pardons and
remit fines and forfeiture after conviction by final judgment. This provision,
however, cannot be interpreted as denying the power of the courts to control
the enforcement of their decisions after the finality. In truth, an accused who
has been convicted by final judgment still possesses collateral rights and
these rights can be claimed in the appropriate courts. The suspension of
such a death sentence is indisputably an exercise of judicial power. It is not
usurpation of the presidential power of reprieve though its effect is the same
the temporary suspension of the execution of the death convict. The
powers of the Executive, Legislative, and the Judiciary to save the life of a
death convict do not exclude each other for the simple reason that there is
no higher right than the right to life.
Q: Discuss the nature of a CONDITIONAL PARDON.
A: A CONDITIONAL PARDON is in the nature of a contract between the
sovereign power of 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.
By the pardonees consent to the terms stipulated in this contract, the
pardonee has thereby placed himself under the supervision of the Chief
Executive or his delegate who is duty-bound to see to it that the pardonee
complies with the terms and conditions of the pardon. (In Re: Wilfredo
Sumulong Torres)
Q: Is the grant or revocation of conditional pardon by the President subject
to judicial review?
TREATY-MAKING POWER
ARTICLE VII, Sec. 21 Notreatyorinternationalagreementshallbevalid
and effective unless concurred in by at least 2/3 of all the Members of the
Senate.
Q:
Is an EXECUTIVE AGREEMENT
INTERNATIONAL AGREEMENT?
equally
binding
as
an
BORROWING POWER
A:Petitionerscontentiononthispointwasupheld.
A:
INTERNATIONAL
EXECUTIVE
involves implementation of
Q: Is VFA a treaty?
A: Yes. The President himself considered it as a treaty. He referred the
VFA to the Senate for concurrence.
Q: What are the conditions before foreign military bases, troops, or facilities
may be allowed in the Philippines pursuant to ARTICLE XVIII, Sec. 25 of the
1987 Constitution?
A: Sec. 25, ARTICLE XVIII disallows foreign military bases, troops or
facilities in the country unless the following conditions are sufficiently met:
(a) it must be under a treaty;
(b) the treaty must be duly concurred in by the Senate and when so
required by Congress, ratified by a majority of the votes cast by the people in
a national referendum; and
(c) recognized as a treaty by the other contracting state
BUDGETARY POWER
ARTICLE VII, Sec. 22 ThePresidentshallsubmittotheCongresswithin
30 days from the opening of every regular session, as the basis of the
general appropriations bill, a budget of expenditures and sources of
financing,includingreceiptsfromexistingandproposedrevenuemeasures.
independence
VOTING
- Only the members present and who participated in the deliberations on the
issues in the case shall vote.
- All cases xxx which shall be heard en banc xxx shall be decided with the
concurrence of a majority of members who actually took part in the
deliberations on the issues in the case and voted thereon.
- Cases or matters heard by division shall be decided or resolved with the
concurrence of a majority of Members who actually took part in the
deliberations on the issues in the case and voted thereon and in no case,
without the concurrence of a t least 3 such members.
JUDICIAL DEPARTMENT
JUDICIAL POWER
ARTICLE VIII, Sec. 1
TYPES OF POLITICAL QUESTIONS
QUORUM = 8
MAJORITY = 5
- When the required number is not obtained, the case shall be decided en
banc.
- No doctrine or principle of law laid down by the court in a decision
rendered en banc or in a division may be modified or reversed except by the
court sitting en banc.
suspension of any of them for a period of more than one (1) year or a fine
exceeding P10,000 or both;
- Term:
(7) Cases where a doctrine or principle laid down by the court en banc
or in division may be modified or reversed;
(8) Cases assigned to a division which in the opinion of at least (3)
members thereof merit the attention of the court en banc and are acceptable
to a majority of the actual membership of the court en banc; and
(9) All other cases as the court en banc by a majority of its actual
membership may deem of sufficient importance to merit its attention.
CONSTITUTIONAL PROVISIONS THAT TEND TO STRENGTHEN THE
INDEPENDENCE OF THE JUDICIARY
(1) ARTICLE VIII, Sec. 9 TheMembersoftheSupremeCourtandjudges
of lower courts shall be appointed by the President from a list of at least
three nominees prepared by the Judicial and bar Council for every vacancy.
Suchappointmentsneednoconfirmation.
(2) ARTICLE VIII, Sec. 3 The Judiciary shall enjoy fiscal autonomy.
Appropriations for the Judiciary may not be reduced by the legislature below
the amount appropriated for the previous year and after approval, shall be
automaticallyandregularlyreleased.
Composition:
I.
} as ex officio members
]
]
General Considerations:
Taada v. Angara By its very nature, Art. II are policies and principles that
may guide the Legislature in the enactment of laws and the courts in its
interpretation
Hence, as a general rule, these provisions are non-self-executing
BUT a provision that is complete in itself, and provides
sufficient rules for the exercise of rights, is self-executing
Thus, certain provisions under Art. II are self-executing
II.
This is constituent with the policy of the UN, of which we are a member.
Adopt: the generally accepted principlesof international law as part of the
lawoftheland
Reaffirms the Doctrine of Incorporation
IV.
TheprovisionsaystheAFPistheprotectorofthepeople
andtheStateDoesthisjustifyacoupdetat?
A:
NO! This clause should not be lifted out of context. Look
st
at the 1 sentence of the provision that the civilian authority is supreme
over the military. Thus, the AFPs role must be understood within the
context of civilian supremacy.
A:
servitude:
Exceptions to the rule on involuntary servitude:
1. Military service to defend the State
2. Penal punishment
3. Assumption of jurisdiction of DOLE in labor
cases
4. Mariners and pilots
5. Minor children under the patria potestas of
parents
NotethattheprovisionssaysPERSONALservice
Thus,onecannothiremercenariestotakeonesplace.
VI.
Q:
WhatistheGovernmentsDuty?
A:
VIII.
Provisions on Education
Academic Freedom Art. XIV, Sec. 5 (2) Academicfreedom
shallbeenjoyedinallinstitutionsofhigherlearning.
Note that the provision says institutions of higher
learning
WhatisacademicFreedom?
A:
2.
3.
4.
SALIENT POINTS
1.
2.
4.
regalia.
Art. XII, Sec 2. Alllandsofthepublicdomain,
waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy,
fisheries, forest or timber, wildlife, flora and fauna
and other natural resources are owned by the
State
A:
NO!
Significant Laws
BP 881 Omnibus Election Code
RA 6646 Electoral Reform Law of 1987
RA 7166
RA9006 Fair Election Act
RA 9189 AbsenteeVotersActof2003
Election Process divided into 3 stages:
(1) Pre-election
(2) During election
(3) Post Election
PRE-ELECTION STAGE
Registration of Voters
Q:
A:
VOTERSQUALIFICATIONS
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
executed by these Filipinos abroad that they will return and resume
residence in the Philippines within 3 years.
-
Section 8, BP 881
(1) citizens of the Philippines
(2) not otherwise disqualified by law
(3) at least 18 years of age
(4) resident of the Philippines for at least one year and of the place wherein
they propose to vote for at least six months immediately preceding the
elections
Failure of Elections
Sec. 6 OEC
Sec. 4 RA 7166
Mitmug v. COMELEC
Election Period: 90 days before the day of the election and shall end 30 days
thereafter
Pre-Proclamation
Sec. 241,242,243 OEC
Sec. 15, RA 7166
-Registration
Art. V. Sec 1
Effects of Disqualification
Sec. 6, RA 7166
Guerrero
v.
COMELEC
Loong v. COMELEC
Salcedo
v.
COMELEC
Tecson v. COMELEC
-Political Parties
Art. IX-C, Sec 2(5)
-Filing of Certificate of
Candidacy
Sec. 79(A) OEC
Sec. 73 OEC
Monsale v. Nico
Sec. 66 OEC
PNOC-EDC v.
NLRC
Sec. 26 OEC
COMELEC
Resolution
-Campaign Period
-Substitution
of
Candidates
Sec. 77 OEC
Sec. 12 RA 9006
Miranda v. Abaya
-Disqualification Cases
Sec. 68 OEC
Sec. 69 OEC (5 days)
Sec. 78 OEC (25
days)
Q:
A:
Yes.RA9189(AbsenteeVotersActof2003)
MACALINTAL v. COMELEC
HELD:UndertheABSENTEEVOTERSACTOF2003,overseasabsentee
voters are allowed to vote for President, Vice-President, Senators and PartyList representatives. This is a clear intent to enfranchise Filipinos abroad, to
allow them to have a voice in the selection of our leaders. This refers to
IMMIGRANTS and those who acquire the right to reside therein. It does not
pertain to NATURALIZED CITIZENS. However, there must be an affidavit
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
v.
compulsory but voluntary. Also, voters are not required to reveal their
names. (ABS-CBN v. COMELEC)
Q:
A:
A:
MULTI-PARTY SYSTEM
We are supposed to have a multi-party system as provided under Art. IX-C,
Sec. 6 Afreeandopenpartysystemshallbeallowed to evolve according
tothefreechoiceofthepeople,subjecttotheprovisionsofthisArticle.
ELECTION PERIOD
Q:
A:
CANDIDATE
Sec. 79(a) Omnibus Election Code the term CANDIDATE refers to
any person aspiring for or seeking an elective public office, who has filed a
certificate of candidacy by himself of through an accredited political party,
aggroupment,orcoalitionofparties.
Q:
DoesPichaysasitanimsasenadoevenbeforetheelectionsand
campaign period violate Sec. 80 of the OEC?
A:
No. At that time, Pichay has not yet filed his certificate of
candidacy. He is not yet a candidate within the meaning of the law.
Therefore, it cannot be considered as an election campaign.
FILING OF CERTIFICATE OF CANDIDACY
Sec.76. Omnibus Election Code Ministerial duty of receiving and
acknowledging receipt The Commission, provincial election supervisor,
election registrar or officer designated by the Commission or the board of
election inspectors under the succeeding section shall have the ministerial
dutytoreceiveandacknowledgereceiptofthecertificateofcandidacy.
It is a ministerial duty on the part of the election official to receive and
acknowledge receipt of the certificate of candidacy. The question of whether
or not a person is disqualified belongs to another tribunal in an appropriate
disqualification case.
rd
The certificate of candidacy must be filed for only one office in an election
If a candidate files his certificate of candidacy for more than one office, he
shall not be eligible for any of them.
WITHDRAWAL
Q:
A:
Yes. A person who has filed a certificate of candidacy may, prior to
the election, withdraw the same by submitting to the office concerned a
nd
written declaration under oath. (Sec. 73, 2 sentence, OEC)
MONSALE v. NICO
On the last day of filing of certificate of candidacy. March 31, Jose Monsale
withdrew his certificate of candidacy. April 1, campaign started. On April 2,
he wanted to run again so he filed a written declaration withdrawing his
withdrawal.
HELD: The withdrawal of the withdrawal of the certificate of candidacy
made after the last day of filing is considered as filing of a new certificate of
candidacy. Hence, it was not allowed since it was filed out of time.
Q:
Ka Roger went to Laguna to file COC. The election officer refused
because he seeks to achieve goals through violence. Valid?
EFFECT OF FILING OF A CERTIFICATE OF CANDIDACY
A:
No. It is the ministerial duty on the part of the election official to
receive and acknowledge receipt of the certificate of candidacy. The
question of whether or not a person is disqualified belongs to another
tribunal in an appropriate disqualification case.
PERIOD
Appointive Officials
Sec. 66. OEC Candidates holding appointive office or position Any
person holding a public appointive office or position, including active
members of the Armed Forces of the Philippines, and officers and
employees in the government-owned or controlled corporations, shall be
considered ipso facto resigned from his office upon the filing of his certificate
ofcandidacy.
Q:
X, a municipal treasurer filed a certificate of candidacy for governor.
What is the effect?
A:
He is considered ipso facto resigned.
Q:
A:
Q:
Is there a need to resign?
A:
NO! The appointive official is ipso facto resigned. Ipso facto means
no need to resign.
Q:
A:
PNOC-EDC v. NLRC
HELD: The OEC does not distinguish between employees of GOCCs which
have original charters and those that do not have one.
Elective Officials
Sec. 67, OEC Candidates holding elective office xxx has already been
repealed by the Repealing Clause of the Fair Election Act under Sec. 14, RA
9006 Repealing Clause. Sec 67 and 85 0f the EOC xxx are hereby
repealed.
Q:
A:
Secton 38, COMELEC Resolution 7767 (30 Nov 2006),
Implementing Rules of the Fair Election Act EffectofFilingCertificateof
Candidacy of Elective Officials Any elective official, whether national or
local, who has filed a certificate of candidacy for the same or other office
shall not be considered resigned from his office.
Q:
A:
FARIAS v. EXECUTIVE SECRETARY
HELD: The provision of the Fair Election Act (RA 9006) to the extent that it
repealed Sec.67 of OEC is constitutional.
Q:
Vice-governor filed a certificate of candidacy for governor. What is
the effect?
A:
He is NOT ipso facto considered resigned. Sec. 67 OEC has been
repealed by the FAIR ELECTION ACT (RA 9006). Any elective official,
national or local shall not be considered as resigned from their elective
office.
SUBSTITUTION OF CANDIDATES
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
Q:
A:
A:
Yes! As a general rule, under RA 9006, Sec. 12, the same will be
considered as stray votes but will not invalidate the whole ballot.
Exception is when the substitute carries the same family name, the said
provision will not apply.
Q:
LABO DOCTRINE
The thrust is what to do with the votes cast for a disqualified candidate.
Should they be considered as stray votes?
SC:
No! That would disenfranchise the majority. The votes cast for the
disqualified are not stray votes they are valid votes only that the candidate
was later on found to be disqualified.
It would have been different if his disqualification was so apparent,
so notorious, so much so that the people, notwithstanding that they knew
him to be disqualified, they still voted for him in which case the votes cast for
him shall be considered as protest votes. Protest votes are considered as
stray votes. But not in this case, where the people of Baguio voted for Labo
only to find out that he is disqualified.
You cannot apply Labo Doctrine in Party-List because of Section 10, RA
7941
CAYAT v. COMELEC
FACTS: Rev. Fr. Nardo Cayat ran for Mayor. Palileng, his opponent, found
out that Cayat, before the elections, was previously convicted of acts of
lasciviousness although he was granted probation. His candidacy was then
questioned in a disqualification case invoking Section 40 pf the LGC.
(Disqualification The following persons are disqualified from running for
any elective local position: (a) those sentenced by final judgment for an
offense involving moral turpitude or for an offense punishable by one (1)
year or more of imprisonment, within (2) years after serving sentence ; xxx) .
COMELEC disqualified Cayat on the ground of conviction of an offense
involving moral turpitude. However, Cayat alleged that he did not receive a
copy of the judgment. That decision disqualifying Cayat became final even 2
weeks before the election. Still, Cayat won in the election. Palileng claimed
that since Cayat is disqualified, he should be the one proclaimed.
HELD: The Court agreed and did not apply the doctrine of the rejection of
the second placer. The one who obtained the second highest number of
votes was the one actually proclaimed. This is very peculiar because here,
there is only one candidate. Since Cayat was disqualified, it is as if he is not
a candidate. Hence, there is no second placer here.
The doctrine of the rejection of second placer is not applicable because of
Sec.6 of RA 6646
Also, under Section 6, RA 6646 (Electoral Reform Law of 1987 Effect of
st
disqualification) which contemplates of 2 situations, it is the 1 sentence
which applies to Cayat. He was declared by final judgment, to be
disqualified because the decision attained finality even 2 weeks before the
election. He shall therefore not be voted for and the votes cast for him shall
not be counted.
The second sentence contemplates that there was a disqualification case
filed before the COMELEC but for whatever reason, COMELEC was not
able to render a decision before the election and such candidate won in the
election, in which case, the court or Commission shall continue with the trial
and hearing of the election, inquiry or protest.
DISQUALIFICATIONS/REMEDIES BEFORE ELECTION
Any disqualification filed before the election, whether pursuant to Sections
68, 69 and 78 of OEC, the jurisdiction is with the COMELEC
(1)
A:
SALCEDO v. COMLELEC
HELD: Material misrepresentation refers to the QUALIFICATIONS of the
elective official for the elective office and NOT to any innocuous mistake.
Theremustbeadeliberateintenttodeceivethepeopletoonesqualification
for public office.
TECSON v. COMELEC
FACTS: A disqualification case was filed against FPJ in accordance with
Sec. 78 on the ground of material representation as to the citizenship.
HELD: There was no material misrepresentation. The misrepresentation
must not only be material. There must also be a deliberate intent to mislead
ordeceiveastoonesqualificationtopublicoffice.
Farias was elected, proclaimed and took his oath. The COMELEC ousted
itself of jurisdiction. SC upheld COMELEC. It was recognition of the power
of the HRET and the constitutional boundaries.
Election 7am 3pm, then counting, members of Board of Canvassers
Return usually 7 copies:
(1)COMELEC
(2)Treasurer
(3)Municipal Judge
The idea is that in case of lost return, they can refer to the other copies.
Number of votes written in words and number
POST ELECTION
PRE-PROCLAMATION CASE
Q:
After election, but before proclamation, what is the remedy?
A:
Pre-proclamation case. But this presupposes that there was
election
Q:
A:
Eg. Ballot box switching not proper for pre-proclamation case; does not fall
under any of the instances under Art. 243 of OEC.
FAILURE OF ELECTION
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
A:
COMELEC EN BANC. The majority of the Commission may grant
the petition and schedule special election in areas affected.
(Section 4, RA 7166 Postponement, Failure of election and
special Elections The postponement, declaration of failure of election and
the calling of special elections as provided in Sec. 5, 6, and 7 of the OEC
shall be decided by the Commission sitting en banc by a majority vote of its
Members. The causes for the declaration of a failure of election may occur
beforeorafterthecastingofvotesornthedayoftheelectionxxx)
BANAGA v. COMELEC
Failure of election is the same with petition to annul election returns
General Rule: xxx All such election cases shall be heard and decided in
division, provided that motions for reconsideration of decisions shall be
decided by the Commision en banc. (Art IX-C, Section 3)
Exception: A petition to declare a failure of election shall be heard by the
COMELEC en banc.]
PRE-PROCLAMATION v. FAILURE OF ELECTION
In pre-proclamation, there is actually an election that took place
In failure of election, there was no election at all or it was suspended or there
was a failure to elect.
MITMUG v. COMELEC
There were 3 candidates for mayor. The total registered voters is 10, 000.
Only 3,000 voted. There was a low turn out of voters. A petition was filed to
declare a failure of election
HELD: The petition cannot be granted. There was an election that took
place. The law does not require the majority of voters to cast their votes.
There can onlybe a failure of election if the will of the people is defiled and
cannot be determined.
PROCLAMATION
Q:
A:
Q:
What are the two (2) conditions that must concur before the
COMELEC can act on a verified petition seeking to declare a failure
of election?
(1) no voting took place in the precinct
(2) on the date fixed by law or even if there was voting, the election
resulted in a failure to elect.
Where to file a petition to declare a failure of election?
Q:
A:
It is the ministerial duty of the BOC to proclaim the winning candidate. It has
no discretion whether to proclaim or not. After the last official act, which is
the proclamation, the BOC becomes functus officio and may not validly
reconvene motu proprio. However, when the COMELEC ordered the
reconveyance of the BOC, it may.
POST-ELECTION REMEDIES After election
ELECTION PROTEST v. QUO WARRANTO
ELECTION PROTEST
QUO WARRANTO
- who really won in the election?, - whether the winning candidate is
determination of real choice of qualified, eligibility or lack of
electorate
qualifications of the candidate
- only the candidate running for the
same can file
- if the protestant wins, he shall be
proclaimed and shall replace the
previously proclaimed winner.
- eg. coercion, terrorism, ballot box
switching, vote buying.
DUMAYAS v. COMELEC
Election Protest is a contest between the defeated and winning candidates
on the ground of frauds or irregularities in the casting and counting of the
ballots or in the preparation of returns. It resolves the question of who
actually obtained the plurality of the legal votes and therefore is entitled to
hold the office.
Quo warranto raises in issue the disloyalty or ineligibility of the winning
candidate. It is a proceeding to unseat the respondent from office but not
necessarily to install the petitioner in his place.
JURISDICTION
- SC en banc , acting
as Presidential
Electoral Tribunal
(Art. VII, Sec. 4[7])
solejudge
(1) President/ VP
(2)
Members
of
the
- EP
30 days from
proclamation
QW
10 days from
proclamation
-EP or QW
Congress
-Senators
-Congressmen
(3) Governor/
Governor
Vice-
-Senate
Electoral
Tribunal
-HR Electoral Tribunal
(Art. VI, Sec. 17)
No appeal
Or Rule 65 (Special
Civil Action
on
Certiorari)
-COMELEC (Original)
(Art. IX-C, Sec. 2[2])
-SC (Appellate)
(4)
Regional/
Provincial/City
-COMELEC (Original)
-SC (Appellate)
-RTC (Original)
(trialcourtsofgeneral
jurisdiction)
-COMELEC
(Appellate)
(Art. IX-C, Sec. 2[2])
-MTC (Original)
(trialcourtsoflimited
jurisdiction)
-COMELEC
(Appellate)
- 15 days after
proclamation
- 10 days after
proclamation
-10
days
proclamation
from
President/Vice-President and NOT over candidates for President/VicePresident. Hence, the action was dismissed for lack of jurisdiction and
prematurity.
If a counter protest was belatedly filed, but was erroneously admitted, the
remedy is to file a motion to expunge the counter protest from the records. If
not expunged from the record, file a petition for certiorari under Rule 65.
ELECTION OFFENSE
Q:
Who has jurisdiction over election offenses?
A:
RTC, except in cases where there is failure to register to vote which
shall be under the MTC.
GALIDO v. COMELEC
Notwithstanding the finality of COMELECs decision, the parties are NOT
precluded from filing a petition for certiorari with the SC.
FRIVALD0 v. COMELEC ; LOONG v. COMELEC
If the ground relied upon is lack of citizenship or disloyalty to the Republic,
the period must be extended.
EFFECT OF DEATH OF A PARTY
Q:
What is the effect of death of a party in an election protest? Should
it warrant the dismissal of the protest?
A:
The death of the protestant neither constitutes a ground for the
dismissal of the contest not ousts the trial court of its jurisdiction to decide
the election contest. An election protest involves both the private interests of
the rival candidates and the public interest in the final determination of the
real choice of the electorate, and for this reason, an election contest
necessarily survives the death of the protestant or the protestee. But while
the right to public office is personal and exclusive to the public officer, an
election protest ins not purely personal and exclusive to the protestant or to
the protestee such that after the death of either would oust the court of all
authority to continue the protest proceedings. An election contest, after all,
involves not merely conflicting private aspirations but is imbued with
paramount public interests. (DE CASTRO v. COMELEC)
COUNTER-PROTEST available to a winning candidate if his election is
protested.
A remedy available to a duly proclaimed winner in order to protect ones
lead. Allege also the precinct where your opponent cheated.
KHO v. COMELEC
Counter protest must be filed within 5 days from receipt of the copy of the
protest. The period is not only mandatory but also jurisdictional. It partakes
the nature of a counterclaim. So that the court is ousted of jurisdiction to
entertain a counter protest belatedly filed.
INCLUSION/EXCLUSION PROCEEDINGS
- within the jurisdiction of MTC appealable to RTC
-RTC decision is not appealable
WHEN ELECTION PROTEST BECOMES MOOT
Defensor Santiago filed an Election Protest. Subsequently, she ran for
Senator and won. She abandoned her protest when she ran for an office
different frim that of the President.
RULES ON APPRECIATION OF BALLOTS
(1) GENERAL RULE After the elections, the liberal interpretation rule
shall be applied. IN CASE OF DOUBT, the rule in favor of the vote
being valid as to give effect to the will of the electorate shall be
followed.
(2) EQUITY OF INCUMBENT RULE 2 or more candidates running
for the same office, they bear the same first name, surname or both
and the voter in his ballot wrote only either of the 2, the vote shall
2. Professor Goodnow
it is that part of public law which fixes the organization of the government
and determines the competence of the authorities who execute the law and
indicates to the individual remedies for the violation of his rights.
In both definitions, the focus is on the executive department acting in quasilegislative and quasi-judicial functions.
THREE IMPORTANT DOCTRINES
ADMINISTRATIVE AGENCIES
It implements or enforces
Ex: COMELEC - main function is to enforce the laws relative to the
conduct of election.
- This is an executive function.
But the law may vest the agency quasi-judicial and quasi-legislative
powers.
2 COMPONENTS:
(1) Corporate governmental entity, through which the functions of
government are exercised throughout the Philippines.
(2) Various arms through which political authority is made effective in the
Philippines.
BUREAU
-
OFFICE
-
INSTRUMENTALITY
refers to any agency of the National Government, not
integrated within the department framework vested with special
functions or jurisdiction by law, endowed with some if not all
corporate powers, administering special funds, and enjoying
operational autonomy, usually through a charter.
this term includes regulatory agencies, chartered institutions
and GOCC's. (Sec.2 [16], Introductory Provisions, E.O. 292)
REGULATORY AGENCY
refers to any agency expressly vested with jurisdiction to
regulate, administer, or adjudicate matters affecting substantial
rights and interests of private persons, the principal powers of
which are exercised by a collective body, such as a
commission, board or council. (Sec. 2[4] Introductory
Provisions, E.O. 292)
Ex: PRC, NLRC, SEC, Insurance Commission
CHARTERED INSTITUTIONS
refers to any agency organized or operating under a special
charter, and vested by law with functions relating to specific
constitutional policies or objectives.
this term includes the state universities and colleges and the
monetary authority of the state. Section 2 [12] Introductory
Provisions, E.O. 292)
Ex: BSP
ATTACHMENT
Thisreferstothelateralrelationshipbetweenthedepartmentorits
equivalent and the attached agency or corporation for purposes of policy and
program coordination. The coordination may be accomplished by having the
department represented in the governing board of the attached agency or
corporation either as chairman or as a member, with or without voting rights.
If this is permitted by the charter, having the attached corporation or
agency comply with a system of periodic reporting which shall reflect the
progress of programs and projects and having the department or its
equivalent provide general policies through its representative in the board,
which shall serve as the framework for the internal policies of the attached
corporation or agency.
OTHER AGENCIES
They do not fall within the control power of the president over the
departments.
Under Article VII, Section 17, Instrumentalities are not included.
ILLUSTRATION
Delegation of Powers
Conferment of Jurisdiction
QUASI- LEGISLATIVE ADMINISTRATIVE AGENCY QUASI JUDICIAL
Administrative Regulations
Q. Other names?
A. (1) Rule-making power of an agency
(2) Power of Subordinate Legislation
Legislative
Supplemental
Interpretative
Contingent
Due Process
Contempt Power
Appeals
Q. In what capacity did the Secretary of Labor acted in promulgating the
rules and regulations implementing the Labor Code?
A. He acted in his quasi-legislative capacity.
POWERS AND FUNCTIONS OF ADMINISTRATIVE AGENCIES
Q. Generally, how will you describe the functions of an administrative
agency?
A. The functions of an administrative agency are to enforce, implement,
administer and execute laws.
When Article 2 of the New Civil Code refers to laws, these do not
only refer to those enacted by Congress but includes administrative
regulations promulgated by administrative bodies in their quasilegislative functions except those which are merely internal or
interpretative in nature. (Tanada v. Tuvera)
be invalidated.
LAW ON PUBLIC OFFICER
What is a public office?
It refers to the right, authority or 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 power of
the sovereign function of the government, to be exercised by that individual
for the benefit of the public.
Elements: CD-DIP
1. It is created by law or authority of law
-the powers to create and abolish public office are vested in the
legislative
-power to abolish is not absolute, it must be done in good faith
2. Possess a delegation of a portion of the sovereign powers of the
government, to be exercised for the benefit of the public.
3. Powers conferred and duties imposed must be defined directly of
impliedly by the legislature.
4. Duties must be performed independently and without the control of a
superior power other than the law.
5. Must have permanence or continuity.
Ex: A is holding a public office, he was removed. In this case, A may validly
invoke his security of tenure. He can only be removed for a just and valid
cause and there must be an observance of due process.
Article XI (AccountabilityofPublicOfficer),Sec.1provides:Public
Office is a public trust. Public Officers and employees must at all means be
accountable to the people, serve them with utmost responsibility, integrity,
loyalty and efficiency, and act with patriotism, justice and lead with modest
lives.
PUBLIC OFFICER
SELECTION
2 ways:
4. It is not a property.
It is therefore not protected or guaranteed by the due process
clause.
Ex: A is holding public office, Congress decided to abolish it. A cannot
complain that there was a violation of the due process clause if he was not
given an opportunity to be heard, provided that the abolition is done in good
faith.
ABOLITION VS REMOVAL
In abolition, what is abolished is the office itself, while in removal, it
is the occupant that is removed, but the office remains.
1. Election
2. Appointment
DESIGNATION -refers to the imposition of additional duties, usually by law,
on any person already in public office. It presupposes that a person is
already appointed.
SEVILLA VS CA
Generoso Sevilla was appointed as Asst. City Engineer of Palayan
City, Nueva Ecija until he was designated as the Acting EngrofCabanatuan
City. After the EDSA Revolution, Sevilla was ousted when the City Mayor of
Cabanatuan appointed Nerito Santos as the new City Engineer. This was
later confirmed by the Ministry of Public Works and Highways and approved
by the CSC. This was questioned by Sevilla in an action/petition for Quo
warranto filed against Santos.
appointment cannot be faulted on the ground that there are others better
qualified who should have been preferred.
SC: The petition is devoid of merit. An acting appointment is merely
temporary, one which is good only until another appointment is made to take
its place.
APPOINTMENT VS DESIGNATION
Appointment selection by the proper authority of an individual
who is to exercise the functions of an office.
Designation connotes merely the imposition of additional duties
upon a person who is already in the public service by virtue of an earlier
appointment or election. A mere designation does not confer upon the
designee security of tenure in the position or office which he occupies only in
an acting capacity.
Nature of designation
LUEGO DOCTRINE:
This is a political question involving consideration of wisdom which
only the appointing authority may determine. For as long as the appointee
has the minimum requirements, the CSC and the SC are powerless to
render that a better one is more qualified.
REMONTE VS CSC:
The head of an agency who is the appointing power is the one who
is most knowledgeable to decide who can best perform the function of an
office.
FLORES VS DRILON
APPOINTMENT in focus
Nature of appointment
1. Executive on character
2. Discretionary
LUEGO VS CSC
Felimon Luego was appointed by Mayor Solon as Administrative
Officer II. His appointment was described as permanent, but CSC approved
it on a temporary basis subjecting it to the final action to be taken on the
protest filed by Felicula Tuazo. Subsequently, CSC found Tuazo to be
better qualified than Luego and directed that Tuazo be instead appointed.
Luego questioned this.
SC: CSC has no authority to revoke said appointment simply because it
believed that Tuazo was better qualified, for that would have constituted an
encroachment on the discretion vested solely in the City Mayor.
Appointment is essentially a discretionary power and must be performed by
the power on which it is vested. The only condition being that the appointee
should possess the qualification required by law. If he does, then the
Hence, when the Congress clothes the President with the power to appoint
an officer, it cannot at the same time limit the choice of the President to only
one candidate. Once the power of appointment is conferred on the
President, such conferment necessarily carries the discretion on whom to
appoint.
NEXT IN RANK RULE
Where can you find the said rule?
Civil Service Law
4. There is no legal fiat that a vacancy must be filled only by promotion, the
appointing authority is given wide discretion to fill a vacancy from among
several alternatives provided by law.
Q: If the next to the Head Chief Accountant is the Deputy accountant and the
third is the Administering Officer IV, then the office of Chief Accountant
became vacant and the then Deputy accountant and Administering Officer IV
applied, assume that another Chief Accountant applied and was appointed,
can the Deputy Accountant claim that there was a violation of the next in
rank rule?
A: No. The next in rank rule applies only in case of promotion. What is
involved here is a mere transfer, a lateral movement involving same rank
and position.
Q: Can the Deputy Officer claim that he should be the one to be appointed?
A: No, appointment is discretionary.
Rules:
Even of the vacancy here had been filled by promotion rather by a lateral
transfer, the concept of next in rank rule does not import any mandatory or
preemptory requirement that the person next in rank must be appointed to
the vacancy. What the Civil Service Law provides is that if the vacancy is
filled up by promotion, the person holding the position next in rank thereto
shall be considered for promotion.
The one who is next in rank is only entitled to preferential consideration.
The next in rank rule is not absolute.
disregarded.
A: No. This is because there was no vacancy, hence security of tenure did
not attach.
2. Art IX-B, Sec. 4 All public officers and employees shall take an oath or
affirmation to uphold and defend the Constitution.
2 PRINCIPLIES:
3. Art. XV, Sec. 5, par. 1 All members of the armed forces shall take an
oath or affirmation to uphold and defend the Constitution.
2. As an endowment
Intruder/Usurper No Title but in actual possession
QUALIFICATION AS AN ACT
-consists in taking of an oath
A: As a rule, No. This is because he is not allowed to benefit from his acts.
Otherwise it will encourage people to usurp other office. When he assumes
office knowing that his title is imperfect, he runs the risk of not receiving a
salary that attaches to the office.
b. residence
EXCEPTIONS:
In Civil Law, residence and domicile are different. In the said law, a person
may only have several residences but may only have one domicile. In
Ploitical Law, particularly in election law, residence and domicile are the
same.
3 CLASSES OF DOMICILE
1. Domicile of Birth
2. Domicile of Choice
3. Domicile by Operation of Law
MACALINTAL VS COMELEC
2. Color of title.
3. Actual physical possession of the office.
Domicile of Choice
QUALIFICATION AS AN ENDOWMENT
- possession of attributes to be qualified
- refers to Citizenship, Age, Civil service eligibility, Education, Residence
(CACER)
- qualifications are continuing
a. citizenship
SC: Argument No.1) he was voted by the people, hence the defect was
cured:
--No religious test shall be required for the exercise of civil or political rights
Q: What offenses?
A: Those sentenced by final judgment
Political Affiliation
1. Moral turpitude
LINGATING VS COMELEC
The administrative case must have attained finality for the
disqualification to apply.
If still pending appeal or on certiorari,
disqualification is not applicable.
MARQUEZ JR VS COMELEC
In May 1995 election, Rodriguez ran for Governor (Quezon
Province). He won. Marquez, a defeated candidate, filed a disqualification
case against Rodriguez under sec. 40(e) after finding out that Rodriguez had
criminal charges against him of insurance fraud or grand theft of personal
property.
Contention of Rodriguez Not fugitive from justice because he is not yet
convicted by final judgment.
SC: No. Fugitive from justice applies not only to those convicted by final
judgment and who absconds to evade punishment BUT also to one, where a
valid criminal information is already filed and he absconded to evade
jurisdiction.
RODRIGUEZ VS COMELEC
Although there was indeed fraud insurance case before
California court, HE IS NOT A FUGITIVE FROM JUSTICE because
cases were filed 5 months after he has returned to the Philippines,
controlling factor was the intent to evade jurisdiction. He could not have
intent to evade because there is no information yet.
SC: Borja is qualified. The term limit for elective local officials must be
taken to refer to the right to be elected as well as the right to serve in the
same elective position. Consequently, it is not enough that an individual has
served three consecutive terms in an elective local office, he must also have
been elected to the same position for the same number of times before the
disqualification can apply.
the
the
the
the
Q: Mayor was elected in 1988. He ran and won again on 1992 and 1995
election. But there was an election protest regarding the 1995 election. On
March 1998, he was removed because of a COMELEC decision. Is he
qualified to run in the 1998 election?
A: YES. He was only elected twice since he eventually lost in the election
protest. In 1995, he is merely a presumptive winner. There is a failure of
the two conditions (LONZANIDA VS COMELEC).
started June 30, 2001. After a year, a resolution calling for a special election
was passed. On the said special election, Hagedorn filed his certificate of
candidacy. His qualification was questioned.
SC: He is qualified. The three term limit is found in Art. X, Sec. 8 and
reiterated in Sec. 43, par. B of LGC. WHAT IS PROHIBITED IS
IMMEDIATE RE-ELECTION to the SAME OFFICE for a FOURTH
CONSECUTIVE TERM. In this case there is an intervening date.
Q: X was elected in 1992. In 1995 and 1998, he ran and won again. In
2000, as a result of an administrative case, he was removed but he has able
to appeal seasonably. In May 2001, he filed his certificate of candidacy.
The administrative case was not yet decided. Is he qualified?
A: Yes he is qualified to run.
A: SC in the same case said that: The service of a recall term shall
constitute one full term. Reason: Elected official in a recall election should
know that the service of recall term shall constitute one full term. (OBITER
DICTUM)
MENDOZA VS COMELEC
In 1992, Tet Garcia won as governor. In 1993, Recall election was
made, Ting Roman won as governor. In 1995 and 1998 elections, Roman
won again. In 2001, Roman ran again. Is he qualified to run?
A: No. What has been abandoned in Socrates was a mere Obiter Dictum.
No actual controversy yet.
Service of recall term will not constitute one full term in applying the
disqualification.
SC: Philippine National Red Cross is a GOCC with an original charter under
R.A> 95, as amended. The test to determine whether a corporation is
government owned or controlled or private in nature is simple. Is it created
by its own charter for the exercise of a public function or by incorporation
under the general incorporation law? Those with special charters are
government corporations subject to its own provisions and its employees are
under the jurisdiction of CSC and are compulsory members of the GSIS.
The PNRC was not impliedly converted to a private corporation simply
because its charter was amended.
KINDS OF APPOINTMENTS
The law requires publication of all vacant positions in the government. This
is mandatory so that all eligible can apply.
BAR Question:
What are the characteristics pf career positions as well as non-career
positions?
1. Career
a. Entrance is based on merit and fitness to be determined based
on competitive examination or it is based on highly technical qualifications;
b. There is security of tenure;
c. Opportunity for advancement to a higher position.
one year
but it may even be shorter
Q:
How do you classify position of members of the Sangguniang
Panlalawigan?
A: Non-career. It is an elective office.
PROXIMITY RULE
A: NO! They may possess technical skills or training but not in the supreme
or superior degree, hence non-career.
CSC VS SALAS
PRIMARILY CONFIDENTIAL POSITIONS
Q: What are their classifications?
A: Non-Career. There tenure is co-terminous with that of the appointing
authority or subject to his pleasure.
GRINO VS CSC
SC: Applying the proximity rule, Salas cannot be removed on the said
ground. The position of Salas as a supervisor is too remote from the
appointing authority, the Chairman. There are so many intermediaries
between them.
authority was the latters belief that hecanshare a close intimacy with the
occupant which ensures freedom of discussion without fear of
embarrassment or misgivings of possible betrayal of personal trust or
confidential matters of the State.
Art. IX-B sec. 2 par. 2 Appointment in the Civil Service shall be made only
according to merit and fitness to be determined as far as practicable and
except to positions which are policy-determining, primarily confidential or
highly technical, by competitive examination. (It has nothing to do with the
classification of his position as career on non-career).
FABIAN VS DESIERTO
A: Yes. CSC has original and appellate jurisdiction. Under the Civil Service
law, a complaint against a government official or employee may be filed
directly to the CSC (not only to the heads of office).
CSC CA
PAREDES VS CSC
CSC VS DACOYCOY
SC: The first suspension that was imposed was not the penalty. It is merely
a preventive suspension. The second suspension was the penalty. The two
suspensions are of different nature. The service of preventive suspension
cannot be credited with the service of suspension as penalty.
LAYNO VS SANDIGANBAYAN
PREVENTIVE SUSPENSION (pending investigation)
Nature: Not a penalty. It is imposed while the case is being investigated or
pending appeal. It should be distinguished from dismissal or suspension
which may only be imposed upon investigation and subsequent finding of
guilt.
BEJA, SR VS CA
Preventive suspension is not a penalty by itself; it is imposed only
during the pendency of an administrative investigation. 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,
ehilr the same is being investigated. Thus, preventive suspension is distinct
from the administrative penalty of removal from office such as the one
mentioned in Sec 8 (d) of PD 807. While preventive suspension may be
imposed on a respondent during the investigation of the charges against
him, the removal from office is a penalty which may only be meted out upon
him at the termination of the investigation or the final disposition of the case.
GLORIA VS CA
This was
SC: The public school teachers are entitled to their salaries computed
from the time of their dismissal or suspension until their actual
reinstatement, for a period of not exceeding 5 years.
There are two kinds of preventive suspension of civil service
employees who are charged with offenses punishable by removal or
suspension:
1. Preventive Suspension pending investigation
2. Preventive suspension pending appeal, if the penalty imposed is
suspension or dismissal and after review the respondent is exonerated
on appeal.
Preventive suspension pending investigation is not a penalty. It is a
measure intended to enable the disciplining authority to investigate
charges against the respondent by preventing the latter from
intimidating or in any way influencing witnesses against him. If the
investigation is not finished and the decision is not rendered within the
period, the suspension will be lifted and the respondent will
automatically be reinstated. If after the investigation, the respondent is
found innocent of the charges and is exonerated, he should be
reinstated. However, no compensation was due for the preventive
suspension pending investigation.
In case of a suspension pending appeal, he is entitled to
compensation for the period of their suspension pending appeal if
eventually he is found innocent. Why? It is actually punitive in
character although it is in effect subsequently considered illegal if
respondent is exonerated and the administrative decision finding him
guilty is reversed. Hence, he should be reinstated with full pay for the
period of the suspension.
SIGNIFICANCE OF THE DIFFERENCE:
Pending Investigation not entitled. Why? Not a penalty but is entitled t
reinstatement.
Pending Appeal if on appeal he is exonerated, he is entitled to full
backwages and reinstatement; it is punitive in character.
II. LOCAL GOVERNMENT CODE
Q: Period?
A: 60 days for every administrative charge
JURISDICTION
-
Appointive Officials
Court
Elective Officials
Q: where do you file an administrative complaint against local
elective offificals?
A: (1) Barangay official in a
a. Municipality- sangguniang bayan
b. City sangguniang panglungsod
(2) Official of a municipality sangguniang panlalawigan
(3) City official and provincial official Office of the President
GANZON vs. CA
SC:
There is nothing in the LGC (RA 7160) to indicate that it has
repealed the pertinent provisions of the Ombudsman Act (RA 6770).
Repeals by implication are not favored. Every statute must be so interpreted
and brought into account with other laws as to form a uniform system of
jurisprudence. Besides, the grounds to impose preventive suspension under
the LGC and the Ombudsman Act are different. The Ombudsman has
concurrent jurisdiction with the officers who have authority to impose
preventive suspension pursuant to Section 63 of LGC.
PREVENTIVE SUSPENSION IN CRIMINAL CASE
Anti-Graft and Corrupt Practices Act (RA 3019)
Section 13 RA 3019 Suspension and Loss of Benefits Any
incumbent public officer against whom any criminal prosecution under a
valid information under this Act or under Title 7, Book II of the RPC or for
any offense involving fraud upon government or public funds or property
whether as simple or as complex offenses and in whatever stage of
execution and mode of participation, is pending in court shall be suspended
from office. Should he b e convicted by final judgment, he shall lose all
retirement or gratuity benefits under any law, but if he is acquitted, he shall
be entitled to reinstatement and to the salaries and benefits which he failed
to receive during the suspension, unless in the meantime administrative
proceedings have been filedagainsthim.
Q: Who has the authority to impose preventive suspension?
SC:
the contention is not correct. The amendatory provisions clearly
states that any incumbent public officer against whom any criminal
prosecution under a valid information under RA 3019 or for any offense
involving fraud upon the government or public funds or property whether as
a simple or as a complex offense and in whatever stage or execution and
mode of participation, is pending in court shall be suspended from office.
Thusbytheuseofthewordofficethesameappliestoanyofficewhichthe
officer charged may be holding and not only the particular office which he
was charged.
*Section 13 RA 3019 does not state that the officer concerned must be
suspended only for the office he was charged.
*Moreover, should the purposes behind preventive suspension become
manifest, the respondent court is not bereft of remedies or sanctions. The
petitioner may still be suspended but for specifically expressed reasons and
not from an automatic application of Section 13, RA 3019.
SANTIAGO vs. SANDIGANBAYAN/ PAREDES vs. SANDIGANBAYAN
When X was a governor, a criminal complaint against him for
violation of anti-graft was filed. While the Ombudsman was investigating,
there was an election. X ran for Congressman and won. In the meantime,
the Ombudsman filed the criminal information against X before the
Sandiganbayan. The Sandiganbayan issued a suspension order addressed
to the Speaker of the House of Representatives for him to carryout the order.
The Speaker refused to execute because it violated Section 16 par 3 Article
VI of the Constitution (Each House may determine the rules of its
proceedings, punish its own members for disorderly behavior and either 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)
SC:
there is no encroachment here. What is being imposed by the
Sandiganbayan is not a penalty but merely a preventive suspension.
Members of Congress are not exempted from the operation of Section 10,
RA 3019. The law says any incumbent public officer. We are only
interpreting the law as you wrote it. The Speaker of the House was held in
contempt of the Sandiganbayan.
SUSPENSION AS A PENALTY
Q: Can imprisonment of 10 days be imposed if found guilty?
A: No. Administrative cannot impose penalties which involve deprivation of
life and liberty. Hence cannot impose imprisonment,
Doctrine of Condonation only in administrative cases
General Rule: Appointive official not allowed from holding other position in
the government
Exceptions: a. allowed by law
b. allowed by the primary functions of their position
(CIVIL LIBERTIES UNION vs. EXECUTIVE
SECRETARY)
3.
5.
6.
Law on Nepotism
Violation results to dismissal with forfeiture of benefits
Found in the Civil Service Law
Under Section 59, Civil Service Law Allappointmentsinthe
national, provincial, city, and municipal governments or in any
branch or instrumentality thereof, including government owned
or controlled corporations, made in favor of a relative of the
appointing or recommending authority, or of the chief of the
bureau or office or of the persons exercising immediate
supervision over him, are hereby prohibited.
Prohibited relationships
rd
Under the Civil Service Law = 3 Civil Degree
th
Under the LGC = 4 civil degree SEC. 79. Limitation on
Appointments. - No person shall be appointed in the career
service of the local government if he is related within the fourth
civil degree of consanguinity or affinity to the appointing or
recommending authority.
DEBULGADO vs. CIVIL SERVICE COMMISSION
It was contended that the law on nepotism applies only to original
appointments but not to promotional appointments.
SC:
The law on nepotism applies to all kinds of appointment because
the law does not distinguish.
A textual examination of Section 69 at once reveals that the
prohibition was cast in comprehensive and unqualified terms. Firstly, it
explicitly covers all appointments without seeking to make ay distinction
between differing kinds or types of appointments. Secondly, Section 59
covers all appointments to the national, provincial, city, and municipal
governments, as well as any branch or instrumentality thereof and all
government owned or controlled corporations. Thirdly, there is a list of
exceptions set out in Section 59 itself, but it is a short list.
Both an original appointment and a promotion are particular
species of personnel action. The original appointment of a civil service
employee and all subsequent personnel actions undertaken by or in respect
of that employee such as promotion, transfer, reinstatement, reemployment,
etc. must comply with the Implementing Rules including of course the
prohibition against nepotism in Rule XVIII.
The conclusion we reach is that Section 59 Book V, EO 292 means
exactly what it says in plain and ordinary language. It refers to all
appointments whether original or promotional in nature. The public policy
embodied in section 59 is clearly fundamental in importance, and the court
has neither authority nor inclination to dilute that important public policy by
introducing a qualification or discretion here.
Pedro
Mario
Jose
District I (10,000)
5,000
District II (8,000)
4,500
5,000
Cities
*If one who will be replaced belongs to a political party, the successor must
come from the same political party.
If he does not belong to a political party then apply Sec. 45(c)
Q: Who shall appoint?
A: Local chief executive upon the recommendation of the sanggunian
concerned.
FARIAS vs. BARBA
The last ranking sanggunian bayan member who did not
belong to any political party resigned. To fill the vacancy, both the mayor and
the governor appointed their own choice.
SC:
Neither of the two appointees should assume position.
Sec 45 (c) LGC must be read together with Sec 45 (a). Since this is a
municipality, the governor should appoint but with the recommendation of
the sanggunian concerned which is the sanggunian bayan where the
vacancy took place.
NAVARRO vs. CA
Composition of the municipal government:
Mayor Lakas
NUCD
Vice Mayor. Lakas
NUCD
st
th
1 to 5 sanggunianmember..Reporma
th
6 SanggunianMember..LakasNUCD
th
7 SanggunianMember..Reporma
th
8 SanggunianMember..LakasNUCD
Therefore in the Sanggunian, there were 6 Reporma and 2 Lakas.
The mayor died. The Vice mayor became the Mayor. The last ranking
position became vacant so the governor appointed someone from Reporma.
Lakas protested because the vacancy came from Lakas.
SC:
Governor is correct. What is crucial is the interpretation of Sec. 45
(6). The reason behind the right given to the political party to nominate a
replacement is to maintain the party representation as willed by the people in
the election.
With the elevation of Tamayo (Reporma) as the Vice Mayor it
diminished the RepormasrepresentationintheSanggunian.Hence,theone
appointed should come from Reporma.
UNITS/
AUTONOMOUS
REGIONS/
2.
3.
*The doctrine under Paredes has been abandoned by TAN vs. COMELEC,
as reaffirmed in the Padilla vs. Comelec.
SC:
SC:
The basis of IRA is Article X, Sec 6. This is not self-executing. It is
implemented in the LGC.
LGUs are entitled to 40% of the total national taxes. The
allocations in Sec 285 LGC- Allocations to Local Government Units.- The
share of local government units in the internal revenue allotment shall be
allocated in the following manner:
a. Provinces 23%
b. Cities 23%
c. Municipalities 34%
d. Barangays 20%
MAINSOURCESOFINCOMEOFLGUs
1.
Resolution
- merely a declaration of sentiment
or opinion of the lawmaking body
- temporary
- no reading in its enactment is
required unless approved by majority
of sanggunian members
By:
* Two views:
a.) Traditional view only states are subject of international law.
- only states have rights which may be directly enforced or
have obligation
for which it may be held directly accountable
under international law.
b.) Modern view not only states are proper subjects of
international law.
proper subjects
proper subject of
- it is a separate body.
to eliminate
its statute
- organized into: a) appeal division president and four
other judges
ICJ
ICC
of court)
st
rd
b.) 2
c.) 3
a) individual
Human Rights
- those liberties, immunities, and benefits which all human
beings should
be able to claim as of right of the
society in which they live by accepted
contemporary values.
- those fundamental and inalienable rights which are
essential for life as a
human being.
human rights in
- itprovides:Thestatevaluesthedignityofeveryhuman
guarantees full respect for human
c) Laws of Neutrality govern the relations of third states not parties to the
war with any of the belligerent states. (but the relations of third parties inter
se shall still be governed by the laws of peace)
* Principal legal documents are:
1.) Geneva Convention of 1949 define fundamental rights for
combatants
removed from the fighting due to injury, illness or
capture and for civilians.
a) Geneva Convention for the Amelioration of the
Condition of the
Wounded and Sick in Armed Forces in
the field of August 12, 1949
IHL
HRL
members of the
a) spies
conduct
of
- thestatesatwararereferredtoasbelligerentstatesor
belligerents
the
simply
Belligerencyinthesenseofactualhostilitiesamounting
to a civil war
within a state presupposes the
existence of rebel movement within a state.
- third states are to observe strict neutrality in their dealings either with the
rebel government or legitimate government
peremptorymeansmandatory.
* Examples of norms considered as jus cogens in character
a) requesting state the state where the offenses was alleged to have
been committed
b) surrendering state the state where the fugitive sought refuge
One of the characteristics or our criminal law is territoriality
- we can only enforce our criminal laws within our jurisdiction.
4) unless otherwise stipulated in the treaty, the offense must have been
committed in the territory of the requesting state.
Wright vs. CA
- Mr. Wright is an Australian who had been staying in the
Philippines for a long
time already.
- it was only much later when the two states entered into an
extradition treaty
SC:
(decided October 17, 2000 by a 9-6 vote) reconsidered;
controlling
doctrine!!!
- an extradition proceeding is sui generis
- it is not a criminal proceeding which will call into operation all the
rights of an accused as guaranteed by the Bill of Rights.
- presumption of innocence does not apply
- as an extradition proceeding is not criminal in character and the
evaluation stage in an extradition proceeding is not akin to a preliminary
investigation, the due process safeguards in the latter may not necessarily
apply during the initial evaluation stage in an extradition proceeding.
- this we hold for the procedural due process required by a given
set of circumstances must begin with a determination of the precise nature
of the government function involved as well as the private interest that has
been affected by governmental action.
- the concept of due process is flexible for not all situations calling
for procedural safeguards call for the same kind of procedure.
* Mark Jimenez is not entitled to the documents he was requesting
only at the early stage of the proceeding.
- eventually he will be furnished those documents at the
of filing of the case before the court
time
Extradition
the
the government.
rule
2) the measure must be narrowly drawn to preclude abuses
Bayan vs. Ermita
- if the CPR (Calibrated Pre-Emptive Response) policy adopted by
the Arroyo administration in dealing with rallies and mass actions means no
more than maximum tolerance as defined by BP 880, then it become a
superfluity (no need for that; the policy has already been laid down by law).
SC:
Mayor Bagatsing is wrong. Any act of the government
alleged to have infringed upon fundamental freedoms comes to court with
a heavy presumption of unconstitutionality. So that the burden now is on the
part of the government to justify the act.
fundamental
- thewordusedwasimmediately
SC:
The more compelling state interest must be upheld to
prevent the escape of
potential extraditee which can be precipitated by
premature information of the basis for the request of his extradition.
always presumed
warrant of arrest
entitled to a copy of
* Two Doctrines
1) Doctrine of Incorporation
- the generally accepted principles of international law
automatically become part of their laws and will no longer require an
enabling act from the legislative body.
- the Philippines subscribe to this doctrine under section 2,
articleIIoftheConstitution,whichprovidesthat,thePhilippinesadoptsthe
generally
accepted principles of international law as part of the law
oftheland.
2) Doctrine of Transformation
- the generally accepted principles of international law
does not automatically become part of their laws and will still require an
enabling act from the legislative body.