Memory Aid

San Beda College of Law 1 M EMORY A ID IN P OLITICAL L AW

CONSTITUTIONAL LAW IN GENERAL CONSTITUTION - the document which serves as the fundamental law of the state. (V. Sinco, Philippine Political Law, 11th ed., p.6870); that written instrument enacted by direct action of the people by which the fundamental powers of the government are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic (Malcolm, Philippine Constitutional Law, p.6) Classification: 1. written (conventional or enacted) v. unwritten (cumulative or evolved). 2. rigid v. flexible The Philippine Constitution is written and rigid. (Art. XVII) The 1987 Constitution took effect on February 2, 1987, the date of the plebiscite for its ratification and not on the date its ratification was proclaimed. (De Leon v. Esguerra, 153 SCRA 602) Interpretation: a doubtful provision shall be examined in the light of the history of the times and the conditions and circumstances under which the Constitution was framed (Civil Liberties Union v. Executive Secretary, 194 SCRA 317). In case of doubt, the provisions should be considered self-executing; mandatory rather directory; and prospective rather than retroactive (Nachura, Reviewer in Political Law, p.3) CONSTITUTIONAL LAW - designates the law embodied in the Constitution and the legal principles growing out of the interpretation and

application of its provisions by the courts in specific cases (Sinco, supra, p.67) STATE - A community of persons, more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing a government to which a great body of the inhabitants render habitual obedience; a politically organized sovereign community independent of outside control bound by ties of nationhood, legally supreme within its territory, acting through a government functioning under a regime of law. (CIR v. Campos Rueda, 42 SCRA 23). Elements: People – inhabitants of the State, the number of which is capable for selfsufficiency and self-defense; of both sexes for perpetuity. Different meanings of the word people: -People as inhabitants (Sec.1, Art.XIII; Secs.15 -16, Art. II; Sec.2, Art.III); -People as citizens (Preamble; Secs. 1 and 4, Art. II; Sec.7, Art. III); -People as electors (Sec.4, Art. VII; Sec.2, Art. XVI; Sec. 25, Art. XVIII). Territory – fixed portion of the surface of the earth inhabited by the people of the State; see Art I. Sovereignty – supreme and uncontrollable power inherent in a State by which that State is governed; Characteristics: a. permanent b. exclusive c. comprehensive d. absolute e. indivisible f. inalienable g. imprescriptible

CHAIRPERSON: Jonathan Mangundayao  ASST. CHAIRPERSON: Andre Jacobo EDP: Shantel Aceret MEMBERS: Jeff Alarilla, Carlo Bautista, Mark Anthony Bayquen, Ian Camara, Barbara Jill Clara, Ryan Co, Bethany Conde, Beatriz Geronilla, Mary Ann Charisma Gutierrez, Christopher Linag, Hazel Manaog, Leah Merida, Jenery Perez. Fred Prieto, Russel Tacla, Ma.Melissa Yoro, Joy Zabala

2005 CENTRALIZED BAR OPERATIONS

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Theory of Auto-Limitation - any state may by its consent, express or implied, submit to a restriction of its sovereign rights. There may thus be a curtailment of what otherwise is a power plenary in character. (Reagan v. CIR, G.R. No. L-26379. Dec. 27, 1969). Imperium - the state’s authority to govern embraced in the concept of sovereignty; includes passing laws governing a territory, maintaining peace and order over it, and defending it against foreign invasion. Dominium - capacity of the state to own or acquire property. (Lee Hong Hok v. David, 48 SCRA 372) Effect of Belligerent Occupation No change in sovereignty. However, political laws, except those of treason, are suspended; municipal laws remain in force unless changed by the belligerent occupant. principle of jus postliminium – At the end of the occupation, political laws are automatically revived. (Peralta v. Director of Prisons, 75 Phil. 285) Effect of Change of Sovereignty – The political laws of the former sovereign, whether compatible or not with those of the new sovereign, are automatically abrogated, unless they are expressly re-enacted by affirmative act of the new sovereign. Municipals laws remain in force. (Macariola v. Asuncion, 114 SCRA 77) Jurisdiction – manifestation of sovereignty Territorial – authority to have all persons and things within its territorial limits to be completely subject to its control and protection.

Personal - authority over its nationals, their persons, property, and acts, whether within or outside its territory. Extraterritorial – authority over persons, things or acts, outside its territorial limits by reason of their effects to its territory. Government – that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them. (US v. Dorr, 2 Phil. 332). Government of the Republic of the Philippines – is the corporate governmental entity through which the functions of government are exercised throughout the Philippines, including the various arms which political authority is made effective, whether pertaining to the autonomous regions, the provincial, city or barangay subdivisions or other forms of local government. [Sec. 2(1), E.O. 292 or the Administrative Code of 1987] Classification: De jure – has a rightful title but no power or control, either, because same has been withdrawn from it or because same has not yet actually entered into the exercise thereof. De facto – actually exercises power or control but without legal title (Lawyers League for a Better Philippines v. Aquino, G.R. No. 73748, May 22, 1986). De facto proper – government that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains

R2005 C ENTRALIZED B AR O PERATIONS E XECUTIVE C OMMITTEE

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C HAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics). Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 3 M EMORY A ID IN P OLITICAL L AW itself against the will of the latter; Government of paramount force – established and maintained by military forces who invade and occupy a territory of the enemy in the course of war; and Independent government – established by the inhabitants of the country who rise in insurrection against the parent state (Ko Kim Cham v. Valdez Tan Keh, 75 Phil. 113). Functions: constituent – compulsory because constitutive of the very bonds of society; ministrant – undertaken to advance general interest of society (Bacani v. NACOCO, 100 Phil. 468); merely optional. Doctrine of Parens Patriae – government as guardian of the rights of People (Government of Philippines Islands v. El Monte de Piedad, 35 SCRA 738). FUNDAMENTAL POWERS OF THE STATE Inherent Powers of the State: I . POLICE POWER - Law of overruling necessity - power promoting public welfare by restraining and regulating the use of liberty and property. Basis: public necessity and right of State and of public to self-protection and self-preservation. Who may exercise: generally, legislature but also: the President, Administrative bodies, and Law-making bodies of LGU’s

the

Requisites (Limitations): Lawful Subject – the interests of the public in general, as distinguished from those of a particular class, require the exercise of the power; Lawful Means – the means employed are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive on individuals; When exercised by a delegate: express grant by law; within territorial limits – for LGUs except when exercised to protect water supply; and must not be contrary to law. II . POWER OF EMINENT DOMAIN - power of State to forcibly take private property for public use upon payment of just compensation Basis: necessity of the property for public use. Who may exercise: generally, legislature but also: the President; Law-making bodies of LGU’s; Public Corporations, and; Quasi-public Corporations.

the

Two stages: • determination of the authority of the plaintiff to exercise the power and the propriety of its exercise; and • determination of just compensation. Requisites: 1. Necessity – when exercised by: Congress – political question; Delegate – justiciable question 2. Private property – all private property capable of ownership may be expropriated, except money and choses in action; may include services (Republic v. PLDT, 26 SCRA 620). 3. Taking: there is taking when: i. owner actually deprived or dispossessed of his property;



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ii. there is practical destruction or a material impairment of value of property; iii. owner is deprived of ordinary use of his property; and iv. owner is deprived of jurisdiction, supervision and control of his property. requisites: i. expropriator must enter a private property; ii. entry must be more than a momentary period; iii. entry must be under a warrant or color of authority; iv. property must be devoted to public use or otherwise informally appropriated or injuriously affected; v. utilization of the property must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property (Republic v. Castelvi, 58 SCRA 336). 4. Public use - has been broadened to include not only uses directly available to the public but also those which redound to their indirect benefit; that only a few would actually benefit from the expropriation of the property foes not necessarily diminish the essence and character of public use (Manosca v. Court of Appeals, 252 SCRA 412). • Once expropriated change of public use is of no moment. It is well within the rights of the condemnor as owner to alter and decide its use so long as it still for public use. (Republic vs. C.A., G.R. No. 146587, July 2, 2002) 5. Just compensation compensation is qualified by the word just to convey that equivalent must be real, substantial, full and fair; the value of the property must be determined either as of the date of the taking of the property or the filing of the complaint, whichever came first. (Eslaban v. vda. De Onorio, G.R. No. 146062, June 28, 2001)

Formula: -- fair market value of the property, to which must be added the consequential damages, minus the consequential benefits, but in no case will the consequential benefits exceed the consequential damages Fair market value – the price that maybe agreed upon by parties who are willing but are not compelled to enter into a contract of sale. ✍ Consequential damages – consist of injuries directly caused on the residue of the private property taken by reason of expropriation 6. Due process of law – the defendant must be given an opportunity to be heard. •

III. POWER OF TAXATION - power by which State raises revenue to defray necessary expenses of the Government. Scope: covers persons, property, or occupation to be taxed within taxing jurisdiction Basis: power emanating from necessity (lifeblood theory) Who may exercise: generally, the legislature but also: Law-making bodies of LGU’s (Sec.5, Art. X); and The President, under Sec. 28 (2), Art. VI of the Constitution or as incident of emergency powers that Congress may grant to him under Sec. 23(2), Art. VI. Limitations on the Power of Taxation: Inherent limitations Public purpose; a. Non-delegability of power; b. Territoriality or situs of taxation; c. Exemption of government from taxation; d. International comity. Constitutional limitations a. Due process of law; b. Equal protection of law;


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San Beda College of Law 5 M EMORY A ID IN P OLITICAL L AW c. Uniformity, equitability, and progressivity of taxation; d. Non-impairment of contracts; e. Non-imprisonment for nonpayment of poll tax; f. Origin of appropriation, revenue, and tariff bills; g. Non-infringement of religious freedom; h. Delegation of legislative authority to the President to fix tariff rates, import and export quotas, tonnage and wharfage dues; i. Tax exemption of properties actually, directly and exclusively used for religious, charitable and educational purposes; j. Majority vote of all members of Congress required in case of legislative grant of tax exemptions; k. Non-impairment of the Supreme Court’s jurisdiction in tax cases; l. Tax exemption of revenues and assets of, including grants, endowments, donations, or contributions to, educational institutions. •

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Any question regarding the constitutionality of a tax measure must be resolved in favor of its validity. Any doubt regarding the taxability of any person under a valid law must be resolved in favor of that person and against the taxing power. Any doubt as to the applicability of a tax exemption granted to a person must be resolved against the exemption.

Double Taxation – additional taxes are laid: 1. on the same subject; 2. by the same taxing jurisdiction; during the same taxing period; and 3. for the same purpose. ✍ Despite lack of specific constitutional prohibition, double taxation will not be allowed if the same will result in a violation of the equal protection clause (Nachura, Reviewer in Political Law, p.38). TAX

LICENSE FEE 1. as to basis

Power of taxation – to raise revenue

Police power – to regulate

2. limitation Rate or amount to be collected unlimited provided not confiscatory.

Amount limited to cost of: (a) issuing the license and (b) necessary inspection or police surveillance.

3. object Imposed on persons or property.

Paid for privilege of doing something but privilege is revocable.

4. effect of non-payment Business or activity does not become illegal.

Business becomes illegal.



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DISTINCTIONS

POLICE POWER

EMINENT DOMAIN

TAXATION

1. Regulates both liberty and property

Affects only property rights

Affects only property rights

POLICE POWER 1.

Lawful subject

1.

Necessity

2.

Lawful means

2.

Private property;

3.

Taking; . Public use;

When exercised by a delegate: 2. Exercised only by the Government

Maybe exercised by private entities

Exercised only by the Government

3. Public necessity and the right of the state and of the public to selfpreservation and selfprotection.

Necessity of the public for the use of private property

Public necessity

4. Property intended for a noxious purpose is taken and destroyed.

Property is wholesome and is devoted to public use or purpose

Property is wholesome and is devoted to public use or purpose

5. Compensa tion is the intangible, altruistic feeling that the individual has contributed to the public good

Compensati on is full and fair equivalent of the property taken

Compensatio n is the protection and public improvemen ts instituted by the government for the taxes paid

6. Contracts may be impaired.

Contracts may be impaired.

Contracts may not be impaired.

EMINENT DOMAIN

4. 3. 4. 5.

Express grant by law

5.

Just compensation;

Within the territorial limits

6.

Due process of law.

Must not be contrary to law


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C HAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VCEDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law 7 M EMORY A ID IN P OLITICAL L AW Article I : NATIONAL TERRITORY I. Territory of the Philippines: 1. Philippine archipelago, with all the islands and waters embraced therein; ARCHIPELAGIC DOCTRINE – integration of a group of islands to the sea and their oneness so that together they can constitute one unit, one country, and one state. An imaginary single baseline is drawn around the islands by joining appropriate points of the outermost islands of the archipelago with straight lines and all islands and waters enclosed within the baseline form part of the territory. Main purpose is to protect the territorial interests of an archipelago. (see last sentence, Art. I). 2. all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its: • terrestrial; • fluvial; and • aerial domain; Kalayaan Isand Group a. historic right; b. effective control and occupation. (P.D. No. 1596) 3. including its: • sea bed; • subsoil; • insular shelves; and • other marine areas. 4. Waters: • around; • between; and • connecting - the islands of the archipelago, regardless of (i) breadth; and (ii) dimensions - form part of the internal waters of the Philippines. II. Territorial Sea • The belt of the sea located between the coast and internal waters of the coastal state on the one hand, and the high seas

on the other, extending up to 12 nautical miles from the low water mark. III. Contiguous Zone • Extends up to 12 nautical miles from the territorial sea. Although not part of the territory, the coastal State may exercise jurisdiction to prevent infringement of customs, fiscal, immigration or sanitary laws. IV. Two hundred Mile Exclusive Economic Zone • not a part of the national territory but exclusive economic benefit is reserved for the country. Thus, the coastal state has in the exclusive economic zone: 1. sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non living, if the waters superjacent to the seabed and subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the waters, currents, and winds; 2. jurisdiction with regard to: a. the establishment and use of artificial islands, installations, and structures; b. marine scientific research; c. the protection and preservation of marine environment; 3. other rights and duties provided for in the Convention. (Art. 56 of the UN Convention on the Law of the Sea) V. Territorial Jurisdiction - power of the state over persons and thing within its territory. Entities exempt from this control are: 1. Foreign states, head of states, diplomatic representatives, and to certain degree, consuls; 2. Foreign state property, including their embassies, consulates and public



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3. 4.

5. 6.

vessels engaged in non-commercial activities; Acts of states; Foreign merchant vessels exercising their rights of innocent passage or involuntary entry, such as arrival under distress; Foreign armies passing through or stationed in its territory with its permission; and Such other persons and property, over which the state may, by agreement, waive jurisdiction (Nachura, Reviewer in Political Law, 1996 ed., p. 18). Article II : PRINCIPLES AND STATE POLICIES

I. SEPARATION OF POWERS Purpose: to prevent concentration of authority in one person or group of persons that might lead to irreparable error or abuse in exercise to the detriment of republican institutions. (Pangasinan Transportation Co. v. Public Service Commission, G.R. No. 47065. June 26, 1940) Principle of Blending of Powers – instance when powers are not confined exclusively within one department but are assigned to or shared by several departments. (Nachura, Reviewer in Political Law, 2000 ed., p. 42). Principle of Checks and Balances – allows one department to resist encroachments upon its prerogatives or to rectify mistakes or excess committed by the other departments. II. DELEGATION OF POWERS General Rule: Potestas delegata non potest delegare - premised on the ethical principle that delegated power constitutes not only a right but a duty to be performed by the delegate through the instrumentality of his own

judgment and not through intervening mind of another.

the

Exceptions (Permissible Delegation): (PETAL) 1. Tariff powers of the President [Sec. 28 (2), Art. VI] 2. Emergency powers of President [Sec. 23 (2), Art. VI] 3. Delegation to the people [Sec. 32, Art. VI; Sec. 10, Art. X; Sec. 2, Art. XVII; RA 6753]. 4. Delegation to Local Government units (Art X; RA 7160); and 5. Delegation to administrative bodies (power of subordinate legislation). Tests for Valid Delegation: Completeness test – law must be complete in all essential terms and conditions so that there is nothing for delegate to do except enforce it; Sufficient standard test – map out the boundaries of delegate’s authority by defining legislative policy and indicating circumstances under which it is to be pursued (Pelaez v. Auditor General, 15 SCRA 569). III. STATE PRINCIPLES REGARDING FOREIGN POLICY (SEC. 2, ART. II) 1. renounces war as an instrument of national policy; 2. incorporation clause – adopts the generally accepted principles of international law as part of the law of the land; and 3. adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. IV. SUPREMACY OF CIVILIAN AUTHORITY (SEC. 3, ART. II) Ensured by: 1. the installation of the President, the highest civilian authority as the commander-in-chief of the military [Sec. 18, Art. VII];


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San Beda College of Law 9 M EMORY A ID IN P OLITICAL L AW 2. the requirement that the members of the AFP swear to uphold and defend the Constitution, which is the fundamental law of the civil government; 3. the professionalization of the service and the strengthening of the patriotism and nationalism, and respect for human rights, of the military; 4. insulation of the AFP from partisan politics; 5. prohibition against appointment to a civil position; 6. compulsory retirement of officers, so as to avoid propagation of power; 7. a 3-year limitation on the tour of duty of the Chief of Staff, which although extendible in case of emergency by the President, depends on Congressional declaration of emergency; 8. requirement of professional recruitment, so as to avoid any regional clique from forming within the AFP [Sec. 5, Art. XVI]; and 9. the establishment of a police force that is not only civilian in character but also under the local executives [Sec. 6, Art. XVI]. V. SEPARATION OF CHURCH AND STATE (SEC. 6, ART. II) Reinforced by: 1. Freedom of religion clause; 2. Non-establishment of religion clause; 3. No religious test clause [Sec. 5, Art. III]; 4. No sectoral representative from religious sector [Sec. 5 (2), Art. VI]; 5. Prohibition against appropriation for sectarian benefits. [Sec. 29(2), Art. VI]; and 6. Religious denominations and sects cannot be registered as political parties [Sec. 2 (5) Art. IX-C].

Exceptions: 1. Churches, personages, etc., actually, directly and exclusively used for religious, charitable and educational purposes shall be exempt from taxation [Sec. 28 (3), Art. VI]; 2. Prohibition against appropriation for sectarian purposes, except when, priest etc., is assigned to the armed forces, or to any penal institution or government orphanage or leprosarium [Sec. 29 (2), Art. VI]; 3. Optional religious instruction for public elementary and high school students [Sec. 3 (3), Art. XIV];and 4. Filipino ownership requirement for educational institutions, except those established by religious groups and mission boards [Sec. 4 (2), Art. XIV]. VI. AUTONOMY OF LOCAL GOVERNMENTS (SEC. 25, ART. II; ART. X) Decentralization of Administration delegation of administrative powers to local government unit in order to broaden the base of governmental powers. Decentralization of Powers – abdication of political power in the favor of local governments units declared to be autonomous. (Limbonas v. Mangelin, 170 SCRA 786) Article III : BILL OF RIGHTS •

set of prescriptions setting forth the funda-mental civil and political rights of the individual, and imposing limitations on the powers of government as a means of securing the enjoyment of those rights.

Classification of Rights: 1. Political rights – granted by law to members of community in relation to their direct or indirect participation in the establishment



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2.

3. 4.

or administration of the government; Civil rights – rights which municipal law will enforce at the instance of private individuals, for the purpose of securing them the enjoyment of their means of happiness; Social and economic rights; and Human rights.

I. DUE PROCESS OF LAW •

That which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial (Darmouth College v. Woodward, 4 Wheaton 518).

Aspects of Due Process: 1. Substantive due process Requisites: a. the Interest of the public in general, as distinguished from that of a particular class require the intervention of the state; b. means employed are reasonably necessary for accomplishment of purpose and not unduly oppressive. - Publication of laws is part of substantive due process (Tañada v. Tuvera, 146 SCRA 446). 2.

Procedural due process Requisites of Civil Procedural due process: a. an impartial court or tribunal clothed with judicial power to hear and determine matters before it; b. jurisdiction properly acquired over person of defending and over property which is subject matter of proceeding; c. opportunity to be heard; d. judgment rendered upon lawful hearing and based on evidence adduced (Banco Español Filipino v. Palanca, G.R. No. L-11390. March 26, 1918.)

Requisites of Criminal due process [Sec. 14 (1), Art. III]: a. accused has been heard in a court of competent jurisdiction; b. accused is proceeded against under the orderly processes of law; c. accused is given notice and opportunity to be heard; and d. judgment rendered within authority of constitutional law (Mejia v. Pamaran, 160 SCRA 457). Requisites of Administrative Due Process: a. right to a hearing, which includes the right to present one’s case and support evidence in support thereof; b. tribunal must consider evidence adduced; c. decision must have something to support itself; d. evidence must be substantial; e. decision must be based on evidence adduced, or at least contained in the records and disclosed to the parties; f. independent consideration of evidence, and not rely on the recommendation of a subordinate; and g. the decision must state the facts and the law in such a way that the parties can know the issues involved and the reasons for the decision (Ang Tibay v. CIR, 69 Phil 635). Requisites of Due Process for Students before Imposition of Disciplinary Sanctions: a. must be informed in writing of the nature and cause of the accusation against him; b. right to answer charges against him, with the assistance of counsel, if desired; c. informed of the evidence against him; d. right to adduce evidence in his behalf;


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San Beda College of Law 11 M EMORY A ID IN P OLITICAL L AW e. evidence must be duly considered by the investigating committee or official designated by the school to hear and decide the case.(Ateneo de Manila University v.Capulong, 222 SCRA 644) • Right to appeal is not natural right nor part of due process, instead, it is a mere statutory right, but once given, denial constitutes violation of due process. II. EQUAL PROTECTION OF LAW (SEC. 1, ART. III) ☛ all persons or things similarly situated must be similarly treated both as to rights conferred and responsibilities imposed. Requisites (SNAG)

of

Valid

Classification:

1. Such classification rests upon substantial distinctions; 2. It is germane to purpose of the law; 3. It is not confined to existing conditions; 4. It applies equally to all members of the same class. (People v. Vera, G.R. No. 45685. November 16, 1937). III. SEARCHES AND SEIZURES (SEC. 2, ART. III) Scope: a popular right and hence, protects all persons, including aliens (Qua Chee Gan v. Deportation Board, 9 SCRA 27) and, to a limited extent, artificial persons. (Bache & Co., Inc. v. Ruiz, 37 SCRA 825) Requisites of Valid Warrant: 1. Probable Cause • Such facts and circumstances antecedent to the issuance of a warrant that in themselves are sufficient to induce a cautious man to rely on them and act in pursuance thereof (People v. Syjuco, 64

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✍

Phil 667); Must refer to one specific offense (Asian Surety v. Herrera, 54 SCRA 312); For a search warrant, such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched (Burgos v. Chief of Staff, 133 SCRA 800).

2. Determination of probable personally by the judge;

cause

SEARCH WARRANT

WARRANT OF ARREST

The judge must personally examine in the form of searching questions and answers, in writing and under oath, the complaints and any witnesses he may produce on facts personally known to them. (Sec. 4, Rule 126, Rules of Court); the determination of probable cause depends to a large extent upon the finding or opinion of the judge who conducted the required examination of the applicant and the witnesses (Kho v. Judge Makalintal G.R. No. 94902-06, April 21, 1999)

It is not necessary that the judge should personally examine the complainant and his witnesses (Soliven v. Makasiar, 167 SCRA 393); the judge would simply personally review the initial determination of the prosecutor to see if it is supported by substantial evidence; he merely determines the probability, not the certainty of the accused and, in so doing, he need not conduct a de novo hearing (Webb v. De Leon, 247 SCRA 652)

3. After personally examining under oath or affirmation of the complainant and the witness he may produce; 4. On the basis of their personal knowledge of the facts they are testifying to; 5. The warrant must describe particularly the place to be searched



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and the things or person to be seized. SEARCH WARRANT

WARRANT OF ARREST

The description of property to be seized need not be technically accurate nor necessarily precise, and its nature will necessarily vary according to whether the identity of the property or its character is a matter of concern; the description is required to be specific only in so far as the circumstances will allow (Kho v. Judge Makalintal, G.R. No. 94902-06, April 21, 1999)

“General warrants” are proscribed and unconstitutional (Nolasco v. Puno, 139 SCRA 152); However, a John Doe Warrant (a warrant for the apprehension of a person whose true name is unknown) satisfies the constitutional requirement of particularity if there is some descrpitio personae which will enable the officer to identify the accused (Nachura, Reviewer in Political Law, p. 73)

•

Commissioner of Immigration and Deportation may issue warrant only for purpose of carrying out a final decision of deportation (CID v. Judge De la Rosa, 197 SCRA 853) or there is sufficient proof of guilt of an alien (Harvey v. DefensorSantiago, G.R. No. 82544, June 28, 1988).

Exclusionary Rule – Evidence obtained in violation of Sec. 2, Art. III, shall be inadmissible for any purpose in any proceedings (Fruit of a Poisonous Tree Doctrine) (Stonehill v. Diokno, 20 SCRA 383) Warrantless Arrest, When Valid 1. when person to be arrested has committed, is actually committing, or is attempting to commit an offense; 2. when a. an offense has just been committed; and b. he has probable cause to believe based on personal knowledge of facts or circumstances that the

person to be arrested has committed it; and 3. when a person to be arrested is an escapee or detention prisoner. (Sec. 5, Rule 113, Revised Rules of Criminal Procedure) - An application for or admission to bail shall not bar the accused from challenging the validity of his arrest, provided that he raises them before entering his plea. (Sec. 26, Rule 114, Revised Rules of Criminal Procedure) Warrantless Searches, When Valid: 1. when right has been voluntarily waived (People v. Malasugui, 63 Phil 221); 2. as an incident to a lawful arrest, provided search is contemporaneous to arrest and within permissible area of search (see Sec. 13, Rule 126, Revised Rules on Criminal Procedure); ✍ a valid arrest must precede the search; the process cannot be reversed. (People v. Chua Ho San, 308 SCRA 432). 3. searches of vessel and aircraft for violation of fishery, immigration and customs laws (Roldan v. Arca, 65 SCRA 336); 4. searches of automobiles at borders or constructive borders for violation of immigration and smuggling laws (Papa v. Mago, 22 SCRA 857); 5. Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations; 6. Visual search at checkpoints (Valmonte vs. de Villa, 178 SCRA 211); 7. Conduct of “areal target zoning” and “saturation drive” in the exercise of military powers of the President (Guazon v. de Villa, 181 SCRA 623); 8. When there is a genuine reason to “stop-and-frisk” in the light of the police officer’s experience and surrounding conditions to warrant a belief that the person detained has weapons concealed (Malacat v. Court of Appeals, G.R. No. 123595,


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San Beda College of Law 13 M EMORY A ID IN P OLITICAL L AW December 1, 1997 citing Terry vs. Ohio); and 9. Where prohibited articles are in plain view (Chia v. Actg. Collector of Customs, 177 SCRA 755) Plain View Doctrine – objects within the sight of an officer who has the right to be in a position to have that view are subject to seizure and may be presented as evidence (open to the eye and hand). Elements: a. a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; b. the evidence was inadvertently discovered by the police who have the right to be where they are; c. the evidence must be immediately apparent; d. plain view justified mere seizure of evidence without further search. (People v. Bolasa, GR No. 125754, Dec.22, 1999). IV. PRIVACY OF COMMUNICATION AND CORRESPONDENCE (SEC. 3(1), ART. III] Limitations: 1. by lawful order of the court; 2. public safety or public order requires otherwise, as may be provided by law (Sec. 3, Art. III). V. FREEDOM OF EXPRESSION (SEC. 4, ART. III) Aspects: 1. freedom from censorship or prior restraint; 2. freedom from subsequent punishment.

that State has right to prevent (Schenck v. U.S., 249 US 97); a. clear – causal connection with the danger of the substantive evil arising from the utterance questioned; and b. present – time element, identified with imminent and immediate danger; the danger must not only be probable, but very likely inevitable (Gonzales v. Comelec, 27 SCRA 835). 2. Dangerous tendency rule – words uttered create a dangerous tendency of an evil which the State has a right to prevent (Cabansag v. Fernandez, 102 Phil. 502); 3. Balancing of interest rule – when particular conduct is regulated in interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the 2 conflicting interests demands the greater protection under the particular circumstances presented (American Communications Association v. Douds, 339 US 282). Assembly and Petition: • The right to assemble is not subject to prior restraint and may not be conditioned upon the prior issuance of a permit or authorization from the government authorities. However, the right must be exercised in such a way as will not prejudice the public welfare (De la Cruz v. Court of Appeals, G.R. Nos. 126183 &129221, March 25, 1999). •

Tests for Valid Government Interference to Freedom of Expression: 1. Clear and present danger rule – when words are used in such circumstance and of such nature as to create a clear and present danger that will bring about substantive evil

✍

If assembly is to be held at a public place, permit for the use of such place, and not for the assembly itself may be validly required. Power of local officials is merely for regulation and not for prohibition. (Primicias v. Fugoso, 80 Phil 71) Permit for public assembly is not necessary if meeting is to be held in:



14

a. a private place; b. the campus of a governmentowned or operated educational institution; or c. a freedom park. [B.P. Blg. 880 (The Public Assembly Act of 1985)]. VI. FREEDOM OF RELIGION (SEC. 5, ART. III) 1.

2.

Non-establishment clause Scope: a. State cannot set-up church; b. Cannot pass laws which aid one religion, all religions or prefer one over another; c. Nor influence a person to go to or remain away from church against his will; nor d. Force him to profess a belief or disbelief in any religion (Martin, Reviewer in Political Law, p. 39) Freedom of religious belief and worship Dual aspect of freedom of religious belief and worship: a. b.

Freedom to believe – absolute; and Freedom to act on one’s belief – subject to regulation.

VII. LIBERTY OF ABODE (SEC. 6, ART. III) Limitations: 1. Liberty of abode - lawful order of the court 2. Right to travel a. In the interest of national security, public safety, public health, as may be provided by law; b. any person on bail (Silverio vs. CA, G.R. No. 94284. April 8, 1991.)

VIII. RIGHT TO INFORMATION (SEC. 7, ART. III) Rights guaranteed: 1. Right to information to matters of public concern; and 2. Corollary right of access to official records and documents. • These are political rights that are available to citizens only. (Bernas, Philippine Constitution, p. 85) IX. RIGHT TO (SEC. 8, ART. III

FORM

ASSOCIATIONS

•

Right to form association shall not be impaired without due process of law;

•

Also guarantees the right not to join an association.

X. NON-IMPAIRMENT OF CONTRACTS (SEC. 10, ART. III) Impairment – anything that diminishes the efficacy of contract Limitations: 1. police power – prevails over contracts. 2. eminent domain – may impair obligations of contracts. 3. taxation – cannot impair obligation of contracts. XI. RIGHTS OF AN ACCUSED UNDER CUSTODIAL INVESTIGATION (SEC. 12, ART. III 1. right to be informed of his right to remain silent and to counsel; ✍ Rationale: a. to make him aware of it; b. to overcome the inherent pressure of the interrogating atmosphere; and c. to show the individual that his interrogators are prepared to recognize his privilege should he choose to invoke it.


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San Beda College of Law 15 M EMORY A ID IN P OLITICAL L AW • Carries the correlative obligation on the part of the investigator to explain, and contemplates effective communication which results in the subject understanding what is conveyed (People v. Agustin, 240 SCRA 541). 2. right to be reminded that if he waives his right to remain silent, anything he says can and will be used against him; - Rationale: a. to warn him of the consequences of waiving his right to remain silent; and b. to make him aware that this is an adversary system, and the police are not acting in his interest. 3. right to remain silent; 4. right to have competent and independent counsel preferably of his own choice; - Rationale: a. to mitigate the dangers of untrustworthiness in his testimony, since the inherent pressure initially overcome by the right to remain silent may again run unless coupled with the right to counsel; b. to lessen the possibility of coercion by the police. “preferably of his own choice” • does not mean that the choice of a lawyer is exclusive as to preclude other equally competent and independent attorneys from handling the defense (People v. Barasina, 229 SCRA 450). 5. right to be provided with counsel, if the person cannot afford the services of former; Rationale:

a. to inform him that if he does not have counsel or cannot afford one, he does not have to defend himself alone; b. to inform him that his poverty is no reason why he should lose his right to counsel. While the choice of the lawyer is naturally lodged in the police investigators, the suspect has the final choice as he may reject the counsel chosen for him and ask for another one (People v. Jerez, G.R. No. 114385, January 19, 1998). 6. no force, etc. which vitiates free will shall be used; 7. secret detention places, etc., are prohibited; 8. confessions/admissions obtained in violation of these rights are inadmissible as evidence. ✍ What is sought to be avoided by the rule is the evil of extorting from the very mouth of the person undergoing interrogation for the commission of an offense the very evidence with which to prosecute and thereafter to convict him (People v. Bonola, G.R. No. 116394, June 19, 1997). When available ✍ the rights under Sec.12, Art. III are available when the investigation is no longer a general inquiry unto an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogation that lends itself to eliciting incriminating statements (People v. Mara, 55 SCAD 418).

✍ Sec. 2 of RA No. 7438 provides that custodial investigation shall include the practice of issuing an invitation



16

to a person who is under investigation in connection with an offense he is suspected to have committed. What rights may be waived: 1. the right to remain silent; 2. the right to counsel. ✍ Waiver must be in writing and in the presence of counsel. What rights cannot be waived: 1. the right to be informed of his right to remain silent and to counsel; 2. the right to counsel when making the waiver of the right to remain silent or to counsel. Rights of Person Suspected and Subsequently Charged: 1. Before case is filed in court/prosecutor for preliminary investigation but after being put into custody to or otherwise deprived of liberty, and on being interrogated by police: a. to remain silent; b. to be informed thereof; c. not to be subjected to force, violence, threat, or intimidation which vitiates free will; d. to have evidence obtained in violation of these rights inadmissible as evidence. 2. After the case is filed in court: a. to refuse to be witness against himself; b. not to have prejudice imputed on him as a result of such refusal; c. to testify on his behalf; d. to cross-examination; e. while testifying, to refuse questions which tend to incriminate him for some crime other than present charge.

XII. RIGHT TO BAIL (SEC. 13, ART. III) BAIL - security given for the release of a person in custody of law, furnished by him or a bondsman, to guarantee his appearance before any court as required under conditions specified under the rules of court. (see Sec. 1, Rule 114, Revised Rules of Criminal Procedure). - The right to bail may be invoked once detention commences even if no formal charges have yet to be filed (Teehankee v. Rovira, 75 Phil. 634). - Suspension of the writ of habeas corpus does not suspend right to bail [Sec.13, Art.III]. - Even when the accused has previously jumped bail, still he cannot be denied bail before conviction if it is a matter of right. The remedy is to increase the amount of bail. (Sy Guan v. Amparo, G.R. No. L-1771. December 4, 1947); BAIL, A MATTER OF RIGHT (RULE 114, SEC. 4) All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or be released on recognizance as prescribed by law or this rule: (a.) Before or after conviction by the MTC, and (b.) Before conviction of the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment.


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BAIL, WHEN DISCRETIONARY (RULE 114, SEC. 5) Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua, or life imprisonment, the court, on application, may admit the accused to bail. The court, in its discretion, may allow the accused to continue on provisional liberty after the same bail bond during the period to appeal subject to the consent of the bondsman. If the court imposed a penalty of imprisonment exceeding 6 years but not more than 20 years, the accused shall be denied bail, or his bail previously granted shall be cancelled, upon showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) that the accused is a recidivist, quasirecidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteracion; (b) that the accused is found to have previously escaped from legal confinement, evaded sentence, or has violated the conditions of his bail without valid justification; (c) that the accused committed the offense while on probation, parole, or under conditional pardon; (d) that the circumstances of the accused or his case indicate the probability of flight if released on bail; or (e) that there is undue risk that during the pendency of the appeal, the accused may commit another crime.

Hearing: whether bail is a matter of right or of discretion, reasonable notice of hearing is required to be given the prosecutor, or at least he must be asked for his recommendation, because in fixing the amount of bail, the judge is required to take into account a number of factors (Cortes v. Judge Catral, A.M. No. RTJ-97-1387, September 10, 1997). Standards for fixing amount of bail: 1. financial ability of accused; 2. nature and circumstances of offense; 3. penalty for offense; 4. character and reputation of accused; 5. age and health of accused; 6. weight of evidence against him; 7. probability of his appearance at trial; 8. forfeiture of other bail;

9. whether he was a fugitive from justice when arrested ; and 10. pendency of other cases where he is on bail.  Excessive bail shall not be required. (Sec. 9, Rule 114, Revised Rules of Criminal Procedure) WHEN BAIL SHALL BE DENIED (RULE 114, SEC. 7) No person, regardless of the stage of the criminal prosecution, shall be admitted to bail if: (a.) charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment; AND (b.) evidence of guilt is strong.

✍ When the accused is charged with an offense punishable by reclusion perpetua or higher, a hearing on the motion for bail must be conducted by the judge to determine whether or not the evidence of guilt is strong (Baylon v. Judge Sison, 243 SCRA 284).

✍ Without a hearing, the judge could not possibly assess the weight of the evidence against the accused before granting the latter’s application for bail (Buzon v. Judge Velasco, 253 SCRA 601). XIII. RIGHTS OF THE ACCUSED (SEC. 14, ART. III) 1. Criminal Due Process: a. accused to be heard in court of competent jurisdiction; b. accused proceeded against under orderly processes of law; c. accused given notice and opportunity to be heard; d. judgment rendered was within the authority of constitutional law. 2.

Presumption of Innocence – - Every circumstance favoring the innocence of the accused must be taken into account;



18

-

The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. (People v. Austria, 195 SCRA 700)

Equipoise or Equiponderance of Evidence– evidence of both sides are equally balanced.

Impartial – accused entitled to cold neutrality of an impartial judge. Public – to prevent possible abuses which may be committed against the accused. 6.

✍ Witnesses not submitted for

Effect in criminal prosecution: acquittal of accused because it is insufficient to overcome presumption of innocence. 3.

4.

Right to be heard by himself and counsel ✍ The accused is amply accorded legal assistance extended by a counsel who commits himself to the cause of the defense and acts accordingly; an efficient and truly decisive legal assistance, and not simply a perfunctory representation (People v. Bermas, G.R. No. 120420, April 21, 1999). ✍ Right to counsel during the trial is not subject to waiver (Flores v. Ruiz, 90 SCRA 428). Right to be informed of nature and cause of accusation against him; ✍ Description not designation of the offense is controlling.

Void-for-vagueness rule – accused is denied the right to be informed of the charge against him, and to due process as well, where the statute itself is couched in such indefinite language that it is not possible for men of ordinary intelligence to determine therefrom what acts or omissions are punished and, hence shall be avoided (Nachura, Reviewer in Political Law, p. 131). 5.

Right to speedy, impartial and public trial; Speedy – free from vexatious, capricious and oppressive delays;

Right to meet witness face to face

✍ 7.

8.

cross-examination not admissible as evidence; Right to cross-examination may be waived.

Right to compulsory process to secure attendance of witnesses and production of evidence; Trial in absentia

✍ after arraignment; ✍ due notice; ✍ absence is unjustified. XIV. HABEAS CORPUS (SEC. 15, ART. III) WRIT OF HABEAS CORPUS – writ issued by court directed to person detaining another, commanding him to produce the body of the prisoner at designated time and place, with the day and cause of his capture and detention, to do, to submit to, and to receive whatever court or judge awarding writ shall consider in his behalf. (Nachura, Reviewer in Political Law, p. 135).

✍ Habeas corpus lies only where the restraint of a person’s liberty has been judicially adjudged to be illegal or unlawful (In Re: Petition for Habeas Corpus of Wilfredo S. Sumulong-Torres, 251 SCRA 709). XV.RIGHT TO SPEEDY DETERMINATION OF CASES (SEC. 16, ART. III)

✍ all persons shall have the right to speedy disposition of cases before


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San Beda College of Law 19 M EMORY A ID IN P OLITICAL L AW judicial, quasi-judicial administrative bodies.

and

XVI. SELF-INCRIMINATION (SEC. 17, ART. III) Availability: not only in criminal proceedings, but also in all other government proceedings, including civil actions and administrative or legislative investigations. May be claimed not only by accused but by witness to whom an incriminating question is addressed. Scope: applies only to testimonial compulsion and production of documents, papers and chattels in court except when books of account are to be examined in exercise of power of taxation and police power. Transactional Immunity Statute – testimony of any person or whose possession of documents or other evidence necessary or convenient to determine the truth in any investigation conducted is immune from criminal prosecution for an offense to which such compelled testimony relates [Sec. 18 (8), Art. XIII]. Use and Fruit Immunity Statute – prohibits the use of a witness’ compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness (Galman v. Pamaran, 138 SCRA 274). XVII. NON-DETENTION BY REASON OF POLITICAL BELIEFS OR ASPIRATION [SEC. 18 (1), ART. III] • No person shall be detained by reason of his political beliefs or aspirations XVIII. INVOLUNTARY SERVITUDE [SEC. 18 (2), ART. III] • Condition where one is compelled by force, coercion, or imprisonment, and against his will, to labor for another, whether he is paid or not.

General Rule: No involuntary Servitude shall exist. Except: 1. as punishment for a crime whereof one has been duly convicted [ Sec. 18(2), Art. III]; 2. service in defense of the state [Sec 4, Art. II]; 3. naval enlistment (Robertson v. Baldwin, 165 US 275); 4. posse comitatus (US v. Pompeya, 31 Phil. 245) 5. return to work order in industries affected with public interest (Kaisahan ng Mangagawa sa Kahoy v. Gotamco Sawmills, G.R. No. L-1573. March 29, 1948); and 6. patria potestas [Art. 211, par.(2), FC] XIX. PROHIBITED PUNISHMENTS (SEC. 19, ART. III) Prohibited punishment - mere severity does not constitute cruel or unusual punishment. To violate constitutional guarantee, penalty must be flagrant and plainly oppressive, disproportionate to nature of offense as to shock senses of community. XX. NON-IMPRISONMENT FOR DEBTS (SEC. 20, ART. III) - No person shall be imprisoned for debt or non-payment of poll tax. Coverage: 1. Debt – any civil obligation arising from a contract. 2. Poll Tax – a specific sum levied upon any person belonging to a certain class without regard to property or occupation (e.g. Community Tax )

✍A

Tax is not a debt since it is an obligation arising from law hence its non-payment maybe validly punished with imprisonment.

XXI. DOUBLE JEOPARDY (SEC. 21, ART. III) Requisites: 1. valid complaint or information; 2. filed before competent court;



20

3. 4.

to which defendant has pleaded; and defendant was previously acquitted or convicted or the case dismissed or otherwise terminated without his express consent (People v. Ylagan, 58 Phil 851)

Two types: 1. No person shall be twice put in jeopardy of punishment for the same offense; 2. If an act is punishable by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

✍ Dismissal of action, when made at instance of the accused, does not put accused in first jeopardy, except: a. when ground for dismissal is insufficiency of evidence; or b. when the proceedings have been unreasonably prolonged as to violate the right of the accused to a speedy trial. Crimes covered: 1. same offense; or attempt to commit or frustration thereof or for any offense which necessarily includes or is necessarily included in the offense charged in original complaint or information; and 2. when an act is punished by a law and an ordinance, conviction or acquittal under either shall bar another prosecution for the same act. •

Doctrine of Supervening Event – prosecution for another offense if subsequent development changes character of the first indictment under which he may have already been charged or convicted.

Conviction of accused shall NOT bar another prosecution for an offense which necessarily includes the offense originally charged when:

1. graver offense developed due to supervening facts arising from the same act or omission; 2. facts constituting graver offense arose or discovered only after filing of former complaint or information; and 3. plea of guilty to lesser offense was made without the consent of prosecutor or offended party (People v. Judge Villarama, 210 SCRA 246). Reopening of Kuratong Baleleng Cases: The new rule (Rule117, Sec 8) has fixed a time-bar of one year or two years for the revival of criminal cases provisionally dismissed with the express consent of the accused and with a priori notice to the offended party. 

The time-bar cannot be applied retroactively in 1999 when the cases were dismissed for to so, the state shall effectively have less than two years to reopen the case because the rule only took effect in December 2000. This would prevent absurd results and injustice to the Sate. (People, et al. vs. Panfilo Lacson, G.R. No. 149453, April 1, 2003)

XXII. EX POST FACTO LAW AND BILL OF ATTAINDER (SEC. 22 ART. III) EX POST FACTO LAW Kinds: 1. law making an act criminal which was not before its passage; 2. law aggravating penalty for crime committed before passage; 3. law inflicting greater or more severe penalty; 4. law altering legal rules of evidence and receive less or different testimony than law required at time of commission, in order to convict accused; 5. law assuming to regulate civil rights and remedies only, in effect imposes a penalty 6. of deprivation of right for something which when done was lawful; 7. law depriving accused of some lawful protection to which he had been


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San Beda College of Law 21 M EMORY A ID IN P OLITICAL L AW entitled, such a protection of a former conviction or acquittal, or a proclamation of amnesty. Characteristics: 1. refers to criminal matters; 2. retroactive; and 3. prejudice the accused. BILL OF ATTAINDER - legislative act that inflicts punishment without trial; legislative declaration of guilt. Article IV : CITIZENSHIP I. CITIZENSHIP membership in a political community which is personal and more or less permanent in character. Modes of acquiring citizenship: 1. By birth a. jus sanguinis; and b. jus soli; 2. By naturalization; 3. By marriage Citizens of the Philippines (Sec. 1, Art. IV): 1. Those who are Filipino citizens at time of adoption of the 1987 Constitution; a. Those who are citizens under the Treaty of Paris; b. Those declared citizens by judicial declaration applying the jus soli principle, before Tio Tiam v. Republic (25 April 1957, G.R. No. L-9602); c. Those who are naturalized in accordance with law (Act 2927); d. Those who are citizens under the 1935 Constitution; e. Those who are citizens under the 1973 Constitution. 2. Those whose fathers or mothers are citizens of the Philippines; 3. Those born before January 17, 1973, of Filipino mothers, who elect Philippines citizenship upon reaching the age of majority; ✍ Time to elect: 3 years after age of majority

4.

Those naturalized in accordance with law. Caram Rule – under the 1935 Constitution, those born in the Philippines of foreign parent, who before the adoption of the Constitution had been elected to public office in the Philippines, are considered Filipino citizens. FPJ Disqualification Case: The 1935 Constitution, during which regime respondent FPJ has seen first light, confers citizenship to all persons whose fathers are Filipino citizens regardless of whether such children are legitimate or illegitimate (Tecson vs. Comelec, G.R. No. 161434. March 3, 2004)

Natural Born Citizens (Sec. 2, Art. IV) 1. Citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship; 2. Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority Who Must Be Natural Born Citizens a.President [Sec.2, Art. VII]; b. Vice President [Sec.3, Art. VII]; c. Members of Congress [Sec.3 & 6, Art. VI]; d. Justices of the Supreme Court and lower collegiate courts [Sec. 7(1), Art. VIII]; e. Ombudsman and his deputies [Sec.8, Art.XI]; f. Constitutional Commissions [Secs.1(1) of Arts. IX-B, IX-C, and IX-D]; g. Members of the governing board of the Central Monetary Authority [Sec.20, Art. XII]; h. Chairman and members of the Commission of Human Rights [Sec.17(2), Art.XIII]. II. NATURALIZATION Qualifications for Naturalization: 1. not less than 18 years of age on date of hearing of petition (as amended by RA 6809);


22


2. resided in the Philippines for not less than 10 years; may be reduced to 5 years, if: a.honorably held office in the Philippines; b. established new industry or introduced a useful invention; c. married to a Filipino woman; d. engaged as teacher in Philippine public or private school not established for exclusive instruction to particular nationality or race, or in any of branches of education or industry for a period of not less than 2 years; and e. born in the Philippines; 3. character: a. good moral character; b. believes in the Constitution; c. conducted himself in an irreproachable conduct during his stay in the Philippines; 4. Own real estate in the Philippines not less than P5,000 in value; or have some lucrative trade, profession or lawful occupation that can support himself and his family; 5. Speak and write English or Filipino and any principal Philippine dialects; (as amended by Sec. 6 Art. XIV); and 6. Enrolled minor children in any public or private school recognized by government where Philippine history, government and civics are taught as part of curriculum, during the entire period of residence prior to hearing of petition. Declaration of Intention – must be filed with the Office of the Solicitor General one year before filing of application for naturalization. Exception: a. Those born in the Philippines and received primary and secondary education in a Philippine school; b. Those who have resided in the Philippines for thirty years; c. The widow or children of the applicant who died before his application was granted.

Disqualification for Naturalization: a. opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized governments; b. defending or teaching necessity or propriety of violence, personal assault or assassination for the success or predominance of their ideas; c. polygamists or believers in polygamy; d. suffering from mental alienation or incurable contagious disease; e. convicted of crime involving moral turpitude; f. who during residence in the Philippines have not mingled socially with Filipinos, or not evinced sincere desire to learn and embrace customs, traditions and ideals of Filipinos; g. citizens or subjects of nations with whom the Philippines is at war, during the period of such war; h. citizens or subjects of foreign country whose laws do not grant Filipinos right to become naturalized citizens or subjects thereof (no reciprocity). Effects of Naturalization : 1. ON THE WIFE vests citizenship on wife who might herself be lawfully naturalized; She need not prove her qualifications but only that she is not disqualified. (Moy Ya Lim Yao v. Comm. of Immigration, 41 SCRA 292). 2. ON THE MINOR CHILDREN (i) If born in the Philippines – automatically becomes a citizen; If born abroad


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San Beda College of Law 23 M EMORY A ID IN P OLITICAL L AW If born before the naturalization of the father (ia) residing in RP at the time of naturalization – automatically becomes citizen; (ib) if not residing in RP at the time of naturalization – considered citizen only during minority, unless begins to reside permanently in the Philippines; (ii) If born born outside the Philippines after parents’ naturalization considered Filipino, provided registered as such before any Philippines consulate within 1 year after attaining majority age and takes oath of allegiance. Grounds for Denaturalization: a) naturalization certificate obtained fraudulently or illegally; b) if, within 5 years, he returns to his native country or to some foreign country and establishes residence therein; c) naturalization obtained through invalid declaration of intention; d) minor children failed to graduate through the fault of the parents either by neglecting support or by transferring them to another school; and e) allowing himself to be used as dummy. Effects of Denaturalization: a) If ground affects intrinsic validity of proceedings, denaturalization shall divest wife and children of their derivative naturalization; and b) If the ground is personal, the wife and children shall retain citizenship.

Doctrine of Indelible Allegiance – an individual may be compelled to retain his original nationality notwithstanding that he has already renounced or forfeited it under the laws of the second state whose nationality he has acquired. III. LOSS OF PHILIPPINE CITIZENSHIP: (CA 63) (C2 RAND) 1. Naturalization in a foreign country; 2. Express renunciation of citizenship (expatriation); – The mere application or possession of an alien certificate of registration does not amount to renunciation (Mercado vs. Manzano, G.R. No. 135083, May 26, 1999) 3. Subscribing to an oath of allegiance to constitution or laws of foreign upon attaining of 21 years of age; ✍ Citizens may not divest citizenship when Philippines is at war. 4. Rendering service to or accepting commission in the armed forces of a foreign country; 5. Cancellation of certificate of naturalization; 6. Having been declared by final judgment a deserter of Philippines Armed Forces in times of war. General Rule: Res judicata does not set in citizenship cases. Exception: 1. person’s citizenship is resolved by court or an administrative body as a material issue in the controversy, after a fullblown hearing; 2. with the active participation of the Solicitor General or his representative; and 3. finding of his citizenship is affirmed by the Supreme Court.



24

IV. REACQUISITION OF CITIZENSHIP 1. By naturalization; 2. By repatriation; ☛ RA 8171 is an act providing for the repatriation of: a. Filipino women who have lost their Philippine citizenship by marriage to aliens and; b. natural-born Filipinos who have lost their Philippine citizenship on account or political or economic necessity. ☛ The applicant should not be a: a. Person opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing organized government; b. Person defending or teaching the necessity or propriety of violence, personal assault, or association for the predominance of their ideas; c. Person convicted of crimes involving moral turpitude: or d. Person suffering from mental alienation or incurable contagious diseases. •

Repatriation shall be effected by taking the necessary oath of allegiance to the Republic of the Philippines and registration in the proper civil registry and in the Bureau of Immigration. The Bureau of Immigration shall thereupon cancel the pertinent alien certificate of registration and issue the certificate of identification as Filipino citizen to the repatriated citizen.

Allows the person to recover or return to his original status before he lost his Philippine citizenship (Bengzon III v. HRET, G.R. No. 142840, May 7, 2001) 3. By direct act of Congress. •

RA 9225 also known as the "Citizenship Retention and Re-acquisition Act of 2003," approved on August 29, 2003 provides that, upon taking the oath of allegiance to the Republic: a. Natural born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are deemed to have re-acquired Philippine citizenship; and b. Natural born citizens of the Philippines who, after the effectivity of the said RA become citizens of a foreign country shall retain their Philippine citizenship. Derivative Citizenship - The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of the said RA shall be deemed citizens of the Philippines. V. DUAL ALLEGIANCE (Sec. 5, Art. IV) DUAL CITIZENSHIP

DUAL ALLEGIANCE

1. Arises when, as a result of concurrent application of the different laws of two or more states, a person is simultaneously considered a national by said states.

1. Refers to the situation where a person simultaneously owes, by some positive act, loyalty to two or more states.

2. Involuntary

2. Result of an individual’s volition and is prohibited by the Constitution


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Article V : SUFFRAGE I.

SUFFRAGE - right to vote in elections. Who may exercise (Sec. 1, Art. V) 1. all citizens of the Philippines, not otherwise disqualified by law; 2. at least 18 years of age 3. resided in the Philippines for at least one year; and 4. resided in the place they propose to vote for at least 6 months immediately preceding the election. II. RESIDENCE - has dual meaning (Sec.1, Art. V): First – as a requirement of residence in the Philippines: synonymous with “domicile” ✍ imports both intention to reside and personal presence coupled with conduct indicative of such intention. Second – requirement of residence in the place where one intends to vote: ✍ can mean domicile or temporary residence Requisites of Acquisition of Domicile by Choice: 1. residence or bodily presence in the new locality; 2. an intention to remain there; and 3. an intention to abandon the old residence. (Gallego v. Verra, 73 Phil. 453) III. THE OVERSEAS ABSENTEE VOTING ACT OF 2003 (R.A. 9189) 1. Definition of Terms Absentee Voting - the process by which qualified citizens of the Philippines abroad exercise their right to vote; Overseas Absentee Voter - a citizen of the Philippines who is qualified to register and vote under this Act, not otherwise disqualified by law, who is abroad on the day of elections. 2. Coverage – all citizens of the Philippines abroad, who are not

otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators and party-list representatives. 3. Disqualifications a. Those who have lost their Filipino citizenship in accordance with Philippine laws; b. Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country; c. Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than one (1) year, including those who have committed and been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, such disability not having been removed by plenary pardon or amnesty; Provided, however, That any person disqualified to vote under this subsection shall automatically acquire the right to vote upon expiration of five (5) years after service of sentence; Provided, further, That the Commission may take cognizance of final judgments issued by foreign courts or tribunals only on the basis of reciprocity and subject to the formalities and processes prescribed by the Rules of Court on execution of judgments; d. An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another



26

country. Failure to return shall be the cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. e. Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or foreign service establishments concerned, unless such competent authority subsequently certifies that such person is no longer insane or incompetent. Article VI : LEGISLATIVE DEPARTMENT I. LEGISLATIVE POWER 1. power to propose, enact, amend and repeal laws. 2. Vested in Congress, except to the extent reserved to the people by provision on initiative and referendum. The People’s Participation in the Government Consist of: 1. Suffrage 2. Plebiscite a. Ratifying the Constitution [Sec.27, Art. XVIII]; b. Approving any amendment thereto [Sec.4, Art.XVII]; c. Approving any changes in boundaries of LGUs, mergers, divisions, or abolitions of LGUs [Sec.10, Art.X]; d. Creating metropolitan authorities [Sec.11, Art.X]; e. Creating autonomous regions [Sec.18, Art.X].

Initiative – power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose. Classes of initiative: 1. Initiative on the Constitution – petition proposing amendments to the Constitution; 2. Initiative on Statutes – petition proposing to enact a national legislation; 3. Initiative on Local Legislation – petition proposing to enact a regional, provincial, city, municipality or barangay law, resolution or ordinance. Limitations: 1. power of local initiative shall not be exercised more than once a year; 2. initiatives shall extend only to subjects or matters which are within the legal powers of the local legislative bodies to enact; 3. if at anytime before the initiative is held, the local legislative body shall adopt in toto the proposition presented, the initiative shall be cancelled. Limitation on Local Legislative Body vis-a-vis Local Initiative: Any proposition or ordinance approved through an initiative and referendum shall not be repealed, modified or amended by the sanggunian within 6 months from the date of approval thereof, and may be amended , modified or repealed within 3 years thereafter by a vote of ¾ of all its members. In case of barangays, the period shall be 18 months after approval. (Sec. 125, RA 7160) Indirect Initiative – exercise of initiative by the people through a proposition sent to Congress or the local legislative body for action.

3. Referendum and Initiative R2005 C ENTRALIZED B AR O PERATIONS E XECUTIVE C OMMITTEE

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San Beda College of Law 27 M EMORY A ID IN P OLITICAL L AW Referendum – power of the electorate to approve or reject legislation through an election called for that purpose. Classes of Referendum: 1. Referendum on Statutes – petition to approve or reject an act or law, or part thereof, passed by Congress; 2. Referendum on Local Laws – legal process whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the sanggunian. (Sec. 126, RA 7160 or the LGC of 1991) II. COMPOSITION Senate – 24, elected at large by the qualified voters of the Philippines; House of Representatives – not more than 250 members consisting of: a. District Representatives – elected from legislative districts apportioned among the provinces, cities and the Metropolitan Manila area; b. Party-list Representatives – shall constitute 20% of the total number of representatives, elected through a party-list system of registered national, regional and sectoral parties or organizations. –

The Party-list organization must represent the “marginalized and underprivileged” and the nominees themselves must comply with this qualitative requirement (Ang Bagong Bayani, et al. vs. Comelec G.R. No. 147589, June 26, 2001)

DISTRICT REPRESENTATIVE

PARTY-LIST REPRESENTATIVE

1. Elected according to legislative district by the

1. Elected nationally, with party-list organizations

constituents such district

of

2. Must be a resident of his legislative district for at least 1 year immediately before the election

garnering at least 3% of all the votes cast for the partylist system entitled to 1 seat, which is increased according to proportional representation, but is in no way to exceed 3 seats per organization

2. No special residency requirement

3. Elected personally, i.e. by name.

3. Voted upon by party or organization. It is only when a party is entitled to representation that it designates who will sit as representative.

4. Does not lose seat if he/she changes party or affiliation.

4. If he/she changes party or affiliation, loses his seat, in which case he/she will be substituted by another qualified person in the party / organization based on the list submitted to the COMELEC

5. In case of vacancy, a special election may be held provided that the vacancy takes place at least 1 year before the next election.

5. In case of vacancy, a substitution will be made within the party, based on the list submitted to the COMELEC.

6. A district representative is not prevented from running again as a district

6. A party-list representative cannot sit if he ran and lost in the previous election.



28

representative if he/she lost during the previous election. 7. A change in affiliation within 6 months prior to election does not prevent a district representative from running under his new party.

7.

A change in affiliation within 6 months prior to election prohibits the party-list representative from sitting as representative under his new party or organization.

III. APPORTIONMENT OF LEGISLATIVE DISTRICT [Sec. 5 (3) and (4), Art. VI] 1. Maintain proportional representation based on number of inhabitants; ✍ Each city with not less than 250 thousand inhabitants, entitled to at least one (1) representative; ✍ Each province, irrespective of the number of inhabitants, entitled to at least one (1) representative. 2. Each district must be contiguous, compact and adjacent. Gerrymandering is not allowed; ☛ Gerrymandering – formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party (Bernas, Reviewer in Philippine Constitution, P. 186) 3. Reapportionment within 3 years following return of every census. IV.

ELECTION

1. Regular – second Monday of May, every three years 2. Special (RA 6645) – ✍ No special election will be called if vacancy occurs: a. at least eighteen (18) months before the next regular election for members of the Senate;

b. at least (1) year before the next regular election for Members of Congress. ✍ The particular House of Congress where vacancy occurs must pass either a resolution if Congress is in session or the Senate President or the Speaker must sign a certification, if Congress is not in session, a. declaring the existence of the vacancy; b. calling for a special election to be held within 45 to 90 days from the date of the resolution or certification. ✍ the Senator or representative elected shall serve only for the unexpired term. V. SESSIONS [SEC. 14, ART. VI] 1. Regular – convene once every year. The fourth Monday of July until 30 days before the start of new regular session; 2. Special a. called by the President [Sec. 15, Art VII]; b. to call a special election due to a vacancy in the offices of the President and Vice President at 10 o’clock a.m. on the third day after the vacancies [Sec. 10, Art. VII]; c. to decide on the disability of the President because the majority of all the members of the cabinet has “disputed” his assertion that he is able to discharge the powers and duties of his office [Sec.11 par(3), Art. VII]; d. to revoke or extend the Presidential Proclamation of Martial Law or suspension of the writ of habeas corpus. [Sec. 18, Art. VII] 3. Joint sessions – a. voting separately (i) choosing the President [Sec. 4, Art. VII]; (ii) determine President’s disability [Sec. 11, Art. VII];


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San Beda College of Law 29 M EMORY A ID IN P OLITICAL L AW (iii) confirming nomination of Vice-President [Sec. 9, Art. VI]; (iv) declaring existence of a state of war [Sec. 23, Art. VI]; (v) proposing constitutional amendments [Sec. 1, Art. XVII]. b. voting jointly – (i.) to revoke or extend proclamation suspending the privilege of writ of habeas corpus [Sec. 18, Art. VII]; (ii.) to revoke or extend declaration of martial law [Sec. 18, Art. VII]. 4. Adjournment – neither Chamber during session, without the consent of the other, adjourn for more than 3 days, nor any other place than that in which the two Chambers shall be sitting [Sec. 16 (5), Art. VI]. Adjournment Sine Die – interval between the session of one Congress and that of another; Congress must “stop the clock” at midnight of the last day of session in order to validly pass a law.

✍ The Senate is a continuing body while the House is not. VI. DISCIPLINE OF MEMBERS [SEC. 16 (3), ART. VI] ✍ Each house may punish its members for disorderly behavior, and, with the concurrence of 2/3 of all its members, suspend (for not more than 60 days) or expel a member. The interpretation of the phrase disorderly behavior is the prerogative of the House concerned and cannot be judicially reviewed. (Alejandrino v. Quezon, 46 Phil 83). VII. MATTERS MANDATED BY CONSTITUTION TO BE ENTERED INTO THE JOURNAL [SEC. 16 (4), ART. VI] 1. yeas and nays on third and final reading of a bill [Sec. 26(2), Art. VI]; 2. veto message of President [Sec. 27(1), Art.VI];

3. yeas and nays on re-passing a bill vetoed by President [Sec.27(1), Art. VI]; and 4. yeas and nays on any question at the request of 1/5 of members present [Sec.16(4), Art.VI]. Enrolled Bill – conclusive upon courts as regards the tenor of the measure passed by Congress and approved by the President (Mabanag v. Lopez Vito, 78 Phil. 1) Journal Entry vs. Enrolled Bill ✍ Enrolled bill prevails (Field v. Clark, 143 US 649), except to matters, which under the Constitution, must be entered into the Journal. (Astorga v. Villegas, 56 SCRA 714) VIII. CONGRESSIONAL ELECTORAL TRIBUNALS (SET OR HRET) (SEC. 17, ART. VI) Composition: 1. 3 Supreme Court Justices designated by Chief Justice; and 2. 6 members of the Chamber concerned (Senate or HR) chosen on the basis of proportional representation from political parties and parties registered under the party-list system Senior Justice shall act as Chairman. Power of Electoral Tribunals: 1. Sole judge of all contests relating to the election, returns and qualification of their respective members.(Sec. 17, Art. VI) 2. Rule-making power (Lazatin v. HRET, 168 SCRA 391)

✍ It is independent of the Houses of Congress and its decisions may be reviewed by the Supreme Court only upon showing of grave abuse of discretion. IX. COMMISSION ON APPOINTMENTS (SEC. 18, ART. VI) Composition: ✍ 12 Senators and 12 Representatives, elected by each house on the basis of proportional representation from


30


the political parties and parties and organizations registered under the party-list system represented therein. ✍ Senate President as ex-officio chairman. ✍ Chairman shall not vote except in case of tie. Powers: 1. Shall act on all appointments submitted to it within 30 session days of Congress from their submission; and 2. Power to promulgate its own rules of proceedings. X. POWERS OF CONGRESS Classification of Powers: 1. Legislative – General plenary power (Sec.1, Art.VI); specific power of appropriation, taxation and expropriation; legislative investigations; question hour. 2. Non-Legislative – includes power to: a. canvass presidential elections; b. declare existence of a state of war; c. delegation of emergency powers; d. call special election for President and Vice-President; e. give concurrence to treaties and amnesties; f. propose constitutional amendments (constituent power); g. confirm certain appointments; h. impeach; i. decide the disability of the President because majority of the Cabinet disputes his assertion that he is able to discharge his duties; j. revoke or extend proclamation of suspension of privilege of writ of habeas corpus or declaration of martial law (to revoke = legislative veto)

k. power with regard to utilization of natural resources [Sec.2, Art. XII]; Limitations on the Powers of Congress: 1. Substantive – a. Express: (i) bill of rights [Art. III]; (ii) on appropriations [Sec. 25 and 29 (1) and (2), Art. VI]; (iii) on taxation [Sec. 28 and 29 (3), Art. VI; Sec 4 (3), Art. XIV]; (iv) on constitutional appellate jurisdiction of Supreme Court [Sec. 30, Art. VI]; (v) no law granting title of royalty or nobility shall be passed [Sec. 31, Art. VI]; (vi) no specific funds shall be appropriated or paid for use or benefit of any religion, sect, etc., except for priests, etc., assigned to AFP, penal institutions, etc. [Sec.29(2), Art.VI]. b. Implied: (i) prohibition against irrepealable laws; (ii) non-delegation of powers. 2. Procedural – a. only one subject, to be stated in the title of the bill [Sec. 26(1), Art. VI]; and b. 3 readings on separate days; printed copies of the bill in its final form distributed to members 3 days before its passage, except if President certifies to its immediate enactment to meet a public calamity or emergency; upon its last reading, no amendment allowed and the vote thereon taken immediately and the yeas and nays entered into the Journal [Sec. 26(2), Art. VI]; c. appropriation, revenue and tariff bill (RAT Bills) shall originate exclusively from the House of Representatives (Sec. 24, Art. VI)


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San Beda College of Law 31 M EMORY A ID IN P OLITICAL L AW •

shall originate exclusively from the House – the initiative for filing of RAT Bills must come from the House, but it does not prohibit the filing in the Senate a substitute bill in anticipation of its receipt of the bill from the House, so long as the action by the Senate is withheld pending the receipt of the House bill. (Tolentino v. Sec. Of Finance, 235 SCRA 630).

POWER OF APPROPRIATION Appropriations Law – a statute, the primary and specific purpose of which, is to authorize release of public funds from treasury. - The existence of appropriations and the availability of funds are indispensable pre-requisites to or conditions sine qua non for the execution of government contracts. (Comelec v. Judge Quijano-Padilla and Photokina Marketing Corp., G.R. No. 151992, September 18, 2002) Implied Limitations on Appropriation Power: 1. must specify public purpose; and 2. sum authorized for release must be determinate, or at least determinable. Constitutional Limitations on Special Appropriations Measures: 1. must specify public purpose for which the sum was intended; and 2. must be supported by funds actually available as certified by National Treasurer or to be raised by corresponding revenue proposal included therein. [Sec. 25(4), Art. VI]. Constitutional Rules on General Appropriations Laws (Sec. 25, Art. VI) 1. Congress may not increase appropriations recommended by the President for operations of Government;

2. Form, content and manner of preparation of budget shall be provided by law; 3. No provision or enactment shall be embraced in the bill unless it relates specifically to some particular appropriations therein; 4. Procedure for approving appropriations for Congress shall be the same as that of other departments in order to prevent subrosa appropriations by Congress. 5. Prohibition against transfer of appropriations (doctrine of augmentation), however: a. President; b. Senate President; c. Speaker of the House of Representative; d. Chief Justice; and e. Heads of Constitutional Commissions – may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. 6. Prohibitions against appropriations for sectarian benefit; and 7. Automatic re-appropriation. Limitations on Power of Legislative Investigation [Sec. 21, Art. VI] 1. must be in aid of legislation; 2. in accordance with duly published rules of procedures; and 3. right of person appearing in, or affected by such inquiry shall be respected. QUESTION HOUR (Sec. 22, Art. VI)

LEGISLATIVE INVESTIGATION (Sec. 21, Art. VI)

1. As to persons who may appear only a department head

any person

2. As to who conducts the investigation entire body

committees

3. As to subject matter



32

Matters related to the department only

any matter for the purpose of legislation

How a Bill becomes Law: 1. Approved and signed by the President; 2. Presidential veto overridden by 2/3 vote of all members of both Houses;

XI. LEGISLATIVE PROCESS Doctrine of shifting majority: For each House of Congress to pass a bill, only the votes of the majority of those present in the session, there being a quorum, is required. Quorum – majority of each House, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner and under such penalties as such House may determine [Sec. 16(2), Art. VI]. ✍ The basis for determining the existence of a quorum in the Senate shall be the total number of Senators who are in the country and within the coercive jurisdiction of the Senate (Avelino v. Cuenco, 83 Phil 17). Bills that must originate from the House of Representatives: 1. Appropriations bill; 2. Revenue and tariff bills; 3. Bill authorizing increase in public debts; 4. Bill of local application; and 5. Private bills [Sec.24, Art. VI]. Procedure for Approval of Bills: 1. Bill is approved by both chambers; 2. President approves and signs it; 3. If the President vetoes the bill, return bill with presidential objections to the house of origin. Veto may be overridden upon vote of 2/3 of all members of the House of origin and other house; and 4. Presidential inaction for 30 days from receipt of the bill: bill becomes a law as if the same has been signed by him

3. Failure of the President to veto the bill and to return it with his objections to the House where it originated, within 30 days after the date of receipt; 4. A bill calling a special election for President and Vice-President under Sec. 10, Art. VII becomes law upon third and final reading. PRESIDENTIAL VETO General Rule: If the President disapproves a bill enacted by Congress, he should veto the entire bill. He is not allowed to veto separate items of a bill. Exception: Item-veto in the case of appropriation, revenue, and tariff bills [Sec. 27 (2), Art. VI]. Exceptions to the exception: 1. Doctrine of Inappropriate Provisions – a provision that is constitutionally inappropriate for an appropriation bill may be singled out for veto even if it is not an appropriation or revenue “item” (Gonzales v. Macaraig, Jr., 191 SCRA 452). 2. Executive Impoundment - refusal of the President to spend funds already allocated by Congress for specific purpose. It is the failure to spend or obligate budget authority of any type. (Philconsa v. Enriquez, G.R. No. 113105. August 19, 1994). Pocket Veto – occurs when (1) the President fails to act on a bill and (2) the reason he does not return the bill to Congress is that Congress is not in session.


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✍ Not

applicable in the Philippines because inaction by the President for 30 days never produces a veto even if Congress is in recess. The President must still act to veto the bill and communicate his veto to Congress without need of returning the vetoed bill with his veto message.

Article VII: EXECUTIVE DEPARTMENT I. ELECTION 1. Regular – second Monday of May, every six years; 2. Special Requisites: a. death, permanent disability, removal from office or resignation of both the President and the Vice President; b. vacancies occur more than eighteen months before the next regular presidential election; c. a law passed by Congress calling for a special election to elect a President and a Vice President to be held not earlier than 45 days nor later than 60 days from the time of such call.[Sec.10, Art.VII]. II. POWERS OF THE PRESIDENT 1. EXECUTIVE POWER – power to enforce and administer laws. ✍ President shall have control of all executive departments, bureaus and offices. He shall ensure that laws are faithfully executed. (Sec. 17, Art. VII) ✍ Until and unless a law is declared unconstitutional, President has a duty to execute it regardless of his doubts as to its validity (faithful execution clause) [Sec.1 and 17 Art. VII] 2. POWER OF APPOINTMENT a. with the consent of the Commission on Appointments

(i) heads of executive departments; (ii) ambassadors and other public ministers and consuls; (iii) officers of the AFP from the rank of colonel or naval captain; and (iv) other ministers whose appointments are vested in him by the Constitution (Sarmiento v. Mison, GR No. 79974, December 17, 1987) b. prior recommendation or nomination by the Judicial and Bar Council; (i) Members of the Supreme Court and all lower courts (Sec.9, Art. VIII); and (ii) Ombudsman and his 5 deputies. c. requiring nominations by multisectoral groups; (i) Regional consultative commission (Sec. 18, Art. X); and (ii) Party-list representatives, before the Party-List Law (Sec.7,Art. XVIII). d. appointment of Vice-President as member of the Cabinet; e. appointment solely by the President. (i) those vested by the Constitution on the President alone; (ii) those whose appointments are not otherwise provided for by law; (iii) those whom he may be authorized by law to appoint; and (iv) those other officers lower in rank who appointment is vested by law in the President alone. Appointing Procedure for those that need CA Confirmation: 1. nomination by the President; 2. confirmation by the Commission on Appointments; 3. issuance of commission; and



34

4. acceptance by appointee. ✍ Deemed complete upon acceptance (Lacson vs Romero, 84 Phil 740) Limitations on Appointing Power: 1) appointments made by an acting-President shall remain effective unless revoked within 90 days from assumption of office by elected President [Sec. 14, Art. VII]; and 2) President or acting-President shall not make appointments except temporary ones to executive positions 2 months immediately before next Presidential elections and up to the end of his term. Only when continued vacancy will prejudice public service or endanger public safety [Sec. 15, Art. VII]. 3) The spouse and relatives by consanguinity or affinity within the 4th civil degree of the President shall not, during his tenure be appointed as: a. members of the Constitutional Commissions; b. member of the Office of the Ombudsman; c. Secretaries; d. Undersecretaries; e. Chairman or heads of bureaus or offices, including GOCC and their subsidiaries. [Sec.13,par. 2, Art. VII] 4. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the CA or until the next adjournment of the Congress. [Sec. 16 par.2, Art. VII] 3. POWER OF REMOVAL General rule: this power is implied from the power to appoint. Exception: those appointed by him where the Constitution prescribes certain methods for separation from public service.(e.g. impeachment)

4. POWER OF CONTROL Control – power of an office to: • Alter, • Modify, • Nullify, or • Set aside what a substitute had done in the performance of his duties and to substitute his judgment to that of the former (Mondano v. Silvosa, 97 Phil, 143). •

Doctrine of Qualified Political Agency or Alter Ego Principle – acts of the Secretaries of Executive departments when performed and promulgated in the regular course of business or unless disapproved or reprobated by the Chief Executive, are presumptively the acts of the Chief Executive (Villena v. Secretary of the Interior, 67 Phil 451).

5. MILITARY POWERS (SEC. 18, ART. VIII) a. Commander-in –Chief clause ✍ To call out the Armed Force to prevent or suppress lawless violence, invasion or rebellion; ✍ organize courts martial and create military commissions. b. Suspension of the Privilege of Writ of Habeas Corpus and Declaration of Martial Law (i.) Grounds: invasion or rebellion, when public safety requires it. (ii.) Duration: not more than 60 days, following which it shall be lifted, unless extended by Congress. (iii.) Duty of the President to report to Congress: within 48 hours personally or in writing. (iv.) Authority of Congress to revoke or extend the effectivity of proclamation: by majority vote of all of its members voting jointly. (v.) Authority of the Supreme Court: to inquire into the sufficiency of the factual


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San Beda College of Law 35 M EMORY A ID IN P OLITICAL L AW basis for such action, at the instance of any citizen. Decision must be promulgated 30 days within its filing. (vi.) Proclamation does not affect the right to bail. (vii.) Suspension applies only to persons facing charges of rebellion or offenses inherent in or directly connected with invasion. (viii.) Person arrested must be charged within 3 days; if not, must be released. (ix.) Proclamation does not supersede civilian authority.

Limitations: 1. cannot be granted in cases of impeachment; 2. cannot be granted in violations of election laws without favorable recommendations of the COMELEC; 3. can be granted only after convictions by final judgment (except amnesty); 4. cannot be granted in cases of legislative contempt or civil contempt; 5. cannot absolve convict of civil liability; and 6. cannot restore public offices forfeited.

Effects of Proclamation of Martial Law 1. The President can: a. Legislate; b. order the arrest of people who obstruct the war effort. 2. The following CANNOT be done: a. suspend the operation of the Constitution. b. Supplant the functioning of the civil courts and the legislative assemblies; c. Confer jurisdiction upon military courts and agencies over civilians, where civil courts are able to function. Open Court Doctrine – civilians cannot be tried by military courts if the civil courts are open and functioning. d. Automatically suspend the privilege of the writ of habeas corpus.[Sec.18, par(4), Art.VII].

Pardon – act of grace which exempts individual on whom it is bestowed from punishment which the law inflicts for a crime he has committed. Pardon Classified: 1. Plenary or partial; and 2. Absolute or conditional.

Four ways for the proclamation or suspension to be lifted: 1. lifting by the President himself; 2. revocation by Congress; 3. nullification by the Supreme Court; 4. operation of law after 60 days. 6. PARDONING POWER (SEC. 19, ART. VII) ✍ discretionary, may not be controlled by the legislature or reversed by the court, unless there is a constitutional violation.

Commutation – reduction mitigation of the penalty.

or

Reprieve – postponement of sentence or stay of execution. Parole – release from imprisonment, but without full restoration of liberty, as parolee is in the custody of the law although not in confinement. Amnesty – act of grace, concurred in by the Legislature, usually extended to groups of persons who committed political offenses, which puts into oblivion the offense itself.

AMNESTY 1.

Political offenses

2.

Classes persons

PARDON

of

1.

Infraction of peace/ common crimes

2.

individuals



36

3.

Requires concurrence of Congress

3.

does not require concurrence of Congress

4.

Public act to which court may take judicial notice of

4.

Private act which must be pleaded and proved

5.

Looks backward and puts to oblivion the offense itself

5.

Looks forward and relieves the pardonee of the consequence of the offense.

6.

May be granted even before trial

6.

Can be granted only after conviction.

✍ President shall address Congress at the opening of its regular session. President may also appear before it at any other time. 11. RESIDUAL POWER ✍ Whatever is not judicial, whatever is not legislative, is residual power exercised by the President (Marcos v. Manglapus, 178 SCRA 760)

7. BORROWING POWER (SEC. 20, ART. VII) ✍ the President may contract or guarantee foreign loans on behalf of the Republic with the concurrence of the Monetary Board, subject to such limitations as may be provided by law. ✍ Monetary Board shall submit to Congress report on loans within 30 days from end of every quarter.

12. OTHER POWERS a. call Congress to a special session [Sec. 15, Art. VI]; b. approve or veto bills [Sec. 27, Art. VI]; c. deport aliens (Qua Chee Gan v. The Deportation Board, G.R. No. L-10280. September 30, 1963); d. consent to deputization of government personnel by COMELEC [Sec.2 (4), Art. IX-C]; e. to discipline such deputies [Sec. 2 (8), Art. IX-C]; f. general supervision over local government units and autonomous regional governments (Art. X);

8. DIPLOMATIC POWER (SEC. 21, ART. VII) ✍ No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of all members of Senate.

general supervision – mere overseeing of a subordinate to make sure that they do their duties under the law but does not include the power to overrule their acts, if these acts are within their discretion.

9. BUDGETARY POWER (SEC. 22, ART. VII) ✍ within 30 days from opening of every regular session, President shall submit to Congress a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures.

g. immunity from suit during his tenure - deemed implied in the Constitution (Bernas, The 1987 Constitution, A Commentary 2003 Ed., p 803)

10. INFORMING POWER (SEC. 23, ART. VI)

-

the immunity does not however extend to nonofficial acts or for wrong doing (Estrada vs. Desierto,


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San Beda College of Law 37 M EMORY A ID IN P OLITICAL L AW G. R. Nos. March 2, 2001)

146710-15, 4.

h. by delegation from Congress, exercise emergency [Sec. 23 (2), Art. VI] and tariff powers [Sec. 28 (2), Art. VI].

5. 6.

Conditions for the Exercise of the President of Emergency Powers: 1. there must be a war or national emergency; 2. there must be a law authorizing President to exercise emergency powers; 3. exercise must be for a limited period; 4. must be subject to restrictions that Congress may provide; and 5. exercise must be necessary and proper to carry out a declared national policy [Sec.23 (2), Art.VI]. Article VIII: JUDICIAL DEPARTMENT I. JUDICIAL POWER - duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government (Sec. 1, par.2, Art. VIII). Judicial power is vested in: 1. One Supreme Court; and 2. Such lower courts as may be established by law (Sec. 1, Art. VIII). Jurisdiction - power to hear and decide a case and execute decision thereof. Safeguards that guarantee Independence of Judiciary: 1. SC is a Constitutional body; may not be abolished by law; 2. Members are only removable by impeachment; 3. SC may not be deprived of minimum and appellate jurisdiction; appellate

7.

8. 9. 10. 11.

jurisdiction may not be increased without its advice or concurrence; SC has administrative supervision over all inferior courts and personnel; SC has exclusive power to discipline judges/justices of inferior courts; Members of judiciary enjoy security of tenure; Members of judiciary may not be designated to any agency performing quasi-judicial or administrative functions; Salaries of judges may not be reduced; judiciary enjoys fiscal autonomy; SC alone may initiate Rules of Court; SC alone may order temporary detail of judges; and SC can appoint all officials and employees of the Judiciary (Nachura, Reviewer in Political Law, p. 199200).

II. APPOINTMENT TO THE JUDICIARY: Qualifications a. Chief Justice and Associate Justices of the Supreme Court: 1. Natural-born citizen; 2. At least 40 years old; 3. 15 years or more a judge of a lower court or engaged in the practice of law in the Philippines; 4. a person of proven competence, integrity, probity and independence. b. Presiding Justice and Associate Justices of the Court of Appeals: • Same qualifications as those provided for Justice of the Supreme Court; c. Regional Trial Court Judges: 1. Citizen of the Philippines; 2. At least 35 years old; and 3. Has been engaged for at least 5 years in the practice of law in the Philippines or has held public office in the Philippines requiring admission to the practice of



38

law as an indispensable requisite. 4. a person of proven competence, integrity, probity and independence. d. Metropolitan, Municipal and Municipal Circuit Trial Court Judges: 1. Citizen of the Philippines; 2. At least 30 years old; 3. Has been engaged for al least 5 years in the practice of law in the Philippines or has held public office in the Philippines requiring admission to the practice of law as an indispensable requisite; 4. a person of proven competence, integrity, probity and independence. Procedure in Appointment: 1. Appointed by President from among a list of at least 3 nominees prepared by Judicial and Bar Council for every vacancy. 2. For lower courts, President shall issue the appointment 90 days from submission of the list. Tenure of Justices and Judges a. Supreme Court – hold office until they reach 70 years of age or become incapacitated to discharge their duties [Sec.11, Art.VIII]. ✍ May be removed only through impeachment. a. Lower Courts – hold office during good behavior until they reach 70 years of age or become incapacitated to discharge their duties [Sec. 11, Art. VIII]. ✍ By majority vote of members who actually took part in the deliberation on the issues and voted thereon, SC en banc shall have the power to discipline judges of lower courts or order their dismissal. ✍ No law shall be passed reorganizing the Judiciary when

it undermines the security of tenure of its members (Sec. 2, Art. VIII). III. JUDICIAL AND BAR COUNCIL Composition: ✍ Ex-officio chairman Supreme Court Chief Justice ✍ Ex-officio members - Secretary of Justice - Representative of Congress ✍ Regular members - Representative of the IBP; - Professor of Law; - Retired member of SC; and - Representative of private sector

✍ Secretary de officio -

Clerk of the Supreme Court

Appointment ✍ Regular members shall be appointed by the President for a 4 year term with the consent of the Commission on Appointments. Powers and Functions of Judicial and Bar Council: 1. Recommend appointees to the judiciary; 2. Recommend appointees to the Office of the Ombudsman and his 5 deputies; 3. May exercise such other functions as may be assigned by Supreme Court. (Sec. 8, Art. VIII) IV. SUPREME COURT Composition: • Chief Justice and 14 Associate Justices -may sit en banc or in its discretion, in divisions of 3, 5, or 7 members. - Any vacancy shall be filled within 90 days from occurrence thereof Powers of the Supreme Court 1. Original Jurisdiction


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San Beda College of Law 39 M EMORY A ID IN P OLITICAL L AW •

•

•

Over cases affecting ambassadors, other public ministers and consuls; Over petition for Certiorari, Prohibition, Mandamus, Quo Warranto, and Habeas Corpus; and Review of factual basis for the declaration of martial law or suspension of the privilege of writ of habeas corpus.

2. Appellate Jurisdiction • Over final judgments and orders of lower courts in a. all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question; b. All cases involving the legality of any tax impost, assessment, or toll, or any penalty imposed in relation thereto; c. All cases in which the jurisdiction of any lower court is in issue; d. All criminal cases in which the penalty imposed is reclusion perpetua or higher; e. All cases in which only a question of law is involved. [Section 5 (2), Art. VIII.] 3.

Electoral Tribunal for Presidential and Vice-Presidential Contests • Sitting En Banc, over all contests relating to the election, returns and qualification of the President or Vice-President (Sec. 4(7) Article VII) • The jurisdiction of the Supreme Court, defined by Article VII, Section 4, paragraph 7, of the 1987 Constitution, would not include cases directly brought before it, questioning the qualifications of a candidate for the presidency or vice-

presidency before the elections are held. (Tecson vs. Comelec, G.R. No. 161434. March 3, 2004) 4.

Temporary assignments of judges of lower courts to others stations as public interest may require. Not to exceed 6 months without the consent of the judge concerned.

5. Order change of venue or place of trial, to avoid miscarriage of justice. 6. Rule-making power – promulgates rules concerning: a. protection and enforcement of constitutional rights; b. pleading, practice and procedures in all courts; c. admissions to the practice of law; d. Integrated Bar of the Philippines; and e. legal assistance to the underprivileged. Limitations on rule making power: (i.) provide a simplified and inexpensive procedure for speedy disposition of cases; (ii.) uniform for all courts in the same grade; (iii.) shall not diminish, increase or modify substantive rights. 7. Power of appointment ✍ appoints all officials and employees of the Judiciary in accordance with Civil Service Law; 8. Power of administrative supervision ✍ administrative supervision over all courts and the personnel thereof. ✍ mere division of the SC may discipline a judge of the lower court; the SC is required to decide a case en banc only when the dismissal of a judge is involved. 9. Yearly report ✍ Within 30 days from the opening of each regular session of Congress, SC shall submit to the



40

President and Congress an annual report on the operation and activities of the Judiciary. V. POWER OF JUDICIAL REVIEW Judicial Review – the power of the courts to test the validity of executive and legislative acts in light of their conformity with the Constitution. This is not an assertion of superiority by the courts over the other departments, but merely an expression of the supremacy of the Constitution (Angara v. Electoral Commission, 63 Phil. 139)

Doctrine of Judicial Supremacy 1. Although holding neither purse nor sword and so regarded as the weakest of the three departments of the government, the judiciary is nonetheless vested with the power to annul the acts of either the legislative or the executive or of both when not conformable to the fundamental law. (Association of Small Landowners of the Philippines v. Secretary of Agrarian Reform, 175 SCRA 343). 2. When the judiciary allocates constitutional boundaries, it neither asserts superiority nor nullifies an act of the Legislature. It only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. (Laurel, Angara v. Electoral Commission, 63 Phil 139) Requisites of Judicial Review: 1. Actual case or controversy – a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial determination;

2. Constitutional question must be raised by the proper party – one who has sustained or is in imminent danger of sustaining an injury as a result of the act complained of; ✍ For a taxpayer’s suit, 2 requisites: a. public funds are disbursed by a political subdivision or instrumentality; and b. a law is violated or some irregularity is committed, and that the petitioner is directly affected by the alleged ultra vires act (Anti-Graft League of the Philippines v. Court of Appeals, 260 SCRA 250) 3. Constitutional question must be raised at the earliest opportunity ✍ General Rule: must be raised in the pleadings ✍ Exceptions: a. criminal cases – at any time at the discretion of the court; b. civil cases – at any stage of the proceedings if necessary for the determination of the case itself; c. every case (except where there is estoppel ) – at any stage if it involves the jurisdiction of the court 4. Determination of constitutionality of the statute must be necessary to a final determination of the case. (People vs. Vera, 65 Phil. 56). ✍ Therefore, the following must be avoided: • political questions; • advisory opinions • moot and academic issues; • no standing. Seven Rules of Avoidance of Constitutional Questions (Brandeis, J.) 1. Friendly, non-adversary proceedings (no vital conflict); 2. Anticipation of a question of constitutional law in advance of the necessity of deciding it (premature case);


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San Beda College of Law 41 M EMORY A ID IN P OLITICAL L AW 3. Formulation of a rule broader than is required by the precise facts to which it is applied; 4. Existence of other grounds upon which the case may be disposed of. (not the very lis mota); 5. Complaint made by one who fails to show injury as to its operations (no standing); 6. Instance of one who has availed himself of its benefit; 7. Possibility of a construction of statute that can avoid the resolution of the constitutional question. Policy of Strict Necessity (Rescue Army Case) – the court must refrain from exercising judicial review unless all the requisites for its exercise are fulfilled because: 1. the danger of exercising the function, in view of possible consequences for others stemming also from constitutional roots; 2. comparative finality of those consequences; 3. consideration due to the judgment of the other repositories of constitutional power concerning the scope of their authorities; 4. necessity for each to keep within its own power; 5. inherent limitations of the judicial process – its largely negative character, and its limited resources for enforcement; 6. withal in paramount importance of constitutional adjudication. Judicial Power includes: 1. duty of courts to settle actual controversies involving rights which are legally demandable and enforceable; and 2. to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on part of any branch or instrumentality of government [Sec. 1, Art. VIII].

Grave Abuse of Discretion Amounting to Lack of Jurisdiction – capricious and whimsical exercise of judgment. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility (Intestate Estate of Carmen de Luna v. IAC, 170 SCRA 246). JUSTICIABLE QUESTION

POLITICAL QUESTION

• A definite and concrete dispute touching on the legal relations of parties having adverse legal interests which may be resolved by a court of law through the application of a law. (Cutaran v. DENR, G.R. No. 134958, January 31, 2001).

Two aspects: • Those questions which, under the Constitution, are to be decided by the people in their sovereign capacity; or • in regard to which full discretionary authority has been delegated to the legislature or executive branches of government. (Tañada v. Cuenco, 100 Phil 1101)

Functions of Judicial Review 1. checking – invalidating a law or executive act that is found to be contrary to the Constitution; 2. legitimating – upholding the validity of the law that results from a mere dismissal of a case challenging the validity of the law; rule on double negative – uses the term “not unconstitutional”; the court cannot declare a law constitutional because it already enjoys a presumption of constitutionality. 3. symbolic – to educate the bench and bar as to the controlling principles and concepts on matters of grave public importance for the guidance of and restraint upon the future.(Salonga v. Cruz Paño, 134 SCRA 438)



42

✍ Court does not lose jurisdiction All courts can exercise Judicial Review ✍ The Constitution contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any treaty or law for Sec. 5 (2), Art. VIII speaks of appellate review of final judgments of inferior courts in cases where such constitutionality happens to be in issue. (J.M. Tuason and Co. v. Court of Appeals, 3 SCRA 696). ✍ The Constitution vests the power of judicial review not only in the Supreme Court but also in the RTC. However, in all actions assailing the validity of a statute, treaty, presidential decree, order or proclamation – and not just in actions involving declaratory relief and similar remedies, notice to the Solicitor General is mandatory, as required in Sec. 3, Rule 64 of the Rules of Court. The purpose of this mandatory notice is to enable the Solicitor General to decide whether or not his intervention in the action is necessary (Mirasol v. Court of Appeals, G.R. No. 128448, February 1, 2001) Period for Decision (Sec. 15, Art. VIII) ✍ All cases filed after the effectivity of the Constitution must be decided or resolved, from the date of submission, within: a. SC – 24 months b. Lower Collegiate Courts 12 months, unless period is reduced by SC; c. All other lower courts – 3 months unless period is reduced by SC In case of delay: ✍ A certification to be signed by the Chief Justice or Presiding Justice shall be issued stating the reason for the delay. ✍ Court, without prejudice to such responsibilities as may have been incurred in consequence thereof shall decide or resolve the case or matter submitted to it without further delay, despite expiration of mandatory period.

over the case, despite the lapse of the mandatory period. ✍ Erring judge or justice may be subjected to administrative sanctions for the delay. Effect of Declaration Unconstitutionality

of

The law is either : 1. void – if on its face it does not enjoy any presumption of validity because it is patently offensive to the Constitution. It produces not effect, creates no office and imposes no duty. (Igot v. Comelec, 95 SCRA 392) 2. voidable – if on its face it enjoys the presumption of constitutionality. The laws becomes inoperative only upon the judicial declaration of its invalidity; the declaration produces no retroactive effect. (Serrano de Agbayani v. PNB, 38 SCRA 429)

✍ Art. 7, NCC is the orthodox view on the matter. Requisites before a Law can be Declared Partially Unconstitutional: 1) the legislature must be willing to retain valid portion (separability clause); and 2) the valid portion can stand independently as law. Article IX : CONSTITUTIONAL COMMISSIONS Independent Constitutional Commissions: 1. Civil Service Commission (CSC) 2. Commission on Elections (COMELEC) 3. Commission on Audit (COA) Prohibitions and Inhibitions No member of a Constitutional Commission shall, during his tenure: 1. hold any other office or employment; 2. engage in the practice of any profession


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San Beda College of Law 43 M EMORY A ID IN P OLITICAL L AW 3. engage in the active management and control of any business which in any way may be affected by the functions of his office 4. be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies or instrumentalities, including government-owned and controlled corporations or their subsidiaries. Safeguards that guarantee Independence of Commissions: 1. they are constitutionally created; may not be abolished by statute; 2. each is expressly described as “independent;” 3. each is conferred certain powers and functions which cannot be reduced by statute; 4. the Chairmen and members cannot be removed except by impeachment; 5. the Chairmen and members are given fairly a long term of office of 7 years; 6. the Chairmen and members may not be reappointed or appointed in an acting capacity (Brillantes v. Yorac, 192 SCRA 358); 7. the salaries of the Chairmen and members are relatively high and may not be decreased during continuance in office; 8. the Commissions enjoy fiscal autonomy; 9. each Commission may promulgate its own procedural rules, provided they do not diminish, increase or modify substantive rights [though subject to disapproval by the SC]; 10. the Chairmen and members are subject to certain disqualifications calculated to strengthen their integrity; 11. the Commissions may appoint their own officials and employees in accordance with Civil Service Law (Nachura, Reviewer in Political Law, p.209) Certiorari Jurisdiction of the Supreme Court - Limited to decisions rendered in actions or proceedings taken cognizance

of the Commissions in the exercise of the adjudicatory or quasi-judicial functions. It does not refer to purely executive powers. Hence, questions arising from the award of a contract for construction of voting booths can be brought before the trial court (Ambil vs. Comelec, G.R. No. 143398, October 5. 2000) I. CIVIL SERVICE COMMISSION Composition: • 1 chairman; • 2 commissioners Qualifications: 1. natural-born citizen; 2. at least 35 years old at the time of appointment; 3. with proven capacity for public administration; and 4. not a candidate in any election immediately preceding the appointment. Term: • 7 years without reappointment. Scope of the Civil Service: embraces all branches, subdivisions, instrumentalities and agencies of the Government, including government-owned and controlled corporations with original charters [Sec. 2(1), Art. IX-B] Classes of Service: a. Career service – characterized by: 1. entrance based on merit and fitness to be determined by competitive examination or based on highly technical qualifications. 2. Opportunity for advancement; 3. Security of tenure Kinds: 1) open career positions – prior qualification via examination; 2) closed career positions – e.g., scientific or highly technical;



44

3) career executive service – e.g., Undersecretaries, Bureau Directors; 4) career officers – appointed by President, e.g., foreign service; 5) positions in AFP, governed by separate merit system; 6) personnel of GOCC’s with original charter; 7) permanent laborers, whether skilled, semi-skilled or unskilled. b. Non-career Service characterized by :

–

1. entrance on bases other than those of usual tests utilized for career service. 2. Tenure limited to period. Kinds: 1) elective officials and their personal and confidential staff; 2) department heads and officials of cabinet rank, and their personal and confidential staff; 3) chairmen and members of commissions and boards with fixed terms of office and their personal and confidential staff; 4) contractual personnel or those whose employment in government is in accordance with special contract for specific work; and 5) emergency and seasonal personnel. Exceptions to requirement competitive examinations determine merit and fitness):

of (to

Policy Determining – lays down principal or fundamental guidelines or rules. Formulates method of action. Primarily Confidential – primarily close intimacy which insures freedom of intercourse without embarrassment of

freedom from misgivings or betrayals on confidential matters of state; ✍ Or one declared to be so by President upon recommendations of CSC (Salazar v. Mathay, 73 SCRA 275). Highly Technical – requires possession of technical skill or training in supreme or superior degree. (de los Santos v. Mallare, 87 Phil 289) II. COMMISSION ON ELECTION Composition: • 1 chairman; • 6 commissioners Qualifications: 1. natural-born citizen; 2. at least 35 years old at the time of appointment; 3. college degree holder ; 4. not candidate in election immediately preceding the appointment; and 5. majority, including the chairman, must be members of the Philippine Bar who have been engaged in the practice of law for at least 10 years Term: • 7 years without reappointment. If however, the appointment was ad interim, a subsequent renewal of the appointment does not violate the prohibition on reappointments because no previous appointment was confirmed by the Commission on Appointments. Furthermore, the total term of both appointments must not exceed the 7 year limit (Matibag vs. Benapayo G.R. No. 149036, April2, 2002) Powers and Functions of COMELEC: 1. enforce and administer law and regulations relative to conduct of elections, plebiscite, initiative, referendum or recall; 2. exclusive original jurisdiction over all contests relating to election, returns and qualifications of all


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3.

4.

5.

6.

7.

8.

9.

elective regional, provincial, and city officials. Exclusive appellate jurisdiction over all contests involving elective municipal officials decided by RTC, or involving elective barangay officials by MTC; Decide, except those involving right to vote, all questions affecting elections, including the determination of number and location of polling places, appointment of election officials and inspectors and registration of voters; Deputize, with concurrence of President, law enforcement agencies and instrumentalities for exclusive purpose of insuring free, orderly, honest, peaceful and credible elections; Register, after sufficient publication, political parties, organizations or coalitions which must present their platform or program of government; accredit citizen’s arms; File upon verified complaint or motu propio petitions in court for inclusion or exclusion of voters; investigate and, where appropriate , prosecute cases of violations of elections laws; Recommend to Congress effective measures to minimize election spending, limitation of places and prevent and penalize all forms of election frauds, offenses, malpractice and nuisance candidates; and Submit to President and Congress, comprehensive reports on conduct of each election, plebiscite, initiative, referendum or recall. •

•

The COMELEC's exercise of its quasi-judicial powers is subject to Section 3 of Article IX-C which expressly requires that 1) all election cases, including preproclamation controversies, shall be decided by the COMELEC in division, and 2) the motion for reconsideration shall be decided by the COMELEC en banc. The prosecution of election law violators involves the exercise of the COMELEC's administrative

powers. Thus, the COMELEC en banc can directly approve the recommendation of its Law Department to file the criminal information for double registration against petitioners in the instant case. There is no constitutional requirement that the filing of the criminal information be first decided by any of the divisions of the COMELEC. (Baytan vs. Comelec, G.R. No. 153945, February 4, 2003) III. COMMISSION ON AUDIT Composition: • 1 chairman; • 2 commissioners. Qualifications: 1. natural-born citizen; 2. at least 35 years old at the time of appointment; 3. CPA’s with at least 10 years auditing experience or members of the Bar with at least 10 years practice of law; at no time shall all members belong to the same profession; 4. Not a candidate in election immediately preceding appointment. Term: • 7 years without reappointment. Powers and Duties of COA: 1. examine, audit and settle all accounts pertaining to revenue and receipts of, and expenditures or uses of funds and property owned or held in trust or pertaining to government; 2. keep general accounts of government and preserve vouchers and supporting papers; 3. authority to define scope of its audit and examination, establish techniques and methods required therefor; and 4. promulgate accounting and auditing rules and regulations, including those for prevention and disallowance.



46

Jurisdiction of the Commission: no law shall be passed exempting any entity of the Government, or any investment of public funds, from the jurisdiction of the Commission on Audit (Sec. 3, Art. IX-D) Article XI: ACCOUNTABILITY OF PUBLIC OFFICERS I. 1. 2. 3. 4.

IMPEACHABLE OFFICERS: President; Vice-President; Justices of the Supreme Court; Chairmen and Members of the Constitutional Commissions; 5. Ombudsman.

together with the corresponding resolution. 5. Placing on calendar the Committee resolution within 10 days from submission; 6. Discussion on the floor of the report; 7. A vote of at least one third of all the members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee or override its contrary resolution.

the

Trial and Decision in Impeachment proceedings 1. The Senators take an oath or affirmation. 2. When the President of the Philippines is on trial the Chief Justice of the Supreme court shall preside but shall not vote. 3. A decision of conviction must be concurred in by at least two thirds of all the members of the Senate.

Initiation of Impeachment Case ✍ The House of Representatives shall have the exclusive power to initiate all cases of impeachment

Effect of Conviction: 1. Removal from Office; 2. Disqualification to hold any other office under the Republic of the Philippines; 3. Party convicted shall be liable and subject to prosecution, trial and punishment according to law.

II. IMPEACHMENT PROCESS Grounds for Impeachment: 1. Culpable violation Constitution; 2. Treason; 3. Bribery; 4. Graft and Corruption; 5. Other high crimes; and 6. Betrayal of public trust.

of

Process of Impeachment 1. Verified Complaint filed by any member of the house or any citizen upon resolution of endorsement by any member thereof 2. Included in the order of business within 10 session days. 3. Referred to the proper committee within 3 session days of its inclusion. ✍ If the verified complaint is filed by at least one third of all its members, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. 4. The Committee, after hearing, and by majority vote of all its members, shall submit its report to the House

Limitations: 1. The House of Representatives shall have the exclusive power to initiate all cases of impeachment. 2. Not more than one impeachment proceeding shall be initiated against the same official within a period of one year - An impeachment case is the legal controversy that must be decided by the Senate while an impeachment proceeding is one that is initiated in the House of Representatives. For purposes of applying the-one year bar rule, the proceeding is “initiated” or begins when a verified complaint is filed and referred to the Committee on


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San Beda College of Law 47 M EMORY A ID IN P OLITICAL L AW Justice for action (Francisco, et al. vs. House of Representatives, et al. G.R. No. 160261, November 10, 2003). III. SANDIGANBAYAN • the anti-graft court shall continue to function and exercise its jurisdiction as now and hereafter may be provided by law. Composition: ✍ 1 Presiding Justice and 14 Associate Justices with the rank of Justice of the CA. ✍ Sits in 5 divisions of 3 members each. Decision and Review ✍ unanimous vote of all 3 members shall be required for the pronouncement of judgment by a division. Decision shall be reviewable by the SC on petition for certiorari. Jurisdiction of the Sandiganbayan: 1. Original Jurisdiction a. violations of R.A. 3019 (AGCPA) as amended; R.A. 1379; and Chapter II, Sec.2, Title VII, Book II of the Revised Penal Code where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity at the time of the commission of the offense: (i.) Officials of the Executive branch with the position of regional director or higher, or with Salary Grade Level 27 (G27) according to R.A. 6758, specifically including: (a.) Provincial governors, vice-governors; Board members, provincial treasurers, assessors, engineers and other provincial department heads;

(b.) City mayors, vicemayors, city councilors; city treasurers, assessors, engineers and other city department heads; (c.) Officials of the diplomatic service from consuls or higher; (d.) PA/PAF colonels; PN captains and all officers of higher rank; (e.) Officers of the PNP while occupying the position of provincial director and those holding the rank of senior superintendent or higher; (f.) City/provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; and (g.) Presidents, directors, trustees, or managers of GOCC’s state universities or educational institutions or foundations; (ii.) Members of Congress and officials thereof with G27 and up; (iii.) Members of the Judiciary without prejudice to the Constitution; (iv.) Chairmen and members of the Constitutional Commissions without prejudice to the Constitution; and (v.) All other national and local officials with G27 or higher; b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in Subsection a in relation to their office; c. Civil and criminal cases filed pursuant to and in connection



48

with E.O. nos. 1, 2, 14 and 14-A issued in 1986. 2. Exclusive Original Jurisdiction over petitions for the issuance of the writs of mandamus, prohibitions, certiorari, habeas corpus, injunction and other ancillary writs and processes in aid of its appellate jurisdiction, Provided, that jurisdiction over these petitions shall be not exclusive of the Supreme Court; and 3. Exclusive Appellate Jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction. (RA 8249) V.

THE OMBUDSMAN • •

The “champion of the citizens” and “protector of the people” Tasked to entertain complaints addressed to him against erring public officers and take all necessary actions thereon.

Composition: • An Ombudsman to be known as Tanodbayan • 1 overall Deputy; and • at least 1 Deputy each for Luzon, Vizayas and Mindanao; • A separate Deputy for the military establishment may likewise be appointed. Qualifications of the Ombudsman and his deputies: 1. natural born citizen; 2. at least 40 years old; 3. of recognized probity and independence; 4. member of the Philippine Bar; and 5. must not have been candidates for any elective office in the immediately preceding election. Term of Office: • 7 years without reappointment.

Disqualifications and Inhibitions: During their tenure: 1. shall not hold any other office or employment; 2. shall not engage in the practice of any profession or in the active management or control of any business which in any way may be affected by the functions of his office; 3. shall not be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the government, or any of its subdivisions, etc.; 4. shall not be qualified to run for any office in the election immediately succeeding their cessation from office. Powers, Functions and Duties: a. Investigate any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient; b. Direct any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as any GOCC with original charter, to perform or expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. c. Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. d. Direct the officer concerned, in any appropriate case, and subject to such limitation as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the COA for appropriate action. e. Request any government agency for assistance and information necessary in the discharge of its responsibilities


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San Beda College of Law 49 M EMORY A ID IN P OLITICAL L AW and examine, if necessary, pertinent records and documents. f. Publicize matters covered by its investigation when circumstances so warrant and with due process. g. Determine the causes if inefficiency, red tape, mismanagement, fraud and corruption and to make recommendations for their elimination and observance of high standards of ethics and efficiency. h. Promulgate its rules of procedure and exercise such other powers or perform such function or duties as may be provided by law. (Sec. 13, Art. XI) i. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly released. (Sec. 14, Art XI) - The Constitution and RA 6770 (The Ombudsman Act of 1989) has endowed the Office of the Ombudsman with a wide latitude of investigatory and prosecutory power virtually free from legislative, executive or judicial intervention. The Supreme Court consistently refrains from interfering with the exercise of its powers, and respects the initiative and independence inherent in the Ombudsman who, beholden to no one, acts as the champion of the people and the preserver of the integrity of public service. (Loquias v. Office of the Ombudsman, GR No. 139396, August 15, 2000) - The Ombudsman is clothed with authority to conduct preliminary investigation and prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan but those within the jurisdiction of the regular courts as well. (Uy v. Sandiganbayan, GR No. 105965-70, March 20, 2001). - The power to investigate also includes the power to impose preventive suspension. This is different from the power to

recommend suspension. The latter is a suspension as a penalty; preventive suspension is not a penalty (Bernas, The 1987 Constitution A ReviewerPrimer, 2002. Ed., Citing, Buenesada vs. Flavier , 226 SCRA 645) V. ILL-GOTTEN WEALTH - the right of the State to recover properties unlawfully acquired by public officials or employee, from them or from their nominees or transferees, shall not be barred by prescription, laches or estoppel (Sec. 15, Art. XI) but it applies only to civil actions and not to criminal cases. (Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Disierto, GR No.130140, October 25, 1999) Article XII : NATIONAL ECONOMY AND PATRIMONY I. GOALS OF THE NATIONAL ECONOMY (SEC.1, ART. XII) 1. more equitable distribution of wealth; 2. increased wealth for the benefit of the people; and 3. increased productivity. II. REGALIAN DOCTRINE (JURA REGALIA) - universal feudal theory that all lands were held from the Crown (Holmes, Cariño v. Insular Government, 212 US 449). Exception: any land in the possession of an occupant and of his predecessors-in-interest since time immemorial. (Oh Cho v. Director of Land, 75 Phil 890); •

The 1987 Constitution reaffirmed the Regalian doctrine in Sec. 2, Art. XII. (Cruz v. Secretary of DENR, G.R. No. 135385, December 6, 2000).

•

All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests, or timber, wildlife, flora and fauna, and natural resources belong to



50

the state. With the exception of agricultural lands, all other natural resources shall not be alienated. (Sec. 2, Art. XII). Classification of Lands of the Public Domain (Sec. 3, Art. XII) 1. agricultural 2. forest timber; 3. mineral lands; and 4. national parks. Requirement of Reclassification or Conversion: positive act of government; mere issuance of title not enough (Sunbeam Convenience Food v. Court of Appeals, 181 SCRA 443). III. FILIPINIZED ACTIVITIES REGARDING THE NATIONAL ECONOMY AND PATRIMONY: 1. co-production, joint venture or production sharing agreement for exploration, development and utilization (EDU) of natural resources: Filipino citizens or entities (read: corporations or associations) with 60% Filipino capitalization; Exception: For large-scale EDU of minerals, petroleum and other mineral oils, the President may enter into agreements with foreign-owned corporations involving technical or financial assistance. - These agreements refer to service contracts which involve foreign management and operation provided that the Government shall retain that degree of control sufficient to direct and regulate the affairs of individual enterprises and restrain undesired activities (La Bugal-B’laan Tribal Assoc., et al. vs. Secretary, DENR, et al., G.R. No. 127882, December 1, 2004) 2. use and enjoyment of nation’s marine wealth within territory: Exclusively for Filipino citizens; 3. Alienable lands of the public domain: Only Filipino citizens may acquire not more than 12 hectares by purchase, homestead or grant, or

lease not more than 500 hectares. Private corporations may lease not more than 1,000 hectares for 25 years renewable for another 25 years; 4. Certain areas of investment: reserved for Filipino citizens or entities with 60 % FC, although Congress may provide for higher percentage; 5. grant of rights, privileges and concessions covering national economy and patrimony, State shall give preference to qualified Filipinos; and 6. Franchise, certificate or any other form of authorization for the operation of a public utility: only to Filipino citizens or entities with 60% FC; ✍ such franchise, etc., shall not be exclusive, nor for period longer than 50 years and subject to amendment, alteration or repeal by Congress; all executive and managing officers must be Filipino citizens.

IV. PRIVATE LANDS General Rule: no private land shall be transferred or conveyed except to individual, corporations or associations qualified to acquire or hold lands of the public domain. Exceptions: 1. foreigners who inherit through intestate succession; 2. former natural-born Filipino citizen may be a transferee of private lands subject to limitations provided by law. 3. ownership in condominium units. 4. Parity right agreement, under the 1935 Constitution Stewardship Doctrine – Private property is supposed to be held by the individual only as a trustee for the people in general, who are its real owners.


AND

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San Beda College of Law 51 M EMORY A ID IN P OLITICAL L AW VI. TEMPORARY TAKE OVER OF BUSINESS AFFECTED WITH PUBLIC INTEREST They State may: 1. In times of national emergency, 2. when the public interest so requires, 3. during the emergency and under reasonable terms prescribed by it, and 4. temporarily take over or direct the operation of any privately owned public utility or business affected with public interest. (Sec. 17, Art. XII) •

The temporary takeover by the government extends only to the operation of the business and not to the ownership thereof. As such the government is not required to compensate the private entityowner of the said business as there is no transfer of ownership, whether permanent or temporary. The private entity-owner affected by the temporary takeover cannot,

likewise, claim just compensation for the use of the said business and its properties as the temporary takeover by the government is in exercise of its police power and not of its power of eminent domain. (Agan vs. PIATCO, G.R. No. 155001, May 5, 2003)

Article XIII : SOCIAL JUSTICE AND HUMAN RIGHTS Social Justice as Envisioned by the Constitution ✍ equitable diffusion of wealth and political power for common good; ✍ regulation of acquisition, ownership, use and disposition of property and its increments; and ✍ creation of economic opportunities based on freedom of initiative and self-reliance (Sec. 1 and 2, Art. XIII). Distributive Justice – the attainment of a more equitable distribution of land

which recognizes the right of farmers and regular farm workers who are landless to own the land they till, and a just share of other or seasonal farm workers in the fruits of the land; - based on the Aristotelian notion of giving each one what is due him on the basis of personal worth and value, and not merely what he has contracted for. Rights of Labor Guaranteed by the Constitution (Sec. 3, Art. XIII) 1. full protection to labor; 2. promotion of full employment and equality of employment opportunity to all; 3. guarantee of right of workers to selforganization; 4. collective bargaining and negotiations; 5. peaceful concerted activities including the right to strike in accordance with law; 6. right to security of tenure; 7. right to human conditions of work; 8. right to participate in policy and decision-making affecting their rights and benefIts. Article XIV : EDUCATION Principal Characteristic of Education which State must Promote and Protect: 1. quality education; 2. affordable education [Sec.1, Art.XIV]; 3. education that is relevant to the needs of the people [Sec.2(1), Art.XIV]. Nationalized Educational Activities: 1. ownership, except those established by religious groups and mission boards; 2. control and administration; and 3. student population [Sec.4(2), Art.XIV]. Aspects of Academic Freedom: 1. to the institution – to provide that atmosphere which is most conducive to speculation, experimentation and creation;



52

Freedom to determine for itself on academic grounds: a. who may teach; b. what may be taught; c. how shall it be taught; and d. who may be admitted to study (Miriam College Foundation v. CA, GR No. 127930, December 15, 2000); - As part of its constitutionally enshrined academic freedom, the University of the Philippines has the prerogative to determine who may teach its students. The Civil Service Commission has no authority to force it to dismiss a member of its faculty even in the guise of enforcing Civil Service Rules.(UP v. Civil Service Commission, GR No.132860, April 3, 2001) 2. to the faculty a. freedom in research and in the publication of the results, subject to the adequate performance of his other academic duties; b. freedom in the classroom in discussing his subject, less controversial matters which bear no relation to the subject; c. freedom from institutional censorship or discipline, limited by his special position in the community. 3. to the student - right to enjoy in school the guarantee of the Bill of rights (Non v. Dames, 185 SCRA 523). Article XVI : STATE IMMUNITY FROM SUIT Basis: The state may not be sued without its consent. (Sec. 3, Art. XVI). Test to determine if suit is against State: • If the enforcement of the decision rendered against the public officer or agency impleaded will require an affirmative act from State,

then, it is a suit against the State (Nachura, Reviewer in Political Law, p. 20). •

A suit is against the state, regardless of who is named as defendant, if it produces adverse consequences on the public treasury, whether in the disbursement of funds or loss of property, the public official proceeded against not being liable in his personal capacity. (Begosa v. Chairman, Phil. Veterans Adm. 32 SCRA 466)

Forms of Consent: 1. Express consent a. general law – (i.) Act No. 3083 and CA 327 as amended by Secs. 49-50, PD 1445: money claims arising from contracts first filed with COA before suit may be filed in court; (ii.) Art. 2180, NCC: tort committed by special agent; (iii.) Art. 2189, NCC: LGUs liable for injuries or death caused by defective condition of roads xxx or public works under their control (City of Manila vs Teotico, 22 SCRA 267) (iv.) Sec. 22 (2) of RA 7160 (LGC of 1991): LGU’s have power to sue and be sued; (v.) Sec. 24 of LGC, LGU’s and their officials are not exempt from liability for death or injury or damage to property. b. special law (Merritt v. Government of the Philippine Islands, 34 Phil., 311). 2. implied consent a. when State commences litigation becomes vulnerable to counterclaim; (Froilan v. Pan Oriental Shipping, GR No. L-6060 Sept. 30, 1950) b. State enters into a business contract


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San Beda College of Law 53 M EMORY A ID IN P OLITICAL L AW Jure Gestonis - by right of economic or business relations, may be sued (US v. Guinto, 182 SCRA 644); Jure Imperii - by right of sovereign power, in the exercise of sovereign functions. No implied consent (US v. Ruiz, 136 SCRA 487). c When it would be inequitable for the state to claim immunity (Amigable v. Cuenca, 43 SCRA 360) Scope of Consent: Consent to be sued does not include consent to the execution of judgment against it. Such execution will require another waiver, because the power of the court ends when the judgment is rendered, since government funds and properties may not be seized under writs of execution or garnishment, unless such disbursement is covered by the corresponding appropriation as required by law (Republic v. Villasor, 54 SCRA 84). 1. Under Act No. 3083 ✍ Ordinary rule for execution will not apply after money judgment against the government, for the consent to be sued is only up to the point of judgment 2. Under a charter ✍ May be enforced by a writ of execution because consent is until the satisfaction of the money judgment. Rules Regarding Government Agencies: 1. Incorporated (GOCC) – if it’s charter provides that it has the right to sue and be sued, it is an express consent and it is suable.(SSS v. CA, 120 SCRA 707); if it’s charter is silent, inquire into it’s function based on the purpose for which it was created.(Malong v. PNR, 138 SCRA 63) (i.) propriety – if the purpose is to obtain special corporate benefits or earn pecuniary profit, suable; (ii.) governmental – if it is in the interest of health, safety and for the advancement of public

good and welfare, affecting the public in general, not suable (Balquera v. Alcala, 295 SCRA 366). 2. Unincorporated a. performs governmental functions: not suable without State consent even if performing proprietary function incidentally (Bureau of Printing v. Bureau of Printing Employees Association, 1 SCRA 340). b. performs proprietary functions: suable (Civil Aeronautics Administration v. CA, 167 SCRA 28). Rules Regarding Garnishment or Levy of Government Funds in Government Depository: General Rule: government funds deposited with PNB or authorized depositories cannot be subject to garnishment. Exceptions: where law or ordinance has already been acted appropriating a specific amount to pay a valid governmental obligation. (Municipality of San Miguel, Bulacan v. Fernandez, G.R. No. L-61744. June 25, 1984); funds belonging to government corporations which can sue and be sued that are deposited with a bank (PNB v. Pabalan, 83 SCRA 595). Rules Regarding Payment of Interests by Government in Money Judgments Against It: General Rule: Government cannot be made to pay interests; Exceptions: 1. eminent domain; 2. erroneous collection of taxes; or 3. where government agrees to pay interest pursuant to law. Article XVII: PROCEDURE IN AMENDING THE CONSTITUTION Steps in Amendatory Process:



54

purpose; Indirect Initiative – the exercise of initiative by the people through a proposition sent to Congress or the local legislative body for action (Sec 2, RA6735).

1. Proposal i.

Congress acting as Constituent Assembly (i.) Direct proposal – vote of ¾ of all its members

✍ no amendment in this manner

(ii.) by calling a Constitutional Convention – called either by:

shall be authorized within 5 years following the ratification of this Constitution (February 2, 1987) nor more often than once every 5 years.

(iia.) 2/3 vote of all the members of the Congress; or

✍ RA 6735 (System of Initiative and

(iib.) a majority vote of all the members of Congress, with the question of whether or not to call a constitutional convention to be resolved by the people in a plebiscite (Sec. 3, Art. XVII)

✍ If Congress, acting as a Constituent Assembly, omits to provide for the implementing details, Congress, acting as a Legislative Assembly this time, can enact the necessary implementing legislation to fill in the gaps.(Imbong v. Ferrer, G.R. No. L-32432. September 11, 1970). b. by the people through Initiative – by a petition of at least 12% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the registered voters therein. ✍ Initiative – the power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the

Referendum) does not authorize a system of initiative to amend the Constitution. The law was deemed sufficient to cover only the systems of initiative on national and local legislation because: • Sec. 2 on the Statement of Policies of the Act does not suggest an initiative on the Amendments to the Constitution; • Sec. 5 of the Act does not provide for the contents of the provision for initiative on the Constitution;

•

That the Act does not provide a sub-title for initiative on the Constitution simply means that the main thrust of the Act is initiative and referendum on National and Local Laws. (DefensorSantiago v. Comelec, GR No. 127325, March 17, 1997).

PROPOSAL BY CONGRESS

CONCON

PROPOSAL BY PEOPLE

For both Amendments and Revisions

For both amendments and Revisions

For amendments only!


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San Beda College of Law 55 M EMORY A ID IN P OLITICAL L AW AMENDMENT

REVISION

Alteration of one or a few specific and isolated provisions of the Constitution

Reexamination of the entire Constitution or an important cluster of provisions in the Constitution

2. Ratification - Proposed amendment(s) shall be submitted to the people and shall be deemed ratified by majority of the votes cast in a plebiscite, held not earlier than 60 days nor later than 90 days: a. after approval of the proposal by Congress or ConCon, or; b. after certification by the COMELEC of sufficiency of petition of the people. Doctrine of Proper Submission – plebiscite may be held on the same day as regular election.(Gonzales v. Comelec, 21 SCRA 774) provided the people are sufficiently informed of the amendments to be voted upon, to conscientiously deliberate thereon, to express their will in a genuine manner.

✍ Submission

of piece-meal amendments is unconstitutional. All the amendments must be submitted for ratification at one plebiscite only. The people have to be given a proper frame of reference in arriving at their decision. They have no idea yet of what the rest of the amended constitution would be. (Tolentino v. Comelec, G.R. No. L-34150. October 16, 1971). ✍ Questions as to amendments are now subject to Judicial review. (Sanidad v. Comelec, 78 SCRA 332)



56

ADMINISTRATIVE LAW ADMINISTRATIVE LAW - Branch of public law that fixes the organization of the government and determines competence of authorities who execute the law and indicates to the individual remedies for the violations of his rights. I.

ADMINISTRATIVE AGENCIES

BODIES

OR

- A body, other than the courts and the legislature, endowed with quasilegislative and quasi-judicial powers for the purpose of enabling it to carry out laws entrusted to it for enforcement or execution. How Created: 1. by constitutional provision; 2. by legislative enactment; and 3. by authority of law. II. POWERS OF ADMINISTRATIVE BODIES: 1. Quasi-legislative or rule-making power; 2. Quasi-judicial or adjudicatory power; and 3. Determinative powers. A. QUASI-LEGISLATIVE OR RULE-

MAKING POWER ☛ In exercise of delegated legislative power, involving no discretion as to what law shall be, but merely authority to fix details in execution or enforcement of a policy set out in law itself. Kinds: 1. Legislative regulation a. Supplementary or detailed legislation, e.g. Rules and Regulations Implementing the Labor Code; b. Contingent regulation 2. Interpretative legislation, e.g. BIR Circulars Requisites for valid exercise: 1. Issued under authority of law; 2. Within the scope and purview of the law; 3. Promulgated in accordance with the prescribed procedure: a. notice and hearing – generally, not required; only when: i. the legislature itself requires it and mandates that the regulation shall be based on certain facts as determined at an appropriate investigation;


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San Beda College of Law 57 M EMORY A ID IN P OLITICAL L AW ii.

the regulation is a settlement of a controversy between specific parties; considered as an administrative adjudication (Cruz, Philippine Administrative Law, p.42 43); or iii. the administrative rule is in the nature of subordinate legislation designed to implement a law by providing its details (CIR v. Court of Appeals, 261 SCRA 236). b. publication 4. Reasonable Requisites for Validity of Administrative Rules With Penal Sanctions: 1. law itself must declare as punishable the violation of administrative rule or regulation; 2. law should define or fix penalty therefor; and 3. rule/regulation must be published. Doctrine of Subordinate Legislation – power of administrative agency to promulgate rules and regulations on matters of their own specialization. Doctrine of Legislative Approval by Reenactment - the rules and regulations promulgated by the proper administrative agency implementing the law are deemed confirmed and approved by the Legislature when said law was reenacted by later legislation or through codification. The Legislature is presumed to have full knowledge of the contents of the regulations then at the time of reenactment. QUASILEGISLATIVE FUNCTIONS 1.

2.

consists of issuance of rules and regulations

general

QUASIJUDICIAL FUNCTIONS 1.

refers to its end product called order, reward or decision

2. applies to a

applicability

3. prospective; it envisages the promulgation of a rule or regulation generally applicable in the future

specific situation 3.

present determination of rights, privileges or duties as of previous or present time or occurrence

B. QUASI-JUDICIAL OR ADJUDICATORY POWER • Proceedings partake of nature of judicial proceedings. Administrative body granted authority to promulgate its own rules of procedure. Two necessary conditions: 1. due process; and 2. jurisdiction Includes the following powers: 1. Prescribe rules of procedure 2. Subpoena power 3. Contempt Power Administrative Due Process: 1. right to a hearing; 2. tribunal must consider evidence presented; 3. decision must have something to support itself; 4. evidence must be substantial; 5. decision must be based on evidence adduced at hearing or at least contained in the record and disclosed to parties; 6. board of judges must act on its independent consideration of facts and law of the case, and not simply accept view of subordinate in arriving at a decision; and 7. decision must be rendered in such a manner that parties to controversy can know various issues involved and reason for decision rendered.(Ang Tibay vs CIR, 69 Phil 635) Substantial Evidence – relevant evidence as a reasonable mind might accept as adequate to support a conclusion.


58


Administrative Determinations Where Notice and Hearing Not Necessary: 1. summary proceedings of distraint and levy upon property of delinquent taxpayer; 2. grant of provisional authority for increase of rates, or to engage in particular line of business; 3. cancellation of passport where no abuse of discretion is committed; 4. summary abatement of nuisance per se which affects safety of persons or property; 5. preventive suspension of officer or employee pending investigation; and 6. grant or revocation of licenses for permits to operate certain businesses affecting public order or morals. Administrative Appeal or Review 1. Where provided by law, appeal from administrative determination may be made to higher or superior administrative officer or body. 2. By virtue of power of control of President, President himself or through Department Head may affirm, modify, alter, or reverse administrative decision of subordinate. 3. Appellate administrative agency may conduct additional hearing in appealed case, if deemed necessary. Res judicata effect of Administritve Decisions - has the force and binding effect of a final judgment (note: applies only to judicial and quasi judicial proceedings not to exercise of administrative functions, Brillantes vs. Castro 99 Phil. 497) C. DETERMINATIVE POWERS 1. enabling – permit the doing of an act which the law undertakes to regulate; 2. directing – order the doing or performance of particular acts to ensure compliance with the law and are often exercised for corrective purposes

3. dispensing – to relax the general operation of a law or to exempt from general prohibition, or relieve an individual or a corporation from an affirmative duty; 4. examining - also called investigatory power; 5. summary – power to apply compulsion or force against persons or property to effectuate a legal purpose without judicial warrants to authorize such actions. III. EXHAUSTION OF ADMINISTRATIVE REMEDIES • Whenever there is an available administrative remedy provided by law, no judicial recourse can be made until all such remedies have been availed of and exhausted. 1. Doctrine of Prior Resort or (Doctrine of Primary Administrative Jurisdiction) – where there is competence or jurisdiction vested upon administrative body to act upon a matter, no resort to courts may be made before such administrative body shall have acted upon the matter. 2. Doctrine of Finality of Administrative Action – no resort to courts will be allowed unless administrative action has been completed and there is nothing left to be done in administrative structure. 3. Judicial Relief from Threatened Administrative Action – courts will not render a decree in advance of administrative action and thereby render such action nugatory. It is not for the court to stop an administrative officer from performing his statutory duty for fear he will perform it wrongly. Effect of Failure to Exhaust Administrative Remedies: as a general rule, jurisdiction of the court is not affected but the complaint is vulnerable to dismissal due to lack of cause of action. Exceptions to the Doctrine:


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San Beda College of Law 59 M EMORY A ID IN P OLITICAL L AW 1. doctrine of qualified political agency (when the respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter); except where law expressly provides exhaustion; 2. administrative remedy is fruitless; 3. where there is estoppel on part of administrative agency; 4. issue involved is purely legal; 5. administrative action is patently illegal, amounting to lack or excess of jurisdiction; 6. where there is unreasonable delay or official inaction; 7. where there is irreparable injury or threat thereof, unless judicial recourse is immediately made; 8. in land case, subject matter is private land; 9. where law does not make exhaustion a condition precedent to judicial recourse; 10. where observance of the doctrine will result in nullification of claim; 11. where there are special reasons or circumstances demanding immediate court action; and 12. when due process of law is clearly violated. IV. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS When made: 1. to determine constitutionality or validity of any treaty, law, ordinance, executive order, or regulation; 2. to determine jurisdiction of any administrative board, commission or officer; 3. to determine any other questions of law; and

4. to determine questions of facts when necessary to determine either: a. constitutional or jurisdictional issue; b. commission of abuse of authority; and c. when administrative fact finding body is unduly restricted by an error of law. Modes of review: 1. Statutory; 2. Non-statutory – inherent power of the court to review such proceedings upon questions of jurisdiction and questions of law; 3. Direct proceeding; 4. Collateral attack. General Rule: Findings of facts of Administrative Agencies accorded great weight by the Courts. Exceptions to the Rule: 1. factual findings not supported by evidence; 2. findings are vitiated by fraud, imposition or collusion; 3. procedure which led to factual findings is irregular; 4. palpable errors are committed; and 5. grave abuse of discretion, arbitrariness or capriciousness is manifest. •

Brandeis Doctrine of Assimilation of Facts – one purports to be finding of fact but is so involved with and dependent upon a question of latter,courts will review the entire case including the latter. law as to be in substance and effect a decision on the .


60



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LAW ON PUBLIC OFFICERS I.PUBLIC OFFICE - right, authority and duty created and conferred by law, by which for a given period, either fixed by law or enduring at pleasure of creating power, and individual is vested with some sovereign functions of government to be exercised by him for the benefit of the public.(Fernandez vs Sto Tomas, 234 SCRA 546) Elements of Public Office: (LSDIP) 1. created by law or ordinance authorized by law; 2. possess sovereign functions of government to be exercised for public interests; 3. functions defined expressly or impliedly by law; 4. functions exercised by an officer directly under control of law, not under that of a superior officer unless they are functioned conferred by law upon inferior officers, who by law, are under control of a superior; (duties performed independently) and 5. with permanency or continuity, not temporary or occasional. Characteristics: -Public office is a public trust. -Public office is not property and is outside the commerce of man. It cannot be subject of a contract. (Cruz, Law on Public Officers, p.5) II. PUBLIC OFFICERS - individuals vested with public office Classification of Public Officers: 1. Executive, legislative and judicial officers; 2. Discretionary or ministerial officers; 3. Civil or military officers; 4. Officers de jure or de facto; and 5. National, provincial or municipal officials

Eligibility and qualification: two senses: 1. may refer to endowments, qualities or attributes which make an individual eligible for public office; 2. may refer to the act of entering into performance of functions of public office. Authority to prescribe qualification: 1. when prescribed by Constitution, ordinarily exclusive, the legislature may not increase or reduce qualifications except when Constitution itself provides otherwise as when only minimum or no qualifications are prescribed( ex: Art XIII Sec 17 (2), Art VIII Sec 7 (2) Consti) ; 2. when office created by statute, Congress has generally plenary power to prescribe qualification but such must be: a. germane to purpose of office; and b. not too specific so as to refer to only one individual. III. DE FACTO OFFICERS - one who has reputation of being an officer that he assumes to be, and yet is not an officer in point of law. - a person is a de facto officer where the duties of the office are exercised under any of the following circumstances: 1. Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to the be the officer he assumed to be; or 2. Under color of a known and valid appointment or election, but where the officer has failed to conform to some precedent



62

requirement or condition (e.g., taking an oath or giving a bond); 3. Under color of a known election or appointment, void because: a. the officer was not eligible; b. there was a want of power in the electing or appointing body; c. there was a defect or irregularity in its exercise; such ineligibility, want of power, or defect being unknown to the public. 4. Under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such. Note: Here, what is unconstitutional is not the act creating the office, but the act by which the officer is appointed to an office legally existing. (Norton v. County of Shelby) Requisites: 1. valid existing office; 2. actual physical possession of said office; 3. color of title to office; 4. by reputation or acquiescence; 5. known or valid appointment or election but officer failed to conform with legal requirements; 6. known appointment or election but void because of ineligibility of officer or want of authority of appointing or electing authority or irregularity in appointment or election not known to public; and 7. known appointment or election pursuant to unconstitutional law before declaration of unconstitutionality. DE JURE OFFICER on

DE FACTO OFFICER

1.

rests right

the

1.

on reputation

2.

has lawful or title to the office

2.

has possession and performs the duties under

color of right without being technically qualified in all points of law to act 3.

cannot be removed in a direct proceeding

3.

may be ousted in a direct proceeding against him.

DE FACTO OFFICER

INTRUDER

1.

officer under any of the 4 circumstances mentioned

1.

one who takes possession of an office and undertakes to act officially without any authority, either actual or apparent

2.

has color of right or title to office

2.

has neither lawful title nor color of right or title to office

3.

acts are valid as to the public until such time as his title to the office is adjudged insufficient

3.

acts are absolutely void and can be impeached in any proceeding at any time unless and until he continues to act for so long a time as to afford a presumption of his right to act

4.

entitled to compensation for services rendered

4.

not entitled to compensation

Legal Effects of Acts - valid insofar as they affect the public Entitlement to Salaries General Rule: rightful incumbent may recover from de facto officer salary received by latter during time of


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San Beda College of Law 63 M EMORY A ID IN P OLITICAL L AW wrongful tenure even though latter is in good faith and under color of title.(Monroy v. CA, 20 SCRA 620) Exception: when there is no de jure public officer, de facto officer entitled to salaries for period when he actually discharged functions.(Civil Liberties Union v. Exec. Sec., 194 SCRA 317) Challenge to a De Facto Officer: must be in a direct proceeding where the title will be the principal issue IV.

COMMENCEMENT RELATIONS: 1. by appointment; or 2. by election

OF

OFFICIAL

Appointment – selection, by authority vested with power, of individual who is to perform functions of a given office. ✍ Essentially a discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the minimum qualification requirements prescribed by law for the position (Nachura, Reviewer in Political Law, p. 305) Commission – written evidence of appointment. Designation – imposition of additional duties, usually by law, on a person already in public office. Classification of Appointments: 1. Permanent – extended to person possessing requisite qualification for the position and thus enjoys security of tenure; 2. Temporary – acting appointment, given to a non-civil service eligible is without a definite tenure and is dependent upon the pleasure of the appointing power; 3. Provisional- is one which may be issued upon prior authorization of the Commissioner of Civil service in accordance with the provisions

of the Civil Service Law and the rule and standards to a person who has no t qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of those who are eligible at the time of appointment; 4. Regular – made by President while Congress is in session and becomes effective after nomination is confirmed by the Commission on Appointments and continues until the end of term; and 5. Ad-interim – a. Recess -made while Congress is not in session, before confirmation, is immediately effective, and ceases to be valid if disapproved or bypassed by CA upon next adjournment of Congress; b. Midnight – made by the President before his term expires, whether or not this is confirmed by the Commission on Appointments. Regular appointment

Ad interim appointment

Made during the legislative session Made only after the nomination is confirmed by the Commission on Appointments (CA) Once confirmed by the CA continues until t he end of the term of the appointee

Made during the recess Made before such confirmation

Shall cease to be valid if disapproved by the CA or upon the next adjournment



64

Nepotism – all appointments in the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including GOCC, made in favor of a relative of the (1) appointing or (2) recommending authority or of the (3) chief of the bureau or office or of the (4) persons exercising immediate supervision over him. A relative is one within the 3rd degree either of consanguinity or affinity Vacancy – when an office is empty and without a legally qualified incumbent appointed or elected to it with a lawful right to exercise its powers and performs its duties. Classifications of vacancy: 1. original – when an office is created and no one has been appointed to fill it; 2. constructive – when the incumbent has no legal right or claim to continue in office and can be legally replaced by another functionary; 3. accidental – when the incumbent having died, resigned, or been removed; 4. absolute – when the term of an incumbent having expired and the latter not having held over, no successor is in being who is legally qualified to assume the office. V. POWERS AND DUTIES OF A PUBLIC OFFICER: 1. Ministerial – discharge is imperative and requires neither judgment nor discretion, mandamus will lie; and 2. Discretionary – imposed by law wherein officer has right to decide how and when duty shall be performed, mandamus will not lie. VII.

LIABILITY OF PUBLIC OFFICER

General Rule: not liable for injuries sustained by another as a consequence of official acts done within the scope of his authority, except as otherwise provided by law.

✍ A Public Officer shall not be civilly liable for acts done in performance of his duties

the

Exceptions: 1. statutory liability under the Civil Code (Arts. 27, 32 and 34); 2. When there is a clear showing of bad faith, malice or negligence (Administrative Code of 1987); 3. liability on contracts; and 4. liability on tort . Threefold Liability Rule – wrongful acts or omissions of public officers may give rise to civil, criminal, and administrative liability. (CAC liability rule) Liability of Ministerial Officers: 1. Nonfeasance – neglect or refusal to perform an act which is officer’s legal obligation to perform; 2. Misfeasance – failure to use that degree of care, skill and diligence required in the performance of official duty; and 3. Malfeasance – doing, through ignorance, inattention or malice, of an act which he had no legal right to perform. Doctrine of Command Responsibility ✍ A superior officer is liable for acts of a subordinate when: (ERCAL) 1. he negligently or willfully employs or retains unfit or incompetent subordinates; 2. he negligently or willfully fails to require subordinate to conform to prescribed regulations; 3. he negligently or carelessly oversees business of office as to furnish subordinate an opportunity for default; 4. he directed or authorized or cooperated in the wrong; or 5. law expressly makes him liable.

✍ Under the Revised Admin. Code of 1987, A Superior Officer shall be liable for acts of subordinate officers only if he has actually authorized be


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San Beda College of Law 65 M EMORY A ID IN P OLITICAL L AW written order the specific act or misconduct complained. ✍ Subordinate officers are also liable for willful or negligent acts even if he acted under orders if such acts are contrary to law, morals, public policy and good customs Preventive Suspension - a precautionary measure so that an employee who is formally charged of an offense may be separated from the scene of his alleged misfeasance while the same is being investigated (Bautista v. Peralta, 18 SCRA 223) - need not be preceded by prior notice and hearing since it is not a penalty but only a preliminary step in an administrative investigation (Lastimosa v. Vasquez, 243 SCRA 497) - the period of preventive suspension cannot be deducted from whatever penalty may be imposed upon the erring officer (CSC Resolution No. 90-1066) PENDING INVESTIGATION [Sec.51, E.O.292] 1. not a penalty but only a means of enabling the disciplinary authority to conduct an unhampered investigation.

2. no compensation

due for the period of suspension even if found innocent of the charges.

PENDING APPEAL [Sec.27(4), E.O. 292] 1. Punitive in character

2. If exonerated,

he should be reinstated with full pay for the period of suspension.

Rules on Preventive Suspension: 1. Appointive Officials Not a Presidential Appointee (Secs. 4142, P.D. 807):

a. by whom – the proper disciplining authority may preventively suspend; b. against whom – any subordinate officer or employee under such authority; c. when – pending an investigation; d. grounds – if the charge against such officer or employee involves: i. dishonesty; ii. oppression or grave misconduct; iii. neglect in the performance of duty; or iv. if there are reasons to believe that respondent is guilty of the charges which would warrant his removal from the service e. duration – the administrative investigation must be terminated within 90 days; otherwise, the respondent shall be automatically reinstated unless the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, in which case the period of delay shall not be counted in computing the period of suspension. A Presidential Appointee: a. can only be investigated and removed from office after due notice and hearing by the President of the Philippines under the principle that “the power to remove is inherent in the power to appoint” as can be implied from Sec. 5, R.A.2260 (Villaluz v. Zaldivar, 15 SCRA 710). b. the Presidential Commission Against Graft and Corruption (PCAGC) shall have the power to investigate administrative complaints against presidential appointees in the executive department of the government, including GOCCs charged with graft and corruption involving one or a combination of the following criteria:



66

i.

presidential appointees with the rank equivalent to or higher than an Assistant Regional Director; ii. amount involved is at least P10M; iii. those which threaten grievous harm or injury to the national interest; and iv. those which may be assigned to it by the President (E.O. No. 151 and 151-A). 2. Elective Officials: (Sec 63, R.A. 7160) a. by whom – against whom i. President – elective official of a province, a highly urbanized or an independent component city; ii. Governor – elective official of a component city or municipality; iii. Mayor – elective official of a barangay b. when – at any time after the issues are joined; c. grounds: i. reasonable ground to believe that the respondent has committed the act or acts complained of; ii. evidence of culpability is strong; iii. gravity of the offense so warrants; iv. continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence d. duration: i. single administrative case – not to extend beyond 60 days; ii. several administrative cases – not more than 90 days within a single year on the same ground or grounds existing and known at the time of the first suspension - Section 24 of the Ombudsman Act (R.A. 6770) expressly provide that “the preventive suspension shall continue until the case is

-

1. 2. 3.

terminated by the Office of the Ombudsman but not more than 6 months without pay.” The preventive suspension for 6 months without pay is thus according to law (Lastimosa v. Vasquez, 243 SCRA 497) R.A. 3019 makes it mandatory for the Sandiganbayan to suspend, for a maximum period of 90 days unless the case is decided within a shorter period, any public officer against whom a valid information is filed charging violation of: R.A. 3019; Book II, Title 7, Revised Penal Code; or offense involving fraud upon government or public funds or property (Cruz, The Law of Public Officers, pp. 86-87)

VII. RIGHTS OF PUBLIC OFFICERS: 1. Right to Office – just and legal claim to exercise powers and responsibilities of the public office. ✍ Term – period during which officer may claim to hold office as a right. ✍ Tenure – period during which officer actually holds office. 2. Right to Salary Basis: legal title to office and the fact the law attaches compensation to the office. Salary – compensation provided to be paid to public officer for his services. Preventive Suspension – public officer not entitled during the period of preventive suspension, but upon exoneration and reinstatement he must be paid full salaries and emoluments during such period. Back salaries are also payable to an officer illegally dismissed or otherwise unjustly deprived of his office the right to recover accruing from the date of


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San Beda College of Law 67 M EMORY A ID IN P OLITICAL L AW deprivation. The claim for back salaries must be coupled with a claim for reinstatement and subject to the prescriptive period of one (1) year. (Cruz, Law on Public Officers, p126126) Forms of Compensation: a. salary – personal compensation to be paid to public officer for his services and it is generally a fixed annual or periodical payment depending on the time and not on the amount of the service he may render; b. per diem – allowance for days actually spent in the performance of official duties; c. honorarium – something given as not as a matter of obligation, but in appreciation for services rendered; d. fee – payment for services rendered or on commission on moneys officially passing through their hands; and e. emoluments – profits arising from the office, received as compensation for services or which is annexed to the office as salary, fees, or perquisites. 3. Right to Preference in Promotion Promotion – movement from one position to another with increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay. Next-in-Rank Rule – the person next in rank shall be given preference in promotion when the position immediately above his is vacated. But the appointing authority still exercises his discretion and is not bound by this rule. ✍ Appointing officer is only required to give special reasons for not appointing

officer next in rank if he fills vacancy by promotion in disregard of the next in rank rule. (Pineda vs. Claudio, 28 SCRA 34) Automatic Reversion Rule – all appointments involved in chain of promotions must be submitted simultaneously for approval by the Commission, the disapproval of the appointment of a person proposed to a higher position invalidates the promotion of those in the lower positions and automatically restores them to their former positions. 4. Right to vacation leave and sick leave with pay; 5. Right to maternity leave; 6. Right to pension and gratuity; Pension – regular allowance paid to an individual or a group of individuals by the government in consideration of services rendered or in recognition of merit, civil or military. Gratuity – a donation and an act of pure liberality on the part of the State. 7. Right to retirement pay; 8. Right to reimbursement for expenses incurred in performance of duty; 9. Right to be indemnified against any liability which they may incur in bona fide discharge of duties; and 10. Right to longevity pay. 11. Right to Self-Organization Art III, Sec 8 1987Consti. Note: Civil servants are now given the right to self organize but they may not stage strikes (see: SSS Employees Assoc. vs. CA, 175 SCRA 686) VIII. MODES OF TERMINATION OFFICIAL RELATIONSHIP: (TR3A3P DIFC2IT)



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1. 2. 3. 4. 5. 6. 7. 8. 9.

10. 11. 12. 13. 14.

expiration of term or tenure; reaching the age limit; resignation; recall; removal; abandonment; acceptance of incompatible office; abolition of office; prescription of right to office (within one year after the cause of ouster or the right to hold such office or position arose); impeachment; death; failure to assume elective office within 6 months from proclamation; conviction of a crime; and filing of certificate of candidacy.

✍ When public officer holds office at pleasure of appointing power, his replacement amounts to expiration of his term, not removal.(Alajar vs Alba, 100 Phil 683) Principle of Hold-Over – if no express or implied Constitutional or statutory provision to the contrary, public officer is entitled to hold office until successor has been chosen and shall have qualified. Purpose: to prevent hiatus in public office. (But subject to Art. 237 of RPC) Retirement: ✍ Members of Judiciary : 70 years of age ✍ Other government officers and employees : 65 years of age ✍ Optional retirement age: after rendition of minimum number of years of service. Accepting Authority for Resignation: 1. to competent authority provided by law; 2. If law is silent and public officer is appointed, tender to appointing officer; 3. If law is silent and public officer is elected, tender to officer authorized by law to call election to fill vacancy:

a. President and Vice-President Congress b. Members of Congress respective Chambers e. Governors, Vice Governors, Mayors and Vice Mayors of HUC’s and independent component cities - President. f. Municipal Mayors and Vice Mayors/City Mayors and Vice Mayors of component cities Provincial Governor; g. Sanggunian Members – Sanggunian concerned; and h. Elective Barangay Officials – Municipal or City Mayors Recall - termination of official relationship for loss of confidence prior to expiration of his term through the will of the people. Limitations on Recall: 1. any elective official may be subject of a recall election only once during his term of office for loss of confidence; and 2. no recall shall take place within one year from date of the official’s assumption to office or one year immediately preceding a regular local election. Procedure for Recall (Secs. 70-72, R.A. 7160) 1. Initiation of the Recall Process: a. by a Preparatory Recall Assembly (PRA) composed of: i. Provincial – mayors, vice mayors and sanggunian (sg) members of the municipalities and component cities; ii. City – punong barangay and (sg) barangay members; iii. Legislative District: iiia. SG Panlalawigan – municipal officials in the district; iiib. SG Panglunsod – barangay officials in the district; iv. Municipal - punong barangay and (sg) barangay members;


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S UBJECT



✍ majority

of the PRA members shall convene in session in a public place; ✍ recall of the officials concerned shall be validly initiated through a resolution adopted by a majority of all the PRA members concerned b. by the Registered Voters (RV) in the province, city, municipality or barangay (LGU) concerned at least 25% of the total number of RV in the LGU concerned during the election in which the local official sought to be recalled was elected; i. written petition filed with the COMELEC in the presence of the representative of the petitioner and a representative of the official sought to be recalled, and in a public place of the LGU; ii. COMELEC shall cause the publication of the petition in a public and conspicuous place for a period of not less than 10 days nor more than 20 days iii. upon lapse of the said period, COMELEC shall announce the acceptance of candidates and shall prepare the list of candidates which shall include the name of the official sought to be recalled

3. Election on Recall – COMELEC shall set the date of the election on recall: a. for barangay, city or municipal officials – not later than 30 days after the filing of the resolution or petition; b. for provincial officials - not later than 45 days after the filing of the resolution or petition; 4. Effectivity of Recall – only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall. ✍ Should the official sought to be recalled receive the highest number of votes, confidence in him is thereby affirmed, and he shall continue in office.



70

ELECTION LAW I.SUFFRAGE - right to vote in election of officers chosen by people and in the determination of questions submitted to people. It includes: 1. election; 2. plebiscite; 3. initiative; and 4. referendum. Election – means by which people choose their officials for a definite and fixed period and to whom they entrust for time being the exercise of powers of government. Kinds: 1. Regular election – one provided by law for election of officers either nationwide or in certain subdivisions thereof, after expiration of full term of former members; and 2. Special election – one held to fill vacancy in office before expiration of full term for which incumbent was elected. Failure of Elections – there are only 3 instances where a failure of elections may be declared, namely: a. The election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; b. The election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes; and c. After the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof such

election results in a failure to elect on account of force majeure, violence, terrorism, fraud or other analogous causes. (Joseph Peter Sison v. COMELEC, G.R. No. 134096, March 3, 1999) •

•

•

•

What is common in these three instances is the resulting failure to elect. In the first instance, no election is held while in the second, the election is suspended. In the third instance, circumstances attending the preparation, transmission, custody or canvass of the election returns cause a failure to elect. The term failure to elect means nobody emerged as a winner. (Pasandalan vs. Comelec, G.R. No. 150312, July 18, 2002) The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election. (Sec. 4, R.A. 7166) The COMELEC shall call for the holding or continuation of the election on a date reasonably close to the date of the election not held, suspended, or which resulted in a failure to elect but not later than 30 days after the cessation of the cause of such suspension or failure to elect. (Sec. 6, B.P. 881) In such election, the location of polling places shall be the same as that of the preceding regular election. However, changes may be initiated by written petition


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San Beda College of Law 71 M EMORY A ID IN P OLITICAL L AW of the majority of the voters of the precinct or agreement of all the political parties or by resolution of the Comelec after notice and hearing. (Cawasa vs. Comelec, G.R. No. 150469, July 3, 2002) Postponement of Elections - An election may be postponed by the COMELEC either motu proprio or upon a verified petition by any interested party when there is violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, or other analogous cause of such a nature that the holding of a free, orderly and honest election becomes impossible in any political subdivision. (Sec. 5, B.P. 881) •

The COMELEC shall call for the holding of the election on a date reasonably close to the date of the election not held, suspended, or which resulted in a failure to elect but not later than 30 days after the cessation of the cause for such postponement or suspension of the election or failure to elect. (Sec. 5, B.P. 881)

Qualification for Suffrage: 1. Filipino citizen; 2. At least 18 years of age; 3. Resident of the Philippines for at least one year; 4. Resident of place where he proposes to vote for at least 6 months; and 5. Not otherwise disqualified by law. Disqualification: 1. person convicted by final judgment to suffer imprisonment for not less than 1 year, unless pardoned or granted amnesty; but right reacquired upon expiration of 5 years after service of sentence; 2. person adjudged by final judgment of having committed any crime involving disloyalty to government or any crime against national security; but right is reacquired upon

expiration of 5 years after service of sentence; and 3. insane or incompetent persons as declared by competent authority (Sec. 118, OEC). II. POLITICAL PARTY - organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidate in public office. (Bayan Muna v. Comelec, GR No. 147613, June 28, 2001) •

To acquire juridical personality and to entitle it to rights and privileges granted to political parties, it must be registered with COMELEC

•

policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidate in public office. (Bayan Muna v. Comelec, GR No. 147613, June 28, 2001)

•

To acquire juridical personality and to entitle it to rights and privileges granted to political parties, it must be registered with COMELEC.

Groups Disqualified for Registration: 1. religious denominations or sects; 2. those who seek to achieve their goals through violence or unlawful means; 3. those who refuse to uphold and adhere to Constitution; and 4. those supported by foreign governments. Grounds for Cancellation of Registration: 1. accepting financial contributions from foreign governments or their agencies; and


72


2. failure to obtain at least 10% of votes casts in constituency where party fielded candidates.

Party System – a free and open party system shall be allowed to evolve according to free choice of people. ✍ no votes cast in favor of political party, organization or coalition shall be valid except for those registered under the party-list system provided in the Constitution; ✍ political parties registered under party-list system shall be entitled to appoint poll watchers in accordance with law; and ✍ part-list representatives shall constitute 20% of total number of representatives in the House. Guidelines for screening party-list participants 1. The political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Sec. 5 of RA 7941. Majority of its member-ship should belong to the marginalized and underrepresented; 2. While even major political parties are expressly allowed by RA 7941 and the Constitution, they must comply with the declared statutory policy of “Filipino citizens belonging to marginalized and underrepresented sectors to be elected to the House of Representatives”. Thus, they must show that they represent the interest of the marginalized and underrepresented. 3. That religious sector may not be represented in the party-list system; except that priests, imam or pastors may be elected should they represent not their religious sect but the indigenous community sector; 4. A party or an organization must not be disqualified under Sec. 6, RA 7941 as follows: a. it is a religious sect or denomination, organization or

association organized for religious purposes; b. it advocates violence or unlawful means to seek its goals; c. it is a foreign party or organization; d. it is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes; e. it violates or fails to comply with laws, rules or regulation relating to elections; f. it declares untruthful statements in its petition; g. it has ceased to exist for at least one (1) year; or h. it fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in two (2) preceding elections for the constituency in which it has registered. 5. the party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by, the government. 6. the party, including its nominees must comply with the qualification requirements of section 9, RA 7941 as follows: “No person shall be nominated as party-list representative unless he is: (a) natural-born citizen of the Philippines; (b) a registered voter; (c) a resident of the Philippines for a period of not less than one year immediately preceding the day of the election; (d) able to read and write; (e) a bona fide member of the party or organization which he seeks to represent for at least 90 days preceding the day of the election; and (f) at least 25 years of age on the day of the election. In case of a nominee of the youth sector, he must at least be twenty five (25) but not more than thirty (30) years of age on the day of the election. Any


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San Beda College of Law 73 M EMORY A ID IN P OLITICAL L AW youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his terms”; 7. not only the candidate party or organization must represent marginalized and underrepresented sectors, so also must its nominees; 8. while lacking the a well-defined political constituency, the nominee must likewise be able to contribute to the formation and enactment of appropriate legislation that will benefit the nation as a whole. (Ang Bagong Bayani-OFW Labor Party, v. COMELEC, GR No. 147589, June 26, 2001). III. DISQUALIFICATION OF CANDIDATES: 1. declared as incompetent or insane by competent authority; 2. convicted by final judgment for subversion, insurrection, rebellion or any offense for which he has been sentenced to a penalty of 18 months imprisonment; 3. convicted by final judgment for crime involving moral turpitude; 4. any person who is permanent resident of or immigrant to a foreign country; and 5. one who has violated provisions on: a. campaign period; b. removal, destruction of lawful election propaganda; c. prohibited forms of propaganda; d. regulation of propaganda through mass media; and e. election offenses. - When a candidate has not yet been disqualified by final judgment during the election day and was voted for, the votes cast in his favor cannot be declared stray. To do so would amount to disenfranchising the electorate in whom sovereignty resides. (Codilla vs. Hon. Jose De Venecia, G.R. No. 150605, December 10, 2002) Nuisance Candidate

–

COMELEC may motu propio or upon petition of interested party, refuse to give due course to or cancel certificate of candidacy if shown that said certificate was filed: 1. to put election process in mockery or disrepute; 2. to cause confusion among voters by similarity of names of registered candidates; 3. by other circumstances or acts which demonstrate that a candidate has no bona fide intention to run for office for which certificate has been filed, and thus prevent a faithful determination of true will of electorate. IV. FAIR ELECTIONS ACT OF 2001 (RA 9006) Lawful election Propaganda (sec. 3): 1. Written/Printed Materials (does not exceed 8 ½ in. width by 14 in. length) 2. Handwritten/printed letters 3. Posters (not exceeding 2 x 3 ft.) ✍ 3 by 8 ft. allowed in announcing, at the site and on the occasion of a public meeting or rally, may be displayed 5 days before the date of rally but shall be removed within 24 hours after said rally. 4. Print Ads ✍ ¼ page in broadsheets and ½ page in tabloids thrice a week per newspaper, magazine or other publication during the campaign period 5. Broadcast Media (i.e. TV and Radio) NATIONAL POSITIONS

LOCAL POSITIONS

1.

120 minutes for TV

1.

60 minutes for TV

2.

180 minutes for Radio

2.

90 minutes for Radio


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Prohibited Campaign 1. Public exhibition of movie, cinematograph or documentary portraying the life or biography of a candidate during campaign period; 2. Public exhibition of a movie, cinematograph or documentary portrayed by an actor or media personality who is himself a candidate; 3. Use of airtime for campaign of a media practitioner who is an official of a party or a member of the campaign staff of a candidate or political party; Limitation on Expenses: 1. for candidates: ✍ President and Vice President = P10/voter; ✍ Other candidates, if with party = P3/voter; ✍ Other candidates, if without party = P5/voter. 2. for political parties = P5/voter Statement of Contribution and Expenses ✍ every candidate and treasurer of political party shall, within 30 days after day of election, file offices of COMELEC the full, true and itemized statement of all contribution and expenditures in connection with election. Election Survey ✍ The SC held that Sec. 5.4 of the Fair Election Act prohibiting publication of survey results 15 days immediately preceding a national election and 7 days before a local election violates the constitutional rights of speech, expression, and the press because: • it imposes a prior restraint on the freedom of expression; • It is a direct and total suppression of a category of expression even though such suppression is only for a limited period; and

•

the governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression. (Social Weather Station v. Comelec, G.R. No. 147571 May 5, 2001)

Substituted and Substitute Candidate - In case of valid substitutions after the officials ballots have been printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. For this purpose, the official ballots shall provide for spaces where the voters may write the name of the substitute candidates if they are voting for the latter: Provided, however, That if the substitute candidate is of the same family name, this provision shall not apply.(Sec.12) V. PRE-PROCLAMATION CONTROVERSY • Any question pertaining to or affecting proceedings of Board of Canvassers which may be raised by any candidate or by a registered political party or coalition of political parties before the board or directly with COMELEC or any matter raised under Sections 233, 234, 235, and 236, in relation to preparation, transmission, receipt, custody and appreciation of election returns. Issues which may be raised in a PreProclamation Controversy: 1. Illegal composition or proceedings of the board of Canvassers; 2. Canvassed election returns are incomplete, contain material defects, appears to be tampered with or falsified; or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sec. 233,234,235 and 236 of BP 881; 3. Election returns were prepared under duress, threat, coercion, or intimidation, or they are obviously manufactured or not authentic; and


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San Beda College of Law 75 M EMORY A ID IN P OLITICAL L AW 4. When substitute of fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate/s.

VIII.

ELECTION CONTESTS

Nature: special summary proceeding object of which is to expedite settlement of controversies between candidates as to who received majority of legal votes. Purpose: to ascertain true will of people and duly elected officer, and this could be achieved by throwing wide open the appeal before the court. Contest: any matter involving title or claim of title to an elective office, made before or after proclamation of winner, whether or not contestant is claiming office in dispute. Election, Returns and qualification – refers to all matters affecting validity of the contestee’s title to the position. Election – conduct of the polls, including the registration of voters, holding of election campaign, and casting and counting of votes. Returns – include the canvass of returns and proclamation of winners, together with questions concerning composition of Board of Canvassers and authenticity of election returns. Qualifications – matter which could be raised in a quo warranto proceedings against the proclaimed winner, such as his disloyalty to the Republic or his ineligibility or inadequacy of his certificate of candidacy. Original Exclusive Jurisdiction Over Election Contests 1. President and Vice-President Supreme Court en banc 2. Senator - Senate Electoral Tribunal 3. Representative - HR Electoral Tribunal

4. Regional/Provincial/City - COMELEC 5. Municipal - RTC 6. Barangay - MTC Appellate Jurisdiction: 1. For decisions of RTC and MTC ✍ appeal to COMELEC whose decision shall be final and executory; 2. For decisions of COMELEC ✍ petition for review on Certiorari with SC within 30 days from receipt of decision on ground of grave abuse of discretion amounting to lack or excess of jurisdiction or violation of due process; 3. For decisions of Electoral Tribunal ✍ petition for review on Certiorari with SC on ground of grave abuse of discretion amounting to lack or excess of jurisdiction or violation of due process. Actions Which May Be Filed: 1. Election Protest - May be filed by any candidate who has filed a certificate of candidacy and has been voted upon for the same officer; Grounds: a. fraud; b. terrorism; c. irregularities; or d. illegal acts ✍ committed before, during, or after casting and counting of votes Time to file: within 10 days from proclamation of results of election. 2. Quo warranto - Filed by any registered voter in the constituency Grounds: a. ineligibility; or b. disloyalty to Republic. Time to file: within 10 days from proclamation of results of election. QUO WARRANTO IN ELECTIVE OFFICE 1.

determination is eligibility of

QUO WARRANTO IN APPOINTIVE OFFICE 1.

determination is legality of



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2.

IX.

candidate-elect when person 2. elected is declared ineligible, court cannot declare 2nd placer as elected, even if eligible

appointment court may determine as to who among the parties has legal title to office

ELECTION OFFENSES

Vote-Buying and Vote-Selling (1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection process of a political party.

(2) Any person, association, corporation, group or community who solicits or receives, directly or indirectly, any expenditure or promise of any office or employment, public or private, for any of the foregoing considerations. (Sec. 261, B.P. 881)

•

One of the effective ways of preventing the commission of vote-buying and of prosecuting those committing it is the grant of immunity from criminal liability in favor of the party (person/s) whose vote was bought. This grant of immunity will encourage the recipient or acceptor to come into the open and denounce the culpritcandidate, and will ensure the successful prosecution of the criminal case against the latter. (Comelec vs. Hon. Tagle, G.R. Nos. 148948 & 148951, February 17, 2003)


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LAW ON PUBLIC CORPORATION I. LOCAL GOVERNMENT CODE OF 1991 (R.A. 7160)

upon various LGU’s to perform specific functions and responsibilities.[Sec.17(e), par.2, LGC].

Effectivity: January 1, 1992 Scope of Application of Local Government Code: Applicable to: 1. all provinces, 2. cities, 3. municipalities, 4. barangays; 5. and other political subdivisions as may be created by law; and 6. to the extent provided in the Local Government Code: a. to officials, b. offices, or c. agencies of the National Government. Local Autonomy – in its constitutional sense, to polarize LGU’s from over dependence on central government and do not make LGU’s mini-republics or imperium in imperia. Decentralization of Administration – central government delegates administrative powers to political subdivisions in order to broaden base of government power and in process make LGU’s more responsive and accountable and ensure their fullest development as self-reliant communities and make them effective partners in the pursuit of national development and social progress. Decentralization of Power – involves abdication of political power in favor of LGU’s declared autonomous.(Limbona v. Mengelin, 170 SCRA 786). Devolution – act by which national government confers power and authority

Declaration of Policy: 1. Territorial and subdivisions of State shall enjoy genuine and meaningful local autonomy to enable them to attain fullest development and make them more effective partners in attaining national goals; 2. Ensure accountability of LGU’s through institution of effective mechanisms of recall, initiative and referendum; and 3. Require all national agencies and offices to conduct periodic consultations with appropriate LGU’s, NGO’s and People’s Organizations and other concerned sector of community before any project or program is implemented in their respective jurisdictions. Rules on Interpretation: 1. provision on power: liberally interpreted in favor of LGU; in case of doubt, resolved in favor of devolution of powers; 2. ordinance or revenue measure: construed strictly against LGU enacting it and liberally in favor of tax payer; 3. tax exemptions, incentive or relief granted by LGU: construed against person claiming; 4. general welfare provisions: liberally interpreted to give more powers to LGU’s in accelerating economic development and upgrading quality of life for people in community; 5. rights and obligations existing on date of effectivity of LGC of 1991



78

and arising out of contracts or any other source of prestation involving LGU, shall be governed by original terms and conditions of said contracts or law in force at time such rights were vested; and 6. resolution of controversies arising under LGC of 1991 where no legal provision or jurisprudence applies, resort may be had to customs and traditions in place where controversies take place. II. PUBLIC CORPORATION - one formed and organized for the government of a portion of the State. Elements of Public Corporation: 1. legal creation or incorporation; 2. corporate name; 3. inhabitants; and 4. territory. Classes of Corporation: 1. Quasi-corporation – public corporations created as agencies of State for narrow and limited purposes. 2. Municipal corporation – body politic and corporate constituted by incorporation of inhabitants of city or town purposes of local government thereof or as agency of State to assist in civil government of the country. 3. Quasi-public corporation – private corporation that renders public service or supplies public wants. PUBLIC CORPORATION

PRIVATE CORPORATION

1. established for purposes of administration of civil and local governments

1. created for private aim, gain or benefit of members

2. creation of State either by special or general act

2. created by will of incorporators with recognizance of State 3. voluntary agreement by and among members

3. involuntary consequence legislation

III. DE FACTO MUNICIPAL CORPORATION Requisites: 1. valid law authorizing incorporation; 2. attempt in good faith to organize under it; 3. colorable compliance with law; and 4. assumption of corporate powers.

IV. TERRITORIAL AND POLITICAL SUBDIVISIONS ENJOYING LOCAL AUTONOMY: 1. Province – cluster of municipalities, or municipalities and component cities, and serves as dynamic mechanism for developmental processes and effective governance of LGU’s within its territorial jurisdiction. 2.

City – composed of more urbanized and developed barangays, serves as a general purpose government for coordination and delivery of basic, regular and direct services and effective governance of inhabitants within its territorial jurisdiction;

3.

Municipality – consisting of group of barangays, serves primarily as a general purpose government for coordination and delivery of basic, regular and direct services and effective governance of inhabitants within its territorial jurisdiction;

4.

Barangay – basic political unit which serves as primary planning and implementing unit of government policies, plans, programs, projects and activities in community, and as a forum wherein collective views of people may be expressed, crystalized and considered and where disputes may be amicably settled;

5.

Autonomous Regions – created for decentralization of administration or decentralization of government; and


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San Beda College of Law 79 M EMORY A ID IN P OLITICAL L AW 6.

Special metropolitan political subdivisions – created for sole purpose of coordination of delivery of basic services.

Creation of Municipal Corporations 1. For province, city or municipality, only by Act of Congress; 2. For barangays, ordinance passed by respective Sanggunian

•

•

Plebiscite Requirement – approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit/s directly affected (Sec. 10, R.A. 7160) Based on verifiable indicators of viability and projected capacity to provide services (Sec. 7, R.A. 7160) [Note: see Annex C]

Beginning of Corporate Existence • upon election and qualification of its chief executive and majority of members of its Sanggunian, unless some other time is fixed therefore by law or ordinance creating it. • Mode of Inquiry to Legal Existence of LGU: Quo warranto which is reserved to State or other direct proceedings Abolition of LGU: ✍ When income, population, or land area of LGU has been reduced to less than minimum standards prescribed for its creation. The law or ordinance abolishing LGU shall specify the province, city, municipality or barangay with which LGU sought to be abolished will be incorporated or merged. Division and Merger of LGU’s ✍ shall comply with same requirements, provided: 1. shall not reduce income, population or land area of LGU concerned to less than the minimum requirements prescribed;

2. income classification of original LGU shall not fall below its current income classification prior to division; 3. Plebiscite be held in LGU’s affected. 4. Assets and liabilities of creation shall be equitably distributed between the LGU’s affected and new LGU. When municipal district of other territorial divisions is converted or fused into a municipality all property rights vested in original territorial organization shall become vested in government of municipality. V. POWERS OF LGUs Classification of Powers of Local Government Units 1. Express, implied and inherent; 2. Public or governmental, private or proprietary; 3. Intramural and extramural; and 4. Mandatory and directory; ministerial and discretionary. Governmental Powers of LGU: 1. General Welfare – (Sec. 16, R.A. 7160) statutory grant of police power to LGU’s. It is limited to: a. territoriality; b. equal protection clause; c. due process clause; and d. must not be contrary to law. 2. Delivery of basic services and facilities – (Sec. 17, of R.A. 7160); 3. Power to generate and apply resources – (Sec. 18, of R.A. 7160); 4. Eminent Domain – (Sec. 19, of R.A. 7160); Additional Limitations for Exercise by LGU: a. exercise by local chief executive pursuant to an ordinance; b. for public use, purpose or welfare for benefit of poor and landless; c. payment of just compensation; and d. only after valid and definite offer had been made to, and not accepted by owner.(Municipality of Parañaque v. V.M. Realty Corp., 292 SCRA 678) 5. Reclassification of Lands – (Sec. 20 of RA 7160)



80

Limited by following percentage of total agricultural land area: a. for HUC and independent component cities: 15%; b. for component cities and 1st to 3rd class municipalities: 10% ; and c. for 4th to 6th class municipalities: 5%. Closure and opening of roads – (Sec. 21 of RA 7160)

Requisites for validity: a. must not contravene the Constitution and any statute; b. must not be unfair or oppressive; c. must not be partial or discriminatory; d. must not prohibit, but may regulate trade; e. must not be unreasonable; and f. must be general in application and consistent with public policy.

In case of permanent closure: a. adequate provision for public safety must be made; and b. may be properly used or conveyed for any purpose for which other real property may be lawfully used or conveyed; provided no freedom park be permanently closed without provisions or transfer to new site. 7. Local legislative power – (Secs. 4859 of RA 7160) Approval of ordinances: a. local chief executive with his signature on each and every page; b. if local chief executive vetoes the same, may be overridden by 2/3 vote of all sanggunian members; (i) grounds for veto: ordinance is ultra vires or prejudicial to public welfare; (ii) local chief executive may veto particular item/s of appropriation ordinance, adoption of local development plan and public investment plan, or ordinance directing payment of money or creating liability; and (iii) local chief executive may veto an ordinance only once; c. veto communicated to sanggunian within 15 days for province and 10 days for city or municipality.

Barangay Chairman has no veto power. Corporate Powers of LGU: 1. to have continuous succession in its corporate name; 2. to sue and be sued; 3. to have and use a corporate seal; 4. to acquire and convey real or personal property; 5. power to enter into contracts; Requisites of valid municipal contracts: a. LGU has express, implied, or inherent power to enter into a particular contract; b. Entered into by proper department, board, committee, or agent; c. Must comply with substantive requirements; d. Must comply with formal requirements; and e. In case entered into by local chief executive on behalf of LGU, prior authorization by Sanggunian concerned is needed 6. to exercise such other powers as granted to corporation, subject to limitations provided in Local Government Code of 1991 and other laws.

6.

•

VI. MUNICIPAL LIABILITY: Rule: Local government units and their officials are not exempt from liability for death or injury to persons or damage to property (Sec. 24, R.A. 7160) 1. Statutory provisions on liability: a. Art. 2189, Civil Code – defective condition of roads, streets,


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b. d.

2. for a. b.

bridges, public buildings, and other public works; Art. 2180(6th par.), Civil Code – acts through a special agent; Art. 34, Civil Code – failure or refusal of a member of the police force to render aid and protection in case of danger to life and property Tort – depends if engaged in: governmental functions – not liable; proprietary functions – liable

3. for Violation of Law 4. for Contracts – if contract is: a. intra vires – liable; b. ultra vires – not liable ✍ Doctrine of Implied Municipal Liability – a municipality may become obligated upon an implied contract to pay the reasonable value of the benefits accepted or appropriated by it as to which it has the general power to contract (Province of Cebu v. IAC, 147 SCRA 447); the doctrine applies to all cases where money or other property of a party is received under such circumstances that the general law, independent of an express contract, implies an obligation to do justice with respect to the same (Nachura, Reviewer in Political Law, p. 431) VII. QUALIFICATION OF ELECTIVE LOCAL OFFICIALS: 1. citizen of the Philippines; 2. registered voter of barangay, municipality, city, province, or district where he intends to be elected; 3. resident therein for at least 1 year preceding election; 4. able to read and write Filipino or local language or dialect; and 5. age: a. 23 years of age – Governor, Vice Governor, Board Member, Mayor, Vice Mayor or Member of City Council for HUC’s. b. 21 years of age – Mayor or Vice Mayor of ICC’s, component cities or municipalities;

c.

18 years of age – members of ICC or component city or municipal council or punong barangay or member of barangay council; d. at least 15 but not 21 years of age – candidate for sanggunian kabataan. (Sec. 39, RA 7160) Disqualification of Elective Local Official: 1. sentenced by final judgment for offense involving moral turpitude or punishable by 1 year or more of imprisonment within 2 after service of sentence; 2. those removed from office due to administrative cases; 3. those convicted by final judgment for violating oath of allegiance to the Republic; 4. those with dual citizenship; 5. fugitives from justice in criminal or non-political cases here or abroad; 6. permanent resident in foreign country; and 7. insane or feeble-minded.(Sec.40, RA.7160) VIII. MANNER OF ELECTION 1. Elected at large a. Governor; Vice Governor; b. City or municipal mayor; City or municipal vice-mayor; c. Punong barangay, d. SK chairman, elected by voters of Katipunan ng Kabataan 2. Elected by District a. regular members of Sanggunian b. ex-officio members of Sanggunian (i.) panlalawigan • president of leagues of sanggunian members of component cities and municipalities; and • president of liga ng mga barangay and pederasyon ng mga sanggunian kabataan (ii.) panlunsod • president of liga ng mga barangay and the pederasyon ng mga SB



82

(iii.) •

bayan president of liga ng mga barangay and the pederasyon ng mga sanggunian kabataan

3. Sectoral representatives – women, worker, urban poor, and other sectors allowed by law. Date of Election: Every 3 years on 2nd Monday of May, unless otherwise provided by law. Term of Office: 3 years starting from noon of June 30 next following the election or such date as may be provided by law, except that of elective barangay officials, for maximum of 3 consecutive terms in same position. Consecutive: After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any other subsequent election, like a recall election is no longer covered by the prohibition (Socrates vs. Comelec, G.R. No. 154512, November 12, 2002). IX. GROUNDS FOR DISCIPLINARY ACTIONS: 1. disloyalty to the Republic; 2. culpable violation of Constitution;

3. dishonesty, oppression, misconduct in office, gross negligence or dereliction of duty; 4. commission of offense involving moral turpitude or offense punishable by at least prision mayor; 5. abuse of authority; 6. unauthorized absence for 15 consecutive working days except sanggunian members; 7. application for, acquisition of , foreign citizenship or residence or status of an immigrant of another country; and 8. such other grounds as may be provided in EC and other laws •

Under Sec. 60 of RA 7160 an elective local official may be removed from office on the grounds enumerated above by order of the proper court only (Salalima vs Guingona, 257 SCRA 55)

the


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84

PUBLIC INTERNATIONAL LAW I. PUBLIC INTERNATIONAL LAW - Law that deals with the conduct of States and international organizations, their relations with each other and, in certain circumstances, their relations with persons, natural or juridical (American Third Restatement) Main Divisions: 1. Laws of Peace; 2. Laws of War; 3. Laws of Neutrality. Basis of International Law 1. Law of Nature School – based on rules of conduct discoverable by every individual in his own conscience and through application of right reasons. 2. Positivist School – agreement of sovereign states to be bound by it (express in conventional law, implied in customary law, and presumed in general principles). 3. Eclectic or Groatian School – a compromise between the first 2 schools and submits that international law is binding partly because it is good and right and partly because states agreed to be bound by it. Sources of Public International Law: 1. Primary – a. international treaties and conventions; (i) law-making treaty (traiteloi); (ii) contract treaty (traitecontract). b. international customs; Requisites: (i)Prevailing practice by a number of states; (ii)repeated over a considerable period of time and;

(iii)attended by opinio juris or sense of legal obligation c. general principle of law. 2. Subsidiary – a. Judicial decisions; b. writings of publicists; and c. Advisory Opinions of the ICJ. Constitution vs. Treaty Generally, the treaty is rejected in the local forum but is upheld by international tribunals as a demandable obligation of the signatories under the maxim pacta sunt servanda. The treaty is always subject to qualification or amendment by a subsequent law, and the same may never curtail or restrict the scope of the police power of the State. (Ichong v. Hernandez, GR no.L-7995, May 31, 1957) Functions of International Law: 1. promote international peace and security; 2. foster friendly relations among nations and discourage use of force in resolution of difference among them; 3. provide for orderly regulation of conduct of states in their mutual dealings; and 4. ensure international cooperation in pursuit of certain common purposes of economic, social, cultural, or humanitarian character. INTERNATIONAL LAW

MUNICIPAL LAW

1.

Law of coordination

1.

2.

Regulates relation of states and other international persons

2.


Law of subordination (issued by political superior) Regulates relations of individuals among themselves or with their own states

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3.

Derived principally from treaties, international customs and general principles of law

3.

Consists mainly of statutory enactments, and to lesser extent executive orders and judicial pronouncements

4.

Resolved thru state-to-state transactions

4.

Redressed thru local administrative and judicial processes

5.

Collective responsibility because it attaches directly to the state and not to its nationals

5.

Breach of which entails individual responsibility

Doctrine of incorporation – international law are adopted as part of a state’s municipal law, by a general provision or clause usually in its Constitution. (Sec. 2, Art. II, 1987 Constitution) Doctrine of transformation – requires the enactment by the legislative body of such international law principles as are sought to be part of municipal law. II. SUBJECTS OF INTERNATIONAL LAW: - entity that has rights and responsibilities under international law and having capacity to maintain its rights by bringing international claims, includes: 1. 2. 3. 4. 5. 6. 7. 8.

States, independent and dependent; Colonies and dependencies; Mandates and trust territories; The Vatican; The United Nations; Belligerent Communities; International administrative Bodies; and Individuals, to a certain extent. Belligerent Community – group of rebels under an organized civil government who have taken up arms

against legitimate government. When recognized, considered as a separate state for purposes of conflict and entitled to all rights and subjected to all obligations of a fullpledged belligerent under laws of war. United Nations – international organization created at San Francisco Conference held in the US from April 25 to June 26, 1945. UN succeeded the League of Nations and is governed by a charter that came into force on October 24, 1945. Principal Purposes of UN 1. Maintain international peace and security; 2. Develop friendly relations among nations; 3. Achieve international cooperation: and 4. Center for harmonizing actions of nations for attainment of these common goals. Qualifications for Membership: 1. must be state; 2. must be peace loving; 3. must accept obligations of member-states contained in Charter; and 4. must be able and willing to carry out such obligation. Principal Organs of UN: 1. General Assembly – central organ where all members are represented. Classification of functions: deliberative, supervisory, financial, elective, constituent. 2. Security Council – organ responsible for maintenance of peace and security, undertake preventive and enforcement actions. 3. Economic and Social Council – exerts efforts towards higher standards of living, solutions of international economic, social, health and related problems, universal respect for and observance of human rights and fundamental freedoms.



86

4.

Trusteeship Council – organ charged with administration of International Trusteeship System (idle council); 5. International Court of Justice – judicial organ of UN; World Court governed by Statute which is annexed to and made part of UN charter; ✍ Jurisdiction: decide issues referred to it (consensual). a. interpretation of treaty; b. question of international law; c. existence of fact constituting a breach of international obligation; d. nature or extent of the reparation to be made for the breach of an international obligation. 6. Secretariat – chief administrative organ of UN. State – a group of people, living together in a fixed territory, organized for political ends under an independent government and capable of entering into international relations with other states Creation of State: (RUSIA2) 1.by peaceful acquisition of Independence (Philippines) ; 2. by Revolution (USA); 3. by Unification of several states (Italy); 4.by Secession (Bangladesh); 5.by Agreement (Netherlands); and 6.by Attainment of civilization (Japan). Extinction of State: ( MA2D2EP) 1. Overthrow of government resulting in anarchy; 2. Emigration en masse of its population; 3. Annexation; 4. Merger or unification; 5. Dismemberment; 6. Dissolution of federal union; 7. Partial loss of independence

Principle of State Continuity – the state continues as a juristic being notwithstanding changes in its circumstances provided only that such change do not result in the loss of any of its essential elements III. RECOGNITION • act by which a state acknowledges existence of another state, government or belligerent community and indicates its willingness to deal with the entity as such under rules of international law. Theories: 1. Declaratory – merely affirms an existing fact like the possession by the state of the essential elements. Discretionary and political; 2. Constitutive - it is the act of recognition that constitutes the entity into an international person. Compulsory and legal; may be compelled once the elements of a state are established. Objects: 1. State – generally held to be irrevocable and imports the recognition of its govt. 2. Government – may be withdrawn and does not necessarily signify the existence of a state, as the government may be that of a mere colony. 3. Belligerent community – rebels are accorded international personality only in connection with the hostilities they are waging. Kinds: 1. express or implied; and 2. conditional or permanent Effects of Recognition of a State or Government: 1. Diplomatic relations; 2. Right to sue in courts of recognizing state; 3. Right to possession of properties of predecessor on the reorganizing state.


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San Beda College of Law 87 M EMORY A ID IN P OLITICAL L AW 4. All acts of the recognized state or government are validated retroactively, preventing the recognizing state from passing upon their legality in its own courts. Conditions for Recognition of Belligerency: 1. organized civil government; 2. rebels occupy a substantial portion of territory; 3. conflict is serious and outcome is uncertain; 4. rebels are willing to observe the laws of war. • absence of one – state of insurgency Effects of Recognition of Belligerency: 1. Responsibility for acts of rebels resulting to injury to nationals of recognizing state shall be shifted to rebel government; 2. The legitimate government recognizing the rebels as belligerents shall observe laws/customs of war in conducting hostilities; 3. Third states recognizing belligerency should maintain neutrality; 4. Recognition is only provisional and only for purposes of hostilities. Wilson/Tobar Doctrine – precludes recognition of government established by revolution, civil war, coup d’etat or other forms of internal violence until the freely elected representatives of people have organized a constitutional government (Ecuadorian Foreign Minister Tobar and US Pres. Woodrow Wilson) Stimson Doctrine – precludes recognition of any government established as result of external aggression (US Sec of State Henry Lewis Stimson) Estrada Doctrine – dealing or not dealing with the government established through a political upheaval is not a judgment on the legitimacy of the said government (Mexican Minister Genaro Estrada)

Requisites for recognition de jure: 1. Government is stable and effective; 2. No substantial resistance to its authority; 3. The government must show willingness and ability to discharge its international obligations; and 4. The government must enjoy popular consent or approval of the people. • absence of one – recognition de facto RECOGNITION DE JURE 1.

Relatively permanent

2.

vests title properties government abroad

3.

RECOGNITION DE FACTO 1.

Provisional (duration of armed struggle)

to of

2.

does NOT vest title to properties of government abroad

brings about full diplomatic relations

3.

limited to certain juridical relations

IV. FUNDAMENTAL RIGHTS OF STATES (TILE2) 1. Existence and self-defense; 2. Sovereignty and Independence; 3. Equality; 4. Territorial Integrity and jurisdiction; 5. Legation or diplomatic intercourse A. RIGHT TO EXISTENCE AND SELFDEFENSE • most comprehensive as all other rights of state flow from it; • state may take measures including use of force as may be necessary to counteract any danger to its existence.


88


(i) rivers – which may be (a) national; (b) boundary; (c) international (iA) Thalweg Doctrine – for boundary rivers, in the absence of an agreement between the riparian states, the boundary line is laid on the middle of the main navigable channel. (iB) Middle of the Bridge Doctrine – where there is a bridge over a boundary river, the boundary line is middle or center of the bridge. (ii) bays and gulfs (iii) strait b. Archipelagic waters

Aggression – use of armed force by a state against sovereignty, territorial integrity or political independence of another state or in other manner inconsistent with the UN charter. Requisites for Proper Exercise of Right of Self-defense: 1. armed attack; 2. self-defensive action taken by attacked state must be reported immediately to Security Council; and 3. such action shall not in any way affect right of Security Council to take at any time action as it deems necessary to maintain or restore international peace and security. B. RIGHT OF SOVEREIGNTY AND INDEPENDENCE Sovereignty – totality of the powers, legal competence, and privileges arising from customary international law, and not dependent on the consent of another state Independence – means freedom from control by other state or group of states and not freedom from the restrictions that are binding on all states forming the family of nations; carries with it by necessary implication the correlative duty of non-intervention C. RIGHT OF EQUALITY • every state is entitled to same protection and respect as are available to other state under rules of international law. D. RIGHT TO TERRITORIAL INTEGRITY AND JURISDICTION Components of the Territory of A State: 1. Terrestrial – land mass on which the inhabitants live; 2. Maritime and Fluvial a. internal or national waters – bodies of water within the land mass, among them are:

ARCHIPELAGO DOCTRINE – The waters around, between and connecting the islands of the archipelago regardless of their breadth and dimensions are to be treated as internal waters Two kinds of archipelago: 1. coastal – situated close to a mainland and may be considered a part thereof; e.g. Loften Islands, Norway. 2. mid-ocean – situated in the ocean at such distance from the coasts of firm land. e.g. Indonesia. c. Territorial sea d. Submarine area 3. Aerial domain MODES OF ACQUIRING TERRITORY 1.

1.

Dereliction

2.

Cession

3. Accretion

3.

Conquest

4. Prescription

4.

2.

5.

Discovery and occupation Cession

LOSS OF TERRITORY

Conquest and subjugation

Erosion, or other natural causes 5. Prescription


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San Beda College of Law 89 M EMORY A ID IN P OLITICAL L AW Bases of Jurisdiction: 1. Territorial principle – vests jurisdiction in state where offense was committed (Art. 14, NCC); 2. Nationality principle – vest jurisdiction in state of offender (Art. 15, NCC, tax laws); 3. Protective principle – vest jurisdiction in state whose national interests is injured or national security compromised (counterfeiting, treason, espionage); 4. Passive personality principle – vests jurisdiction in state of offended party. 5. Universality principle – vest jurisdiction in state which has custody of offender of universal crimes (piracy, genocide); Genocide – acts committed with intent to destroy, in whole and in part a national, ethnic, racial, or religious group by: 1. killing members of the group; 2. deliberately inflicting on group conditions of life calculated to bring about its physical destruction in whole or in part; 3. imposing measures intended to prevent births within the group; 4. causing serious bodily or mental harm to members of the group; and 5. forcibly transferring children of the group to another . Five Air of Freedoms for Scheduled International Services: 1. freedom to fly across foreign territory without landing; 2. freedom to land for non-traffic purposes; 3. freedom to put down traffic originating in state of aircraft; 4. freedom to embark traffic destined for state of aircraft; and 5. freedom to embark traffic destined for, or to put down traffic coming from, third state. Exemptions from Jurisdiction: 1. Doctrine of State Immunity; 2. Act of State Doctrine – court of one state will not sit in judgment over acts of government of another state done in its territory.

3. Diplomatic Immunity; 4. Immunity of UN Specialized agencies, other International Organizations, and its Officers; 5. Foreign Merchant vessels exercising the right of innocent passage; 6. Foreign armies passing through or stationed in the territory with the permission of the State; 7. Warships and other public vessels of another State operated for noncommercial purposes. Rules on Jurisdiction Under the Visiting Forces Agreement 1. Exclusive jurisdiction over US personnel a. Offenses punishable under Phil laws but not under US laws – Philippine b. Offenses punishable under US laws but not under Phil laws - US 2. Concurrent jurisdiction Phil authorities shall have primary right to exercise jurisdiction over all offenses committed by US personnel except: a. violations of US military laws; b. Offenses punishable under US laws but not under Phil laws; c. Offenses solely against the property or security of the US or against the property or person of US personnel; d. Offenses arising out of any act or omission done in performance of official duty. *in a, b, c, & d above, the US Military authorities have primary jurisdiction. 3. The authorities of either government may request the authorities of the other government to waive the primary right to exercise jurisdiction in a particular case. 4. Upon request by the US, Phil authorities may waive primary jurisdiction over offenses committed by US personnel except cases of particular importance to the Philippines such as violations of the Heinous Crimes Act, Anti-Drugs Law, Anti-Child Abuse Law. Doctrine of Hot Pursuit Requisites:



90

1. Pursuit commence from internal water, territorial sea or contiguous zone of pursuing state; 2. Continuous and unabated; 3. Conducted by warship, military aircraft, government ships authorized for the purpose; 4. Ceases as soon as the ship being pursued enters the territorial sea of its own, or of a third, state. E. RIGHT OF LEGATION • right of state to maintain diplomatic relations with other states • Governed by the Vienna Convention on Diplomatic Relations (1961) Active right of legation – send diplomatic representatives Passive right of legation – receive diplomatic representatives Agents of Diplomatic Intercourse: 1. head of state; 2. foreign secretary of minister; or 3. members of diplomatic service. Functions of Diplomatic Missions: 1. representing sending state in receiving state; 2. protecting in receiving state interests of sending state and its nationals; 3. negotiating with government of receiving state; 4. promoting friendly relations between sending and receiving states and developing their economic, cultural and scientific relations; 5. ascertaining by all lawful means conditions and developments in receiving state and reporting thereon to government of sending state; and 6. in some cases, representing friendly governments at their request. Agreation – process in appointment of diplomatic envoy. Where states resort to an informal inquiry (enquiry) as to the acceptability of a particular envoy, to

which the receiving state responds with an informal conformity (agreement). Letre de Creance(Letter of Credence) – with the name, rank and general character of his mission, and a request for favorable reception and full credence. Kinds of Consuls 1. consules missi – professional or career consuls who are nationals of sending state and are required to devote their full-time to discharge their duties; and 2. consules electi – may or not be nationals of sending state and perform consular functions only in addition to their regular callings. Ranks: 1. consul-general – heads several consular districts, or one exceptionally large consular district; 2. consul – takes charge of a small district or town or port; 3. vice-consul – assists the consul; and 4. consular agent – usually entrusted with the performance of certain functions by the consul. Privileges and Immunities Accorded to Diplomatic Envoy: (PCLIST) 1. Inviolability of premises and archives; 2. Right of official communications; 3. Exemption from local jurisdiction; 4. Personal inviolability; 5. Exemption from subpoena; and 6. Exemption from taxation/custom duties. Exterritoriality – exception of persons and property from local jurisdiction on basis of international customs. •

If the acts giving rise to a suit are those of a foreign government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official capacity, the


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San Beda College of Law 91 M EMORY A ID IN P OLITICAL L AW complaint could be barred by the immunity of the foreign sovereign from suit without its consent. (Municher vs. CA, G.R. No. 142396, February 11, 2003) V. TREATY An international agreement concluded between states in written form and governed by international law whether embodied in a single instrument or in two or more related instruments (Vienna Convention on the Law of Treaties, 1969)

recognized by the international community of states as a rule from which no derogation is permitted and can be modified only by a subsequent norm having the same character. e.g customs out-lawing slave trade, genocide, terrorism, etc. Concordat – a treaty or agreement between ecclesiastical and civil powers to regulate the relations between the church and the state in those matters which, in some respect are under the jurisdiction of both.

Requisites: (SCRAD) 1. Entered into by parties having treaty-making capacity; 2. Through their authorized organs or representatives; 3. Without attendance of duress, fraud, mistake or other vices of consent; 4. Lawful subject matter and object; and 5. Ratification in accordance with their respective constitutional processes.

Pacta Sunt Servanda – “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” (Art. 26, Vienna Convention on the Law of Treaties).

Effect of Unwritten Treaty 1. has legal force; 2. convention rules on matters governed by international law independently of convention shall apply; and 3. convention rules apply to the relations of states as between themselves under international agreement with other subjects as parties.

Most Favored Nation Clause – pledge made by a contracting party to a treaty to grant to other party treatment not less favorable than that which had been given or may be granted to the most favored among parties.

Steps in Treaty-making Process: 1. Negotiation; 2. Signature; 3. Ratification; 4. Exchange of instruments ratification; and 5. Registration with UN.

of

Doctrine of Unequal Treaties – treaties which have been imposed in an unequal character, are void. Jus Cogens – customary international law that has attained the status of a peremptory norm, accepted and

Rebus Sic Stantibus – legal principle which would justify non-performance of treaty obligations where an unforeseen or substantial changes occur which would render one of the parties thereto unable to undertake treaty obligations as stipulated therein.

Interpretation of Treaties 1. Founding Father Test; 2. Literal or textual; 3. “Teleological aims and school

objects”

Termination of Treaty: (NEW DEVIL (made) VITAL) ACCOMPLISHMENT 1. expiration of term; 2. accomplishment of purpose; 3. impossibility of performance; 4. loss of subject matter; 5. novation; 6. desistance of parties; 7. extinction of one of parties, if treaty is bipartite; 8. occurrence of vital change of circumstance; 9. outbreak of war; and 10. voidance of treaty.



92

Protocol de cloture – an instrument which records the winding up of the proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties, conventions, recommendations and other acts agreed upon and signed by the plenipotentiaries attending the conference. It is not the treaty itself and does not require the concurrence of the Senate. (Tañada v. Angara, 272 SCRA 18). TREATY 1.

Basic political issues ; changes of national policies permanent international agreements

EXECUTIVE AGREEMENT 1.

2.

adjustment of details carrying out established national policies temporary arrangements

Validity of the Balikatan Exercises - The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the approval of the Philippine government. After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word "activities" arose from accident. In our view, it was deliberately made that way to give both parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may include training on new techniques of patrol and surveillance to protect the nation's marine resources, sea searchand-rescue operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of schoolhouses, medical and humanitarian missions, and the like (Lim vs. Honorable Executive Secretary, G.R. No. 151445, April 11, 2002).

VI . NATIONALITY AND STATELESSNESS Doctrine of Effective Nationality – expressed in Art.5 of the Hague Convention of 1930 on the Conflict of Nationality Laws that states that within a third State a person having more than one nationality shall be treated as if he had only one – either the nationality of the country in which he is habitually and principally resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected. (Frivaldo v. Comelec, 174 SCRA 245) Statelessness – condition or status of individual who is born without any nationality or who loses his nationality without retaining or acquiring another. Treatment of Stateless Individual - international conventions provide that stateless individuals are to be treated more or less like the subjects of a foreign state. Reintegration – recovery of nationality by individuals who are natural born citizens of a state, but who lost their nationality. VII . TREATMENT OF ALIENS •

Flowing from its right to existence and as an attribute of sovereignty, no State is under obligation to admit aliens. The State can determine in what cases and under what conditions it may admit aliens

Deportation – expulsion of an alien considered undesirable by local state, usually but not necessarily to his own state. Reconduction -- forcible conveying of aliens back to their home state without any formalities A. Doctrine of State Responsibility state may be held liable for injuries and damages sustained by the alien


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San Beda College of Law 93 M EMORY A ID IN P OLITICAL L AW while in the territory of the state provided: 1. the act or omission constitutes an international delinquency; 2. the act or omission is directly or indirectly imputable to the State; and 3. injury to the claimant State indirectly because of damage to its national. Direct State Responsibility – where the international delinquency was committed by superior government officials or organs like the chief of state or the national legislature, liability will attach immediately as their acts may not be effectively prevented or reversed under the constitution or laws of the state. Indirect State Responsibility – where the offense is committed by inferior government official or by private individuals, the state will be held liable only if, by reason of its indifference in preventing or punishing it, it can be considered to have connived in effect in its commission. International Standard of Justice – the standard of the reasonable state that is, as referring to the ordinary norms of official conduct observed in civilized jurisdiction; thus, to constitute an international delinquency, the treatment of an alien should amount to an outrage, bad faith, willful neglect of duty, and insufficiency of governmental action that every reasonable and impartial man would readily recognize its insufficiency. Calvo Clause – provision frequently inserted in contracts where nationals of another state renounce any claim upon his national state for protection. ✍ But such waiver can be legally made only by alien’s state. B. Refugees Requisites: 1. Those who are outside the country of his nationality or if stateless, outside the country of his habitual residence; 2. Lacks national protection; and 3. Fears persecution.

Non-refoulement – prohibits a state to return or expel refugee to the territory where he escaped because his life or freedom is threatened. The state is under obligation to grant temporary asylum. (Refugee Convention of 1951) Diplomatic Asylum – refuge in diplomatic premises Political Asylum - refuge in another state for political offense, danger to life, no assurance of due process. C. Extradition - surrender of a fugitive by one state to another where he is wanted for prosecution or, if already convicted, for punishment. Surrender is made at request of latter state on basis of extradition treaty. General Principles: 1. Based on consent expressed through treaties 2. SPECIALTY- a fugitive who is extradited may be tried only for the crime specified in the request for extradition and included in the list of offenses in the treaty. 3. NON-LIST TYPE OF TREATY- offenses punishable under the laws of both states by imprisonment of one year or more are included among the extraditable offenses. 4. Any person may be extradited; he need not be a citizen of the requesting State 5. Political or religious offenders are generally not subject to extradition •

Attentat Clause– assassination of head of state or any member of his family is not regarded as political offense for purposes of extradition. Also for the crime of genocide.

6. offense must have been committed within the territory or against the interest of the demanding State 7. double criminality -- act for which the extradition is sought



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must be punishable in both States Procedure for Extradition (Judicial and diplomatic process of request and surrender) PD 1069 1. Request through diplomatic representative with: a. decision of conviction; b. criminal charge and warrant of arrest; c. recital of facts; d. text of applicable law designating the offense; e. pertinent papers; 2. DFA forwards request to DOJ; 3. DOJ files petition for extradition with RTC; 4. Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make, as soon as possible, a prima facie finding whether (a) they are sufficient in form and substance, (b) they show compliance with the Extradition Treaty and Law, and (c) the person sought is extraditable. At his discretion, the judge may require the submission of further documentation or may personally examine the affiants and witnesses of the petitioner. If, in spite of this study and examination, no prima facie finding is possible, the petition may be dismissed at the discretion of the judge. On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately issue a warrant for the arrest of the extraditee, who is at the same time summoned to answer the petition and to appear at scheduled summary hearings. •

Prior to the issuance of the warrant, the judge must not inform or notify the potential extraditee of the

pendency of the petition, lest the latter be given the opportunity to escape and frustrate the proceedings. The foregoing procedure will “best serve the ends of justice” in extradition cases; (Government of the US vs. Hon. Purganan and Mark Jimenez G.R. No. G.R. No. 148571. September 24, 2002) 5. hearing (provide counsel de officio if necessary); 6. appeal to CA within ten days whose decision shall be final and executory; 7. Decision forwarded to DFA through the DOJ; 8. Individual placed at the disposal of the authorities of requesting state – costs and expenses to be shouldered by requesting state. •

A state may not compel another state to extradite a criminal without going through the legal processes provided in the laws of the former. ✍ Due process requirement complied at the RTC level upon filing of petition for extradition. No need to notify the person subject of the extradition process when the application is still with the DFA or DOJ ✍ Extradition is not a criminal proceeding which will call into operation all the rights of an accused provided in the bill of rights ✍ For the provisional arrest of an accused to continue, the formal request for extradition is not required to be filed in court – it only needs to be received by the requested state in accordance with PD 1069

Entitlement to Bail As suggested by the use of the word “conviction,” the constitutional provision on bail, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to


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San Beda College of Law 95 M EMORY A ID IN P OLITICAL L AW extradition proceedings, because extradition courts do not render judgments of conviction or acquittal. Exception: after a potential extraditee has been arrested or placed under the custody of the law, bail may be applied for and granted only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein. (Government of the US vs. Hon. Purganan and Mark Jimenez G.R. No. G.R. No. 148571. September 24, 2002) VIII . INTERNATIONAL DISPUTE • actual disagreement between states regarding conduct to be taken by one of them for protection or vindication of interest of other. • Art. 33 of the UN Charter provides that the parties to any dispute shall first seek a solution through pacific or amicable methods Amicable Methods of Settling Disputes: (JC MARGEN) 1. Negotiation 2. Enquiry 3. Tender of Good offices 4. Mediation 5. Conciliation 6. Arbitration 7. Judicial settlement; and 8. Resort to regional and international organizations. Hostile methods: (SIR2) 1. Severance of diplomatic relations; 2. Intervention; 3. Reprisal; 4. Retorsion. Intervention – act by which state interferes with domestic or foreign affairs of another state through the use of force or threat of force. When Intervention is Sanctioned: 1. as an act of self-defense;

2. when decreed by the Security Council as a preventive or enforcement action for the maintenance of international peace and security; 3. when such action is agreed upon in a treaty; or 4. when requested from fellow states or from the United Nations by the parties to a dispute or a state beset by rebellion. Drago Doctrine – intervention not allowed for purpose of making state pay its public debts. Retorsion – retaliation where acts complained of do not constitute legal ground of offense but are rather in nature of unfriendly acts done in pursuance of legitimate state interest but indirectly hurtful to other states. Reprisal – unlawful acts taken by one state in retaliation for also unlawful acts of another state, purpose being to bring offending state to terms. Includes: 1. Display of force; 2. Pacific blockade; 3. Occupation of territory; and 4. Suspension of treaties; 5. Embargo – detention by state seeking redress of vessels of offending state or its nationals, whether such vessels are found in territory of former or in the highseas. X. WAR • armed contention between public forces of states or other belligerent communities implying employment of force between parties for purpose of imposing their respective demands upon each other. Basic Principles of War: 1. Principle of Military necessity – belligerents may employ any amount and kind of force to compel complete submission of enemy with least possible loss of lives, time and money; 2. Principle of Humanity – prohibits use of any measure that is not



96

absolutely necessary for purposes of war; and 3. Principle of Chivalry – basis of such rules as those that require belligerents to give proper warning before launching a bombardment or prohibit use of perfidy (treachery) in conduct of hostilities. Participants in War: 1. Combatants a. non-privileged; b. privileged. 2. Spies; 3. Mercenaries. Rights of a Prisoner of War: 1. To be treated humanely; 2. Not subject to torture; 3. Allowed to communicate with their families; 4. Receive food, clothing, religious articles, medicine; 5. bare minimum of information; 6. keep personal belongings 7. proper burial; 8. group according to nationality; 9. establishment of an information bureau; 10. repatriation for sick and wounded (1949 Geneva Convention) Termination of War: 1. simple cessation of hostilities; 2. conclusion of a negotiated treaty of peace; and 3. defeat of one of belligerents.

X. NEUTRALITY • condition of state that does not take part, directly or indirectly in war between other states. NEUTRALITY

NEUTRALIZATION

1. dependent

on attitude of neutral state, which is free to join either of belligerents any time it sees fit

1.

result of treaty wherein duration and other conditions are agreed upon by neutralized state and other states

2. governed by laws

2.

governed by neutralization agreement

3. obtains

only

3.

intended operate peace and war

4. only states may

4.

applicable to portion of state

of nations

during war

become neutral

to in in

Angary – belligerent may upon payment of just compensation, seize, use or destroy, in case of urgent necessity for purposes of offense or defense neutral property found in its territory, in enemy territory or on high seas.


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