Professional Documents
Culture Documents
ART. VIII Sec. 1 Par. 1- The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law
*QUASI JUDICIAL BODIES - strictly speaking, they are not courts- do not
form part of the judicial system.
- They are administrative bodies performing quasi-judicial functions. In
Remedial Law, referred to loosely as special courts- Doctrine of Primary
Jurisdiction.
- Part of the executive.
Ex. CSC, SEC, COA, COMELEC
*Since quasi-judicial bodies are not strictly courts, their jurisdiction is strictly
construed against them.
*According to the petition, most of the people who went to EDSA are not
really serious in overthrowing the Marcos government. (Most were vendors)
-In turn, this principle is the result of our Presidential System of Government.
*No matter, We will no longer inquire into the motives of the people in going
to EDSA. The facts were: because of the magnitude of the people who were
in EDSA, Marcos fled to Hawaii, so that the Cory government was able to
take effective control of the machinery of the State without resistance from
the people. Furthermore, the international community has recognized the
Cory Government. Hence, there can be no more question as to the de jure
status of the said government.
1.
EDSA 2
-Extra-constitutional
and
the
-Intra-constitutional
and
the
resignation of the sitting President
that it caused and the succession of
the Vice President as president are
subject to judicial review.
*Unlike in the past, the power to declare martial law and to suspend the
privilege of the writ of habeas corpus were expressly made subject of judicial
review.
*Article VII, Sec. 18, Par 3- The Supreme Court may review in an
appropriate proceeding filed by any citizen, the sufficiency of the factual
basis of the proclamation of martial law or the suspension of the privilege of
the writ or the extension thereof, and must promulgate its decision within
thirty days from its filing.
SC: It is the unclouded intent of the Court to grant to the President full
discretionary authority. The hands of the President should not be tied;
otherwise, this could be a veritable proscription for disaster. Unless grave
abuse of discretion is shown, the Presidents exercise of the power should
not be questioned. Mere abuse of discretion will not suffice. To doubt is to
sustain.
Q. What is the effect of the EXPANDED CONCEPT OF JUDICIAL POWER
on the political question doctrine?
A. It has lessened the political question doctrine. Thus, even if it is a political
question, if there appears to be abuse of discretion, the Court may review it.
*The burden is upon petitioners- the ones assailing the act.
*It must be grave abuse of discretion to warrant judicial intervention.
*Mere abuse of discretion is not enough.
*To doubt is to sustain the act of the person.
Q. Why the difference in treatment?
A. Calling out power is the lesser and more benign power while the power to
declare martial law and to suspend the privilege of the writ of habeas corpus
are the greater powers which involve direct curtailment of civil liberties
thereby necessitating safeguards of Congress and judicial review of the
Court. (IBP VS. ZAMORA)
DAVID VS. GMA
*PGMA exercised the calling out power when she issued GO 5 and PP
1017, not the martial law power. The acts taken purportedly to carry out the
issuances were ultra vires, hence, unconstitutional. The exercise of the
calling out power does not involve the direct curtailment and suppression of
civil liberties and individual freedoms. However GO 5 and PP1017 are
constitutional. Petitioners failed to counteract the factual bases therefore as
alleged by the Solgen.
Q. Why not the martial law powers?
A. There was no case of invasion or rebellion. President will be required to
submit report to (kulang page ko, sorry...)
2.
MOOT AND ACADEMIC CASES - A moot and academic case is one that
ceases to present a justiciable controversy by virtue of supervening events,
so that a declaration thereon would be of no practical use or value.
Generally, courts decline jurisdiction over such case or dismiss it on ground
of mootness. (David vs. GMA)
*The moot and academic principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide
cases, otherwise moot and academic, if:
1.
2.
3.
4.
1.
2.
TAXPAYERS SUIT
To constitute a taxpayers suit, two requisites must be met, namely:
That public funds are disbursed by a political subdivision or
instrumentality and in doing so, a law is violated or some irregularity
is committed; and
That the petitioner is directly affected by the alleged ultra vires act.
2.
3.
REVISION
3.
a.
b.
-Under both the quantitative and qualitative tests, the Lambino groups
initiative is a revision, not merely an amendment. QUANTITATIVELY, the
Lambino groups proposed changes overhaul two Articles-Article VI of the
Legislature and Article VII on the Executive-affecting a total of 105
provisions in the entire Constitution. QUALITATIVELY, the proposed
changes alter substantially the basic plan of government from presidential to
parliamentary and from a bicameral to unilateral legislature.
A.
1.
2.
Proposal
Ratification
2.
Constitutional convention
-a separate body the members of which are elected
Article XVII Sec. 3- The Congress may, by a vote of 2/3 of all its
Members, call a constitutional convention, or by a majority vote of all its
Members, submit to the electorate the calling of such convention
2 ways:
*If Congress intended to fully provide for the implementation of the initiative
on amendments to the Constitution, it could have provided for a subtitle
therefore, considering that in the order of things, the primacy of interest, or
hierarchy of values, the right of the people to directly propose amendments
to the Constitution is far more important than the initiative on national and
local laws.
Q. Ethical basis?
A. There can be no legal right against the authority which makes the law on
which the right depends. (Justice Holmes)
Q. Does the Doctrine of State Immunity form Suit apply also to foreign
agreements?
Any amendment under Sec. 2 hereof (Con Com) shall be valid when ratified
by a majority of the votes cast in a plebiscite which shall be held not earlier
than 60 days nor later than 90 days after the certification by the Comelec of
the sufficiency of the petition.
A. No. A mere lawyer of the government cannot validly waive immunity from
suit. Only the Congress can. (Republic vs. Purisima)
1. GENERAL LAW
*Article XVII, Sec. 2 remains to be non self executing. The implementing law
was declared unconstitutional. (Santiago vs. Comelec)
Ex. Act No. 3083- applies to any money claims arising from contracts with
the government whether express or implied.
Article XVI, Sec. 3- The State may not be sued without its consent.
Q. Where?
Q. A contract was entered into with DPWH for the construction of roads.
When the roads were finished, the contractor was not paid. Contractor sued
the government before the RTC. Will the suit prosper?
A. No. It will be dismissed for lack of cause of action. He failed to exhaust all
administrative remedies provided for by law under CA 327 as amended by
PD 1445.
2. SPECIAL LAWS
Ex. Article 2180, NCC- The State is responsible xxx when it acts though a
special agent xxx.
Ex. Article 2189, NCC- Provinces, cities and municipalities shall be liable for
damages for the death of, or injuries suffered by any person by reason of the
defective condition of roads, streets, bridges, public buildings, and other
public works under their control or supervision.
TEOTICO VS. CITY OF MANILA
*City of Manila contends that it cannot be held liable under its charter.
*SC held that the provision in the charter is a general provision in a special
law. On the other hand, Article 2189 is a special provision found in a general
law. A special provision found in a general law prevails over the general
provision found in the charter of the City of Manila. City of Manila is liable.
KILATKO VS. CITY OF DAGUPAN
*City of Dagupan contended that the manhole is found in the national road.
*SC held that the ownership of the road is immaterial. Even if it is a national
road, the LGU is liable. Article 2189 merely requires supervision over the
maintenance of the national road. City of Dagupan has supervision. Hence,
liable.
Ex. Sec. 24, Local Government Code- Liability for Damages- Local
government units and their officials are not exempt from liability for death or
injury to persons or damage to property.
Ex. Charters of GOCC- GSIS, DBP, LBP
*Charter-special law creating GOCC
*The provision in the charter on whether it may sue or be sued is an express
waiver by special law.
IMPLIEDLY-2 ways:
1.
A. No. It will paralyze the operations of the government. Waiver extends only
up to the rendition of judgement. Execution requires another waiver. The
disbursement of public funds requires an appropriate appropriation law.
Q. Remedy?
A. To make representation with the proper legislative authority for the
enactment of an appropriation law necessary to satisfy the judgement.
*The official was charged in his official capacity in the performance of official
duties. In this case, the official was acting only as an agent of the State.
*However, this rule does not apply if:
(1) Acts were unlawful or illegal;
(2) Acts were done in a personal capacity
*This case does not qualify as a suit against the State. xxx While the
Republic in this case is sued by name, the ultimate liability does not pertain
to the government. Although the military officers and personnel were
discharging their official functions when the incident occurred, their functions
ceased to be official the moment they exceeded their authority. Based on the
commission findings, there was lack of justification by the government forces
in the use of firearms. Moreover, the members of the police and military
crowd dispersal units committed a prohibited act under BP 180 as there was
unnecessary firing by them in dispersing the marchers.
The test of suability will depend whether or not its charter allows it
to sue and be sued.
10
upon the land so condemned, to appropriate the same to the public use
defined in the judgement.
*Actually, in Amigable and Ministerio cases there is an implied waiver. This
implied waiver lies in the failure to commence the proper action. The action
filed by the petitioners amount to a counterclaim, had the government fled
the proper action. It only became a petition because the government did not
follow the legal procedure.
CITIZENSHIP
(ARTICLE IV, 1987 CONSTITUTION)
The following are the citizens of the Philippines (Sec. 1)
1. Those who are citizens of the Philippines at the time of the adoption
of the 1987 Constitution.
2. Those whose fathers or mothers are citizens of the Philippines.
3. Those born before 17 January 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority
4. Those who are naturalized in accordance with law
1. Those who are citizens of the Philippines at the time of the adoption
of the 1987 Constitution.
Q. When was the 1987 Constitution adopted?
A. 02 Feb. 1987- at the time of the plebiscite
*Not 11 Feb. 1987=When Pres. Aquino declared its ratification.
2. Those whose fathers or mothers are citizens of the Philippines.
* Note that the provision says OR- not and. This means that as long as 1
of your parents is a Filipino, you are a Filipino.
*This is in accordance with our adherence to the principle of jus sanguinis.
*This results in complications when the country where you are born applies
the principle of jus soli.
*Complications arise with respect to the matter of dual allegiance. (See Sec.
5)
VALLES VS. COMELEC (337 SCRA 543, 09 Aug. 2000)
*Rosalind Lopez was born in 1934, in Australia to a Filipino-father, who was
born in 1879, and an Australian-mother. When she came to the Philippines,
she was holding an Australian passport and was registered as an alien in the
BID. Then, Rosalind ran for governor.
SC: Rosalind is a Filipino citizen. (1) Her father is a Filipino- Her father is a
Spanish subject. In 1898, when the Spanish ceded the Philippines to the US,
under the Jones Law and the Philippine Bill of 01 July 1902, all inhabitants of
the Philippines who were Spanish subjects are deemed to be Philippine
citizens. [This is the first time that there came to be Filipino citizens. It was
an en masse citizenship because of a change of sovereignty].
(2) Rosalind is a Filipino- Philippine law on citizenship adheres to the
principle of jus sanguinis, where a child follows the nationality of the parents
regardless of the place of his/her birth. Hence, Rosalinds father is a Filipino,
she is a Filipina. Her being born in Australia is not tantamount to her losing
her Philippine citizenship. Even if Australia follows jus soli, it only results to
her possessing dual citizenship.
(3) Effect of holding an Australian passport- mere holding of an Australian
passport does not mean renunciation of Philippine citizenship. In order to
lose Philippine citizenship by renunciation, such renunciation must be
expressthe person renouncing must perform a positive act. (See Mercado
vs. Manzano and Aznar vs. Comelec)
3. Those born before 17 January 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority
3 Requisites for the application of this provision:
(1) They were born before 17 Jan. 1973.
(2) Their mother is a Filipino.
(3) They elect Philippine citizenship upon reaching the age of
majority.
History of the provision:
- Under the 1935 Constitution, legitimate minor children follow the
citizenship of their father. Thus one with an alien father and a
Filipina, mother, would, during minority, be an alien. Hence, he is
given, upon reaching the age of majority, the option to elect.
- Note that this is the reason why the provision applies only to those
born of Filipino mothers.
- One with a Filipino-father and an alien mother would still be a
Filipino, since he follows his fathers citizenship.
*These are Natural-Born Citizens (See Sec. 2)
Q: When Should Election Be Made
A: Reasonable Time from Reaching Age of MajorityRE: Application for
Admission to the Philippine Bar, Vicente D. Ching (Bar Matter No. 914, 01
Oct.1999)
11
*Ching was born in 1964, of Chinese father and Filipina mother. Ching now
seeks to elect Philippine citizenship so he can be admitted to the Philippine
Bar.
SC: The 1935 Constitution only states that Philippine citizenship should be
chosen upon age of majority. CA 625 states the child should be given a
reasonable time to elect Philippine citizenship. This reasonable time has
been construed to be 3 years upon reaching the age of majority.
Here, Ching seeks to elect only 14 years after reaching the age
majority. This is way beyond the contemplated period for electing Philippine
citizenship. One who is privileged to elect Philippine citizenship has only an
inchoate right to such citizenshipas such, he should avail of the right with
fervor, enthusiasm and promptitude.
4. Those who are naturalized in accordance with law
TECSON VS. COMELEC
*FPJ was born in 1939, of a Filipino father and an American mother. His
parents got married only in 1940.
SC: FPJ is an illegitimate child because his parents got married only after his
birth. However, the 1935 Constitution states that those whose fathers are
citizens of the Philippines acquire Philippine citizenship. Thus, it did not
distinguish whether the child is legitimate or illegitimate.
The rule is different when it is the mother who is a Filipino. Here, if
the child is legitimatehe can elect Philippine citizenship upon reaching the
age of majority. If he is illegitimate, he will follow the mothers citizenship.
The reason for this rule is to ensure Filipino nationality of the child so as not
to prejudice. Normally, since he is illegitimate, the mother would have
custody and have parental authority.
-This provision was carried over from the 1973 Constitution. In the 1935
Constitution, there is no similar provision. Thus, women were prejudiced
when they marry a foreigner, they lose their Filipino citizenship.
1. Those who are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine citizenship.
-A public School teacher was removed from her position because she
married her Chinese lover.
2. Those who elect Philippine citizenship in accordance with par (3), Sec. 1
- In this case, the person has to perform an act to perfect his Philippine
citizenship.
st
12
(3.) Service in the US Armed Forces (RA 2630) *See Bengzon III
vs. HRET
(4.) Marriage of Filipino woman to an alien, political or economic necessity
(RA 8171)
1. As to Nature
Repatriation
-A mode of re-acquisition
of Philippine citizenship.
Naturalization
2. As to process
and
-Simpler process
2. Naturalization
1. Naturalization
2. Repatriation
*Process is simplerequires only:
The following are disqualified from running for any elective local position:
xxx
*Edu Manzano was born in the US, of Filipino parents. In 1998 he ran for
vice-mayor of Makati. His qualification was challenged. Note that RA 7160,
Sec. 40 (d) disqualifies those with dual citizenship from running for local
elective office.
13
1. As to how it results
2. As to voluntariness
Dual Allegiance
Dual Citizenship
-A situation where a
person simultaneously
owes, by some positive
act, loyalty to 2 or more
states.
-Voluntary.
Involuntary.
- Art. 12, Sec. 14, 2 par., 1987 Constitution- The practice of all professions
in the Philippines shall be limited to Filipino citizens, save in cases
prescribed by law.
Q. X was born in the USA on Jan. 10, 1973, of a Filipino mother and
American father. He studied and worked in the Philippines. Can he run for
Mayor?
A. (1) Under the 1935 Constitution, which was governing at the time of Xs
birth, he should elect Philippine citizenship upon reaching the age of
majority.
(2) Under RA 9225, he is also a dual citizenhence, he should first
renounce his American citizenship.
*Res Judicata in Citizenship Cases
GR: No res judicata in cases of citizenship.
EXCEPTION: Burca vs. Republic (51 SCRA 248, 1973)
When the following requisites concur:
1. When the persons citizenship is raised as a material issue in a
controversy where said person is a party;
2. When the Solicitor General or his authorized representative took active
part in the resolution thereof; and
3. When the finding on citizenship is affirmed by the SC.
14
STRUCTURE OF GOVERNMENT
always
be
an
EXPRESS
delegation!
(by
15
The standards need not be found in the law delegating the power. Instead,
standards may be found in other laws what is important is that the
standards are determinate or at least determinable (Chong Bian vs Ci-Bos)
If the delegation meets the tests, it is valid.
What is prohibited is undue delegation or a delegation running riot.
If there is undue delegation, it is no longer delegation of power but
abdication of power in favor of the delegate, which violates the doctrine of
separation of powers.
Ratio: You cannot expect the Congress to anticipate all.
The law must be complete in all its terms and conditions, such that
there is nothing more to be done by the body but to enforce it.
Article VI, Sec 1: The legislative power shall be vested in the congress of
the Philippines, which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the people by the
provisions on initiative and referendum.
The law must set forth the policy to be executed, carried out or
implemented by the delegate.
A. Legislative Power under Article VI, Sec. 1 (The Power of the Purse).
Q. Is legislative power exclusively vested in Congress?
A. NO. Unlike in the 1935 constitution where the legislative power is
exclusively vested in Congress, under the 1987 constitution, there is a
reservation made to the people (initiative and referendum). (Art VI, Sec1).
The legislative power is not exclusively vested in Congress! It is vested
in:
Congress made up of 2 houses:
Senate
House of Representatives
(We have a Bicameral Congress)
The houses are co-equal bodies; hence the terms upper house and lower
house are inaccurate!
Bicameral Conference Committee
See Phil. Judges Association vs. Hon. Prado, and
Tolentino vs. Secretary of Finance.
16
(2) When the president vetoes a bill, that bill doesnt become a law.(3) When
he calls for a special session
Art VI. Sec 15 The president may call a special session at any time
When the president certifies as the urgency of the bill to meet a public
calamity or emergency.
Art VI, sec 26 (2) No bill passed by either house shall become a law unless
it has passed three (3) readings on separate days x x x except when the
president certifies as to the necessity of its immediate enactment to meet a
public calamity or emergency.
The president hastens the process by dispensing with 3 separate readings
on 3 separate days rule.
(4)
When the president signs a bill that becomes a law
Art VI, sec 27 Every bill passed by Congress shall before it becomes a
law, be presented to the president. If he approves the same, he shall sign
it
The president performs the last operative act for a bill to become a law.
When the president prepares a budget which is the basis of the GENERAL
APPROPRIATIONS ACT.
Art VII, Sec 22 The president shall submit to the congress x x x as basis
of the general appropriations bill a budget for expenditures and sources of
financing, including receipts from existing and proposed revenue measures.
NON-LEGISLATIVE POWERS OF CONGRESS (9): [IBAWI PA CE]
(1) Investigative power / power to conduct investigation (inquiries in
aid of legislation)
Art VI, Sec 21 The senate or the house of representatives or any of its
respective committees may conduct inquiries in aid of legislation or in
accordance with its duly published rules of procedure
(2) Power to declare the existence of a state of War
Art VI, Sec 23 The congress by a vote of 2/3 of both houses in joint
session assembled, voting separately, shall have the sole power to declare
the existence of a state of war. [*then based on such declaration, delegate
emergency powers to the President](3) Power to confirm a presidential
appointments [through commission on Appointments]
17
Art VII, Sec 16 The president shall nominate and with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls or officers of
the armed forces from the rank of colonel or naval captain, and other officers
whose appointments are vested in him in this constitution.
(4) Power to punish for contempt
- Incidental to the power to conduct inquiries in aid of legislations.
(5) Power to impeach and to try cases of impeachment
As a prosecutorial body: Art XI, Sec 3(1) The House of Representatives
shall have the exclusive power to initiate all cases of impeachment.
As an impeachment Court: Art XI, Sec 3(6) The senate shall have the
sole power to try and decide all cases of impeachment x x x
(6) Power to judge election contests involving their members through
the Electoral tribunal
Art VI, Sec 17 The senate and House of Representatives shall each have
electoral tribunals which is the sole judge of all contests relating to the
election returns and qualifications of their respective members x x x
Representative
(1) Citizenship
Natural born
Art VIII, Sec 19(2) He shall have the power to grant amnesty with the
concurrence of a majority of all the members of the Congress
(2) LIteracy
(3) Voter
Registered voter
(4) Age
35 years of age
on the day of
election
(5) Residence
2 years residence
1 year in the
representing.
(6) Term
6
years,
2
consecutive termlimit
Art XVII, Sec 1(2) Any amendment to, or revision of, this constitution may
be done by: (1) The congress, upon a vote of of all its members; x x x(9)
Power to act as board of canvassers in presidential and vicepresidential elections.
Art VII, Sec 4(4) Upon receipt of the certificates of canvass, the president
of the Philippines shall, not later than 30 days after the day of the election,
open al certificates in the presence of the Senate of the House of
Representatives in joint and public session, and the Congress, upon
determination of the authenticity and due execution thereof in the manner
provided by law, canvass the votes.
Composition of CONGRESS
district
he
is
18
Kinds of Congressmen:
Art VI, Sec 5(1) The HOR shall be composed of not more than 250
members, unless otherwise fixed by law, who shall be elected from
legislative districts x x x and those who, as provided by law, shall be elected
through a party-list system of registered national, regional, and sectoral
parties or organizations.
(1) District representatives
(2) Party-list representatives
this absorbed the sectoral representatives
Art VI, Sec 5(2) x x x for 3 consecutive terms after the ratifications of this
constitution, of the seats allocated to the party-list representatives shall be
filled as provided by law, by selection or election from the labor, peasant,
urban poor, indigenous cultural communities, women, youth, and such other
sectors as may be provided by law, except the religious sector.
[other sectors: fisher folks, elderly, handicapped (Sec 5, RA7941)].
PUF LICE HWY O
Xpn: Religious sector
Party list system
Implemented by RA7941 (Party-list law)
Adopted the German model of the party list system
1998 elections: first time we had party list election
Borrowed concept from parliamentary system
See: Ang bagong-bayani-OFW labor party vs. COMELEC (June 26, 01
En Banc)
Q: What is the nature of the party-list system?
A: The party-list system is a social justice tool designed not only to
give more in life to the great masses of our people who have less in life, but
also to enable them to become veritable (genuine/real) law makers
themselves. It
intends to make the marginalized and underrepresented active participants
in the mainstream of representative democracy.
The party list system is one such tool intended to benefit those who
hae less in life. It gives the great masses of our people the genuine hope
and genuine power. It is a message to the destitute and the prejudiced, and
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
19
Sec 7, Art IX-C, 1987 Const. No votes cast in favor of a political party,
organization, or coalition shall be valid, except for those registered under the
party-list system as provided in this constitution.
Sec 5(1), Art VI, 1987 Const. The HOR shall be composed of x x x and
those who x x x shall be elected through a party list system of registered
national, regional, and sectoral parties or organizations.
Art IX-C Sec 2(5) The COMELEC shall exercise the following powers and
functions x x x (5) Register x x x political parties, organizations x x x religious
denomination shall not be registered.
Art VI, Sec 5(2) x x x from the labor, peasant urban poor x x x and such
other sectors as may be provided by law, except religious sector
The party must not only comply with the requirements of the law; its
nominees must likewise do so x x x
The nominee must also be qualified.
(3) Resident of the Philippines for a perioud of not less than 1 year
immediately preceding the day of the electon.
By the very nature of the party-list system, the party or organization must be
a group of citizens, organized and operated by citizens.
(6) Not only the candidate party or organization must represent marginalized
and underrepresented sectors; so also must its nominees.
20
Bar Question!
Q: To determine the total votes cast for the party-list system, should the
votes tallied to the disqualified candidates be deducted/excluded in
computing the 2% threshold?
A: Three categories:
(Ang Bagong Bayani OFW vs. COMELEC [June 25, 2003 En Banc])
In the case of Labo vs. COMELEC, reaffirmed in the case of Grego vs.
COMELEC, the court declred that the votes case for an ineligible or
disqualified candidate cannot be considered stray, because this would
disenfranchise the voters/majority; valid votes.
Ex: Budget hearings usual means of renewing policy and auditing the use
of previous appropriation to ascertain whether they have been disbursed for
purposes authorized in an appropriation act.
21
Congress may request information and report from the other branches of
government. It can give recommendations / pass resolutions for
consideration of the agency involved.Congressional Investigation a more
intense digging of facts.
Not absolute!
Art VI, Sec 15 the Congress shall convene once every year on the Fourth
Monday of July for its regular session, unless a different date is fixed by
Law, and shall continue to be in session for such number of days as it may
determine until thirty days before the opening of its next regular session,
exclusive of Saturdays, Sundays, and legal holidays x x x
Q: After 15 days of continuous session, congress adjourned. Can this be
done?
A: YES. Congress has the discretion under Art VI, Sec 15. It is allowed to
remain in session provided only that 30 days before the opening of the next
session, it shall adjourn (compulsory adjournment).
The opening of the session is also the time the President delivers his STATE
OF THE NATION ADDRESS (SONA) part of the informing power of the
President (Art VII, Sec 23)
Art VII, Sec 23 The president shall address the Congress at the opening
of its regular session x x x
This is a deviation from the 1935 constitution, under which the opening of
th
the regular session is every 4 Monday of January and the duration of the
session is for a fixed period of 100 days. It was patterned after the American
Constitution.
Freedom of Speech and Debate
Requisites:
(1) The speech or debate must be made in Congress or in any
committee thereof.
(2) The congress must be in session.
22
A. NO. Evidence of guild is strong; should wait for decision on appeal inside
the penitentiary.
Absolutely privileged
Qualifiedly privileged
Therefore:
Matter or Right before conviction, punishable by penalty lower than
reclusion perpetua
Exception: charged with offense punishable by RP or death.Matter
of Discretion before conviction punishable by penalty of reclusion perpetua
or higher when the evidence of guilt is strong, there will be a hearing to
determine whether evidence of guilt is strong.
After conviction, go to Rule 114 sections 4 and 5.
Power to Conduct Investigations and Inquiries
Sec 21, Art VI The senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be respected.Nature of the
power to conduct investigations and inquiries
non-legislative but integral in the grant of Legislative power
23
The right against self incrimination (Art III sec 17) may be invoked.
In aid of legislation
Art VI, Sec 22 The heads of departments may upon their own initiative,
with the consent of the President, or upon the request of either house, as the
rules of each house shall provide, appear before and be heard by such
house on any matter pertaining to their departments x x x
Section 21
Section 22
attendance
is
meant
to
be
attendance
is
meant
to
be
24
compulsory*
discretionary
How
many
Senate President ex officio chairman
members?
12 Senators
12 Representatives (from the House of Representatives)
Q: How are the 24 members chosen?
A: based on proportional representation from political parties (including party
list) having membership in the senate or House of representatives.
Example:
Senate composition:
K4 = 10
KNP = 8
LOP = 4
LAKAS = 2
Formula to determine seats per party in the Commission on
Appointments:
# of senators of party
Total # of senators
x 12
25
Membership 9 members
Judicial Component 3 Supreme Court Justices; the most senior is the
chairman (designated by the CJ)
Legislative Component 6 senators / congressmen chosen on the basis of
proportional representation
Bondoc vs. Pineda
K4 = 5
KNP = 4
LOP = 2
LAKAS = 1
Q: What if there are decimal places?
A: Disregard (drop) the fraction. Otherwise, rounding off would violate the
rule on proportional representation! Although some seats would not be filled,
it is not mandatory that all seats be filled up. What is necessary is that there
be a quorum (Guingona vs. Gonzales)Q: What is main function of the
Commission on Appointments?
A: To act on Presidential Appointments (checks-and-balances)
Q: When can CoA meet?
nd
A: Only when the congress is in Session. (Art VI, Sec 19. 2 sentence)
The commission on Appointments shall meet only while the Congress is in
session at the call of its chairman and a majority of all its members, to
discharge such powers and functions as are herein conferred upon it
- Thus, ad interim appointments are allowed (see Section 16, 2
nd
Electoral Tribunals
Section 17, Art VI The Senate and the House of Representatives shall
each have an Electoral Tribunal which shall be the sole judge of all contests
relating to the election, returns, and qualifications of their respective
members. Each Electoral Tribunal shall be composed of nine members.
Three of whom shall be Justices of the Supreme Court to be designated by
the Chief Justice, and the remaining six shall be members of the Senate or
the House of Representatives, as the case may be, who shall be chosen on
the basis of proportional representation from the political parties and the
parties or organizations registered under the party-list system represented
therein. The senior Justice in the Electoral Tribunal shall be its chairman.
26
Appropriations bill
FACTS: In the 1995 elections, Imelda ran for HOR. A disqualification case
was filed against her on account of her residence. The case was not
resolved before the election. Imelda won the election. However, she was not
proclaimed. Imelda now questions the COMELECs jurisdiction over the
case.
Private bills
HELD: The COMELEC still has jurisdiction. HRETs jurisdiction as the sole
judge of all contests relating to the elections, etc..of members of congress
begins only after a candidate has become a member of the HOR. Since
Imelda has not yet been proclaimed, she is not yet a member of the HOR.
Thus, COMELEC retains jurisdiction. (see RA6646, Sec 6, Electoral Reform
Law of 1987)
Guerrero vs. COMELEC
FACTS: Rudy Farias of Ilocos Norte ran for Congressman. A
disqualification case was filed against him, which was not resolved before
the elections. He won and was proclaimed. COMELEC dismissed the
pending disqualification case against Farias. This was questioned by
Guerrero on the ground that HRET has jurisdiction only if there is a valid
proclamation of the winning candidate. Thus, if a candidate does not ratify
the statutory requirements, his subsequent proclamation is void and thus,
COMELEC still has jurisdiction.
HELD: The dismissal (of the case) is incorrect. This is a recognition of the
jurisdictional boundaries between COMELEC and HRET. In an electoral
contest where the validity of the proclamation of a winning candidate who
has taken his oath of office and assumed his post as congressman is raised,
the issue is best addressed to the HRET. This avoids duplicity of
proceedings and a dash of jurisdiction between constitutional bodies.
[Thus, once a winning candidate has been proclaimed, taken his oath of
office and assumed office as a member of the HOR, the COMELECs
jurisdiction over election contests relating to his election returns and
qualifications ends, and the HRETs own jurisdiction begins.]The Legislative
Process
Filing of the Bill
General Rule: A bill may be introduced and may originate either from the
Senate or the HOR.
Exceptions: Bills that must originate exclusively with the HOR [APRIL]
27
This, for as long as various provisions are germane to the subject matter
which is expressed in the title the rule is complied with.
2) Three readings on three separate days rule
Sec 26(2), Art VI No bill passed by either House shall become a law
unless it has passed three readings on separate days, and printed copied
thereof in its final form have been distributed to its members three days
before its passage, except when the President certifies to the necessity of its
immediate enactment to meet a public calamity or emergency. Upon the last
reading of a bill, no amendment thereto shall be allowed, and the vote
thereon shall be taken immediately thereafter, and the yeas and nays
entered in the Journal.
General Rule: Each bill must undergo 3 separate readings on 3 separate
days. (one in Senate, one in HOR = 6 days/readings all-in-all)
First Reading: the bills title is read; it is assigned a number, and
then referred to the appropriate committee. . NNo deliberations yet
In the committee to which the bill was referred to, it may die a
natural death if said committee sits on it. If the members of the
committee endorse the bill to the plenary, it will be calendared for
nd
2 reading.
Second Reading: The bill is sent back to the plenary.
NOTE: In the plenary, it will be discussed in its entirety;
there will be sponsorship speech, interpellations, deliberations;
amendments may also be introduced.
rd
28
While the sufficiency of the factual basis of the suspension of the writ of
Habeas Corpus or declaration of martial law is subject to Judicial review
because basic rights of individuals may be at hazard, the factual basis of
presidential certification of bills, which involves doing away with procedural
requirements designed to insure that bill are duly considered by member of
congress, certainly should elicit a different standard of review.
If the nays prevail over the yeas another bicameral conference committee
will be created until an acceptable version of the bill is created; the court did
not say that the bill is killed.
After 3 readings, the bill will be sent to the other house where it will
undergo the same cumbersome process.
A: Once a bill has become an enrolled bill, it becomes conclusive upon the
courts as to its enactment*, so that the courts will not inquire into whether
that Bill was regularly enacted or not.
If both houses have different versions of the Bill, said versions will be sent
to the Bicameral Conference Committee for reconciliation.
Referral back to the Senate and the HoR from the bicameral conference
committee, the consolidated bill will be sent back to each House.
rd
Art VI. Sec 26(2) Upon the last reading of a bill x x x the vote thereon shall
be taken immediately thereafter, and the yeas and nays entered in the
Journal.
29
The yeas and nays on any question at the request of 1/5 of the members
present
Art VI, Sec 16(4) Each house shall keep a journal of its proceedings x x x
and the yeas and nays on any question shall, at the request of 1/5 of the
members present, be entered in the journal.
many
options
does
the
president
have?
Art VI Sec 27(1) In such cases, the votes of each house shall be
determined by yeas or nays, and the names of the members voting for or
against shall be entered in its journal.
Art VI Sec 27(1) every bill passed by Congress shall, before it becomes a
law, be presented to the President x x x otherwise, he shall veto it and return
the same with his objections to the House where it originated, which shall
enter the objections at large in its journal x x x
Sec 27 (1), Art VI Every bill passed by Congress shall, before it becomes
a law, be presented to the President. If he approves the same, he shall sign
it xxx
The yeas and nays upon re-passing a bill over the Presidents veto.
30
The president may not veto a bill without vetoing the entire bill. The
executive must veto a bill in its entirety or not at all. He cannot be an editor
crossing our provisions which she dislikes. (Bengzon vs. Drilon)
Appropriation bills
Punong Baranggay
Revenue Bills
Tariff Bills
Persons-in-
Lupong taga-pamayapa
[UP]
Ultra-vires/
prejudicial to public welfare
Sec 55 of LGC par. B: on Item/line veto:
[PAL]
Appropriation Ordinance
HELD: The Court sustained the validity of the exercise by the President of
her veto power, invoking the doctrine of inappropriate provision.Section 25,
par 2, Art VI No provision or enactment shall be embraced in the general
appropriations bill, unless it relates specifically to some particular
appropriation therein. Any such provision or enactment shall be limited in its
operation to the appropriation to which it relates.
A: NO. What the president may validly veto is ONLY a BILL and neither the
provisions of LAW 35 years before his term nor a final and executory
judgment of the Supreme Court. (Bengzon vs. Drilon)
Chief Executive
31
Changing the name of Manila Intl Airport to Ninoy Aquino Intl Airport
President Aquino
ARTICLE VII, Sec. 3, 1 par. There shall be a Vice President who shall
have the same qualifications and term of office xxx as the President."
st
nd
EXECUTIVE DEPARTMENT
PRESIDENTIAL SUCCESSION
EXECUTIVE POWER
ARTICLE VII, Sec. 1: The executive power shall be vested in the President
of the Philippines.
Q: What power belongs to the President?
(1) Death
(3) Removal
- The President can only be removed by means of impeachment.
nd
President
Vice President
Members of the Supreme Court
Members of the Constitutional Commission
Ombudsman
32
(7) Budgetary Power- ARTICLE VII, Sec. 22 The President shall submit
to the Congress within 30 days from the opening of every regular session, as
the basis of the general appropriations bill, a budget of expenditures and
sources of financing, including receipts from existing and proposed revenue
measures.(8) Informing Power- SONA
APPOINTING POWER
- ARTICLE VII, Sec. 23 The President shall address the Congress at the
opening of its regular session. He may also appear before it at any other
time.
II. SPECIFIC POWERS OF THE PRESIDENT FOUND SOMEWHERE
ELSE IN THE CONSTITUTION
(1) Power of general supervision over local governments
- ARTICLE X, Sec. 4 The President of the Philippines shall exercise
general supervision over local governments xxx.
(2) Veto Power
- ARTICLE VI, Sec. 27
(3) Power to call Congress to special session
- ARTICLE VI, Sec. 15 The President may call a special session at any
time.
34
keep a regular force necessary for the security of the state. On the other
hand, Sec. 6 of the same article ordains that: The state shall establish and
maintain one police force, which shall be national in scope and civilian in
character to administered and controlled by a national police commission.
The authority of local executives over the police units in their jurisdiction
shall be provided by law.
- To so distinguish the police force from the armed force, Congress enacted
RA. 6975. Thereunder the police force is different from and independent of
the armed forces and the ranks int eh military are not similar to those in the
PNP.
- those connected with the diplomatic and consular services of the country.
EX: Chairmen and members of CSC, Comelec, COA (by express provision)
(3) Officers of the armed forces from the rank of colonel or naval
captain
Q: What about officers of PNP of equivalent ranks?
A: No.
MANALO VS. SISTOZA
- President Aquino promoted 15 police officers by appointing them to
positions in the PNP with the rank of Chief Superintendent to Director.
Without their names submitted to the Commission on Appointments for
confirmation, the said police officers took their oath and assumed their
respective positions. Manalo questioned this on the ground that both under
Sec. 16, ARTICLE VII of the 1987 Constitution and RA. 6975 (Local Govt
Act of 1990) require their appointments to be submitted for confirmation and
that PNP is akin to the AFP.
SC: Only presidential appointments belonging to the first group require
confirmation by the Commission on Appointments. The appointments of
police officers who are not within the first category need not be confirmed by
the Commission on Appointments. Consequently, unconstitutional are
Sections 26 and 31 of RA. 6975 which empowers the Commission on
Appointments to confirm the appointments of public officials whose
appointments are not required by the Constitution to be confirmed.
- The PNP is separate and distinct from the AFP. The Constitution no less,
sets forth the distinction. Under Sec. 4, ARTICLE XVII, the armed forces of
the Philippines shall be composed of a citizen armed force which shall
undergo military training and service, as may be provided by law. It shall
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
SC: The NLRC Chairman and Commissioners fall within the 2 sentence of
Sec. 16, ARTICLE VII of the Constitution more specifically under the third
group of appointees those whom the President may be authorized by law
to appoint. Undeniably, the chairman and members of the NLRC are not
st
among the officers mentioned in the 1 sentence of Sec. 16, ARCTICLE VII
whose appointments require confirmation by the Commission on
Appointments. To the extent that RA. 6715 requires confirmation by the
Commission on Appointments of the appointments of respondent chairman
and members of NLRC, it is unconstitutional.
- SC clarified that this list is EXCLUSIVE. Congress by a mere legislative
act may not validly amend the constitution by adding or deducting anything
from that list
REGULAR
- Sec. 16, ARTICLE VII, Par. 2 should be correlated to Sec. 19, ARTICLE VI
xxx The Commission on Appointments shall meet only while the Congress
is in session xxx.
36
Acting Appointments
b) where the appointee, after confirmation, swerves a part of his term and
then resigns before his seven-year term of office ends;
permanent in nature
merely temporary
nd
requires
confirmation
by
Commission on Appointments
the
37
A: (1) President
38
(Civil
FORBIDDEN OFFICE
39
more of an inhibition
more of a prohibition
A: Yes.
A: No!
- In this case, the function of CPLC is to review decisions of officers under
the Office of the President and among them is the PCGG.
CONTROL POWER
- Control is said to be the very heart of the power of the President. (Joson
vs. Torres)
Q: What is an EXECUTIVE DEPARTMENT, BUREAU, OR OFFICE?
A: EO 292 : ADMINISTRATIVE CODE OF 1987:
ARTICLE VII, Sec. 17 The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed.
exercised
over
all
executive
departments bureaus, and offices
CONTROL
Q: What is CONTROL?
GENERAL SUPERVISION
exercised over local governments
40
- How can you expect the President to determine that the following performs
their powers and functions in accordance with law if you will deny him the
power to investigate.
- The power to investigate is an incident of the power of control.
MILITARY POWERS ARTICLE VII, Sec 18
3 DISTINCT MILITARY POWERS OF THE PRESIDENT
(1) Calling out power as the Commander-in-chief of the Armed Forces of the
Philippines
(2) Power to proclaim martial law
(3) Power to suspend the privilege of the writ of habeas corpus
INSTANCES WHEN THE PRESIDENT MAY CALL OUT AFP To
suppress
(1) lawless violence
(2) invasion
(3) rebellion
INSTANCES WHEN THE PRESIDENT MAY DECLARE MARTIAL LAW or
SUSPEND THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS
(1) invasion }
} when public safety requires it
(2) rebellion }
Other Limitations
(1) For a period not exceeding 60 days
(2) Expressly been made subject to judicial review under ARTICLE VII, Sec.
18, Par. 3 The Supreme Court may review, in an appropriate proceeding
filed by any citizen, the sufficiency of the factual basis of the proclamation of
Martial Law or the suspension of the privilege of the writ of habeas corpus or
the extension thereof, and must promulgate its decision thereon within thirty
days from its filing. (LANSANG VS. GARCIA)
(3) Within 48 hours from the proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus, the President shall submit a report
in person or in writing to the Congress.
(4) The Congress, voting jointly, by a vote of at least a majority of all its
members in regular or special session,, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President.
41
(5) Upon the initiative of the President, the Congress, may in the same
manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and
public safety requires it.
(6) The Congress, if not in session, shall, within 24 hours following such
proclamation or suspension, convene in accordance with its rules without
need of a call.
(7) A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies, NOR
authorize the conferment of jurisdiction on military courts and agencies over
civilians, where civil courts are able to function, (OLAGUER DOCTRINE)
Nor automatically suspend the privilege of the writ.
OLAGUER DOCTRINE
- ARTICLE VII, sec. 18, Par. 6 During the suspension of the privilege of
the writ, any person thus arrested or detained shall be judicially charged
within 3 days, otherwise he shall be released.
PARDONING POWER
ARTICLE VII, Sec.19 Except in cases of impeachment, or as otherwise
provided in this Constitution, the President may grant reprieves,
commutations, and pardons and remit fines and forfeitures, after conviction
by final judgment.
He shall also have the power to grant amnesty with the concurrence of a
majority of all the Members of the Congress.
FIVE MATTERS COVERED
(1) To grant reprieves
- during martial law, military courts may assume jurisdiction over civilians
AMNESTY
conviction
required
is
not
by
final
judgment
but
42
(1) those matters which the court must take judicial notice of
(2) judicial admissions
(3) presumptions
- Under Section1, Rule 129 of the Rules of Court, one of the matters which
the courts must take judicial notice of is the official acts of the legislative,
executive and judicial departments of the Philippines.
purpose of the privilege. Pardon does not ipso facto restore a convicted
felon to public office necessarily relinquished or forfeited by reason of the
conviction although such pardon undoubtedly restores his eligibility for
appointment to that office.
- On the other hand, pardon, being a private act of the President, requires
proof and the convict who was granted such pardon has the burden of proof.
- Hence, she is excused from serving sentence; but in the eyes of the law,
she is still a convict. Unless the grant expressly so provides, she cannot be
reinstated. And since she is not entitled to be reinstated, with more reason
that she is not entitled to backwages.
(1) does not apply in cases of impeachment (ARTICLE VII, Sec. 19)
(2) there must first be conviction by final judgment (ARTICLE VII, Sec. 19)
(3) not applicable to legislative contempt
(4) not applicable to election offenses without favorable recommendation of
Comelec (ARTICLE IX-C, Sec. 5)
REPRIEVE suspension or stay of execution of a death convict
Probation suspension of penalty
COMMUTATION reduction of penalty by 1 degree from death to RP
Q: Is pardon available to those guilty of administrative offenses?
A: Yes. Pardon is available not only to those guilty of criminal offense but
also to those guilty of administrative offense. Section 19, ARTICLE VII
makes no distinction between criminal offense and administrative offense
except with respect to impeachment. If persons convicted of heinous crimes
where evidence of guilt is beyond reasonable doubt are entitled to pardon,
why do we have to deny the same to those convicted of administrative
offenses where only substantial evidence is required? (LLAMAS VS.
ORBOS)MONSANITO VS. FACTORAN Not entitle to be reinstated; no
backwages
The Assistant Municipal Treasurer was convicted of malversation through
falsification of public document. Later, he was granted absolute pardon by
the President, when he was released, he demanded to be reinstated to his
former position and be paid backwages.
SC: Pardon granted after conviction frees the individual from all the
penalties and legal disabilities and restores him to all his civil rights. But
unless expressly grounded on the persons innocence (which is rare), it
cannot bring back lost reputation for honesty, integrity, and fair dealing. This
must be constantly kept in mind, lest we lose track of the true character and
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
- It does not impose upon the government any obligation to make reparation
for what has been suffered since the offense has been established by
judicial proceedings, that which has been done or suffered while they were
in force is presumed to have been rightfully done and justly suffered and no
satisfaction for it can be required.GARCIA VS. COA
Garcia was an employee of the Bureau of Telecommunications. Several
properties of BT were lost. He was summarily dismissed from the service on
the ground of dishonesty. It became final subsequently. A criminal case for
qualified theft was filed against Garcia based on the same facts obtaining in
the administrative actions. After a full blown trial, Garcia was acquitted not
based on lack of proof beyond reasonable doubt but based on an express
finding that he was innocent of the crime charged.
Garcia sought
reinstatement to his former position in view of his acquittal in the criminal
case. Bureau of Telecommunications denied his request. Hence, Garcia
pleaded to the President for executive clemency. Acting on the favorable
endorsements of the then Ministry of Transportation and Communications
and the CSC, the President granted Garcia executive clemency. Then
Garcia filed with COA a claim for payment of backwages. This was denied
by COA on the ground that executive clemency granted to him did not
provide for the payment of back salaries and that he has not been reinstated
in the service.
SC: Garcia should not be considered to have left his office for all legal
purposes, so that he is entitled to all the rights and privileges that accrued to
him by virtue of the office held, including backwages. If the pardon is based
on the innocence of the individual, it affirms this innocence and makes him a
new man and as innocent as if he had not been found guilty of the offense
charged. When a person is given pardon because he did not truly commit
43
the offense, the pardon relieves the party from all punitive consequences of
his criminal act, thereby restoring him his clean name, good reputation and
unstained character prior to the finding of guilt.
- The bestowal of executive clemency on Garcia in effect completely
obliterated the adverse effects of the administrative decision which found
him guilty of dishonesty and ordered his separation from the service. This
can be inferred from the executive clemency itself exculpating Garcia from
the administrative charge and thereby directing his reinstatement, which is
rendered automatic by the grant of the pardon. This signifies that petitioner
need no longer apply to be reinstated to his former employment. He is
reinstated to his office ipso facto upon the issuance of the clemency. His
automatic reinstatement entitles him to backwages.
- He is entitled to full backwages for 8 years. Verily, law, equity, and justice
dictate that Garcia be afforded compassion for the embarrassment,
humiliation, and above all injustice caused to him and his family by his
unfounded dismissal. This is a little measure. SC even commended him for
protecting government property.
ESTRADA VS. DESIERTO
Leo Echegaray was convicted of qualified rape. At that time, the death
penalty is still in effect. On the date he is to be executed by lethal injection,
the SC issued a TRO. This was criticized on the ground, among others, that
it encroached on the power of the President to grant reprieve under Sec. 19,
ARTICLE VII of the 1987 Constitution.
SC: Sec. 19, ARTICLE VII of the 1987 Constitution is simply the source of
power of the President to grant reprieves, commutations, and pardons and
remit fines and forfeiture after conviction by final judgment. This provision,
however, cannot be interpreted as denying the power of the courts to control
the enforcement of their decisions after the finality. In truth, an accused who
has been convicted by final judgment still possesses collateral rights and
these rights can be claimed in the appropriate courts. The suspension of
such a death sentence is indisputably an exercise of judicial power. It is not
usurpation of the presidential power of reprieve though its effect is the same
the temporary suspension of the execution of the death convict. The
powers of the Executive, Legislative, and the Judiciary to save the life of a
death convict do not exclude each other for the simple reason that there is
no higher right than the right to life.
Q: Discuss the nature of a CONDITIONAL PARDON.
A: A CONDITIONAL PARDON is in the nature of a contract between the
sovereign power of the Chief Executive and the convicted criminal to the
effect that the former will release the latter subject to the condition that if he
does not comply with the terms of the pardon, he will be recommitted to
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
equally
binding
as
an
44
EXECUTIVE
- involves implementation of that policy
more or less temporary longer
and of short duration
of treaty with a wide variety of subject matter, such as, but not limited to,
extradition or tax treaties or those economic in nature. All treaties or
international agreements, entered into by the Philippines, regardless of
subject matter, coverage, or particular designation or appellation, requires
the concurrence of the Senate to be valid and effective.
- In contrast, Section 25, ARTICLE XVIII is a special provision that applies
to treaties which involve the presence of foreign military bases, troops, or
facilities in the Philippines. Under this provision, the concurrence of the
Senate is only one of the requisites to render compliance with the
constitutional requirement and to consider the agreement binding on the
Philippines.
- Undoubtedly, section 25, ARTICLE XVIII which specifically deals with
treaties involving foreign military bases, troops, or facilities should apply in
the instant case. It is a finely-imbedded principle in statutory construction
that special provision or law prevails over a general one. To a certain extent
and in a limited sense, however the provisions of Section 21, ARTICLE VII
will find applicability with regard to the issue and for the sole purpose of
determining the number of votes required to obtain the valid concurrence of
the Senate.
Q: The nature of the petition filed was for certiorari and prohibition. Did it
constitute grave abuse of discretion on the part of the President when he
submitted the VFA to the Senate invoking Section 21 instead of Section 25?
A: No! The President, in ratifying the VFA and in submitting the same to
Senate for concurrence, acted within the confines and limits of the powers
vested in him by the Constitution. It is of no moment that the President, in
the exercise of his wide latitude of discretion and in the honest belief that
VFA falls within the ambit of Section 21, ARTICLE VII of the Constitution
referred to the Senate for concurrence. Certainly, no abuse of discretion
much less a grave, patent and whimsical abuse of judgment, may be
imputed to the President in his act of ratifying the VFA and referring the
same to the Senate for the purpose of complying with the concurrence
requirement embodied in the fundamental law. In doing so, the President
merely performed a constitutional task and exercised a prerogative that
chiefly pertains to the functions of his office.
BUDGETARY POWER
ARTICLE VII, Sec. 22 The President shall submit to the Congress within
30 days from the opening of every regular session, as the basis of the
general appropriations bill, a budget of expenditures and sources of
financing, including receipts from existing and proposed revenue measures.
- Correlate with Section 25(1), ARTICLE VI Congress may not increase
the appropriations recommended by the President for the operation of the
45
MAJORITY = 5
VOTING
INFORMING POWER
- Only the members present and who participated in the deliberations on the
issues in the case shall vote.
ARTICLE VII, Sec. 23 The President shall address the Congress at the
opening of the regular session. He may also appear before it at any other
time.
- All cases xxx which shall be heard en banc xxx shall be decided with the
concurrence of a majority of members who actually took part in the
deliberations on the issues in the case and voted thereon.
JUDICIAL DEPARTMENT
OF
SUPREME
(3)
possesses the qualifications
prescribed by Congress
QUORUM = 8
- When the required number is not obtained, the case shall be decided en
banc.
- No doctrine or principle of law laid down by the court in a decision
rendered en banc or in a division may be modified or reversed except by the
court sitting en banc.
Q: What cases are to be heard by the Supreme Court en banc?
A: (1) Cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, executive order, or presidential
decree, proclamation, order, instruction, ordinance or regulation is in
question;
(2) Criminal cases in which the appealed decision imposes the death
penalty;
(3) Cases raising novel questions of law;
(4) Cases affecting ambassadors, other public ministers and consuls;
(5) Cases involving decisions, resolutions, or orders of the CSC,
Comelec, and COA;
(6) Cases where the penalty to be imposed is the dismissal of a judge,
officer or employee of the judiciary, disbarment of a lawyer, or either the
suspension of any of them for a period of more than one (1) year or a fine
exceeding P10,000 or both;
(7) Cases where a doctrine or principle laid down by the court en banc
or in division may be modified or reversed;
(8) Cases assigned to a division which in the opinion of at least (3)
members thereof merit the attention of the court en banc and are acceptable
to a majority of the actual membership of the court en banc; and
46
(9) All other cases as the court en banc by a majority of its actual
membership may deem of sufficient importance to merit its attention.
CONSTITUTIONAL PROVISIONS THAT TEND TO STRENGTHEN THE
INDEPENDENCE OF THE JUDICIARY
(1) ARTICLE VIII, Sec. 9 The Members of the Supreme Court and judges
of lower courts shall be appointed by the President from a list of at least
three nominees prepared by the Judicial and bar Council for every vacancy.
Such appointments need no confirmation.
Taada v. Angara By its very nature, Art. II are policies and principles that
may guide the Legislature in the enactment of laws and the courts in its
interpretation
General Considerations:
47
A:
NO! This clause should not be lifted out of context. Look
st
at the 1 sentence of the provision that the civilian authority is supreme
over the military. Thus, the AFPs role must be understood within the
context of civilian supremacy.
INTEGRATED BAR OF THE PHILS. v. ZAMORA
FACTS : Estrada issued an LOI deploying the marines all over Metro Manila
HELD: (1) Civilian Supremacy Clause not Violated The calling of the
marines in this case constitutes permissible use of military assets for civilian
enforcement. The limited participation of the Marine is evident in the
provisions of the LOI, which provides the metes and bounds of their
authority. The local police forces are in charge of the visibility patrols the
real authority belongs to the PNP, the Metro Manila Police Chief is the
overall leader of the PNP-Philippine Marines joint visibility patrols.
(2) Deployment of Marines to assist the PNP does not unmake the civilian
character of the PNP the Marines render only assistance in conducting the
patrols. There is no insidious incursion of the military in civilian affairs. In
fact, military assistance to civilian authorities is rendered in the following
actuations: elections, administration of the Philippine Red Cross, relief and
rescue operations during calamities and disasters, amateur sports,
promotion and development, development of the culture and the arts,
conservation of natural resources, implementation of the agrarian reform
program, enforcement of customs laws, composite civilian-military law
enforcement activities, conduct of licensure examinations, conduct of
nationwide tests for elementary and highschool students, anti-drug
enforcement activities, sanitary inspections, conduct of census work,
administration of the Civil Aeronautics Board, assistance in installation of
weather forecasting devices, and peace and order policy formulation in
LGUs.
V.
48
Q:
It states that the government may call upon the people to
defend the State. Does this amount to involuntary servitude?
A:
NO! This is an exception to the rule n involuntary
servitude:
Exceptions to the rule on involuntary servitude:
1. Military service to defend the State
2. Penal punishment
3. Assumption of jurisdiction of DOLE in labor cases
4. Mariners and pilots
5. Minor children under the patria potestas of parents
Note that the provisions says PERSONAL service
Thus, one cannot hire mercenaries to take ones place.
VI. Sec. 16, Art. II The State shall protect and advance the right
of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.
Q:
This refers to a right of the people. Why is this
found in Art. II and not in Art. III (Bill of Rights)?
A:
This right belongs to a different category of rights!
Oposa v. Factoran (224 SCRA 792, 1993)
HELD: While this right is found under the
Declaration of Principles and State Polivies, it does not
follow that it is less important than any of the c ivil and
political rights under the Bill of Rights. This right belongs
to a different category of rights, since it concerns nothing
less than self preservation and self- perpetuation, the
advance of which may be said to predate all governments
and Constitutions, since they are presumed to exist from
the inception of humankind.
This is self-executing provision! (Oposa v. Factoran) Thus, its
violation gives rise to a cause of action.
MANILA PRINCE HOTEL v. GSIS (GR. 118295, 02 May 1997, 267 SCRA
402)
FACTS:
The Manila Hotel, which was previously owned by a US
Corporation, was then owned by GSIS.
Pursuant to the policy of
Privatization, the GSIS held it up for bidding. The Filipino Corporation lost.
However, it offered to match the bid of the winning foreign corporation.
(2) The word patrimony means heritage. Heritage includes not only natural
resources but also our national and cultural heritage. While the Manila Hotel
was not originally Filipino, it has become truly Filipino, with its own history. It
is a mute witness to our history.
49
2.
2.
A:
2.
3.
50
Definitions:
SALIENT POINTS
1.
51
5.
Q:
A:
NO!
Art. XII, Sec 2. All lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential
energy, fisheries, forest or timber, wildlife, flora and fauna and other
natural resources are owned by the State
ELECTION LAW
Significant Laws
BP 881 Omnibus Election Code
RA 6646 Electoral Reform Law of 1987
RA 7166
RA9006 Fair Election Act
RA 9189 Absentee Voters Act of 2003
52
NLRC
(1) Pre-election
Miranda v. Abaya
Sec. 26 OEC
COMELEC
Resolution
-Disqualification Cases
Sec. 68 OEC
Sec. 69 OEC (5 days)
PRE-ELECTION STAGE
Sec.
days)
Registration of Voters
Q:
A:
Q:
VOTERS QUALIFICATIONS
A:
MACALINTAL v. COMELEC
78
OEC
(25
(4) resident of the Philippines for at least one year and of the place wherein
they propose to vote for at least six months immediately preceding the
elections
Election Period: 90 days before the day of the election and shall end 30 days
thereafter
Section 8, BP 881
-Registration
Art. V. Sec 1
-Filing of Certificate of
Candidacy
Sec. 79(A) OEC
-Political Parties
Art. IX-C, Sec 2(5)
-Substitution
Candidates
Sec. 73 OEC
Monsale v. Nico
Sec. 66 OEC
PNOC-EDC
-Campaign Period
Sec. 6 OEC
Sec. 4 RA 7166
Mitmug
COMELEC
of
v.
Sec. 77 OEC
Sec. 12 RA 9006
v.
Failure of Elections
Pre-Proclamation
Sec.
Election Protest
Counter protest
241,242,243
53
OEC
Kho v. COMELEC
Effects
Disqualification
of
Quo Warranto
Effect of Death
De Castro v. COMELEC
Sec. 6, RA 7166
Santiago v. FVR
Guerrero
COMELEC
v.
Loong
COMELEC
v.
Salcedo
COMELEC
v.
Tecson
COMELEC
v.
A:
A:
COMELEC in accordance with Article IX-C, Sec. 2(5). It is the
registration with COMELEC that vests personality to an organization as a
political party.
Art. IX-C, Sec. 2(5) ORGANIZATIONS THAT MAY NOT BE REGISTERED
AS POLITICAL PARTIES
(1) religious denominations and sects
(2) those which seek to achieve their goals through violence or
unlawful means
(3) those which refuse to uphold the Constitution
(4) those which are supported by any foreign government
Art. IX-C, Sec. 2(5) Par. 2 Financial contributions from foreign
governments and their agencies to political parties, organization,
coalitions, or candidates related to elections constitute interference
in national affairs, and when accepted, shall be an additional
ground for the cancellation of their registration with the
Commission, in addition to their penalties that may be prescribed
by law.
54
A:
CAMPAIGN PERIOD
- duration usually shorter
- depends on the office aspired for
-usually starts after the last day of filing of the certificate of candidacy and
ends one day before elections.
ELECTION CAMPAIGN
PERIOD
Sec. 73, 1st sentence, OEC No person shall be eligible for any elective
public office unless he files a sworn certificate of candidacy within the period
fixed herein xxx
The certificate of candidacy must be filed within the period prescribed by
law.
Late filing not allowed
rd
Sec. 73, 3 sentence, OEC No person shall be eligible for more than one
office to be filled in the same election, and if he files his certificate of
candidacy for more than one office, he shall not be eligible for any of them
xxx
The certificate of candidacy must be filed for only one office in an election
55
If a candidate files his certificate of candidacy for more than one office, he
shall not be eligible for any of them.
PNOC-EDC v. NLRC
HELD: The OEC does not distinguish between employees of GOCCs which
have original charters and those that do not have one.
WITHDRAWAL
Q:
A:
Yes. A person who has filed a certificate of candidacy may, prior to
the election, withdraw the same by submitting to the office concerned a
nd
written declaration under oath. (Sec. 73, 2 sentence, OEC)
MONSALE v. NICO
On the last day of filing of certificate of candidacy. March 31, Jose Monsale
withdrew his certificate of candidacy. April 1, campaign started. On April 2,
he wanted to run again so he filed a written declaration withdrawing his
withdrawal.
HELD: The withdrawal of the withdrawal of the certificate of candidacy
made after the last day of filing is considered as filing of a new certificate of
candidacy. Hence, it was not allowed since it was filed out of time.
Elective Officials
Sec. 67, OEC Candidates holding elective office xxx has already been
repealed by the Repealing Clause of the Fair Election Act under Sec. 14, RA
9006 Repealing Clause. Sec 67 and 85 0f the EOC xxx are hereby
repealed.
Q:
A:
Secton 38, COMELEC Resolution 7767 (30 Nov 2006),
Implementing Rules of the Fair Election Act Effect of Filing Certificate of
Candidacy of Elective Officials Any elective official, whether national or
local, who has filed a certificate of candidacy for the same or other office
shall not be considered resigned from his office.
Q:
A:
NO! The appointive official is ipso facto resigned. Ipso facto means
no need to resign.
Q:
A:
HELD: The provision of the Fair Election Act (RA 9006) to the extent that it
repealed Sec.67 of OEC is constitutional.
Q:
Vice-governor filed a certificate of candidacy for governor. What is
the effect?
A:
He is NOT ipso facto considered resigned. Sec. 67 OEC has been
repealed by the FAIR ELECTION ACT (RA 9006). Any elective official,
national or local shall not be considered as resigned from their elective
office.
SUBSTITUTION OF CANDIDATES
Q:
A:
A:
Substitution can only take place on the first day of campaign period
until NOT later than mid-day of election day.
Q:
A:
Q:
A:
MIRANDA v. ABAYA
FACTS: In the 1998 election, mayor Miranda of Isabela, already served 8
consecutive terms, yet he still filed a certificate of candidacy. As a result,
Abaya filed a disqualification case. COMELEC then disqualified Miranda
and cancelled his certificate of candidacy. The son of Miranda, Joel, upon
nomination of their political party, filed a certificate as a substitute. Joel
Miranda won.
HELD: There was no valid substitution. COMELEC did not only disqualify
Miranda but also cancelled his certificate of candidacy. Therefore, he
cannot be validly substituted. It is as if he was not a candidate.
Even on the most basic and fundamental principles, it is already
understood that the concept of a substitute presupposes the existence of the
person to be substituted, for how can a person take the place of somebody
who does not exist or who never was. The court has no other choice but to
rule that in all instances enumerated in Sec.77 of the OEC, the existence of
a valid certificate of candidacy seasonably filed is a requisite sine quo non.
All told, a disqualified candidate may only be substituted if he had a
valid certificate of candidacy in the first place because if the disqualified
candidate did not have a valid and seasonably filed COC, he is and was not
a candidate at all. If a person was not a candidate, he cannot be substituted
under Sec. 77 of the OEC.
The purpose of the law in requiring the filing of the COC and in fixing the
time limit therefore are:
(a) To enable the voters to know at least 60 days before the regular
election, the candidates among whom they are to make the choice
and
Yes! As a general rule, under RA 9006, Sec. 12, the same will be
considered as stray votes but will not invalidate the whole ballot.
Exception is when the substitute carries the same family name, the said
provision will not apply.
A:
No. The certificate of candidacy was filed long after the last day of
filing (Sec. 73, OEC)
57
Q:
Since there was no valid substitution, should the candidate who
obtained the second highest vote be proclaimed?
A:
No. Under the doctrine on the rejection of second placer, the
second placer is just like that second placer. He was not the choice of the
electorate. The wreath (crown) of victory cannot be transferred to the
repudiated loser. (Cayat v. COMELEC citing Butch Aquino v. COMELEC
and Sunga v. COMELEC)
Q:
A:
LABO DOCTRINE
The thrust is what to do with the votes cast for a disqualified candidate.
Should they be considered as stray votes?
SC:
No! That would disenfranchise the majority. The votes cast for the
disqualified are not stray votes they are valid votes only that the candidate
was later on found to be disqualified.
It would have been different if his disqualification was so apparent,
so notorious, so much so that the people, notwithstanding that they knew
him to be disqualified, they still voted for him in which case the votes cast for
him shall be considered as protest votes. Protest votes are considered as
stray votes. But not in this case, where the people of Baguio voted for Labo
only to find out that he is disqualified.
You cannot apply Labo Doctrine in Party-List because of Section 10, RA
7941
CAYAT v. COMELEC
FACTS: Rev. Fr. Nardo Cayat ran for Mayor. Palileng, his opponent, found
out that Cayat, before the elections, was previously convicted of acts of
lasciviousness although he was granted probation. His candidacy was then
questioned in a disqualification case invoking Section 40 pf the LGC.
(Disqualification The following persons are disqualified from running for
any elective local position: (a) those sentenced by final judgment for an
offense involving moral turpitude or for an offense punishable by one (1)
year or more of imprisonment, within (2) years after serving sentence ; xxx) .
COMELEC disqualified Cayat on the ground of conviction of an offense
involving moral turpitude. However, Cayat alleged that he did not receive a
copy of the judgment. That decision disqualifying Cayat became final even 2
weeks before the election. Still, Cayat won in the election. Palileng claimed
that since Cayat is disqualified, he should be the one proclaimed.
HELD: The Court agreed and did not apply the doctrine of the rejection of
the second placer. The one who obtained the second highest number of
votes was the one actually proclaimed. This is very peculiar because here,
there is only one candidate. Since Cayat was disqualified, it is as if he is not
a candidate. Hence, there is no second placer here.
The doctrine of the rejection of second placer is not applicable because of
Sec.6 of RA 6646
Also, under Section 6, RA 6646 (Electoral Reform Law of 1987 Effect of
st
disqualification) which contemplates of 2 situations, it is the 1 sentence
which applies to Cayat. He was declared by final judgment, to be
disqualified because the decision attained finality even 2 weeks before the
election. He shall therefore not be voted for and the votes cast for him shall
not be counted.
The second sentence contemplates that there was a disqualification case
filed before the COMELEC but for whatever reason, COMELEC was not
able to render a decision before the election and such candidate won in the
election, in which case, the court or Commission shall continue with the trial
and hearing of the election, inquiry or protest.
58
HELD: No. The petition was filed out of time. The disqualification case
under Sec. 78 should be filed within 25 days from the date the candidate
who made the misrepresentation filed his certificate of candidacy, not on the
date of discovery. The 25-day period is mandatory.
Q:
A:
SALCEDO v. COMLELEC
(2)
Section 69, OEC Nuisance candidates. - The Commission may
motu proprio or upon a verified petition of an interested party, refuse to give
due course to or cancel a certificate of candidacy if the candidate is a
nuisance candidate.
Q:
TECSON v. COMELEC
A:
A nuisance candidate is a candidate who has no bona fide intention
to run, his purpose is merely to put the election process in mockery or
disrepute or to cause confusion among the voters by the similarity of the
names of the registered candidates or by other circumstances or acts
intended to prevent a faithful determination of the true will of the electorate.
(Bautista v. COMELEC)
Within twenty-five (25) days from the time the candidate filed his certificate
of candidacy/ from the date the candidate alleged to have made
misrepresentation in the COC filed.
There was yet no proclamation, hence not yet a member of the HOR.
COMELEC still has jurisdictom
LOONG v. COMELEC
GUERRERO v. COMELEC
Farias was elected, proclaimed and took his oath. The COMELEC ousted
itself of jurisdiction. SC upheld COMELEC. It was recognition of the power
of the HRET and the constitutional boundaries.
59
(1)COMELEC
(2)Treasurer
(3)Municipal Judge
The idea is that in case of lost return, they can refer to the other copies.
Number of votes written in words and number
POST ELECTION
PRE-PROCLAMATION CASE
Q:
A:
Pre-proclamation case.
election
Q:
A:
receipt,
custody,
or
Eg. Ballot box switching not proper for pre-proclamation case; does not fall
under any of the instances under Art. 243 of OEC.
Once a candidate has been proclaimed, the pending pre-proclamation case
should be dismissed. After all, the issues pending in the pre-proclamation
case will also be raised in the subsequent Election Protest or Quo Warranto
case filed.
DOCTRINE OF
DONCTRINE
STATISTICAL
IMPROBABILITY
LAGUMBAY
60
polling place has not been held on the date fixed, or had been suspended
before the hour fixed by law for the closing of the voting, or after the voting
and during the preparation and the transmission of the election returns or in
the custody or canvass thereof, such election results in a failure to elect, and
in any of such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a verified petition
by any interested party and after due notice and hearing, call for the holding
or continuation of the election not held, suspended or which resulted in a
failure to elect 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 thirty
days after the cessation of the cause of such postponement or suspension
of the election or failure to elect.
GROUNDS FOR FAILURE OF ELECTION
(1)
(2)
(3)
(4)
(5)
SITUATIONS
(1) No election
The election in any polling place has not been held on the date
fixed on account of FVTFA
(1) President
(2) Vice-President
(3) Senators
(4) House of Representatives
There can be no pre-proclamation case on matters relating to
transmission, custody of election returns; the only issue that can be
raised illegality of the composition or proceeding of the Board of
Canvassers
Force majeure
Violence
Terrorism
Fraud
Analogous Causes
Q:
What are the two (2) conditions that must concur before the
COMELEC can act on a verified petition seeking to declare a failure of
election?
A:
61
Q:
A:
COMELEC EN BANC. The majority of the Commission may grant
the petition and schedule special election in areas affected.
(Section 4, RA 7166 Postponement, Failure of election and
special Elections The postponement, declaration of failure of election and
the calling of special elections as provided in Sec. 5, 6, and 7 of the OEC
shall be decided by the Commission sitting en banc by a majority vote of its
Members. The causes for the declaration of a failure of election may occur
before or after the casting of votes or n the day of the election xxx)
BANAGA v. COMELEC
QUO WARRANTO
PROCLAMATION
Q:
A:
-eg.
Citizenship,
residence,
disloyalty to Republic of the
Philippines
DUMAYAS v. COMELEC
Election Protest is a contest between the defeated and winning candidates
on the ground of frauds or irregularities in the casting and counting of the
ballots or in the preparation of returns. It resolves the question of who
62
actually obtained the plurality of the legal votes and therefore is entitled to
hold the office.
Quo warranto raises in issue the disloyalty or ineligibility of the winning
candidate. It is a proceeding to unseat the respondent from office but not
necessarily to install the petitioner in his place.
JURISDICTION
(1) President/ VP
- SC en banc , acting
as Presidential
Electoral Tribunal
(Art. VII, Sec. 4[7])
(Appellate)
(Art. IX-C, Sec. 2[2])
- EP
30 days from
proclamation
-MTC (Original)
(trial courts of limited
jurisdiction)
-COMELEC
(Appellate)
QW
10 days from
proclamation
sole judge
REYES v. RTC OF ORIENTAL MINDORO
(2) Members
Congress
of
the
-EP or QW
-Senators
-Senate
Tribunal
Electoral
-Congressmen
- 15 days after
proclamation
- 10 days after
proclamation
No appeal
Or Rule 65 (Special
Civil Action
on
Certiorari)
(3) Governor/
Governor
Vice-
-COMELEC (Original)
(Art. IX-C, Sec. 2[2])
-SC (Appellate)
-10
days
proclamation
from
From the decision of the COMELEC, file first a motion for reconsideration. It
is only the decision of COMELEC EN BANC that is reviewable by the SC.
TECSON v. COMELEC
Before the election, a petition was filed on the ground of material
misrepresentation. COMELEC dismissed the petition. TECSON et. al.
argued tha the jurisdiction with the SC.
HELD: Contest refers to post-election scenario and not pre-election
scenario. It shall consist of either an election protest or quo warranto which
are two (2) distinct remedies but with one objective, to unseat winning
candidate. SC has jurisdiction over election contests of President/VicePresident and NOT candidates. It does NOT include a petition qualifying a
candidate for President/Vice-President.
Sc is the sole judge for
President/Vice-President and NOT over candidates for President/VicePresident. Hence, the action was dismissed for lack of jurisdiction and
prematurity.
election returns refers to election protest
(4)
Regional/
Provincial/City
-COMELEC (Original)
-SC (Appellate)
GALIDO v. COMELEC
-RTC (Original)
63
Q:
Q:
A:
COMELEC not the fiscal unless the latter is deputized by the
COMELEC
A:
The death of the protestant neither constitutes a ground for the
dismissal of the contest not ousts the trial court of its jurisdiction to decide
the election contest. An election protest involves both the private interests of
the rival candidates and the public interest in the final determination of the
real choice of the electorate, and for this reason, an election contest
necessarily survives the death of the protestant or the protestee. But while
the right to public office is personal and exclusive to the public officer, an
election protest ins not purely personal and exclusive to the protestant or to
the protestee such that after the death of either would oust the court of all
authority to continue the protest proceedings. An election contest, after all,
involves not merely conflicting private aspirations but is imbued with
paramount public interests. (DE CASTRO v. COMELEC)
COUNTER-PROTEST available to a winning candidate if his election is
protested.
A remedy available to a duly proclaimed winner in order to protect ones
lead. Allege also the precinct where your opponent cheated.
KHO v. COMELEC
Counter protest must be filed within 5 days from receipt of the copy of the
protest. The period is not only mandatory but also jurisdictional. It partakes
the nature of a counterclaim. So that the court is ousted of jurisdiction to
entertain a counter protest belatedly filed.
If a counter protest was belatedly filed, but was erroneously admitted, the
remedy is to file a motion to expunge the counter protest from the records. If
not expunged from the record, file a petition for certiorari under Rule 65.
ELECTION OFFENSE
Q:
A:
Q:
A:
INCLUSION/EXCLUSION PROCEEDINGS
- within the jurisdiction of MTC appealable to RTC
-RTC decision is not appealable
WHEN ELECTION PROTEST BECOMES MOOT
Defensor Santiago filed an Election Protest. Subsequently, she ran for
Senator and won. She abandoned her protest when she ran for an office
different frim that of the President.
RULES ON APPRECIATION OF BALLOTS
(1) GENERAL RULE After the elections, the liberal interpretation rule
shall be applied. IN CASE OF DOUBT, the rule in favor of the vote
being valid as to give effect to the will of the electorate shall be
followed.
(2) EQUITY OF INCUMBENT RULE 2 or more candidates running
for the same office, they bear the same first name, surname or both
and the voter in his ballot wrote only either of the 2, the vote shall
be appreciated in favor of the incumbent. If neither of them is
incumbent, the votes shall be considered stray votes.
(3) IDEM SONANS RULE or SAME SOUNDS RULE If the name of
the candidate is misspelled by the voter, for as long as when it is
pronounced, it sounds like the name of the candidate, the vote is
counted in the latters favor UNLESS it can be considered as
marking, in which case the entire ballot is invalid.
(4) DESCRIPTIO PERSONAE rule is the same in idem sonans rule.
ADMINISTRATIVE LAW
- Promulgated by Pres. Aquino when she still had legislative powers
pursuant to Article XIII, Section 6 (The incumbent President shall continue to
exercise legislative powers until the First Congress is convened).
-took effect in 1989, only after 2 years.
The Code is a general law and incorporates into a unified document the
64
ADMINISTRATIVE AGENCIES
It implements or enforces
But the law may vest the agency quasi-judicial and quasi-legislative
powers.
2. Professor Goodnow
it is that part of public law which fixes the organization of the government
and determines the competence of the authorities who execute the law and
indicates to the individual remedies for the violation of his rights.
2 COMPONENTS:
In both definitions, the focus is on the executive department acting in quasilegislative and quasi-judicial functions.
(2) Various arms through which political authority is made effective in the
Philippines.
65
Cordilleras.
*LGU's are not under the control power of the President. It falls under the
general supervision of the President.
DEPARTMENT
BUREAU
OFFICE
ARTICLE X, Section 4
POWER
OF
GENEREAL
SUPERVISION means to generally
oversee, see to it that the local
governments and their officials perform
their functions in accordance with law
(no more than that)
66
Ex: BSP
GOVERNMENT-OWNED OR CONTROLLED CORPORATION
REGULATORY AGENCY
-
CHARTERED INSTITUTIONS
-
this term includes the state universities and colleges and the
monetary authority of the state. Section 2 [12] Introductory
Provisions, E.O. 292)
They do not fall within the control power of the president over the
departments.
67
power
Delegation of Powers
Conferment of Jurisdiction
QUASI-LEGISLATIVE POWER
QUASI- LEGISLATIVE
QUASI JUDICIAL
ADMINISTRATIVE AGENCY
Administrative Regulations
Q. Other names?
A. (1) Rule-making power of an agency
Legislative
Interpretative
Due Process
Supplemental
Contingent
Contempt Power
Appeals
POWERS AND FUNCTIONS OF ADMINISTRATIVE AGENCIES
Q. Generally, how will you describe the functions of an administrative
agency?
A. The functions of an administrative agency are to enforce, implement,
administer and execute laws.
Q. What kind of function?
A. Executive. These agencies belong to the executive branch. They do not
perform legislative and judicial functions. However, these agencies may
perform quasi-legislative and quasi-judicial functions.
Ex: COMELEC - to administer all laws relative to plebiscite,
referendum, recall
CSC - to administer the Civil Service Law
Note: Not all administrative agencies perform all kind of functions.
Ex: NLRC - exercises in general quasi-judicial function
68
When Article 2 of the New Civil Code refers to laws, these do not
only refer to those enacted by Congress but includes administrative
regulations promulgated by administrative bodies in their quasilegislative functions except those which are merely internal or
interpretative in nature. (Tanada v. Tuvera)
OF
VALID
ADMINISTRATIVE
FIRST REQUISITE: its promulgation must be authorized by the legislature meaning, there is a valid delegation of power.
SECOND REQUISITE: it must be within the scope of authority given by the
legislature.
-
TOLEDO v. COMELEC
Attorney Augusto Toledo, at the time of his appointment was
already 57 years old. Upon discovery, COMELEC nullified his appointment
on the ground that a provision in the Civil Service Rules on Personal Actions
and Policies provides that no person shall be appointed or reinstated in the
service if he is already 57 years old, unless the President of the Philippines,
President of the Senate, Speaker of the House of Representatives or the
Chief Justice of the Supreme Court, as the case may be, determines that he
possesses special qualifications and his services are needed.
SC: The provision on 57 year old person in the Revised Civil Service Rules
under R.A. 2260 cannot be accounted validity. It is entirely a creation of Civil
Service Commission, having no basis in the law itself that it was meant to
implement. The power vested in the Civil Service Commission was to
implement the law or put it into effect, not to add to it, to carry the law into
effect or execution; not to supply perceived omissions in it. By its
administrative regulations, of course, the law itself cannot be extended; said
regulations cannot amend an act of Congress. The Civil Service
Commission is not the Congress. It may not add anything to the Civil Service
Law.
THIRD REQUISITE: it must be promulgated in accordance with the
prescribed procedure.
-
REQUISITES
69
a. PUBLICATION
Elements: CD-DIP
XPNs:
- Every agency shall file with the UP Law Center three (3)
certified copies of every rule adopted by it
it must not
confiscatory
be
unreasonable,
oppressive,
70
SEVILLA VS CA
4. It is not a property.
It is therefore not protected or guaranteed by the due process
clause.
Ex: A is holding public office, Congress decided to abolish it. A cannot
complain that there was a violation of the due process clause if he was not
given an opportunity to be heard, provided that the abolition is done in good
faith.
ABOLITION VS REMOVAL
In abolition, what is abolished is the office itself, while in removal, it
is the occupant that is removed, but the office remains.
Ex: A is holding a public office, he was removed. In this case, A may validly
invoke his security of tenure. He can only be removed for a just and valid
cause and there must be an observance of due process.
PUBLIC OFFICER
Who is a public officer?
A public office is one who holds a public office.
Any person, who by direct provision of law, popular election of by
appointment of competent authority, shall take part in the performance of
public function on the Government of the Philippines or shall perform in said
Govt or any of its branches public duties as employer, agent, subordinate,
or official of any rank or class, shall be deemed to be a public officer.
May a notary public be considered as a public officer?
Yes
SELECTION
How is public officer chosen?
2 ways:
1. Election
2. Appointment
71
LUEGO DOCTRINE:
This is a political question involving consideration of wisdom which
only the appointing authority may determine. For as long as the appointee
has the minimum requirements, the CSC and the SC are powerless to
render that a better one is more qualified.
REMONTE VS CSC:
The head of an agency who is the appointing power is the one who
is most knowledgeable to decide who can best perform the function of an
office.
FLORES VS DRILON
When the US-Phils treaty expired, Congress enacted RA 7227,
creating the SBMA. The Charter provided that for the first year of operation,
the President shall appoint the Mayor of Olongapo City as head chairman
and CEO of SBMA. Thus, then Mayor Gordon assumed the positions.
SC: The Charter violates:
1. Art IX-B, Section 7, part 1:
No elective official shall be eligible for appointment or
designation in any capacity to any public office or position during his tenure.
This prohibits elective officers from being appointed or designated to any
public office. The only exception is when the public office is to be held in exofficio capacity.
2. Doctrine of Separation of Powers
Congress encroached on the power of the President to
appoint. The President was not given an option at all. The Appointment
was limited to the Mayor of Olongapo. The heart or core of appointment is
the power to choose. Also, the nature of appointment is discretionary, not a
ministerial act.
Hence, when the Congress clothes the President with the power to appoint
an officer, it cannot at the same time limit the choice of the President to only
72
4. There is no legal fiat that a vacancy must be filled only by promotion, the
appointing authority is given wide discretion to fill a vacancy from among
several alternatives provided by law.
2. One who is illegally dismissed from office is, by fiction of law, deemed not
to have vacated his office. His security of tenure did not attach.
QUALIFICATION TO PUBLIC OFFICE
ABILA VS CSC
1. Art. 7, sec. 5 before they enter on the execution of their office, the
President, the Vice President or the Acting President shall take the following
oath or affirmation XXX.
PRINCIPLE OF VACANCY
Q: Jose, an employee working for ten years already, was surprised to learn
that Pedro replaced him. Jose was removed. But the CSC ordered the
reinstatement of Jose which became final. Can Pedro validly complain that
there was a violation of security of tenure?
A: No. This is because there was no vacancy, hence security of tenure did
not attach.
2 PRINCIPLIES:
1. A person no matter how qualified cannot be appointed to an office which
is not vacant.
2. Art IX-B, Sec. 4 All public officers and employees shall take an oath or
affirmation to uphold and defend the Constitution.
3. Art. XV, Sec. 5, par. 1 All members of the armed forces shall take an
oath or affirmation to uphold and defend the Constitution.
Q: A public officer was appointed/elected. Then he assumed the office but
failed to take an oath. He nonetheless preformed his duties. Are his acts
valid?
A: Yes, insofar only as third persons are concerned and the general public
relied on the said acts. He is a de facto officer.
73
QUALIFICATION AS AN ENDOWMENT
De Facto Officer One who is in actual possession but only has a colorable
title. His title is imperfect.
His acts are valid insofar only as third persons are concerned and the
general public relied on the said acts.
His title may only be questioned directly in a quo warranto proceedings
Intruder/Usurper No Title but in actual possession
His acts are entirely void
His acts may be questioned collaterally or directly.
Q: Is a De Facto Officer entitled to salary?
A: As a rule, No. This is because he is not allowed to benefit from his acts.
Otherwise it will encourage people to usurp other office. When he assumes
office knowing that his title is imperfect, he runs the risk of not receiving a
salary that attaches to the office.
EXCEPTIONS:
1. There is no de jure officer claiming for the salary OR
2. Assumption was made in good faith.
FLORES VS DRILON
SC: Gordon should not be made to reimburse for such emoluments.
Otherwise the govt will be unjustly enriched by his services. Gordon was a
de facto officer.
Prescriptive Period to attack a colorable title:
-
1 year from the disposition from office. After 1 year, the de facto
officer will ripen into a de jure one.
it is the domicile of the childs parents and not necessarily the place
of birth.
Domicile of Choice
-
2. Color of title.
74
manifested by some act or acts independent of and done prior to filing his
candidacy for elective office in this country. Without such waiver, he was
disqualified to run for any elective office.
The fact was that he is a green cardholder and has acquired the
right to reside in other country. The renunciation of the green card requires
a separate act; the filing of the certificate of candidacy is not renunciation.
What is involved in this case is not citizenship but rather permanent
residency in another country.
SC: With the death of her husband, her adoption of the San Juan residency
is lost.
c). age
--must be possessed on the day of the election
d). education
--a qualification under Civil Service Law
--true only to appointive officials, in case of elective official, minimum
requirements are that he must be able to read and write
e). civil service eligibility
Religious Affiliations
--cannot be a valid disqualification to hold public office
--No religious test shall be required for the exercise of civil or political rights
Political Affiliation
G.R. Not a valid qualification
Xpn: Can be a valid qualification under:
1. Party-list system
2. Membership in the Commission on Appointments
3. In case of permanent vacancies in the Sanggunian
75
DISQUALIFICATIONS:
SC: No. Fugitive from justice applies not only to those convicted by final
judgment and who absconds to evade punishment BUT also to one, where a
valid criminal information is already filed and he absconded to evade
jurisdiction.
RODRIGUEZ VS COMELEC
-partial disqualification
Q: What offenses?
A: Those sentenced by final judgment
the
the
the
the
1. Moral turpitude
76
SC: Borja is qualified. The term limit for elective local officials must be
taken to refer to the right to be elected as well as the right to serve in the
same elective position. Consequently, it is not enough that an individual has
served three consecutive terms in an elective local office, he must also have
been elected to the same position for the same number of times before the
disqualification can apply.
TWO POLICIES EMBODIED HERE:
1. To prevent the establishment of political dynasties
2. To enhance the freedom of choice of the people
TWO CONDITIONS FOR THE LIMITATION TO APPLY (both must
concur):
1. The local official must be elected for three consecutive terms for the
same position.
2. He has fully served the 3 consecutive terms.
If resigned: voluntary renunciation, not considered as an interruption from
office, limitation will apply
If suspended: interruption from office involuntary renunciation
Q: Mayor was elected in 1988. He ran and won again on 1992 and 1995
election. But there was an election protest regarding the 1995 election. On
March 1998, he was removed because of a COMELEC decision. Is he
qualified to run in the 1998 election?
A: YES. He was only elected twice since he eventually lost in the election
protest. In 1995, he is merely a presumptive winner. There is a failure of
the two conditions (LONZANIDA VS COMELEC).
77
Service of recall term will not constitute one full term in applying the
disqualification.
KINDS OF APPOINTMENTS
1. Permanent extended to one who possesses all the qualifications
including civil service eligibility.
2. Temporary - extended to one who possesses all the qualifications but
without the civil service eligibility.
The law requires publication of all vacant positions in the government. This
is mandatory so that all eligible can apply.
Positions that need not be published include PRIMARILY CONFIDENTIAL
POSITIONS, which are co-terminus with the appointing authority.
Duration of Temporary Appointment
-
one year
78
BAR Question:
What are the characteristics pf career positions as well as non-career
positions?
1. Career
A: NO! They may possess technical skills or training but not in the supreme
or superior degree, hence non-career.
PRIMARILY CONFIDENTIAL POSITIONS
Q: What are their classifications?
Q:
How do you classify position of members of the Sangguniang
Panlalawigan?
A: Non-career. It is an elective office.
79
PROXIMITY RULE
Secretary/head of bureau-CSC-CA
CSCCA
CSC VS SALAS
Salas was an employee of PAGCOR, a GOCC with an original
charter. He was a supervisor of the dealers in the casino. He was
suspected in engaging in proxy betting. There was a discreet investigation
conducted of his act. He was later removed on the ground of loss of trust
and confidence. His defense was that he cannot be removed from office on
the ground that under the Constitution, no employee of the Civil Service shall
be removed except for causes provided by law. On the other hand,
PAGCOR contends that under its charter, all positions are primarily
confidential and hence may be removed in the ground of loss of confidence.
CSC affirmed his dismissal. On appeal, CA reversed and applied the
proximity rule.
SC: Applying the proximity rule, Salas cannot be removed on the said
ground. The position of Salas as a supervisor is too remote from the
appointing authority, the Chairman. There are so many intermediaries
between them.
The occupant of a particular position could be considered a confidential
employee if the predominant reason why he was chosen by the appointing
authority was the latters belief that he can share a close intimacy with the
occupant which ensures freedom of discussion without fear of
embarrassment or misgivings of possible betrayal of personal trust or
confidential matters of the State.
Art. IX-B sec. 2 par. 2 Appointment in the Civil Service shall be made only
according to merit and fitness to be determined as far as practicable and
except to positions which are policy-determining, primarily confidential or
highly technical, by competitive examination. (It has nothing to do with the
classification of his position as career on non-career).
80
SC: Under the Ombudsman Act, only the following cases are final and
executory:
PAREDES VS CSC
Appeal is not a constitutional right but merely a statutory right. A
reading of the Civil Service Law will tend to show that appeal is available
only to the party adversely affected by the decision. A further reading of the
law, the party adversely affected by the decision is the respondent who was
found guilty. In fact, even if he was found guilty but the penalty was
suspension or fine for not more than 30 days, appeal cannot be made
because the decision in such a case becomes final and executory. With
more reason that if he is exonerated, no more appeal. In an administrative
case, the real offended party is the government; the complainant is a mere
complaining witness so that he has no personality to pursue the appeal.
Hence, party adversely affected was limited to the defendant.
CSC VS DACOYCOY
Dacoycoy was the head of a government vocational school in
Samar. Two of his sons were extended permanent appointment under his
administrative supervision although he was not the one who neither
appointed nor recommended them. A case was filed against him for
violation of the law on nepotism. CSC found him guilty. The penalty was
dismissal.
As the party adversely affected, he appealed to CA. CA
exonerated him. If we will follow the Paredes ruling, there is no more appeal
and the complainant cannot appeal because is merely a complaining
witness.
SC: CSC can appeal because it was their decision that was reversed by the
CA. To this extent only, CSC became the party adversely affected. By this
ruling, the Paredes Doctrine, up to this extent, is abandoned. The phrase
party adversely affected refers to the government employee against whom
the administrative case is filed for the purpose of a disciplinary action which
may take the form of suspension, demotion in rank or salary, etc. and not
included are the cases where the penalty imposed is suspension for not
more than 30 days or fine in an amount not exceeding 30 days salary.
(PAREDES VS CSC)
PREVENTIVE SUSPENSION (pending investigation)
Nature: Not a penalty. It is imposed while the case is being investigated or
pending appeal. It should be distinguished from dismissal or suspension
81
BEJA, SR VS CA
A. ADMINISTRATIVE CASE
GLORIA VS CA
Preventive suspension pending investigation is not a penalty. It is
simply a means of preventing the latter from interfering or intimidating the
witnesses against him.
YABOT VS OMBUDSMAN VASQUEZ
An administrative case was filed against Vice-Mayor Yabot by an
American doctor. He was placed under preventive suspension for 60 days.
Yabot contends that he was already suspended and hence, can no longer
be suspended again.
SC: The first suspension that was imposed was not the penalty. It is merely
a preventive suspension. The second suspension was the penalty. The two
suspensions are of different nature. The service of preventive suspension
cannot be credited with the service of suspension as penalty.
LAYNO VS SANDIGANBAYAN
If the preventive suspension, however, becomes indefinite,
so much that the term of the elective official is about to expire and his
suspension is not yet lifted, in effect he was being penalized and considering
that after the investigation is not yet terminated, to that extent, there was a
denial of due process, hence must be nullified.
Also, the right to due
process of the people who voted for him is likewise violated.
A preventive suspension that lasted for 5 years becomes an
indefinite suspension and therefore violative of due process.
A preventive suspension is not an action by itself but merely an
incident to an action.
Period - 90 days
Case Gloria vs CA
2. Local Government Code
Period 60 days for appointive officials
3. Ombudsman Act
Period 6 months
Case Hagad vs Gonzales
B. CRIMINAL CASE
1. Anti-Graft and Corrupt Practices Act
Period 90 days applying by analogy
PREVENTIVE SUSPENSION IN AN ADMINISTRATIVE CASE
I. CIVIL SERVICE LAW
If one is charged administratively, while pending investigation, he
can be preventively suspended for a period of 90 days.
If after the lapse of the 90 day period and the investigation has not
been terminated, there will be an automatic reinstatement.
However if one contributed to the delay of the proceedings or has
filed a petition for certiorari, the period of the delay or certiorari will not
be included in the computation of the 90 day period of preventive
suspension.
Q: Who shall impose the preventive suspension?
A: The CHIEF of the office, agency or bureau shall be the disciplinary
authority.
GLORIA VS CA
During the teachers strike, the public school teachers in this case
did not report for work. Accordingly, they were administratively charged
and placed under preventive suspension. The investigation concluded
82
before their 90 day suspension and they were found guilty. On appeal,
Merit Systems and Protection Board, later affirmed by the CSC,
dismissed their claim. Before the CA, they asked that they be paid for
their salaries during their suspension beyond 90 days. This was
granted. Hence, Sec. Gloria questioned this.
SC: The public school teachers are entitled to their salaries computed
from the time of their dismissal or suspension until their actual
reinstatement, for a period of not exceeding 5 years.
There are two kinds of preventive suspension of civil service
employees who are charged with offenses punishable by removal or
suspension:
1. Preventive Suspension pending investigation
2. Preventive suspension pending appeal, if the penalty imposed is
suspension or dismissal and after review the respondent is exonerated
on appeal.
Preventive suspension pending investigation is not a penalty. It is a
measure intended to enable the disciplining authority to investigate
charges against the respondent by preventing the latter from
intimidating or in any way influencing witnesses against him. If the
investigation is not finished and the decision is not rendered within the
period, the suspension will be lifted and the respondent will
automatically be reinstated. If after the investigation, the respondent is
found innocent of the charges and is exonerated, he should be
reinstated. However, no compensation was due for the preventive
suspension pending investigation.
In case of a suspension pending appeal, he is entitled to
compensation for the period of their suspension pending appeal if
eventually he is found innocent. Why? It is actually punitive in
character although it is in effect subsequently considered illegal if
respondent is exonerated and the administrative decision finding him
guilty is reversed. Hence, he should be reinstated with full pay for the
period of the suspension.
SIGNIFICANCE OF THE DIFFERENCE:
Pending Investigation not entitled. Why? Not a penalty but is entitled t
reinstatement.
Pending Appeal if on appeal he is exonerated, he is entitled to full
backwages and reinstatement; it is punitive in character.
83
SC:
the contention is not correct. The amendatory provisions clearly
states that any incumbent public officer against whom any criminal
prosecution under a valid information under RA 3019 or for any offense
involving fraud upon the government or public funds or property whether as
a simple or as a complex offense and in whatever stage or execution and
mode of participation, is pending in court shall be suspended from office.
Thus by the use of the word office the same applies to any office which the
officer charged may be holding and not only the particular office which he
was charged.
*Section 13 RA 3019 does not state that the officer concerned must be
suspended only for the office he was charged.
85
Exception: Elective official can hold other positions/ office in an exofficio capacity. The prohibition extends only to public and not to
private positions. (FLORES vs. DRILON)
2.
SC:
this cannot be allowed. The work of the cabinet members
demands full time
work. Their position is sui generis. Article VII,
section 13 is a new provision. The reason is to avoid what happened in the
Marcos era. It is a special provision which applies to Cabinet
members.
Article IX-B sec. 7 (2) on the other hand is a general provision. Hence, the
EO is unconstitutional.
*see also PUBLIC INTEREST CENTER vs. ELMA June 30, 2006
4.
5.
6.
Law on Nepotism
Under Article VII, Section 13 The President may not appoint his
th
spouse or relatives within the 4 civil degree of consanguinity or
affinity to
a. Member of Constitutional Commission
b. Office of the Ombudsman
c. Secretaries and Undersecretaries
d. Chairman, heads of bureau or offices
Prohibited relationships
rd
87
88
to regulate the practice of law; and 2) the provision violates the equal
protection clause because the law profession was singled out.
SC:
There is no encroachment on the power of the SC to
regulate the practice of law. Section 90 LGC is a reasonable regulation
designed to ensure that there shall be no conflict of interest in the
exercise of his functions as a sanggunian member and his function as a
lawyer.
There is no violation of the equal protection clause. Under
the equal protection clause, not all classifications are invalid. There is a
substantial distinction between the law profession and the other
professions. Of all the professions, it is this profession that is most likely
to affect the area of public service.
Moreover, Section 90 LGC does not discriminate against
lawyers and doctors. It applies to all provincial and municipal officials in
the professions or engaged n any occupation. It explicitly provides that
Sanggunian members may practice their professions, engage in any
occupation, or teach in schools except during session hours. If there are
some prohibitions that apply particularly to lawyers, it is because of all
the professions, the practice of law is more likely than others to relate
to, or affect, the area of public service.
8. SEC. 40. Disqualifications. - The following persons are disqualified
from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence; (b) Those
removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of
allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical cases here or
abroad;
(f) Permanent residents in a foreign country or those who have
acquired the right to reside abroad and continue to avail of the same
right after the effectivity of this Code; and
(g) The insane or feeble-minded.
VACANCIES AND SUCCESSIONS (Section 44-45, LGC)
Section 44, LGC Permanent vacancies in the offices of the
Governor, Vice Governor, Mayor and Vice Mayor. - If a permanent vacancy
occurs in the office of the governor or mayor, the vice governor or vice
mayor concerned shall become the governor or mayor. If a permanent
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
vacancy occurs in the offices of the governor, vice governor, mayor or vice
mayor, the highest ranking sanggunian member shall become the governor,
vice governor, mayor or vice mayor as the case may be. Subsequent
vacancies in the said offices shall be filled automatically by the other
sanggunian members according to their ranking as defined herein.
(b) If a permanent vacancy occurs in the office of the punong
barangay, the highest ranking sangguniang barangay member or in case of
his permanent inability, the second highest ranking sanggunian member
shall become the punong barangay.
(c) A tie between or among the highest ranking sanggunian
members shall be resolved by drawing of lots.
(d) The successors as defined herein shall serve only the unexpired
terms of their predecessors.
For purposes of this Chapter, a permanent vacancy arises when an
elective local official fills a higher vacant office, refuse to assume office, fails
to qualify, dies, is removed from office, voluntarily resigns, or is otherwise
permanently incapacitated to discharge the functions of his office.
For purposes of succession as provided in this chapter, ranking in
the sanggunian shall be determined on the basis of the proportion of votes
obtained by each winning candidate to the total number of registered voters
in each district in the immediately preceding local election.
*In case of permanent vacancy (section 44) automatic succession applies,
so in case of death of mayor, the vice mayor succeeds, in case of the vice
mayor, the highest ranking sangguniang member succeeds.
Illustration:
District I (10,000)
1.
Pedro
2.
Mario
3.
Jose
District II (8,000)
5,000
4,500
5,000
89
Governor
Sangguniang PAnglungsod in component cities
(2) Sangguniang Panglungsod of Highly Urbanized Cities
Sangguniang Panglungsod of Independent Component
President
Sangguniang Panlalawigan
Cities
*If one who will be replaced belongs to a political party, the successor must
come from the same political party.
If he does not belong to a political party then apply Sec. 45(c)
Q: Who shall appoint?
A: Local chief executive upon the recommendation of the sanggunian
concerned.
FARIAS vs. BARBA
The last ranking sanggunian bayan member who did not
belong to any political party resigned. To fill the vacancy, both the mayor and
the governor appointed their own choice.
SC:
Neither of the two appointees should assume position.
Sec 45 (c) LGC must be read together with Sec 45 (a). Since this is a
municipality, the governor should appoint but with the recommendation of
the sanggunian concerned which is the sanggunian bayan where the
vacancy took place.
NAVARRO vs. CA
Composition of the municipal government:
Mayor Lakas
NUCD
Vice Mayor. Lakas
NUCD
st
th
1 to 5 sanggunian member.. Reporma
th
6 Sanggunian Member.. Lakas NUCD
th
7 Sanggunian Member.. Reporma
th
8 Sanggunian Member.. Lakas NUCD
Therefore in the Sanggunian, there were 6 Reporma and 2 Lakas.
The mayor died. The Vice mayor became the Mayor. The last ranking
position became vacant so the governor appointed someone from Reporma.
Lakas protested because the vacancy came from Lakas.
90
SC:
Governor is correct. What is crucial is the interpretation of Sec. 45
(6). The reason behind the right given to the political party to nominate a
replacement is to maintain the party representation as willed by the people in
the election.
With the elevation of Tamayo (Reporma) as the Vice Mayor it
diminished the Repormas representation in the Sanggunian. Hence, the one
appointed should come from Reporma.
SC:
Being the acting governor, he cannot simultaneously exercise the
functions of his office. The power of the vice governor to preside over
sanggunian session is suspended as long as he is the acting governor.
The creation of temporary vacancy in the office of the governor
creates a corresponding vacancy in the office of the vice governor.
Q: Then who will preside in the meantime?
A: Under sec. 49 (b) LGC In the event of the inability of the regular
presiding officer to preside at a sanggunian session, the members present
and constituting a quorum shall elect from among themselves a temporary
presiding officer. He shall certify within ten (10) days from the passage of
ordinances enacted and resolutions adopted by the sanggunian in the
session over which he temporarily presided. Hence, the members present
and constituting a quorum shall elect from themselves the temporary
presiding officer. Do not apply the rule in permanent vacancy.
Q: Who appoints the barangay treasurer, secretary and other appointive
officials of the barangay?
A: Punong barangay appoints barangay secretary, treasurer, and other
appointive official with the approval of the majority of the members of the
sangguniang barangay. (ALGUIZOLA vs. GALLARDO)
The power of appointment is exercised with approval of sanggunian,
therefore in removing or replacing an appointive official, there must also be
approval of the majority of sanggunian barangay members.
Sec. 388, LGC Persons in authority For purposes of the RPC,
the punong barangay, sanggunian barangay members and members of the
lupong tagapamayapa in each barangay shall be deemed as persons in
authority in their jurisdiction, while other barangay officials and members
who may be designated by law or ordinance and charged with the
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
RECALL
approved the petition and assigned a signing day. Angubong went to the SC
alleging grave abuse of discretion.
SC:
The petition for recall signed by only one person is a violation of the
25% statutory requirement. The law is plain and unequivocal as to what
constitutes a recall proceeding.
LIMITATION ON RECALL (SEC.74)
a. An elective official can be subjected to recall only once
b. No recall shall take place within one year from the assumption of
office or one year immediately preceding a regular local election.
PARAS vs. COMELEC
Paras was a punong barangay. There was a petition for recall. The
SK election was scheduled during that year when the petition was filed. The
contention of PAras was that there would be a regular election; hence the
recall cannot push through.
SC:
The term regular local election refers to one where the position of
one sought to be recalled is actually to be contested and filled by the
electorate.
ANGOBUNG vs. COMELEC
The limitation on recall shall not apply if the official sought to be
recalled is a Mayor and the forthcoming election is a barangay election.
CLAUDIO vs. COMELEC
The issue in this case is the interpretation of within one year from
the date of assumption to office. Claudio was elected as Mayor. His term
started 30 June 1998. On 19 May 1999, members of the then Preparatory
Recall Assembly convened on their plans to initiate a petition for recall
against Claudio. On 29 May 1999, majority of the members of the PRA
adopted a resolution calling for the recall of Mayor Claudio. It was submitted
2 July 1999. The Comelec scheduled a special recall election.
SC:
the resolution was validly adopted. The recall refers to the election
itself wherein the voters themselves decide whether or not to retain the
official concerned. It does not refer to the initiation proceedings.
SOCRATES vs. COMELEC
On May 2001, the governor elected was Socrates. 2 July 2002,
members of the Preparatory Recall Assembly adopted a resolution calling
for the recall of Governor Socrates. 24 September 2002 there would be a
recall election. On 15 July 2002, there was a barangay election. Most of the
members who signed the recall resolution lost in the election. Hence, it was
contended that those who signed have no mandates because they lost in the
election.
SC:
The contention is not correct, when the members adopted the
resolution, their term of office have not yet expired. They were still de jure
officers with no legal disqualification to participate.
AFIALDO vs. COMELEC
Miranda was elected Mayor. On the other hand, Navarro was
elected the Vice Mayor. Members of the Preparatory Recall Assembly
adopted a resolution calling for the recall of Vice mayor Navarro. Mayor
Miranda was removed by SC. The Vice mayor assumed office.
SC:
The recall elections become moot and academic. It is clear from
the resolution that they wanted to remove him from being a vice mayor.
AFIALDO vs. COMELEC
Before vice mayor Amelita Navarro assumed mayorship, Joel
Miranda was still mayor. Decision in MIRANDA vs. ABAYA was not yet
promulgated. When she was vice mayor, the members of the PRA of
Santiago City adopted a resolution calling for the recall of vice mayor. This
resolution was submitted to Comelec. A special recall election was then
scheduled. Meanwhile the decision in the Miranda vs. Abaya was
promulgated. Vice mayor Navarro assumed the mayorship upon the removal
of Joel Miranda as mayor. What happens now to the special recall election
for vice mayor?
SC:
it has been rendered moot and academic. It is clear from the
resolution of the members of the preparatory center of Santiago City that
they wanted to recall her as vice-mayor. They got what they wanted. She is
no longer the Vice-mayor. She is now the Mayor.
LOCAL
GOVERNMENT
ADMINISTRATIVE REGIONS
UNITS/
AUTONOMOUS
REGIONS/
ADMINISTRATIVE REGIONS
Mere grouping of provinces for administrative purposes. They are
not considered as political and territorial subdivision. There is a need for a
plebiscite to be a political subdivision.
E.g. Region 1
Q: Who has the power to create administrative regions?
A: It has been traditionally exercised by the President in line with his
supervisory powers over the LGUs.
LIMBORA vs. MARGELIN
Concept of Local Autonomy
Decentralization of Administration
Decentralization of Power
Central government
delegates
administrative power
to local government in
order to broaden the
base
of
the
government.
Abdication of political
power in favor of LGU;
free to chart its own
destiny.
SC:
This cannot be done. The MMDA is not a political unit; not a LGU;
nor a metropolitan political subdivision. The chairman was not elected by the
people. It is the LGU that possesses legislative and police power.
DUAL NATURE OF LGU
1. Body politic
2. Body corporate
DUAL FUNCTION OF LGU
1. Acting as body politic- governmental
2. Acting as a corporate entity representing
proprietary
the
inhabitants-
2.
a. income
b. population
c. land area
Subject to the approval by a majority of the votes cast in a
plebiscite in the political units directly affected.
3.
-is a law
- temporary
1.
2.
Resolution
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proper subject of
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- for one, the Nurumberg and Tokyo trials after WWII resulted in the
unprecedented spectacle of individual defendants prosecuted for acts
characterized as violations of the laws of war, crimes against
peace, and crimes against humanity.
to eliminate
ICJ
ICC
- it is a separate body.
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Principle of Complementarity
c.) 3
rd
permanent
resources.
or
1) Primary
a) treaties or international conventions
b) international custom
nd
2) Secondary
d) judicial decisions
e) teachings of authoritative publicists of various
nations.
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c) Laws of Neutrality govern the relations of third states not parties to the
war with any of the belligerent states. (but the relations of third parties inter
se shall still be governed by the laws of peace)
* Principal legal documents are:
1.) Geneva Convention of 1949 define fundamental rights for
combatants
removed from the fighting due to injury, illness or
capture and for civilians.
a) Geneva Convention for the Amelioration of the
Condition of the
Wounded and Sick in Armed Forces in
the field of August 12, 1949
- first Geneva convention
- applies to armed forces in the field (land)
b) Geneva Convention for the Amelioration of the
Condition of Wounded,
Sick and Shipwrecked Members of
Armed Forces at Sea of Aug 12, 1949
- second Geneva convention
Person in time of
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HRL
conduct
of
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Moslems.
Penniless and caught in the crossfire, Reden, Jolan and
Andy, being retired
generals, offered their services to the Moslems
for a handsome salary, which offer was accepted. When the Serbian
National Guard approached Sarajero, the
Moslem civilian population
spontaneously took up arms to resist the invading
troops. Not finding
time to organize, the Moslems wore armbands to identify
themselves,
vowing to observe the laws and customs of war. The three Filipinos
fought side by side with the Moslems. The Serbs prevailed resulting
in the capture
of Reden, Jolan and Andy, and part of the civilian fighting
force.
1) Are Reden, Jolan and Andy considered combatants thus
entitled to treatment as prisoners of war?
NO. Reden, Jolan and Andy are not combatants because
they are mercenaries. They offered their services to the Moslems for a
handsome salary.
They are soldiers of fortune. They are not
members of the armed forces but took part in the hostilities. They are nonprivileged combatants and are not entitled to treatment as prisoners of war.
2) Are the captured civilians likewise prisoners of war?
YES. The captured civilians are prisoners of war. They fall
under the
category of levee en masse. When the Serbian National
Guard approached Sarjero, the Moslem civilian population spontaneously
took up arms and resist the
invading troops without having time to
organize. The Moslems wore armbands to identify themselves, vowing to
observe the laws and customs of war.
Civilian objects may not be attacked.
-using civilians to shield military targets is prohibited
- it is prohibited for combatants to pose as civilians
- starvation of civilians as a method of combat is prohibited
the
simply
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2) Ministrant
IHL will not apply to international conflict but also to non-international
conflict.
(5.) The Law on Treaties
Jus Cogens Norm
f) piracy
A treaty entered into by two states agreeing to invade another state
would have to be invalidated as it runs in conflict with a jus cogens
norm
the prohibition against the use of force under the UN charter.
Obligation Erga Omnes
- it is an obligation of every state towards the international community as a
whole.
All states have a legal interest for its compliance, and thus all states are
entitled to invoke responsibility for breach of such an obligation.
* Examples of obligations erga omnes
- outlawing acts of aggression
- outlawing acts of genocide
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- the role of the senate, however, is only limited to giving or withholding its
consent, or concurrence to the ratification.
4) unless otherwise stipulated in the treaty, the offense must have been
committed in the territory of the requesting state.
- this is the formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representatives.
4) Exchange of the Instrument- signifies the effectivity of the treaty unless
a different date has been agreed upon by the parties
- it is not even required that the designation of the offense be the same in
both jurisdictions.
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investigation, the due process safeguards in the latter may not necessarily
apply during the initial evaluation stage in an extradition proceeding.
- this we hold for the procedural due process required by a given
set of circumstances must begin with a determination of the precise nature
of the government function involved as well as the private interest that has
been affected by governmental action.
- the concept of due process is flexible for not all situations calling
for procedural safeguards call for the same kind of procedure.
SC:
(decided January 18, 2000 by a 9-6 vote) Indeed there
was denial of due process. How can you expect him to prepare for his
defense if he will not be furnished copies of the documents he was
requesting. An extradition proceeding is similar to a criminal proceeding.
Likewise, the initial evaluation stage in an extradition proceeding is also
similar to a preliminary investigation in a criminal
proceeding.
* Strong dissenting opinion
- this is no longer a case of due process; it is now a case of overdue process
Extradition
SC:
(decided October 17, 2000 by a 9-6 vote) reconsidered;
controlling
doctrine!!!
- an extradition proceeding is sui generis
- it is not a criminal proceeding which will call into operation all the
rights of an accused as guaranteed by the Bill of Rights.
- presumption of innocence does not apply
- as an extradition proceeding is not criminal in character and the
evaluation stage in an extradition proceeding is not akin to a preliminary
the
issue
* Distinctions between extradition proceedings and criminal
proceedings
time
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- the state may be able to show the substantive evil which it is duty
bound to suppress or prevent but such substantive evil is not of a
clear and present danger type.
* BP 880 Public Assembly Act
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- under section 6 of PD 1069, once a petition for extradition is filed with the
RTC, the judge will immediately issue a warrant of arrest.
- the word used was immediately
- this word would be rendered nugatory if the issuance of warrant of arrest is
set for hearing.
- arrest subsequent to a hearing is no longer immediate.
- the law could not have contemplated the word immediately as a mere
superfluity but as a means of inferring a sense of urgency.
b) second, constitutional basis
- two equally desirable interest of society are colliding but these interests are
equally desirable to the society.
- under section 2 of the Bill of Rights, prior notice and hearing was never a
requirement for the issuance of a warrant of arrest
- on the contrary, the provision says after examination under oath of the
complainant and the witnesses he may produce, not of the
extraditee.
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- under the pacta sunt servanda rule, a state may not advance the
provisions of its own Constitution, as well as that of its laws in order not to
comply with its obligations under a treaty.
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