The Fraternal Order of UTOPIA

ATENEO de MANILA UNIVERSITY SCHOOL OF LAW SINCE 1964 For tomorrow shall cast a myriad of mighty storms that only those with firm determination and Utopian vision do survive

POLITICAL LAW TIPS Bar Operations 2011

CONSTITUTIONAL LAW I What is the common starting point for appointees to the Commissions? February 2, 1987, the date the 1987 Constitution took effect. In reckoning the seven year term, the starting point is always a February 2 even if the appointee actually took office after February 2. [Gaminde v. Commission on Audit, G.R. No. 140335, December 13, 2000] What is the significance of the distinction between competitive and noncompetitive positions? Appointment to a competitive position must be made according to merit and fitness as determined, as far as practicable, by competitive examination. Merit and fitness in appointments to non-competitive positions are not determined by competitive examinations. But merit and fitness are required. [Art. IX Sec. 2(2)] Enumerate the classes of non-competitive positions. The non-competitive positions are those which by their nature are (1) policy determining, (2) primarily confidential, or (3) highly technical. [Art. IX Sec. 2(2)] Is determination by the President that a positions is policy determining, primarily confidential, or highly technical conclusive? No, Whether a position is policy determining, primarily confidential, or highly technical is determined by the nature of the functions attached to it. [ Laurel v. Civil Service Commission, G.R. No. 71562, October 28, 1991] What is the extent of the Presidents disciplinary authority over presidential appointees who belong to the career service? The power is limited. The employee may only be removed for cause and in accordance with procedural due process. [Larin v. Executive Secretary, 280 SCRA 713] Can abolition of office violate security of tenure? For abolition of office to escape the taint of unconstitutionality, it must be made (1) in good faith, (2) not for personal or political reasons, and (3) not in violation of the law. [Roque v. Ericta, 53 SCRA 156, 162-3 (1973)] Are temporary appointees protected by the guarantee of security of tenure?

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No. They may be removed anytime without cause. [Mendiola v. Tancinco, 52 SCRA 66 (1973)] A permanent appointment is extended. The Civil Service Commission approves it as temporary in the belief that somebody else is better qualified. May the Commission do so? No. The sole function of the Commission is to attest to the qualification of the appointee. [Luego v. Civil Service Commission, 143 SCRA 327 (August 5, 1986)] May the Commission revoke a certificate of eligibility? Yes. The CSC may revoke a certificate of eligibility motu propio. The power to issue a certificate of eligibility carries with it the power to revoke one that has been given. [Lazo v. Civil Service Commission, 236 SCRA 469, 472 (1994)] Are there exceptions to the rule against appointment of elective officials? Yes. (1) The Vice-President may be appointed member of the Cabinet. [Art. VII Sec. 3] (2) A Member of Congress is designated to sit in the Judicial and Bar Council. [Art. VIII Sec. 8(1)] May Congress by law authorize the appointment of elective officials? No. Unlike the exceptions abovementioned, the provisions of Art. IX,B Sec. 7 prohibits elective officials other than members of Congress from accepting appointment during their tenure. If the elective official accepts an appointment without first resigning his elective position, the appointment is invalid. [Flores, et al. v. Drilon and Gordon. G.R. No. 104732, June 22, 1993] Can a retiree receiving pension or gratuity continue to receive such pension or gratuity even if he accepts another government position to which another compensation is attached? Yes. Art. VIII states that pensions or gratuities shall not be considered as additional, double, or indirect compensation. In the absence of a Charman of the COMELEC, the President designated a Commissioner as Acting Chairman. Valid? No, Art. IX,C Section 1(2) prohibits the appointment of members in a temporary or acting capacity. The choice of a temporary chairman falls under the discretion of the Commission and cannot be exercised for it by the President. [ Brillantes, Jr. v. Yorac, G.R. No. 93867, December 18, 1990] Does the Commission have the power to transfer municipalities from one congressional district to another for the purpose of preserving proportionality? No. The deliberations of the Constitutional Commission on the subject clearly excluded the power to transfer whole municipalities. [Montejo v. Commission on Elections, 242 SCRA 415 (1995).]

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What is the scope of the power of the Commission over deputized officers? The Commission can only issue a recommendation for disciplinary action to the President. [Tan v. Comelec, 237 SCRA 353, 358-359 (1994)] When is hearing by division required? No. It is only in the exercise of its adjudicatory or quasi-judicial powers that the COMELEC is mandated to hear and decide cases first by division and then, upon motion for reconsideration, by the COMELEC en banc. The conduct of preliminary investigation does not involve the exercise of adjudicatory powers [Baytan v. Comelec, G.R. No. 153945, February 4, 2003; Balindong v. Comelec, G.R. Nos. 153991-92, October 16, 2003] Is the COMELEC Constitutionally mandated to search for the evidence needed to judicially indict persons accused in election offenses? No. The task of the COMELEC as investigator and prosecutor, acting upon any ele ction offense complaint, is not physical searching and gathering of proof in support of a complaint for an alleged commission of an election offense. [ Kilosbayan, Inc. v. Commission on Elections, G.R. No. 128054, October 16, 1997, 280 SCRA 892, 924] Does a preliminary investigation have to be coursed through the Provincial Prosecutor before the Court may take cognizance of the investigation and determine whether or not there is probable cause? No, the prosecution of election offenses is exclusively under COMELEC. [ People v. Judge Inting, G.R. No. 88919, July 25, 1990] Which of the powers which have been declared not to belong to the COMELEC? 1) It is not empowered to decide questions the exercise of the right of suffrage [Art. IX, C, Sec. 2(3), Pungutan v. Abubakar, 43 SCRA 1, 12 (1972)] 2) While the Commission may punish for contempt, such power may not be exercised in connection with its purely executive or ministerial functions but only in furtherance of its quasi-judicial and not also judicial functions. [ Guevara v. COMELEC, 104 Phil. 268 (1958); Masangcay v. COMELEC, 6 SCRA 27] Does the COMELEC en banc have jurisdiction to decide election cases? No. This power pertains to the divisions of the Commission. Any decision by the Commission en banc as regards election cases decided by it in the first instance is null and void. [Soller v. Comelec, G.R. No. 139853, September 5, 2000] Do coalitions have to register in order to enjoy the benefits of a registered political party? Yes, because the coalition is distinct in personality from that of the coalescing parties. [Liberal Party v. Comelec, G.R. No. 191771, May 6, 2010]

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Does the power to regulate media during election period also extend to the period of a plebiscite or referendum? Yes. Of essence to plebiscite and referenda is fair submissions. Regulatory power during the period of plebiscite or referendum, is also intended. Is pardon on election offenses allowed without the concurrence of the COMELEC? No, Art. IX, C Sec. 5 states that no pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the recommendation of the COMELEC. Is block-voting allowed? No, Art. IX, Sec. 7 prohibits block-voting except for those registered under the party-list system. Does the Constitution give protection from the unaffiliated candidates? Yes, Art. IX, C Sec. 9 provides that bona fide candidates shall be free from any form of harassment and discrimination.

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