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Introduction
The thesis of this first chapter is what is the relationship of the people
with the State?
The thesis will be answered by the following applicable laws:
(1) PRINCIPLES and STATE POLICIES:
(a) Amendment and Revision: article 17 of the 1987 Constitution
EXPROPRIATION
POWER,
PUBLIC
The thesis of this second chapter is what are the two concepts of territory?
The thesis will be answered by the following applicable laws:
(1) Local/Domestic context:
(a) National Territory:
Article 1 of the 1987 Constitution.
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First Type
those questions where through the sovereign capacity of the people.
(1) evardone v. Comelec, loss of confidence is a political question, thus, courts
cannot intervene/intruded.
In a recall, there is a special election to determine if the people in their sovereign
capacity still have confidence on the said local elective public official.
Provisions on Recall, mode of removing a local elective public officer on ground of
loss of confidence. The term of a local elective public officer is 3 years for 3
consecutive terms. If he is a bad local elective official you can remove him even
before the end of his term. Grounds for Recall: Loss of confidence.
Case:
(2)Lawyers League v. Corazon Aquino
Lawyers League through Atty Lozano filed a petition in the SC questioning the
legitimacy of the Cory Aquino government. According to them the people who made
the revolution were not really making a revolution. The SC denied petition, since we
cannot inquire into the people on their motives in going to the rally in EDSA. In
addition, the international community has already recognize the cory government.
Thus, the cory government is considered a de jure government. This is not anymore
subject to judicial review.
Note: in contrast, let us consider the Estrada v. Dissierto case, after Estrada vacated
malacanang, GMA as vice president assumed the presidents office. Estrada
question the legitimacy of the assumption of GMA of the presidency. According to
GMAs lawyers, her assumption in the office is a political question by citing lawyers
league case. The SC did not agree because the lawyers league case is not
applicable because in the latter case, the cory government was a result of a
revolution by direct exercise of the people it is clear that it is clearly outside of
judicial scrutiny. Thus, any government that was defied by a successful revolution
and therefore it goes beyond the constitutional law because the people through
their sovereign capacity took away the 1973 constitution and give a new
constitution which is the 1987 constitution. On the other hand, in EDSA 2, GMA only
assumed office under 1987 constitution because the revolution affected only the
presidency office. In EDSA 1, cory Aquino assumed office because the revolution
affected the whole 1973 constitution by throwing it away and not recognizing it
anymore. The constitutional government once destroyed by the people through
successful revolution then the constitution becomes not existing and therefore a
new government is born and the courts can never question it anymore. In the EDSA
2, there is no new constitution that is form and no new government that is born and
therefore, the court can still intervene. Thus, the invocation of political question
doctrine cannot prevail.
Second Type
Those question where full discretionary authority and power is given to the
legislative and the executive branches.
(1) IBP v. Zamora
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Due to the insurgency problems in Mindanao, there is a fear that there may
be bombings in metro manila. Thus, president Estrada issued letters of
instruction ordering marines to join the PNP to defy the insurgency. This
power that he actually exercised is calling out power as commander of
chief of the armed forces of the philippines under section 18 article 7 of the
1987 constitution.
Note: there are 3 distinct powers under section 18 of article 7 of 1987
constitution (calling out power, martial law power, power to suspend the
privilege of the writ of habeas corpus ). The martial law power and power to
suspend the privilege of the writ of habeas corpus are subject to judicial
review, under section 18,3rd paragraph, article 7 of the 1987 constitution the
SC may review in an appropriate proceeding filed by a citizen the martial
power and the power to suspend the privilege of the writ of habeas corpus.
Since these two powers are direct and actual curtailment and suppression of
individual civil liberties.
However, in this case of IBP v. Zamora, the calling out power of the
president as commander chief of the armed forces of the Philippines, is a
political question by virtue of the full discretionary power vested to the
president by the constitution. Thus, the courts cannot intervene because this
falls under the second type of political question. Courts therefore cannot
issue a TRO to restrain the calling out power. However again! Hehe the court
in this case, said that we can use our expanded judicial power if the calling
out power was exercised in grave abuse of discretion amounting to lack or in
excess of jurisdiction on any part of the branch or instrumentality of the
government.
Thus, the general rule: calling out power is a political question.
The exception rule: in the use of expanded power doctrine but must be
proven by the petitioner that there is really a whimsical and grave abuse of
discretion. The petitioner must show burden of proof that there is whimsical,
unreasonable, despotic exercise of discretion.
(2) Randolph david v. Gloria macapagal arroyo
When president GMA promulgated an order declaring a State of Emergency.
Note: section 23 article 6 of the 1987 constitution, in times of war or
national emergency, may by a law give emergency powers to the president.
This is a delegated power made by congress. Thus, the president cannot
invoke emergency powers without any law.
In this case, there was no law granting emergency powers, and therefore, the
power that GMA invoke is not an emergency power, neither martial law
power. The grounds for martial power or suspend privilege of the writ of
habeas corpus in cases of invasion or rebellion when the public safety
requires it. Within 48 hrs after declaration, the president shall report to
congress and if the latter is not in session, it may call a special session within
24 hrs after such declaration to determine the validity of it. In this case, there
is no invasion nor rebellion. Therefore, it boils down to one power, she
actually invoke calling out power in case of lawlessness, violence and
invasion or rebellion in order to suppress. Thus, apply the IBP v. Zamora
doctrine: where as a rule, calling out power is a political question unless there
has been grave abuse of discretion amounting to lack or in excess of
jurisdiction provided that the petitioner must show burden proof to rebut that
there was really grave abuse of discretion amounting to lack or in excess of
jurisdiction. Thus, in this case, the SC sustain the constitutionality of the
order made by the president. However, the acts committed by the authorities
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(d) the constitutional question must first resolve the constitutional question raised
before going to solve the other issues.
Illustration:
There is this act of this government whether local or national that you want to
oppose. In this case you file the petition to the proper court and the defendant will
be the solicitor general which is the counsel for the government. The defendant
Solicitor General will say the petition is a political question; or he will raise that the
requisites of the judicial review was not complied with. Thus, to sustain your petition
you must overcome and prepare for these defenses. ( for practical consideration )
2.) RULE MAKING POWER
Section 5, paragraph 5 article 8 of the 1987 constitution
Power of the Supreme Court to promulgate rules concerning:
(a) for the protection and enforcement of constitutional rights;
(b) pleadings,
(c) Practice and procedure in all courts;
(d) Admission to practice of law;
(e) IBP;
(f) legal assistance to the underprivileged
note: The Rules of Court was enacted through this constitutional provision of the
Rule Making Power of the courts.
Also, the writ of amparo and writ of habeas data were created by the
supremecourt also through the rule making power. Because of the inadequacy of
writ of habeas corpus since the authorities may by general denial say that they do
not know of any disappearance.
In writ of amparo and habeas corpus, it is protection of the life, to liberty and
security that has been violated or threatened that is involved.
3.) AMENDMENTS OR REVISIONS
Charter Change under article 17
Amendment piecemeal change; Revision overhaul change of the whole
constitution or the substantial change of it.
Tests applied by the Supreme court to know if there is amendment or
revision:
In lambino v. Comelec quantitative tests ( how many provision will be
affected by the proposed change ) qualitative tests ( what kind of change
that is proposed ).
Thus, a change from a presidential form (separation of powers, the
executive department was placed by the people) to parliamentary (union
of the executive branch who is directly accountable to the legislative
department, it is the legislative that placed him there) is a revision.
While, the whole of the provision of the constitution will be affected then it
is a revision.
Two stages in amending and revising the constitution:
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(1) Proposal stage where one proposes for amendment or revisions there
are three ways on how to propose :
(a) Congress may directly propose amendment or revision through a
of all its members. When congress meets in order to propose
amendments they act as a constituent assembly ConAss;
(b) Constitutional Convention ConCon by two ways: congress 2/3
votes of all of its members may call ConCon or by majority vote of
all of its members by submitting the issue to the people on whether
to call ConCon in a plebiscite;
(c) Peoples Initiative PI done through a petition which must be
signed by at least 12% of the registered voters provided that each
legislative district there are at least 3% voters therein shall sign the
petition. Not self executing provision (requires an implementing
law). This is only limited only to proposal for amendment and not
revision.
Note: section 2, 2nd paragraph of article 17 of the 1987 constitution,
the Congress shall provide for the implementing law that will
implement the PI which is initiative and Referendum Act where
in this law there is initiative on the constitution (declared
unconstitutional by case of defensor Santiago v. Comelec thus has
the effect of abrogating the right to propose amendment of
constitution by the people), initiative on statutes, initiative on local
legislation.
(2) Ratification stage with this the entire process is completed. This is
submitted to a plebiscite to ratified by the majority of the people.
4.) ENVIRONMENTAL LAWS
Oposa v. Factoran: petitioners were minors on behalf of the generation and
generations that are yet to be born concept of intergenerational
responsibility this is a class suit. They petition to stop issuing timber
licenses to protect our economic and national resources. The right invoke by
the minors was based on the right of the people to a balance and healthful
ecology under article 2 section 16 of the 1987 constitution. This is a self
executing provision as provided in the case of tano v. Sacrotes.
Note: Bill of Rights: civil and political rights; while Rights of balance and
healthful ecology: self preservation right.
5.) DOCTRINE OF STATE IMMUNITY FROM SUIT
article 16, section 3 of the 1987 constitution
The state may not be sued without its consent.
The state may not be sued without its consent.
Case:
U.S v. Guinto even though that we cannot find the said doctrine in the
constitution, this is actually a generally accepted principle of international
law. Thus, the Philippines adopt the laws of international are automatically
part of our laws therefore we do not need any law to implement it doctrine
of incorporation. Therefore, the doctrine of state immunity which is an
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was driven by the official driver of the said municipality and therefore you
can not invoke article 2180 of the new civil code, because the latter applies
only if the State is acting on its special agent, but in this case he was an
official driver. This dump truck figured a collision with a jeepney and one of
the passenger died. The heirs of the victim filed a case for damages against
the municipality. The latter invoke state immunity. The charter of the
municipality expressly provides that it may sue and be sued. The judge in
this case, proceeded with the trial and rendered the decision holding the
municipality liable for damages for its charter provision that it can be sued.
The case went up to the Supreme Court. The latter said that suability is only
a matter of whether it can be sued. When the state expressly provides that
it can be sued, it merely acknowledges that it can be sued but it may invoke
legal valid defense for avoiding liability. In this case a valid defense that
may be invoke by the municipality is that it is acting in its governmental
function by hauling gravel for the municipality of san Fernando la union, so
this is a clear case of damnum absque injuria meaning damage without
injury.
Thus, although it is true that you can sue a government, it is not necessarily
that it is liable.
Illustration:
If in case a dump truck was hauling a lumber for the public market. The
dump truck hit an person and died. The government has charter that it can
be sued. In this case, the government can be sued. Also, it can be held liable
since this is a business enterprise meaning a non- governmental function.
In the matter of execution to satisfy the judgment against the State:
Let us assume that you can sue the government. And hence, you sued it.
A judgment was ruled in your favour. Meaning the government became
liable.
The award of damages was for 50 million.
You now execute the judgment.
Issue: can you now garnish the government funds? Levy the government
property to satisfy the judgment of 50 million.
Answer: No, to do so will paralyze the operation of the government. Thus,
that will require another law to apportion a certain amount of money for the
satisfaction of the judgment.
What is now the remedy if in case there is no law that allows you to
apportion government funds for the satisfaction of your judgment ruled in
favour for you.
The waiver of the immunity of suit extends only up to the rendition of
judgment, but as to execute the judgment that will require another waiver
which is an enactment of an appropriations bill.
Thus, the remedy is to make a necessary representation in the legislative
branch to appropriate funds for you.
What if the legislative authority refuses to enact that appropriations
measure. Will mandamus lie?
Mandamus is to compel authorities acting under ministerial duty. In this
case, the duty to enact appropriations measure is discretionary. So does this
mean that mandamus cannot prosper? We need to qualify, in this case,
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there was already a judgment which has already attain finality and therefore
this becomes a legal obligation on the part of the government and therefore
must now obey and follow and respect the decision of this courts, thus, what
has been a discretionary power ( power to enact appropriations ) it was
converted to a ministerial duty by virtue of the judgment.
Suit against public officials:
Case:
Lansang v. Court of appeals, the doctrine of state immunity applies
only to the acts done by the acts of the public officials acting under the
governmental capacity since the public official is an agent of the state and
therefore you cannot sue the public official for acts done in the performance
of its public duties.
However, the public officials may be sued in their personal capacity for
acts committed by them in bad faith in performing their public function.
Meaning they exceeded their authority given to them.
Amigable v. Cuence and Ministerial v. Cebu:
Doctrine of state immunity cannot be used as a tool for injustice against the
citizens, but take note that there are requisites to invoke this doctrine, these are as
follows:
(a) Land owner he woke up one morning the government is bulldozering his land
without any notice or any notice of expropriation or whatsoever. After several
years, the land owner filed a case against the government for payment for
damages. The government filed a motion to dismiss invoking state immunity
from suit. The SC ruled in favour of the poor land owner, the doctrine of
state immunity cannot be used to perpetuate injustice or injury to citizens of
the government. Thus, had the government exercised the proper
expropriation proceedings, then he could have been avoided any injury and
avoided this suit. Thus, to rule in favour of the government will cause
injustice.
6.) ACADEMIC FREEDOM
section 5 paragraph 2 of article 14 of the 1987 constitution.
E,S,T,A,C,S ( Education, Science, Trade, Arts, Culture and Sports )
The right to school or college to decide for itself its aims and objectives free from
outside coercion or interference except if there is overriding public policy calls for its
restraint.
The essential freedoms to determine for itself for academic grounds:
(a) Who may teach;
(b) What may be taught and what courses offered;
(c) How shall it be taught ;
(d) Who may be admitted to study.
Right to discipline <-> freedom on how shall it be taught
Case: Miriam college doctrine, a school cannot function in a atmosphere of
anarchy.
Who may be admitted
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Illustration:
You cannot file mandamus against a school who does not want you to admit
to enter and study to their school.
But once the school admitted you, it cannot just whimsically or arbitrarily
expel a student or refuse to re admit the student because of the contract
which is imbued with public interest. The removal must be for a just cause
and due process to be considered valid.
Example: you have failing grades, and therefore, you cannot force the
school to retain you.
Or committed violation of school discipline.
What if a student demonstrated for the schools tuition fee hike, in this
case you cannot remove him for his is a right of the student freedom of
expression.
But what if during the demonstration violence was committed, and
after investigation having been conducted by the school it found out that
their student was responsible for the violation, the student can be removed.
The duration of the contract:
It is for the duration of the course.
Note:
U.P board of regents case v. Margaret Celine
Margaret took up a course for a doctorate degree, during her defense
in the thesis defense panel. There were questions regarding here
dissertation materials. There were several investigation conducted. She was
allowed to graduate and given the doctorate degree. Later on, based on the
results, many of her dissertation materials was plagerized. U.P revoked her
doctorate license.
Issue: Can the U.P revoke her doctorate license.
Answer: Yes, the Supreme court said that the school has the right who
can determine who shall be its graduates provided it was done with
investigation. The schools academic right of freedom does not end upon
graduation but extends beyond it where it is shown that the conferment of
such degree was obtain through fraud.
7.) ARMED FORCES OF THE PHILIPPINES IS THE PROTECTOR OF THE PHILIPPINES
This means that the AFP served for the interest of the people and not
of the president. The doctrine does not apply to the Philippine National
Police who are civilian in character wherein they are under the direct control
and supervision of the president.
8.) DOCTRINE OF INCORPORATION pacta sunt servanda
The rules and laws of international law form part of the land and no
legislative action is required to implement them. The philippines adopt the
general accepted principles of international law as part of the land. thus, by
being a family of nations they are required to adopt the international
principles and laws and shall not create a law that will be contradicting to
the general accepted principles of international law.
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9.) TREATY MUST BE CONCURRED BY 2/3 VOTES OF ALL THE MEMBERS OF THE
SENATE OTHERWISE THE TREATY IS NOT VALID AND BINDING.
10.) FREEDOM FROM NUCLEAR WEAPONS.
11.) PHILIPPINE FLAG
A law changing the design of the Philippine flag shall be unconstitutional
since under the constitution the flag of the philippines shall be red, white, and blue,
with three stars and the sun. Thus, it can only be changed through constitutional
amendment.
12.) PRINCIPLE OF CIVILIAN SUPREMACY
Under the constitution, civilian authority is at all time supreme over the
military, by installing the president as the commander in chief means that civilian
authority is supreme over the military. The military took oath that it will defend the
constitution and the state of the philippines. insulation of the military from political
influences and political parties. the 3 year term of the chief of staff. Also, the PNP is
also civilian in character and it is also under the local executives.
13.) PRINCIPLE ON WOMEN, ECOLOGY, SYMBOLS OF STATEHOOD, CULTURAL
COMMUNITIES, SCIENCE AND TECHNOLOGY
Women constitution shall provide them healthy working conditions and for
their safety.
Ecology right to a balanced and healthful ecology.
Symbols of Statehood the flag of the philippines shall be red, white and blue
with three stars and a sun. The congress may by law, adopt a new name for the
country, adopt a new national anthem or national seal that will truly be reflective of
the symbolism of the people of the philippines. this shall only take effect upon
ratification by the people in a national referendum.
Indegenous cultural community the state shall recognize the rights and
protection of indigenous cultural communites.
Education, Science, Sports and Technology to foster patrionism and
accelerate social progress and promote total human development.
14.) PRINCIPLE OF TRANSPARENCY ON MATTERS OF PUBLIC INTEREST
the 1987 Constitution provides for a policy of transparency in matters of
public interest. Right of people to information and right of discolure of public records
in case of public interest. Assets and liabilities of the public officers shall be
disclosed before assumption of office.
II. BILL OF RIGHTS
DOUBLE JEOPARDY:
To raise a defense of double jeopardy three requisites must first be shown:
(a) A first jeopardy must have attached prior to the second; (b) the first jeopardy
must have terminated; (c) second jeopardy must be for the same offense as
that in the first.
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physical injury is the same as attempted homicide (which alleges inflicted injury)
because physical injury is necessarily included in such attempted homicide.
Convicted physical injuries through reckless imprudence, accused was subsequently
charged with damage to property through the same act of reckless imprudence,
there is double jeopardy since the essence of criminal negligence is the imprudent
or negligent act. Hence, the second jeopardy is for the same offense.
Law and ordinance
If an act is punished by a law and ordinance, conviction or acquittal under either
shall constitute a bar to another prosecution for the same act. The offense need not
be the same provided they flow from the same act.
Theft of electricity punished under RPC and unlawful installation of electrical wiring
punished by ordinance (flows from the same act, one law and one ordinance: double
jeopardy )
If two laws (one RPC and one special law ) there is no double jeopardy.
Supervening events
The second offense was not in existence at the time of the first prosecution, thus
there is no possibility for the accused during the first prosecution to be convicted for
an offense that was not existing. Thus, where, after the first prosecution, a new fact
supervenes for which the defendant is responsible, which changes the character of
the offense and together with the facts existing at the time, constitute a new and
distinct offense, the accused cannot be said to be in second jeopardy.
Illustration: A was charged with physical injuries (slight) but after 5-9 days a
permanent scar was developed in the skin of the victim an amended return and a
more serious charge was filed. In this case there is no double jeopardy since the
scar and deformity were supervening facts not in existence at the time of the first
charge and could not have been foreseen.
Appeal by prosecution an appeal by prosecution on a judgment of acquittal
is not allowed. A judgment of acquittal is immediately final. As contra
distinguished for a judgment for conviction where it only becomes final upon
lapse of the period to appeal. Take note if the prosecution was not given
opportunity to be heard then the acquittal is invalid.
Appeal by accused this waives his right against double jeopardy.
State witness the discharge of an accused in order to make him a state
witness attaches jeopardy. Hence he cannot be prosecuted again, unless he
refuse to take testimony.
III. CITIZENSHIP
article 4 of the 1987 constitution.
Note: practice of all profession is reserved to Filipino citizens under article 12
section 14 2nd paragraph, save in cases prescribed by law.
Public office is reserved only for citizens of the philippines.
Structure
There are only five sections:
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Note:
(1) if born during 1935 constitution ( before January 17, 1973
constitution ) if you are born of mother who is a Filipino citizen, then
you must first obtain Filipino citizenship upon reaching the age of
majority.
Illustration: X was born here in manila on January 16, 1973, her
mother was a Filipino and father is a Chinese. Is X a Filipino
citizen? No, since he must first acquire Filipino citizenship upon
reaching the age of majority.
What if he was born January 17, 1973? Yes, because those
whose mothers or father are Filipino citizens, the person is
considered a Filipino citizen. Thus, no need for the election of
citizenship upon reaching the age of majority.
(2) If born during 1973 and 1987 constitution you are Filipino
citizen provided your mother or father is a Filipino citizen.
Note:
thus, by virtue of citizenship by blood jus sanggunis if
your mother is an alien and you are an illegitimate child of a Filipino,
you are still a Filipino citizenship provided paternity and filiation is
proven. Illegitimacy is not an issue in citizenship because what is
necessary only is blood relationship. This is the case of Fernando poe jr.
doctrine.
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Vallez v. Comelec
Governor was born 1934 (no 1935 constitution yet ). Born in Australian of
Australian mother, while father who was born in camarines norte but her
father was born 1897 ( during the Spanish colony). But as a result of the
treaty of paris, spain ceded the philippines to the united states, through
then we were govern by organic acts of the philippines through the jones
law and under these organic acts, all subjects of Spain during Spanish
colony are deemed to be Filipino citizen. Thus, following the jus sanggunis
principle, governor acquire Filipino citizenship by blood because here father
is a Filipino citizen.
What if she was carrying Australian passport? Will it affect her citizenship?
No, in the case of manzano doctrine, mere possession of foreign passport
will not automatically renounce your citizenship. You must expressly
renounce it to lose your citizenship.
Fernando poe jr. doctrine
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Petitioner opposed the petition of Fernando poe jr for presidency. There was
no proof that the father of Fernando poe resided in the philippines and
became inhabitant during the Spanish colony and therefore he cannot
benefit from en mass Filipino citizenship. But the supreme court said that
the petitioner also do not have any proof to impugne the citizenship of the
father of Fernando poe jr. thus, through the death certificate of father of
Fernando poe jr. it was indicated that he was inhabitant of san carlos
philippines. thus, Fernando poe jr. acquires Filipino citizenship? Consider the
fact that Fernando poe jr was an illegitimate child. Will this affect the case?
Will it be an issue? NO! We follow the jus sangguinis principle, we follow
citizenship by blood. Illegitimacy is not an issue.
Born during 1935 constitution (before January 17, 1973) : The only
time that the requirement of election Filipino citizenship upon attainment of
majority age who are born during 1935 constitution (before January 17,
1973 constitution) and born of Filipino mother and he is a legitimate child.
But once the child is an illegitimate child born of Filipino mother, the child is
automatically becomes a Filipino citizen. No need for election. But if born of
Filipino father and an alien mother but are not married, once paternity and
filiation is established the child may be considered Filipino but if paternity
not established then he follows the citizenship of his mother.
Reason: tecson v. Comelec, where an illegitimate child born of Filipino
mother and alien father acquires automatically the mother citizenship, the
purpose to ensure and help the child and not discriminate him. Otherwise,
the child will become stateless which is more prejudicial to the illegitimate
child of an alien father and a Filipino mother. The latter therefore, has the
duty to protect her.
Born during 1973 and 1987 constitution:
If born of Filipino mother and alien father, the child is Filipino citizen
whether or not he is an illegitimate child by virtue of jus sanggunis.
If born of alien mother and Filipino father, the child is Filipino citizen
provided that paternity filiation with his father is established, otherwise he
acquires citizenship of his mother who is an alien.
Aliens who marry Filipino citizens ipso facto acquires Filipino citizenship
under the revised naturalization law provided that she possess none of the
disqualifications set forth under section 4 of the same law. (moya lim
doctrine)
R.A 9225: citizenship retention or reacquisition act of the philippines dual
citizenship law
There are two important concepts to remember, these are retention and
reaquisition.
(1) Reacquisition
Under section 3 of RA 9225, any provision to the law
notwithstanding, any former natural born citizen who have lost their
citizenship by acquiring citizenship of another foreign country through
naturalization before the effectivity of this act, shall reacquire again
Filipino citizenship upon taking oath of allegiance to the republic of
the philippines before any authorize person to administer oath in the
philippines.
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Note:
(a) this advantage will in effect make them again a Filipino citizen and
therefore they are not anymore considered alien and therefore they
can acquire lands again. While remaining to be a citizen of another
country yet they are still Filipino citizen by reacquiring again his
citizenship thus becomes dual citizen.
(b) Also any of their unmarried children whether legitimate or
illegitimate below 18 years old will acquire also the citizenship of
their parents who reacquired Filipino citizenship thus derivative
citizenship.
(2) Retention
Natural born citizen who shall acquire citizenship of another country
after the effectivity of this act shall retain their Filipino citizenship
upon taking the oath of allegiance before any officer authorized to
administer oath in the philippines. in such a case, the person shall
possess dual citizen status.
Note: will you be qualified to run to any public office under this law?
Yes, those who want to run must make a personal renunciation of
your foreign citizen at the time of the filing of certificate of candidacy
by taking oath.
Those appointed to a public office shall take oath of renunciation of
oath of allegiance of their foreign citizenship before assumption of
office.
Reason: to terminate dual citizen status (dual allegiance) since it is
prohibited by law.
Those who want to practice profession in the philippines but apply
first to the proper authority to get a license to practice profession.
Case: Edison so v. Republic
On naturalization.
Among those natural born citizen are those who also acquire it
through naturalization through an act of adopting our Filipino
citizenship and clothing the person of Filipino citizenship.
EXPROPRIATION
POWER,
PUBLIC
Local Context
National Territory
1.) Archipelagic doctrine we draw baseline to the outermost
portion of the island thereby unifying each archipelago into one
unit which shall compose of the State of the philippines. under
article 1 of the 1987 constitution all waters, around, between
and connecting all the islands shall for part of the Philippines.
2.) Contiguous zone v. Economic zone
Contiguous zone is the 12 nautical miles from territorial waters
where coastal state may exercise control and prevent
infringement of outside force, while economic zone is 200
nautical miles from baseline of the island of the philppines from
which the philippines may have sovereignty and exercise
exploration and exploitation of natural resources. This
economic zone is reserved for Filipinos.
3.) Flag State v. Flag convenience flag state means the vessel
has the nationality of the flag which it carries provided it must
establish a link between the said ship and the state flag, while
flag convenience is that the it refers to the state where the
vessel is registered.
4.) Territorial sea v. Internal Waters territorial sea adjacent belt of
the sea with 12 nautical miles from the baseline of coastal
island. All state has a right of innocent passage within the
territorial sea; while internal waters are the waters, around and
connecting the islands of the Philippine archipelago regardless
of their breadth and dimension, this includes bays, lakes and
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(a) Completeness test the law itself must be complete so that when it
reaches the delegate there is nothing left for the delegate to do but to
implement and enforce the law. Thus, the delegate must not fill in the
gaps of the incomplete law.
(b) Sufficient standard test more often the congress cannot be excpected
precisely know the problems that will arise, thus, the law must at least
have limitations and standards that will limit the delegate and guide him
in implementing the law.
2.) THREE DEPARTMENTS OF THE NATIONAL GOVERNMENT
LEGISLATIVE DEPARTMENT
The legislative power - is vested to the congress except to the extent
reserved to the people through initiative and referendum ( to directly enact
and propose laws ). This initiative and referendum are not self executing
provisions. There must be an implementing law.
Note: the people through initiative and referendum whereby the people can
directly propose and enact laws or approve or reject any act or law or part
thereof passed by the congress or local legislative body after the
registration of a petition therefore signed by at least 10 % of the total
number of registered voters, of which every legislative district must be
represented by at least 3% of the registered voters.
RA 6735: the initiative and referendum law which provides the system of
initiative and referendum.
(a) Initiative on constitution;
(b) Initiative on statutes;
(c) Initiative on local legislation.
Bicameral Congress senate and House of Representatives are co-equal
bodies. No supremacy involved.
Note:
Composition of Congress
Senate 24 senators
House of Representatives 250 members coming from
Representatives and those Elected by Party List Representatives.
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District
Note: Ang Bagong Bayani OFW c. COMELEC case on the nature of party list
system
So that the marginalized and under representative sectors of the
society will have representative in the government. They come from the
labor, peasant, urban poor, indigenous culture community, women, the
youth sector and such sectors as may be provided by law.
Social justice tool design not only to give more law on person who are
less in life but gives them the active participation in the mainstream of
representative democracy. Same opportunity in the party list elections.
Because as we know the truth is that the marginalized and under
representative do not really have a voice in the congress since they do not
have any economic and financial sources and therefore the ones who is
dominant are those traditional political parties and traditional rich
candidates who have resources to have voice in congress.
Thus, we open up the political system to the underprivileged and
marginalized and not to the traditional rich candidates and traditional
political parties who are already part of the political system.
Guidelines in screening the participants:
(a) Must represent the marginalize and underrepresentative sectors;
(b) Prohibition of Registration of a Religious sect or religious
organization as a political party. They cannot be registered as a
political party. ( thus, a priest can join in the party list election );
(c) It must not be an adjunct of the government or it must not be
funded by it. Thus, must be outside from the support of the
government;
(d) The parties must comply with the requirements of the law and
includes the nominees ;
(e) The nominees themselves must be Filipino citizen who belong also
to the marginalized or underprivileged sector.
Thus, party list participants are limited only to the marginalized and
underprivileged sectors of the society. Since this is a social justice tool.
Immunities and privileges
(1) Privilege from arrest of members of congress
It applies only to crimes with imposable penalty of not more than 6 years and only
when congress in session. in session refers not to the day to day but refers to the
entire duration from its opening until its final adjournment.
People v. Jalosjos:
The immunity from arrest arises from a provision of the constitution the history of
the provision shows that the privileges has been applied to a restrictive sense. It
cannot be extended by equitable consideration.
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He can only invoke the immunity from arrest if the imposable penalty is not more
than 6 years and only when congress is in session. Thus, since his case is rape, he
can not invoke immunity from arrest.
Jalosjos was convicted of rape by the RTC but he was able to appeal seasonably, can
he be allowed to post bail? No, the fact that he has been convicted by the RTC that
means it was proven already that the evidence guilt is wrong.
Jalosjos raised the following issues:
doctrine of the right to bail
As to the issue of bail:
When is the right to bail a matter of right?
(1) MTC bail is always a matter of right before or after conviction.
(2) RTC it depends.
(a) Before conviction in the RTC
Bail is a matters of right if: when charge for imposable penalty
lower than reclusion perpetua.
Example: homicide is reclusion temporal (bail is a matter of right even
if the evidence of guilt is strong)
Bail is a matter of discretion if: reclusion perpetua to death bail
is a matter of discretion. Thus, in this case you file a petition for bail
and the court will now conduct hearing as to determine whether the
evidence of guilt is strong. If the evidence of guilt is not strong, you
can post bail. But if the evidence of guilt is strong, you cannot be
allowed to post bail)
(b) After conviction in the RTC but pending appeal
Bail is discretionary if: after conviction of a crime with an imposable
penalty for not less than 6 years but not more than 20 years.
Example: Homicide convicted prision mayor medium to reclusion
temporal medium 8 yrs to 10yrs. Thus, upon petition for bail, it is
mandatory upon the court to conduct hearing to determine whether
you are a recidivist, quasi recidivist, or if you might jump bail, or
you might commit another crime, or if you may violate the
conditional pardon.
Bail is not allowed:
after conviction of a crime in the RTC with an
imposable penalty for more than 20 years.
Example: convicted of murder in the RTC.
Thus, petition of jalosjos is denied.
disenfranchisement argument - As to the issue of can he be
permitted to attend congressional meeting despite the fact that he
was voted and won the election. Can he be allowed to attend
congressional meetings outside the prison cell? The SC said that NO
he cannot it will be a mockery to the correctionaly system. Also, he
cannot invoke the defense that if he will not be able to attend
congressional meeting, in effect you will be disenfranchising the
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persons having the same name, only the first name or last name vote of
which will be considered for the incumbent official. But if neither of them
is incumbent they will not be voted and the votes will now be stray votes.
In this case, congress man cayetanos term has ended and he was not an
incumbent anymore and therefore his votes will now be considered stray
votes. Congressman peter cayetano filed a disqualification for nuisance
candidate and decision was granted but the decision was released three
days before election hehe )
Case: borjal v. CA on freedom expression and libel. The SC said that the
freedom of speech and debate for congressman are absolute privilege
communication and therefore they are absolute defenses against cases for libel.
Privilege communication is a good defense in an action for libel, slander or
defamation. Is truth a defense in a case for libel? No, in libel it is presumed that
there is actual malice or intent to defame a person and this will be completed by
proving that it was published or made public. However, once the communication is
privilege, presumption of actual malice or intent cannot apply.
There are two types of privilege communication:
(a) Absolute privilege communication not actionable, even if the author
acted in badfaith. Example. The freedom of speech and debate among
congress.
(b) Qualified privilege communication- notactionable, unless it shall be shown
that it is made in badfaith.
Bodies attached to the congress
(a) Commission on Appointments to act on presidential appointments. This is a
check on the appointing power of the president. Members are 12 senators
and 12 congressmen and 1 ex officio chairman which is the senate president.
They shall be chosen by proportional representation from the political parties
having members in the senate or house as the case may be. All of them are
members of congress.
(b) Electoral Tribunals
b.1) Senate ET 9 members. 3 justices of the Supreme court and the senior is
the chairmen. 6 comes from the senate and house chosen on the basis of
proportional representation from the political parties having members in the
senate or house as the case may be. Note that their difference with
Commission on Appointments is that the latter is composed of congressmane
while in an electoral tribunal it composes of judicial components and
congress components.
b.2) HRET same with Senate ET.
Note: where do we appeal the decision from the Electoral Tribunals? No
appeal. They are the sole judge. Take note that appeal is not a constitutional
right. This right is merely statutory. Thus, if there is no law granting appeal,
you cannot appeal.
So what is the remedy if ever? File an original action with the SC under Rule
65 based on grave abuse of discretion amounting to lack or in excess of
jurisdiction. You cannot use rule 45 because this is a mode of appeal which is
not the remedy in this case.
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Initiatory Stage
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Except: APRTIL (appropriations bill, private bill, revenue or tariff bill, bill
authorizing increase of public debts, bill of local application) these are
required to originate exclusively from the house of representatives. But the
senate may concur and make amendments by substitution or may make a
totally new bill. The only rule is that it must originate first from the house of
congress.
Case: tolentino v. Secretary of finance
The bill originated from house congress but when it was passed as a law it
was totally amended by the Senate. So the EVAT law was more of the senate
version rather than the bill originated in house congress. The SC said that
there was substantial requirement since the bill originally came from the
house. Thus, once the senate received the bill it made a separate version.
So eventually two version and thus presented to a bicameral committee but
the senate version prevailed. The rule only requires that the bill must
originate from house. There is nothing wrong with amendment by
substitution. What is only required is the initiative of the bill coming from the
house.
one subject one title rule every bill passed by congress shall embrace only
one subject which shall be expressed in the title thereof.
Purpose: to prevent hodgepodge or log rolling legislation, to prevent
fraud or suprise upon legislature and to fairly apprise and notify people. To
prevent rider provision which is totally unrelated to the subject matter which
can be subjected to a separate piece of legislation.
Note: the supreme court adopted a liberal rule by stating that there is
substantial compliance for as long as the provisions of the law are germane
to the title of the law. It must not be an indexed or catalogue thereof.
three readings on separate days no bill shall be come a law unless it has
passed three readings on separate days and printed copies in its final form
thereof given to its members three days before its passage.
1st reading: proposal of the bill by the author and the title shall be read
and once approve it shall be calendared for second reading.
2nd reading: deliberation and interpellation and after which it will be
calendared for third reading;
3rd reading: vote by yes or nays as to whether it shall be passed or not.
The bill will undergo 6 readings ( 3 readings from senate; 3 readings
from house )
Exception: if the president certify its necessity to its immediate
enactment to meet a public calamity or emergency.
Case: tolentino v. Secretary of finance
Once the president certifies the necessity to the immediate enactment to
meet a public calamity, there is no need to comply with the 3 reading on
separate days.
The question of what constitute public calamity is a political question which
is the discretion of the president. Thus, courts cannot intrude therefrom.
SECOND STAGE: Bicameral Committee and Enrolled Bill Stage
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Note:
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clause that the president as chief executive he shall ensure that the laws
shall be faithfully executed.
In connection with executive power, the president has his cabinet members
and therefore we have the qualified political agency or what we call as
alter ego doctrine so that in the regular performance of his cabinet
members and the heads of the departments are deemed to be the acts of
the president unless reprobated or disapprove by the president.
Qualifications
President, VPresident, Senator, Congressman natural born citizen,
able to read and write and resident of the philippines.
As regards to the age qualification: P and VP at least 40 yrs old;
Senators 35 yrs old, congressman 25 yrs old ( on the day of the election. )
Residency requirement: P and VP must have resided at least 10 years
immediately preceeding the election; Senators 2 years
The president shall not be eligible for any reelection.
No person who has succeeded as president and served as such for
more than 4 years shall be qualified for the presidential office.
Example: the succeeding president has served starting January 20, 2001 to
june 30, 2004.
Four instances in case of DDRR (death, permanent disability, removal from
office, resignation of the president) creating a permanent vacancy in the
office of the president.
In the case of ERAP, he was impeach (meaning he was indicted/accused of..)
but he was not removed because the impeachment trial was declared
functus de officio. Take note a president can only be remove by
impeachment.
According to ERAP he did not resign but the SC said that he did resign
as president by constructive resignation there was intent to resign and
coupled by acts of relinquishment there is no formal requirement it can be
oral or written, it can be express and implied. His acts before, during and
after the incident of the facts (totality of circumstance test), manifested that
he constructively resign.
Example: He acknowledge the oath of the
successor president. He left the malacanang to maintain peace.
Specific Powers of the President:
(a) Appointing power of the president
(b) Control Power over all executive department, bureau and offices ( but take
note: president exercises only general supervision over local government. )
(c) Calling Out power
(d) Martial law power
(e) Power to suspend the privilege of writ of habeas corpus
(f) Pardoning power, to grant reprieves, commutation, to remit fines and
amnesty
(g) Borrowing power
(h) Treaty Making Power
(i) Budgetary Power
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(j) Informing power ( during the regular opening of the session of congress )
SONA state of the nation address
Other specific powers found elsewhere in the constitution:
veto power,
power of general supervision over local government, power to call speciall
session in congress.
Note: the president has residual power or what we call as residual power
( not stated in the constitution but which nonetheless the president may
validly exercise. )
(a)Appointing power of the president
section 16 Article 7 of the 1987 constitution
Will all appointments of the president require the confirmation of the
president? No.
Case: sarmiento v. Mison
Not all appointments of the president requires confirmation of the
commission on appointments.
The following are the appointive officers which require the confirmation
of the commission on appointments:
(1) Heads of the executive department (each cabinet member heads
an executive department , with the exception of the vice president
where he be appointed as cabinet member without confirmation by
coa);
(2) Ambassadors, other public ministers, consuls;
(3) Officers of the armed forces from the rank of colnel or naval captain
(note: officers of the PNP rank, manalo v. Sistoza officers of PNP
do not belong to the said rank as like the AFP or navy, because the
PNP is civilian in character they are civilian agency under the
civilian department DILG administered by NAPOLCOM thus their
appointment does not need confirmation;
(4) Other officers which are vested in him by the constitution (members
of the constitutional commissions, regular members of the judicial
and bar council requires confirmation by commission on
appointments but take note: appointments of the supreme court
justices does not anymore require confirmation because the JBC
nominates three and the president will choose among the three.
This is to further strengthen the independence of the judiciary
because the coa is composed of congressman. The composition of
the JBC: chief justice ex officio chairman, a member of congress ex
officio member, secretary of justice ex officio members, 4 regular
members: retired justice of sc, representative IBP, law professor,
representative of private sector, these 4 regular members are
appointed by the president and needs confirmation of coa, clerk of
the supreme court as secretary ex officio of the JBC )
Appointive officers that do not require confirmation by coa:
(1) All other officer of gov whose appointment not provided by law;
(2) Those whom the president may be authorized by law to appoint;
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(3) Those officers lower in rank may by congress vest the appointment
to the president.
Case: calderon v. Carale , manalo v. Sistoza
The SC held that the list of officer appointed by the president that requires
confirmation by coa are exclusive. Thus, the congress cannot amend or deduct the
said list because it is provided by the constitution to be exclusive.
Ad interim appointments appointment made by the president when
congress is not in session.
Note: when appointment was made when congress is in session is regular
appointment.
Reason for ad interim: the commission on appointments may only meet
while congress is in session. Thus, if there is a vacancy in an office, if the
commission on appointment cannot meet the president can still make
appointment to prevent hiatus in the vacant office.
Ad interim v. Regular as to effectivity, ad interim is immediately effective,
thus the appointive official can assume officer right away subject to
rejection by the coa. But regular appointment, the effectivity starts only
upon confirmation by coa.
Illustration:
You are regional director then you were appointed as the new department
secretary while congress is in recess, you can assume right away since this
is an ad interim appointment, thereafter, when you assume an appointed
office your appointment was by passed or disapproved by the coa, you will
lose the appointed office and you can not come back to your former position
as regional director since once you assume office you deemed to have
abandoned your previous position. You cannot hold the two positions
simultaneously in the government.
You are regional director then you were appointed as the new department
secretary while congress is in session, since this is a regular appointment
you cannot assume right away and it requires confirmation by coa, what if
the latter by passed or disapproved your appointment, you still remain your
previous position as regional director. Thus, you will not lose your previous
position.
Practical reasons: do not accept an ad interim appointment so that you
will not lose your current position. =) hehe
Example: congressman mar roxas was appointed by president while
congress is in recess, he did not assume office but he waited for congress to
assume in session so that he will not lose his seat his in congress.
Otherwise, he will lose his seat in congress because of incompatible office,
once a congressman assumes an appointment he automatically forfeits his
seat in congress.
Case: matibag v. Benipayo
Justice benipayo together with commissioner borja and tuazon they were
appointed as comelec chairman and commissioners while congress is in
recess, thus ad interim appointment, the three immediately assumed office
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The president issued EO allowing members of the cabinet may hold other
offices in the government provided it does not exceed two. Pursuant thereof,
she appointed them to the GOCCs such as SSS and PCSO. Thus, the said
appointments were question because according to civil liberties union, the
president and executive family are prohibited to hold any other office in the
government.
On the other hand, the solicitor general said that it is allowed since
they are holding an appointive office and said that under article 9-B of the
civil service of the constitution:
no elective officials shall be eligible to for appointment in any capacity
to any public office or position during his tenure, except if they will hold it in
an ex officio capacity.
Unless, otherwise provided by law or by the primary function of his
position no appointive official ( those civil service employees ) shall hold any
other office in the government.
According to the solicitor general, the cabinet members are allowed if
there is a law.
However, the SC said that the civil liberties union are correct, because
the provision under article 9-B is a general provision, while article 7 section
13 is a specific provision which specifically prohibits the executive family
from holding any other office in the government unless allowed by the
constitution or in an ex officio capacity.
Case: public center v. Magdangal elma, in this case elma was
appointed as presidential counsel and at the same time chairman of
PCGG. Her appointments were opposed by public interest center since
according to them it violated the provision that executive family shall not
hold any other office in the government. The position of the chairman
pcgg is a cabinet position it has the same rank of that of a cabinet
secretary and therefore cannot hold any other office such as a
presidential counsel.
The SC said the public interest center is not correct, what is
determinative is the nature of the function of a cabinet position such that
it has a confidential nature or applying the proximity rule. Thus, although
there are positions that are named as cabinet positions but the truth is
the nature is not a cabinet position.
However, elma still cannot hold office because of incompatible office.
In the doctrine of incompatible office, the two positions are contrary to
each other and therefore cannot be hold simultaneously. Example: a
person appointed as treasurer and auditor; prosecutor at the same time
judge.
(b)Control Power
The president shall have control over all executive department, bureau and offices.
These power of control is exercised by the president with respect to the executive
department, bureau, and offices.
E0 292 defining executive department ( any of the executive department created by
law example: department of national defense, of finance, DENR, of justice, of
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(e) Where the supremecourt exercise disciplinary actions over its lower
courts in view of the separation of powers and prohibition on
encroachment of the power of other bodies.
Reprieve it is the suspension of the execution of the death convict.
Note: it may be true that death penalty law is repealed but the constitution
still reserves the right to create a law on death penalty for heinous crimes.
Case: echegaray doctrine
Upon his execution, a TRO by the Supreme Court was issued suspending the
execution. Is this a valid act by the Supreme Court? yes, although the power
to grant reprieves is vested to the president, however the court after
conviction is not precluded from controlling its execution of its judgment
since after conviction, the death convict has collateral rights and the court
may deemed it necessary to protect a death convict in circumstances such
as when he becomes insane or when instances requires so. Thus, it is not
encroachment upon the power of the president to grant reprieves.
Commutation of sentence reduction of penalty. When death penalty was
repealed, the convicts who are sentenced to death are automatically
reduced to reclusion perpetua.
Remission of fines and penalty.
(e)Borrowing Power Note: just know the limitations, there are two important limitations, these are:
Prior concurrence by the monetary board and limitations as the congress may
provide.
(f) No treaty or international agreements shall be valid unless
concurred by the 2/3 votes of the senate. ( their role is giving
or withholding consent, but the power to ratify the treaty is vested
to the president. )
Note:
bayan v. Zamora the supreme court said that the power
to ratify treaty is vested to the president.
Executive agreement is not subject to the consent by the Senate.
Thus, an executive agreement is an equally binding international
obligation. In international law, there is no difference between the
treaties and executive agreement in so far as they are equally
binding effect upon nations in so far as they are within their scope
of limitation. Take note that an executive agreement it is of a matter
of municipal concern but international agreement is of international
concern but they are both binding upon nation.
Case: abaya v. Abdaya jr. on exchange of notes regarding the philippines
loan application to finance government construction projects.
An exchange of notes is an executive agreement since it is considered as a
municipal concern therefore no need for concurrence by the 2/3 of the senate.
case: bayan v. Zamora on treaty with US visiting force agreement
in this case the treaty was transmitted by the president to the congrees. It was
opposed by certain person, citing section 25 article 18, there must be a treaty duly
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concurred in by senate and when congress may require it must be ratified by the
people in a referendum and it must also be considered by the other contracting as a
treaty.
Is the VFA a treaty or is it an executive agreement?
VFA is a treaty. The president has a treaty making power and thus it should
transmit it to the congress for concurrence. Section 21 article 7 applies according to
the president. But is this correct? The SC said that as a rule a treaty should be
concurred 2/3 votes of senate regardless of whatever the subject matter of the
treaty is, however, a special provision in the constitution regarding treaty with
foreign military bases troops or facilities should prevail over the general provision of
2/3 and therefore section 25 of article 18 applies and not section 21 article 7 of the
1987 constitution therefore the requisites of section 25 article 18 of the 1987
constitution.
(g)Budgetary Power
Following the doctrine of separation of powers, the power of appropriation is vested
with congress power of the purse but take note that the power to propose budget
and prepares it through the department of budget and management is vested with
the president. Thus, the budget shall be transmitted to the congress and shall make
the general appropriations law for the budget of the government.
Illustration:
A proposed budget was transmitted by the president to the congress. During the
hearing, the proposed budget in the education was very lower as compared to the
other departments. Thus, the congress opposed and they added the proposed
budget for the department of education. Is the act of the congress correct in
increasing the proposed budget? Section 25 article 6, the congress may not
increase the appropriations budget proposed by the president it can only trim down
or slash or deduct it. Take note that the form, content and manner of preparation of
the budget shall be prescribed by law through congress.
(h)Informing power of the president SONA
State of the nation address at the opening of the regular session of congress.
He may also appear in congress at any time.
When is the opening of the regular session of congress? Every 4 th Monday of
July.
Illustration:
Assuming the regular session of congress was open and thereafter the
congress decided to adjourn its regular session with only 25 days of continous
session. Is this allowed? Yes, the discretion is left with the congress on how many
regular sessions they will hold but provided that the 30 day period before the next
regular session they shall compulsory adjourn session. So they may hold a year
round continuous regular session but the only requirement is that they should
adjourn 30 day period before the next regular session. Thus, the duration of the
regular session is not fixed anymore the only requirement is that it shall adjourn 30
days before the next regular session. But take note that the power to call to a
special session is vested with the president except where the congress may meet
special session even without the call of president when:
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(a) not in session the congress may, within 24 hrs after proclamation of the
martial law or suspension of the privilege of the writ of habeas corpus,
meet in special session;
(b) in impeachment cases;
(c) canvassing election in the election of the president or vice president
acting as the electoral tribunal;
(d) in cases where both the President and Vice President died and resulted to
vacancy of the respective offices;
(e) in case of the inability of the President or where the latter declared that he
is inable and when the president say that he is able but the cabinet
members disagree.
3.) JUDICIAL DEPARTMENT
judicial power shall be vested with the supreme court and in such other
lower courts as it may be provided by law.
There is only one Supreme Court and it is only the sole constitutional court. Take
note that sandiganbayan is not a constitutional court since it was created by a
special law, it is only a constitutionally mandated court.
Judicial power is vested with suprme court and with other lower court as provided by
law.
What are the judicial power of the lower court as provided by law? Judiciary
reorganization act129
(a) Court of Appeals a lower collegeate court;
(b) Regional Trial Courts courts of general jurisdiction;
(c) Courts of limited jurisdiction ( first level courts ) Metropolitan trial courts,
Municipal Trial courts in cities, municipal trial courts or municipal circuit trial
courts;
(d) Sandiganbayan co-equal with the court of appeals who hears the offenses
of government officials that falls within its jurisdiction;
(e) Court of tax appeals co-equal with the court of appeals;
(f) Sharia courts two levels: sharia district courts (equivalent of RTC) and sharia
circuit courts (equivalent of MTCs) the other sharia courts are not judicial
courts they are more of administrative bodies.
Doctrine of primary jurisdiction congress deemed it necessary to create
specialized bodies that will hear and decide cases which is more exclusively to their
technical skills and expertise. These specialized bodies and therefore they are not
courts but they are administrative bodies. Thus, if a case is competently falls within
their jurisdiction, instead of filing it with the RTC as general courts of jurisdiction the
RTC will not hear it and it will remand the case to the specialized body who is more
competent on the said matter.
Power to appoint justices of the supreme court is vested with the president but the
nomination of at least 3 nominees is the duty of the judicial bar council. Thus, no
need for confirmation of commission on appointments.
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PUBLIC OFFICER:
(C) ACCOUNTABILITY OF PUBLIC OFFICERS:
Article 11 of the 1987 constitution.
On Appointment of officials:
How is a public officer choses?
By election
By Appointment
Appointment v. Designation
Designation presupposes that he has been appointed but he is given
additional duties and therefore he is acting temporary position and therefore
no security of tenure over the designation.
Nature of appointment is discretionary, in the case of luego v. Civil service
commission, it is a political question involving consideration of wisdom of
which the appointing authority possess so that when the appointive official
possess the qualification then it cannot be question even with the SC.
Case: flores v. Drilon
The case involves dick Gordon was the mayor of ollongapo city, then Subic Bay
Metropolitan city was created then the charter provides that thre shall be a
chairman. Thus, dick Gordon was holding an elective office and another office
appointive office. This was question. And the supreme court said that, section 7 of
article 9 B, no elective official shall be eligible for any appointment to any public
office or position during his tenure, except if he will hold that appointive office in an
exofficio capacity. In this case, the position of chairman is not an exofficio function
of elective office. But dick said that but there is a law allowing me to hold it. Also,
when the congress created SBMA it encroached upon the prerogative of the
president to appoint in his discretionary power and therefore the said charter is
unconstitutional.
Section 7 of article 9 B
(1) Elective official Holding elective office shall not hold any appointive office
except in an exofficio capacity. Note: in this case, if the elective officer wants
to take the aapointive office he should file a resignation letter or if he still
wants the elective office he should remain in that office and shall not hold the
appointive office since such appointment shall be considred as null and void.
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(2) Appointive official shall not hold in any other appointive office except when
there is a law allowing them or if it is required by the primary function of his
position.
(3)
Next in rank rule
If a vacancy is filled by promotion, the person holding the position next in
rank thereto shall be considered for promotion.
There is a certain government office and base from the plantilla of its office
and the head office is the chief accountant, the next in rank is the deputy
accountant, third in rank is the administrative officer. Let us assume that the
chief accountant retired and leaving the permanent vacancy in the position.
The next in rank deputy applied to that vacant position. Also, the
administrative officer applied to that vacant position. Also, another chief
accountant of another government agency. All of them qualified.
May the deputy accountant validly complain that he is violated by the next
in rank rule? No, since the next in rank rule applies only if there is a vacancy
by promotion. But in this case the vacancy was made by lateral movement
since all of them are of the same rank and position.
Since there are several ways on filling up a vacancy which is by vertical
movement through position, or by lateral movement by transfer, or by
reappointment or reinstatement or even appointment coming from another
government agency. Thus, in the above case, the one appointed was coming
from the same rank who is also a chief accountant coming from another
government agency having the same position of the said retired chief
accountant.
Assuming same set of facts, but the one who was appointed was the
administrative officer, may the deputy who is holding the next in rank may
validly complain? Yes, because this time was filled by promotion because he
was by pass by the third rank. But can he insist? No, in the case of abilla v.
Civil service commission, the SC said that next in rank rule is not absolute it
applies only in cases of promotion but it can be disregarded imposed upon
by the next in rank, there is no mandatory requirement to appoint the next
in rank position. The appointing authority is given wide latitude of choices
and discretion to fill up the vacant position. In taduran v. Civil service
commission, thus, the person holding the next in rank position shall be
entitled preference in consideration but it does not mean that he has the
legal right to be seated on the vacant position if there is another available
more qualified.
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year from he being ousted then the action prescribed shall make the de facto
officer a de jure officer.
What are the requisites for a de facto officer to exists?
(1) Existence of a de jure office
(2) Color of title/colourable title
(3) Actual physical possession of the office
(b) Qualification as an endowement
One must possess certain properties, qualities or attributes like citizenship.
Residence qualification which is true to elective official because you are required to
serve certain constituency.
One of the grounds for disqualification, those that acquired the immigrant status of
the foreign country meaning permanent resisent of that foreign country, they will be
disqualified to hold in any elective office unless they have waived such right before
the election.
Case:
caasi has a green card ( proof that you acquired that you have the right to
reside permanently in the foreign country meaning you are an immigrant ), he ran
for mayor in his home town, his opponent filed a disqualification case against him
on the ground of holding a green card. Thus, he is disqualified for residency
requirement. When it reached the suprme court, caasi said that whatever defect i
have at the time of my filing certificate of candidacy when i was voted the defect is
deemed cured, the suprme court said anong deemed cured!!deemede deemd
cureds!! Hehe bawal yang ago! Heeh you must possess all the qualification and non
of the disqualification and this must be possessed continuously. Caasi said that i
have waived my green card status by filing of certificate of candidacy, the sc said
kanit na gago ka dapat may express renunciation muna walang implied waiver.
Residence v. Domicile:
In civil law, yes they are different in civil law you can have several
residence although only one domicile, but in political law, particularly in
election law, it is the doctrine of animus revertendi, intent to return
although absent.
There are three kinds of domicile:
(1) Domicile of origin is acquired by birth and continous until replace
by acquisition of another domicile. It is the domicile childs parent at
the time of birth and may not be the actual place of birth.
(2) Domicile by choice an adult may change his domicile at will.
Intention is a feature of this kind of domicile. Intention to remain in
that place and actual physical presence in that locality and you have
no intention of going back to your domicile of origin. No more animus
revertendi on your domicile of origin.
(3) Domicile by operation of law domicile given to a person
independent of his will, this applies to infants or other persons
suffering from disability and incompetent persons.
(D)ELECTION:
(e) General Provisions (use beda reviewer)
(f) Jurisdiction of COMELEC: (use beda reviewer)
Article 9 of the 1987 constitution.
(g) Election Procedure: (use tipon and audio sandoval)
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Election Procedure:
I.
BEFORE ELECTION
(1)PARTIES
(a) Candidates
Political Parties
Registeration of political parties: the power to register is
vested with the comelec. Thus, it is registration with the
comelec that vest personality of the political parties.
What organizations are not allowed to register as
political parties:
(1)Religious denominations and sects shall not be
registered;
(2)Those who seek violence and unlawfulness;
(3)Those whose refuse or oppose to adhere the
Philippine constitution;
(4)Those who are supported by the foreign government
Note: the constitution declares that financial
contribution from foreign government and agencies
to political parties related to election is considered as
interference in national affairs. Thus, when accepted
by the political parties their registration shall be
cancelled and they shall incur penalty.
Section 81 of the omnibus election code, one of the
election offenses is the intervention of foreigners.
Eligibility of Candidates and Certificate of Candidacy
(1)Election Period
90 ays before election and 30 days after the elctions.
(2)Campaign Period
It depends what position the candidate is running for
but as a rule it begins after the last day of filing of
certificate of candidacy ( but not in barangay election
), at any rate it always ends 1 day before the
election. Thus, the day before the election until
election day no one shall campaign or any partisan
political activity is an election offense.
Section 80 of omnibus election code provides that you can only engage in
election campaign or any partisan political activity during the campaign
period, except party conventions which it can be conducted even before the
campaign period.thus, outside of this period is an election offense.
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What about the infomercials? If you have not yet filed certificate of
candidacy you are not a candidate and therefore you can still engage in
election campaign and partisan political activity which any activity to design
to promote the election and defeat a candidate.
Candidate: one who is aspiring for elective office and has filed his certificate
of candidacy.
Election campaign / partisan political activity: Any activity that aims to
promote the election or defeat of a candidate or candidates.
(3)Filing of Certificate of Candidacy
Once filed certificate of candidacy you become a candidate. Thus, even if
you campaign but if you did not file a certificate of candidacy you are not a
candidate and therefore vote casted for you will not be counted.
Section 76 of the OEC, it is the ministerial duty of the COMELEC to receive
the certificate of candidacy of any person in an election for as long as the
said certificate is regular and complete upon its face. Thus, any
disqualification upon filing of the said certificate of candidacy is not proper
but it shall belong to another tribunal for a disqualification case filed for that
purpose.
Section 73 of the OEC, you have to file certificate of candidacy within the
period prescribed by law. Also, you can only file certificate of candidacy for
only one office, you cannot file two certificate of candidacy for two or more
different offices in that same election you are not a candidate of any of those
office. You can withdraw your certificate of candidacy provided you
submit a written declaration under oath of your withdrawal of your certificate
of candidacy.
Case: monsale v. Nico
Assuming march 31 is the last day of filing of certificate of candidacy and
april 1 is the start of the campaign period. X filed his cert of candidacy for
mayor march 30, so that march 31 he decided not to run by submitting a
written declaration under oath withdrawing his candidacy, april 1 is the start
of campaign period, april 2 he wanted again to run by withdrawing his
withdrawal. Does his filing certificate for mayor reinstated?
No, the SC said that the withdrawal of the withdrawal of the certificate of
candidacy has the effect of filing a new certificate of candidacy which is in
the said case filed out of time because it was filed after the last day of filing.
What if you are the municipal treasure (appointive office) filed cert of
candidacy for vice mayor, will you be considered as resigned? Yes, the
moment you file a certificate of candidacy they are ipso facto resigned. No
need for filing a resignation. Thus, if you decided to withdraw you certificate
of candidacy you can no longer go back to your former appointive position.
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Substitution of Candidates:
A:
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(a) Section 68
Vote buying, over spending, terrorism, coercion, intimindation or any
act that is violative of election laws and those who have acquired right
to reside permanently in another country.
(b)Section 69
In case of nuisance candidate, if a candidate appears to be a nuisance
candidate. The comelec may act motu proprio, assuming the comelec
did not act motu proprio, any person may file the petition for
disqualication.
Nuisance candidate he does not have that bona fide intention to
run. His only purpose in filing is to confuse the voters.
The period to be observed is within 5 days from the last day of filing of
certificate of candidacy.
(c) Section 78 material misrepresentation as to any statement of fact in
the certificate of candidacy.
Thus, if a candidate declared that he is a citizen of the Philippines but
in fact he is not. This is a ground to disqualify him.
The period should be filed within 25 days from the date the candidate
alleged to have committed that material misreprestation filed his certificate
of candidacy.
Case: loong v. Comelec
Loong was a candidate for vice governor in ARMM, there was this election but
no proclamation, the opponent of loong that based from his registrar was not
yet qualified to run for vice governor that he was underage, the opponent
filed a disqualification cas pursuant to section 78 of the election code. The
SC said it was filed out of time. It must be filed within 25 days from the date
the candidate filed his certificate of candidacy. This period is a mandatory
requirement of law. The opponent said that how can he be faulted where in
fact he just discovered the material misrepresentation after the election. The
SC said that the law said that it start from the date the candidate filed his
certificate of candidacy and not on the day the opponent discovered the
material misrepresentation.
Effect of the disqualification case:
(1)Section 6 of RA 6646 electoral reform law, provides that any
candidate who has been declared by final judgment to be
disqualified shall not be voted for and any votes casts for him
shall not be counted. (There was a disqualification case before
the election it has been decided with finality before the
election, in which case he shall not be voted for and any vote
counted in favour him shall not be counted)
Case: cayat v. Comelec
Cayat is a priest and ran for mayor, his opponent filed a disqualification case
against him with the comelec pursuant to section 40 of the local government
code, which provides that the following are disqualified for running local
elective position: those convicted of an offense involving moral turpitude or
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of an offense where the penalty imposed is imprisonment for not less than 1
year within 2 years after the service of their sentence ( partial
disqualification ).
Because cayat was convicted of acts of lasciviousness and hence
disqualified. The comelec ruled that cayat is disqualified with finality 2 weeks
before the election. Cayat failed to receive the decision, but anyway an
election continued and cayat won and proclaimed and took his oath in office.
The SC removed his from his being mayor, any candidate who has been
declared disqualified with finality before the election, he should not have
been voted for and therefore any votes casts for him shall not be counted.
So, in this case, who will now become the mayor? Will it be the opponent
who obtain the second highest votes? The SC said YES! Hehe because the
electorate were in bad faith by being aware that cayat was a bullshit convict
but still they voted for him they were bad faith and thus waived their right. In
this case, there was no second placer here since the disqualified candidate
never became a winner since he was disqualified with finality long before the
election day this has been an effect that he did not become a candidate.
(2)If for any reason is not declared by final judgment to be
disqualified and received the winning votes, the court or
commission shall continue to hear the case, and any
petitioner or any opponent may file a petition for the
suspension of the proclamation during the pendency of the
case, if the evidence of
guilt is strong. (there was a
disqualification case filed before the election but it was not
decided with finality before the election and during election
he won during the pendency of the case, the court or
commission shall continue to hear the case and still has
jurisdiction and any person may file petition for the
suspension of the proclamation if the evidence of guilt is
strong.)
Case: guerrero v. Comelec
Governor farinas ran for congressman, a disqualification case was filed
with the comelec, during the pendency, farinas won as congressman and
proclaimed. The comelec then dismissed the case, and remanded the case to
the house of electoral tribunal since once a candidate is proclaimed the
comelec loses jurisdiction and the jurisdiction now is vested with the
electoral tribunal who shall hold cases of disqualification and all election
contests once a candidate is proclaimed this applies to their members who
are already proclaimed and assume office.
(b)Voters
Registration of Voters
Qualifications:
Article 5 on Suffrage
(1)Citizen of the Philippines;
(2)Not disqualified by law
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II.
DURING ELECTION
(1)Place ( Precincts and Polling Places )
(2)Officers ( Board of Election Inspectors; Watchers; and
Board of Canvassers in the National and Local Level )
(3)Documents/Certificates ( Official Ballots and Election
Returns )
(4)Casting of Votes on the Day of Election or
Postponement or Failure of Election
(5)Election Offense
III.
AFTER ELECTION
(1)BEFORE PROCLAMATION/CANVASSING PROCESS
(1.1) Canvassing of Votes in the Precinct/Voting
Center by BEI and prepare the Election Returns
then they will transfer it to the Municipal/City
Board of Canvassers, the latter will canvass the
election returns for the local elective position
( Governor,Vice-Governor, Mayor,Vice-Mayor,
Barangay Chairman ) within their respective
Municipality or City/Component City and
thereafter proclaim the winning candidate
within their municipality or city as the case
may be then they will prepare the Certificate of
Canvass ( each certificate of canvass
represents one municipality/component city )
thereafter they will transfer the COC to the
Provincial Board of Canvassers for canvassing
of the COC.
(1.2) Canvassing of Certificate of Canvass by the
Provincial Board of Canvassers
(1.3) Pre-Proclamation Controversy
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said that appointment and designation are two different animals so that in
designation the person holding already appointment he is given additional duty,
however, the SC said that for the purpose of the law on nepotism, the two animals
are the same otherwise, there will be abuse so that what the law directly prohibits it
shall be made indirectly.
Note: provincial administrator is already a non career position so that it is
considered a confidential nature so pasok siya sa exemption on nepotism.
(b) Local government code the prohibited degree on the law
on nepotism is within the 4 th civil degree of consanguinity
or affinity.
IV.
POWER OF TAXATION
PUBLIC OFFICERS
A. ACCOUNTABILITY
National Government PO
I.
II.
III.
I.
II.
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> Compensation
> Grievance Procedure
> Disciplinary Actions against Elective Local Officials
b.) Appointive Local Official (use nachura)
Prohibitions
Term of Office ( note: it is co-terminous with the term of the
Appointing Authority )
Disciplinary Actions against Appointive Local Officials
III.
PUBLIC OFFICERS
B. ACCOUNTABILITY
National Government PO
I.
2.
3.
4.
Definition of Public Office right, authority, duty created and granted by law +
period + fixed by law or pleasure of creating power + individual vested with
sovereign function which he exercised for benefit of the body politic.
Elements of Public Office created by law or authority of law + delegation of a
portion of sovereign function of govnt exercd for benefit of public + defined
directly or impliedly by legislature or legislative authority + independently
performed without control of superior power other thant hte law unless such is
created with control of superior office + permanency or continuity.
Characteristics of public office public trust; not property and is outside the
commerce of man. It can not be the subject of contract.
Difference of Public official with officers and employees of instrumentalities of the
government public officer is officer of the government itself while the latter are
officers only of instrumentalities of the government.
Formal qualifications CARE APC ( citizen, age, residence, education; ability to read and write,
political affiliation, civil service examination )
For Elective National and Local Government Officials:
National Elective Officials
Executive Branch
a.1) President ( citizenship: NATURAL BORN CITIZEN; Age: 40 yrs old on the day of election;
Registeration as voter: must be registered voter; Literacy requirement: able to read and
write; Residency: resident of the Philippines at least 10 years immediately preceding the
election );
a.2) Vice President ( same qualification as the president. He may be appointed member of
the cabinet, it does not need confirmation by Commission on appointment );
Legislative Branch
b.1) Senator ( citizenship: NATURAL BORN CITIZEN; age: at least 35 yrs old on the day
of election, Registration as voter: must be a registered voter; Literacy requirement: able to read and
write; Residency: resident of the Philippines for not less than 2 years immediately preceeding the day
of election. );
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b.2) Congressman ( citizenship: NATURAL BORN CITIZEN; age: at least 25 yrs old on the
day of election; Registration as voter: must be registered voter of the district in which he shall be
elected, except the party list representatives; Literacy requirement: able to read and write; Residency:
resident of the said district for a period of not less than 1 year immediately preceeding the day of
election.)
Local Elective Officials ( they are under the control and supervision of the executive
department )
a.1)
Citizenship: FILIPINO CITIZEN. Registration as voter: must be registered voter in the barangay,
municipality, city, or province or, in the case of a member of sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, must be registered in the district where he intends to be elected;
Residency: a resident therein for at least 1 year immediately preceeding teh day of the election;
literacy requirement: able to read and write Filipino or any other local language or dialect;
Age:
if candidate for G,VG,SPllwgan,M,VM, members of Splungsod of HUC must at least be 23
years old on election day; ifM,VM of IIC ,component cities, municipalities 21 yrs old on election
day;
if members of Splungsod or Sangguinan Bayan 18yrsold on election day;
if candidate for punong barangay or member of sangguniang barangay 18 yrs of age on election
day;
for SK 15 yrs old but not more than 21 yrs old on the day of election.
For Appointive Officials ( just take note those appointive officials of the president and those
which are under the confirmation authority of the Commission on appointments only for presidential
appointees that needs confirmation by such board; and those Appointed by other officers vested with
power of appointment which is subject to the CSC confirmation.)
2.
3.
4.
c. DE FACTO OFFICERS
1.
2.
3.
4.
5.
De facto officer reputation of being an officer hat he assumes to be but in the eyes of the
law he is not an officer.
Requisites valid existing office + Actual physical possession of said office + color of title (
repuatation or acquiescence, known and valid appointmen or election but officer failed to
conform to a legal requirement such as not taking an oath, known appointment or election
but void because of ineligibility of the officer or want of authority of the appointing
authority or irregurity in appointment or election not known to public, known appointment
or election pursuant to an unconstitutional law before declaration of its
unconstitutionality. ).
Duties and liabilities same as de jure officer.
Legal effects of his acts valid as to third person if within scope of authority.
Entitlement to salaries general rule: rightful incumbent may recover from a defacto
officer the salary received by the latter during time of wrongful tenure even though he is
good faith and under color of title. Exception: if there is no rightful incumbent or de jure
officer during the time the de facto holds position, he is entitled to salaries for period of
actually discharging functions. Also, in case de facto officer was ousted by virtue of
election protest, he is still entitled to the compensation, emoluments and allowances.
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6.
7.
How to challenge a de facto officer only through direct proceeding of quo warranto.
Cannot be collaterally attacked.
De jure v. De factor; de facto v. Intruder de jure has lawful title while de factor only color
of title, also, de jure cannot be ousted through direct proceeding while de facto can be
directly challenge through quo warranto; de facto has color of title, while intruder no color
of title but illegally occupies and takes an office without authority whatsoever, also de
factos acts are valid to third person for as long as within scope authority while intruder the
acts are always void, de facto is entitled to compensation, while intruder is not.
II.
a.
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lame ducks,majority of them are members of Philippine BAR who are engaged in
the practice of law for 10 years; COAudit: natural born citzn,35yrsold,CPA with not
less than 10yrs auditing experience, or members of BAR practicing for 10 years
lawyering, not lame ducks, at no time that all members shall belong to the same
profession.) for Ombudsman and Deputies ( natural bornz citizen, 40yrsold,
rrecognized probity and indepence, and not lame ducks, must have 10 years either
in practice law or has been judged.
7.
Appointment of Civil Servants the qualifications for entrance into civil service are
prescribed by law. These includes age, citizenship,educational attainment for the
specific positions, appropriate civil service eligibility, experience in specific fields,
height and weight required by particular positions, physical fitness.
8.
Presidents appointing power there are four kinds of appointments that the
president of the philippines may make as provided under section 16, article 7 of
the 1987 constitution these are as follows:
Those appointment/nomination that needs confirmation by the commission on
appointment ( heads of the executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from rank of colonel or naval
captain, and other officers whose appointments are vested in him in this
constitution ) note: observe the rule on ad interim appointment and regular
appointment where ad interim is appointment made during recess and is a
permanent appointment and it is made before such confirmation but it shall cease
to be valid if disapproved by Commission on appointment or by passed by
commission on appointments upon the next adjournment of congress, on the other
hand a regular appointment is made during the session of congress and made only
after the nomination and confirmation of commission on appointments and
continues until the end of the term of the appointee once confirmed by the
commission on appointment. Take note also that an officer whose ad interim
appointment has been terminated by thte adjournment of congress without the
commission on appointment acting thereon can be given another ad interim
appointment extension by the president, the rule however is different if the
commission on appointment has rejected the appointment in that case he can not
be reappointed to the same position again;
Appointments provided by law;
Appointments not provided by law;
The congress may, by law, vest the appointment of other officers lower in rank in
the president alone, or in the courts, or in the heads of departments, agencies,
commissions, or boards.
General rule: appointing power is the exclusive prerogative of president, upon
which no limitation may be imposed by congress, except: those requiring
confirmation by COAppointment. Note: legislative grant of additional duties does
not constitute encroachment on the presidents appointing power, because
imposition of new duties constitutes neither creation of office nor appointment of
an officer.
Where the law is silent, president shall be the appointing authority.
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(1) Appointments made by acting president appointments made shall remain effective unless
revoked by the elected president within 90 days from his assumption or reassumption. After
the 90 days period, the appointments become irrevocable and the appointees may only be
removed depending upon the nature of their appointment or for cause and in accordance with
the procedure laid down by law.
(2) Midnight appointment as a rule: not allowed to appoint within 2 months before a presidential
election, except: temporary appointments to executive positions when continued vacancy
therein will prejudice public service or endanger public safety.
(3) Appointment of members of supreme court and judges of lower courts prsdent can only
appioint from the list of at least 3 members for each position prepared and recommended by
the judicial and bar council.
(4) Appointment of officials and employees of judiciary president is precluded. Sc has sole
authority in accordance with civil service law.
(5) Appointment of another lame ducks not allowed to appoint losing candidates within 1 year
after such election to any office in the government.
(6) Appointment of ombudsman and its deputies president can only appoint from the list of at
least 6 nominees prepared and recommended by the judicial and bar council.
(7) Appointment of officials and eomployees of obmudsman
President is precluded. Sole authority of ombudsman.
(8) Appointment of officers and empmloyees of commission on human rights
President is precluded. Sole authority of ombudsman.
(9) Appointment of lower in rank officers the congress may vest it solely with the courts or heads
of departments, agencies, commission or boards.
(10)
Linient Prohibition on eligibility for appointment or designation of an elective official to
any position in the government
As a rule: not allowed, except: allowed by law or by the primary functions of his position
(11)
Absolute Strict Prohibition the eligibility for appointment or designation of the
Executive Family ( President, Vice-P, cabinet members, their deputies or assistance ) to any
position in the government the law strictly prohibits the appointment of the executive family
in any other position in the government, unless expressly provided by the Constitution
example: the vice president may be appointed as cabinet member. Thus, while all other
appointive officials in the civil service are allowed to hold other office and employment in the
government during their tenure when such is allowed by law or by their primary functions of
their positions, the members of the cabinet, their deputies and assistants may do so only when
expressly authorized by the constitution itself.
9.) CIVIL SERVICE COMMISSIONS APPOINTING POWER
(a) CSC it is the central personnel agency of the government. their purpose is to insure and promote
the general mandate requiring appointments only according to merit and fitness. The civil service
system boils down on the principle of merit and fitness instead of spoils system in the matter of
appointment and tenure of office. They eradicate appointment to public office based on political
considerations and to eliminate the element of partisanship and personal favouritism in making
appointments. The basis of appointment is merit and fitness. To establish merit system in the selection
of public officers and employees without regard to sex, color, social status or political affiliation.
They are composed of a chairman and two commissioners, appointed by the president with the
consent of the commission on appointments for a term of 7 years without reappointment.
(b) coverage civil service law shall embrace all branches, subdivisions, instrumentalities, and
agencies of the government, including government owned or controlled corporations with original
charters. Take note government owned or controlled corporations with original charters are those
organized pursuant to special laws or original charters enacted by congress. Thus, government owned
or controlled corporation without any original charter or those that are created under the general
corporation code of the philippines whose shares of stock are owned or controlled by the government
or by corporation with original charters fall outside the coverage of civil service laws.
(c) system of appointment civil service appointment is as a rule based on merit and fitness system
which is to be determined by competitive examination, except: policy determining positions, primarily
confidential, or highly technical positions. Policy determinining ( one vested with power of formulating
method of action for the govnt or its subdvsn) .
Highly confidential ( one where duties are not merely clerical but are especially devolves upon the
head of office, this requires skill, judgment, trust and confidence and involves the responsibility of
the other which he represents). Highly technical ( it requires skill or training in the highest degree ).
Note: entry to these positions does not require competitive examination or civil service eligibility.
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There are two kinds of positions in the Civil Service Law: Career and Non Career service positions
( elective officials and their personal or confidential staffs; department heads and other officials of
cabinet rank who hold positions at the pleasure of the president and their personal or confidential
staffs; chairman and members of commissions and boards with fixed terms of office and their personal
or confidential staffs; contractual personnel or those employment in the government is in accordance
with special contract to undertake a specific work or job requiring special and technical skills within a
specific period which in no case shall exceed one year under his responsibility with minimum directions
and supervisions from the hiring agency; emergency and seasonal personnel; note: political
appointees who do not possess such qualifications and whose tenure is coterminous with the
appointing authority or subject to his pleasure. Also all other officers and employees in the career and
non career service are appointive officials, except elective officials.)
Career Service it has three characteristics (entrance based on merit and fitness to be determined as
far as practicable by competitive examinations or based on highly technical qualifications, opportunity
for advancement to higher career positions, and security of tenure). There are 7 positions under
career service, these are as follows:
open career this position requires prior qualifications in an appropriate examination;
closed career this position are scientific or highly technical in nature. These includes academic staff
of state colleges and universities or scientific or research institutions which establish their own merit
systems;
Career Executive Service positions undersecretary, assistant secretary, bureau director, assistant
bureau director, regional director, assistant regional director, chief of department service and other
officers of equivalent rank as may be identified by the CES board all of whom are appointed by the
President. The CES positions where appointment to appropriate classes of rank in the career executive
service are appointed by the President from a list of career executive eligibles recommended by the
board. Take note that the president may in exceptional cases appoint any person who is not a career
executive service eligible, provided that such appointee shall subsequently take the required career
executive service examination and that he shall not be promoted to a higher class until he qualifies in
such examination. A person appointed to a career position who is not eligible under the exception
cannot claim that his appointment is permanent and guaranteed him security of tenure in said
position;
Career officers, other than in the CES who are appointed by the President ex: Foreign Service Officers
in the ministry of foreign affairs;
Commissioned officers and enlisted men of the armed forces which shall maintain a separate merit
system.
Permanent labourers, whether skilled, semi-skilled, or unskilled.
Note: there are 3 levels of position in the career service,
first level - clerical, trades, crafts and custodial service positions involving non-professional or sub
professional work in a non-supervisory or supervisory capacity requiring only less than four years of
collegiate studies;
second level includes professional, technical and scientific positions involving professional, technical
or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college
work up to division chief level;
third level positions in the career executive service. These consists of undersecretary, assistant
secretary, bureau director, assistant bureau director, regional director, assistant regional director, chief
of department service and other officers of equivalent rank as may be identified by the CES board, all
of which are appointed by the President.
Note: entrance in the first and second level requires competitive examinations this means he must
possess a civil service eligibility ex: must obtained a passing grade in a civil service examination or has
been granted a civil service eligibility and whose name is accordingly entered in the register of
eligibles. Take note that eligibility is a sine qua non to acquiring a permanent appointment, except
those positions which are not required by law to be filled with civil service eligibles.
while entrance in the third level shall be prescribed by the CES board and appointed by the president.
10.kinds of appointive officers presidential appointees (appointed by president by constitution or
law. Their removal or suspension is a presidential prerogative and thus they may be removed with or
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19. void appointments carries no right, except under the doctrine of de facto officer.
20. double appointment not prohibited as long as the positions involved are not incompatible, except
that the officer cannot receive additional or double compensation unless specifically authorized by law.
21. primarily confidential positions follow the proximity rule. This rule means that mere
confidentiality of position is not enough, it must be of a nature that primary close intimacy which
insure freedom of intercourse without embarrassment of freedom from misgivings of betrayals of
personal trust or confidential matters of state. It is the loss of confidence that is important and not the
reason thereof. Note: the rule does not apply to the legal staff or assistant lawyers in the office of the
city or provincial attorney because their positions are remote from that of the appointing authority.
Thus, they cannot be removed except for a just cause provided by law.
The term of primary confidential positions is based on confidence, thus loss of confidence is
tantamount to expiration of a term. However, take note, demotion is not considered as expiration of
a term. Hence, if removed by demotion, it is invalid.
22. appointment of next in rank rule it is like promotion however the scenario is different, there is a
series of hierarchy of positions the position of the appointee is the next in rank position and it has a
right of preferential treatment in case the higher position next to it becomes vacant. Take note this is a
prerogative by the appointing authority and therefore, the qualified next in rank appointee cannot
have any cause of action because this is the sole prerogative of the appointing authority.
23. Career Executive Service appointment to appropriate classes rank in the career executive
service shall be made by the president from a list of career executive eligibles recommended by the
board. The basis is rank and their tenure is attached to their rank wherever they may go. It does not
attach the position or office. It attaches with his rank and therefore if he is removed from office he
cannot protest on the ground that he was terminated from office since his tenure is never violated
since it is attached to his rank itself wherever he may go. This concept is only applicable to the career
executive office and it is not applicable in first and second level official position where their security of
tenure is attached with the position they are currently holding.
24. quo warranto the proceeding to determine by what authority you are holding such office or
position or holding such franchise.
Quo warranto in elective position v. Quo warranto in appointive office in the elective office, the issue
is disloyalrty or ineligibility of winning candidate, it is a proceeding filed within 10 days to unseat the
respondent from office but not to install the petition in his place; while in case in appointinve office, the
issue is the legality of appointment and the protestant may be seated in the position if shown that he
is entitled to such office.
Quo warranto v. Mandamus in the former it tries disputed titles; while the latter enforce clear legal
duties. Where the right to an office is doubtful you cannot invoke mandamus you must first have a
clear legal right this holds true in quo warranto. These two are concurrent remedies, in quo warranto
you oust the person seated; while in mandamus you compel the person who is excluding you to hold
your office. Somehow, mandamus is directed to the appointing authority.
Date when to file quo warranto must be filed witin 1 year from the the date petitioner is ousted from
his position and not from the time the respondent began to discharge the duties of the office. If it
lapses, the remedy is only administrative and the court can not anymore intervene except on grave
abuse of discretion amounting to lack or in excess of jurisdiction. Note: where the first remedy availed
by the petitioner is administrative remedy, he must not await for the decision of the said body because
he can file quo warranto anytime and this is proper since the prescriptive period of quo warranto is not
tolled by the filing of administrative complaint.
Also, the action for quo warranto can be waived by abandonment of his petition.
As a general rule, a judgment against a public officer in regard to a public right binds his successor in
office. However, this is not true in case of quo warranto because a judgment in quo warranto does not
bind the respondents successor in office, even though such successor may trace his title to the same
source. This follows from the nature of the writ of quo warranto itself. it is never directed to an officer
as such, but always against the person to determine whether he is constitutionally and legally
authorized to perform any act in, or exercise any function of the office to which he lays claim.
Example: X ( respondent ) in the quo warranto case, during the pendency of the said case, has been
promoted or removed from the disputed position, and another person has been appointed thereto, who
was not a party in the case, a judgment in favour of petitioner cannot be executed against the person
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newly appointed, nor the latter be liable for the award of backwages for what was treshed out was
solely against the respondent who, however, has vacated the position. Mendoza v. Allas doctrine!
d. ELECTION
(A) General Principles
(1)General Provisions (use beda reviewer)
(2)Jurisdiction of COMELEC (use beda reviewer)
(3)Election Procedure (note: atty. Sandoval lecture and
atty.Tipons lecture)
STAGES OF ELECTION PROCESS
IV.
BEFORE ELECTION
(2)PARTIES
(c) Candidates
Political Parties
Eligibility of Candidates and Certificate of Candidacy
(d)Voters
Registration of Voters
V.
DURING ELECTION
(6)Place ( Precincts and Polling Places
(7)Officers ( Board of Election Inspectors; Watchers; and
Board of Canvassers in the National and Local Level )
(8)Documents/Certificates ( Official Ballots and Election
Returns )
(9)Casting of Votes on the Day of Election or
Postponement or Failure of Election
VI.
AFTER ELECTION
(3)BEFORE PROCLAMATION/CANVASSING PROCESS
Canvassing of Votes in the Precinct/Voting Center by BEI
and prepare the Election Returns then they will transfer
it to the Municipal/City Board of Canvassers, the latter
will canvass the election returns for the local elective
position ( Governor,Vice-Governor, Mayor,Vice-Mayor,
Barangay
Chairman
)
within
their
respective
Municipality or City/Component City and thereafter
proclaim the winning candidate within their municipality
or city as the case may be then they will prepare the
Certificate of Canvass ( each certificate of canvass
represents one municipality/component city ) thereafter
they will transfer the COC to the Provincial Board of
Canvassers for canvassing of the COC.
Canvassing of Certificate of Canvass by the Provincial
Board of Canvassers
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Pre-Proclamation Controversy
(4)AFTER PROCLAMATION
For Local Officials and Members of Congress:
The PBOC will now proclaim the duly elected local public
officers as the duly elected winner and also they will
include the proclamation of the congressman as a
national elective officer with respect to the said
province if the latter is a lone district;
Election Protest
For National Officials ( President and Vice President;
Senators ):
After the PBOC had proclaimed the local elective
officials and the members of congress for each
legislative district, they will prepare the National
Certificate of Canvass for the Elective position for
president and vice president and for the elective
position of senators. The national certificate of canvass
for the elective position for president and vice president
shall be transferred to the Congress as BOC for the
national certificate of canvass for the president and vice
president position; on the other hand the national
certificate of canvass for the seat in the Senate shall be
transferred to the COMELEC as BOC.
After the respective NBOC had finished the canvassing
they will proclaim the national elective officials as duly
elected national elective officers.
Election Protest
(B)
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