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ART. VIII Sec. 1 Par. 1- The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law
Q. SB?
*Since quasi-judicial bodies are not strictly courts, their jurisdiction is strictly
construed against them.
-The legislative and the executive are called POLITICAL BRANCHES of the
government, where policies are formulated, enacted and implemented.
-Questions of policy that are formulated by the political branches and thus
cannot be the subject of judicial review. This includes questions involving the
wisdom, propriety, efficacy or morality of an act.
-In turn, this principle is the result of our Presidential System of Government.
*In the recall election, the people will decide whether or not they have lost
their confidence in the official concerned.
*Oliver Lozano filed a petition before the Supreme Court questioning the
legitimacy of the Cory government.
*According to the petition, most of the people who went to EDSA are not
really serious in overthrowing the Marcos government. (Most were vendors)
SC: dismissed the petition.
EDSA 1
-Involves the exercise of the people power of revolution
which overthrows the whole government.
*No matter, We will no longer inquire into the motives of the people in going
to EDSA. The facts were: because of the magnitude of the people who were
in EDSA, Marcos fled to Hawaii, so that the Cory government was able to
take effective control of the machinery of the State without resistance from
the people. Furthermore, the international community has recognized the
Cory Government. Hence, there can be no more question as to the de jure
status of the said government.
2.
3.
*Unlike in the past, the power to declare martial law and to suspend the
privilege of the writ of habeas corpus were expressly made subject of judicial
review.
*Article VII, Sec. 18, Par 3- The Supreme Court may review in an
appropriate proceeding filed by any citizen, the sufficiency of the factual
basis of the proclamation of martial law or the suspension of the privilege of
the writ or the extension thereof, and must promulgate its decision within
thirty days from its filing.
CALLING OUT POWER
-It is a political question.
-A question in regard to which full discretionary authority has been delegated
by the Constitution to the President.
SC: It is the unclouded intent of the Court to grant to the President full
discretionary authority. The hands of the President should not be tied;
otherwise, this could be a veritable proscription for disaster. Unless grave
abuse of discretion is shown, the Presidents exercise of the power should
not be questioned. Mere abuse of discretion will not suffice. To doubt is to
sustain.
Q. What is the effect of the EXPANDED CONCEPT OF JUDICIAL POWER
on the political question doctrine?
A. It has lessened the political question doctrine. Thus, even if it is a political
question, if there appears to be abuse of discretion, the Court may review it.
*The burden is upon petitioners- the ones assailing the act.
Q. What are the requisites for a proper exercise of the power of JUDICIAL
REVIEW?
*The moot and academic principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide
cases, otherwise moot and academic, if:
1.
2.
3.
4.
2.
*IBP has no locus standi. The mere invocation of its duty to preserve the rule
of law is a too general interest. It has not shown any injury it has suffered nor
will suffer by virtue of the act complained of. The presumed injury is not
personal, too vague, highly speculative and uncertain to confer locus standi.
However, IBP has advanced constitutional issues which deserve attention of
this court, in view of their seriousness, novelty and weight as precedents.
TAXPAYERS SUIT
To constitute a taxpayers suit, two requisites must be met, namely:
1.
2.
It is not the date of the filing of the petition that determines whether
the constitutional issue was raised at the earliest opportunity. The
earliest opportunity to raise a constitutional issue is to raise it in the
pleadings before a competent court that can resolve the same,
such that, if it is not raised in the pleadings, it cannot be
considered at the trial, and if not considered at the trial, it cannot be
considered on appeal. (Matibag vs. Benipayo)
However in criminal cases, the accused may raise the constitutional
question even for the first time on appeal. This is because criminal
cases involve the basic rights of the accused to life and liberty.
April 2001. Thus, it is argued that the constitutional question was not raised
on the earliest possible opportunity.
SC: No. It is not the date of the filing that determines whether the
constitutional question was raised at the earliest possible opportunity. The
earliest opportunity to raise a constitutional issue is to raise it in the
pleadings before a competent court that can resolve it, such that if not raised
in the pleadings, it cannot be raised on appeal. Here, Matibag questioned
the legality of said appointments when she filed her petition before the
Supreme Court, which is the earliest opportunity for pleading the
constitutional issue before a competent body.
THE CONSTITUTIONAL QUESTION MUST BE THE VERY LIS MOTA OF
THE ENTIRE CONTROVERSY
*The constitutional question must be the main issue of the controversy.
*There is no way that the Court may resolve the entire case, unless it first
resolves the constitutional question raised.
AMENDMENTS OR REVISIONS (ARTICLE XVII)
3 ESSENTIAL ELEMENTS OF A GOOD WRITTEN CONSTITUTION:
1.
2.
3.
REVISION
-implies a change that alters a
Constitution.
2.
Proposal
2.
Ratification
Constitutional convention
b.
3.
A.
No. Note the second sentence says- The Congress shall provide
for the implementation of the exercise of this right. Thus Congress
should enact a law implementing this provision.
1.
2.
Initiative on Statutes
3.
*Article XVII, Sec. 2 remains to be non self executing. The implementing law
was declared unconstitutional. (Santiago vs. Comelec)
3 SYSTEMS OF INITIATIVE:
Ex. Article 2180, NCC- The State is responsible xxx when it acts though a
special agent xxx.
Ex. Article 2189, NCC- Provinces, cities and municipalities shall be liable for
damages for the death of, or injuries suffered by any person by reason of the
defective condition of roads, streets, bridges, public buildings, and other
public works under their control or supervision.
TEOTICO VS. CITY OF MANILA
*City of Manila contends that it cannot be held liable under its charter.
*SC held that the provision in the charter is a general provision in a special
law. On the other hand, Article 2189 is a special provision found in a general
law. A special provision found in a general law prevails over the general
provision found in the charter of the City of Manila. City of Manila is liable.
KILATKO VS. CITY OF DAGUPAN
*City of Dagupan contended that the manhole is found in the national road.
*SC held that the ownership of the road is immaterial. Even if it is a national
road, the LGU is liable. Article 2189 merely requires supervision over the
maintenance of the national road. City of Dagupan has supervision. Hence,
liable.
Ex. Sec. 24, Local Government Code- Liability for Damages- Local
government units and their officials are not exempt from liability for death or
injury to persons or damage to property.
Ex. Charters of GOCC- GSIS, DBP, LBP
*Charter-special law creating GOCC
*The provision in the charter on whether it may sue or be sued is an express
waiver by special law.
IMPLIEDLY-2 ways:
1.
*Here, the government is deemed to have gone down into the level of a
private entity; there is parity now with the contracting parties; therefore,
it is deemed to have waived its immunity from suit.
*This rule used to be absolute. (US vs. Lyons)
*However, this rule is no longer absoluteUS VS. RUIZ
*This involved the construction of wharves in Subic Bay at the time
Subic was still under the US pursuant to a treaty.
*Contractor was not paid so he sued the Subic Naval Authorities.
*Subic Naval Authorities moved to dismiss invoking State Immunity from
Suit.
*On the other hand, the contractor contends that the State entered into
a contract (relying on the old rule).
SC: The traditional rule of immunity exempts a state from being sued in
courts of another state without its consent or waiver. This rule is a
necessary consequence of the principle of independence and equality
of states. However, rules of international law are not petrified; they are
constantly developing and evolving. And because the activities of the
states have multiplied, it has been necessary to distinguish them
between sovereign and governmental acts (jure imperii) and private,
commercial and proprietary acts (jure gestionis). The result is that state
immunity now extends only to acts jure imperii. The restrictive
application of state immunity is now the rule in the US, UK and other
states in Western Europe.
*A state may be said to have descended to the level of an individual and
thus deemed to have tacitly given its consent to be sued only when it
enters into business contracts.
*The purpose of the wharves is the defense of US troops and of the
Philippines. Defense of the state is of the highest order and hence, is
jure imperii.
10
Such services are not extended to the American servicemen for free as a
perquisite of membership in the Armed Forces of the US. Neither does it
appear that they are exclusively offered to these servicemen; on the
contrary, it is well known that they are available to the general public as well,
including the tourists in Baguio City, many of whom make it a point to visit
John Hay for this reason. All persons availing themselves of this facility pay
for the privilege like all other customers in ordinary restaurants. Although the
prices are concededly reasonable and relatively low, such services are
undoubtedly operated for profit as a commercial and not a governmental
activity.
*The case was remanded to the Labor arbiter. There is waiver of immunity.
EXECUTION OF JUDGEMENT
*The circumstance that a state is suable does not necessarily mean that it is
liable. A state can never be held liable if it does not first consent to be sued.
SUABILITY is just a matter of a state giving its consent to be sued.
Q. Assume that you are allowed by the State to sue. After trial, judgement
was rendered in your favor, holding the State liable. Judgement thereafter
attained finality. Can you garnish or levy government funds to execute the
judgement?
A. No. It will paralyze the operations of the government. Waiver extends only
up to the rendition of judgement. Execution requires another waiver. The
disbursement of public funds requires an appropriate appropriation law.
Q. Remedy?
A. To make representation with the proper legislative authority for the
enactment of an appropriation law necessary to satisfy the judgement.
Q. What if the legislative authority refuses to enact the law?
A. Go to the courts and ask for MANDAMUS to compel the legislative
authority to enact the required law. True, the duty to appropriate is
discretionary. The exception however, as in this case, is when there is
already a money judgement against the government, the discretionary duty
becomes ministerial. The state must be the first to respect and obey the
decisions of the Courts. (Municipality of Makati vs. IAC)
SUITS AGAINST GOVERNMENT AGENCIES AND INSTRUMENTALITIES
Distinguish:
1.
11
12
her Philippine citizenship. Even if Australia follows jus soli, it only results to
her possessing dual citizenship.
(3) Effect of holding an Australian passport- mere holding of an Australian
passport does not mean renunciation of Philippine citizenship. In order to
lose Philippine citizenship by renunciation, such renunciation must be
expressthe person renouncing must perform a positive act. (See Mercado
vs. Manzano and Aznar vs. Comelec)
3. Those born before 17 January 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority
3 Requisites for the application of this provision:
(1) They were born before 17 Jan. 1973.
(2) Their mother is a Filipino.
*This results in complications when the country where you are born
applies the principle of jus soli.
13
*Ching was born in 1964, of Chinese father and Filipina mother. Ching now
seeks to elect Philippine citizenship so he can be admitted to the Philippine
Bar.
SC: The 1935 Constitution only states that Philippine citizenship should be
chosen upon age of majority. CA 625 states the child should be given a
reasonable time to elect Philippine citizenship. This reasonable time has
been construed to be 3 years upon reaching the age of majority.
Here, Ching seeks to elect only 14 years after reaching the age
majority. This is way beyond the contemplated period for electing Philippine
citizenship. One who is privileged to elect Philippine citizenship has only an
inchoate right to such citizenshipas such, he should avail of the right with
fervor, enthusiasm and promptitude.
4. Those who are naturalized in accordance with law
TECSON VS. COMELEC
*FPJ was born in 1939, of a Filipino father and an American mother. His
parents got married only in 1940.
SC: FPJ is an illegitimate child because his parents got married only after his
birth. However, the 1935 Constitution states that those whose fathers are
citizens of the Philippines acquire Philippine citizenship. Thus, it did not
distinguish whether the child is legitimate or illegitimate.
The rule is different when it is the mother who is a Filipino. Here, if
the child is legitimatehe can elect Philippine citizenship upon reaching the
age of majority. If he is illegitimate, he will follow the mothers citizenship.
The reason for this rule is to ensure Filipino nationality of the child so as not
to prejudice. Normally, since he is illegitimate, the mother would have
custody and have parental authority.
*Natural-Born Citizens (Sec. 2)
2 Kinds of Natural-Born Citizens:
1. Those who are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine citizenship.
2. Those who elect Philippine citizenship in accordance with par (3), Sec. 1
-In this case, the person has to perform an act to perfect his
Philippine citizenship.
14
-A public School teacher was removed from her position because she
married her Chinese lover.
-However, if the woman just maintains a live-in relationship with a foreigner,
she does not lose her Philippine citizenshipthere is no marriage.
-Thus, they are better situated than those who contracted marriage
with foreigners.
-Absurd!
*In relation to Sec. 1 (3)
-Under the 1935 Constitution, the children of a Filipina-mother and an alienfather who had a common law relationship are Philippine citizens.
-No need to elect.
Naturalization
1. As to Nature
Q. Why?
-A
mode
of
acquisition
and
reacquisition of Philippine citizenship.
-Simpler proces
-A mode of re-a
citizenship.
Thus:
Re
15
c. Those who marry aliens if by the laws of the latters country the former are
considered citizens, unless by their act or omission they are deemed to have
renounced their Philippine citizenship.
Dual Allegiance
1. As to how it results
2. As to voluntariness
Dual
Involuntary.
-Voluntary.
-Arises when, d
application of t
or more sta
simultaneously
by said states.
16
Ex:
Structure of Government
Article VI, Sec 1 The legislative power shall be vested in the congress of
the Philippines
This is also called the POWER OF THE PURSE.
17
Article VII, Sec 1 The executive power shall be vested in the President of
the Philippines
Article VIII, Sec 1 The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law.
The legislative and the executive branches are called the POLITICAL
BRANCHES.
Corollary to the principle of separation of powers:
Each branch of the government is a check of the others so that power will
not be concentrated which might lead to abuse and irreparable damage.
18
A. It is one that defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it.
Ex: (1) Power to organize agencies was delegated to the President
Standard: to streamline the bureaucracy for economy and sufficiency.
delegation
to
the
delegate
Completeness Test
The standards need not be found in the law delegating the power. Instead,
standards may be found in other laws what is important is that the
standards are determinate or at least determinable (Chong Bian vs Ci-Bos)
The law delegating the power must be complete in itself in the sense that the
body on whom the power is delegated must have no discretion to exercise
the power but to enforce it.
The law must be complete in all its terms and conditions, such that there is
nothing more to be done by the body but to enforce it.
The law must set forth the policy to be executed, carried out or implemented
by the delegate.
Article VI, Sec 1: The legislative power shall be vested in the congress of
the Philippines, which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the people by the
provisions on initiative and referendum.
A. Legislative Power under Article VI, Sec. 1 (The Power of the Purse).
19
Initiative on Statutes
Senate
House of Representatives
Valid
The houses are co-equal bodies; hence the terms upper house and lower
house are inaccurate!
Bicameral Conference Committee
See Phil. Judges Association vs. Hon. Prado, and
Tolentino vs. Secretary of Finance.
PARTICIPATION
IN
THE
LAW-MAKING
20
When the president prepares a budget which is the basis of the GENERAL
APPROPRIATIONS ACT.
Art VII, Sec 22 The president shall submit to the congress x x x as basis
of the general appropriations bill a budget for expenditures and sources of
financing, including receipts from existing and proposed revenue measures.
Art VI. Sec 15 The president may call a special session at any time
Art VI, Sec 21 The senate or the house of representatives or any of its
respective committees may conduct inquiries in aid of legislation or in
accordance with its duly published rules of procedure
When the president certifies as the urgency of the bill to meet a public
calamity or emergency.
Art VI, Sec 23 The congress by a vote of 2/3 of both houses in joint
session assembled, voting separately, shall have the sole power to declare
the existence of a state of war. [*then based on such declaration, delegate
emergency powers to the President]
Art VI, sec 26 (2) No bill passed by either house shall become a law unless
it has passed three (3) readings on separate days x x x except when the
president certifies as to the necessity of its immediate enactment to meet a
public calamity or emergency.
The president hastens the process by dispensing with 3 separate readings
on 3 separate days rule.
21
and due execution thereof in the manner provided by law, canvass the
votes.
Composition of CONGRESS
Senate 24 senators elected at large;
Term: 6 years
Art VI, Sec 17 The senate and House of Representatives shall each have
electoral tribunals which is the sole judge of all contests relating to the
election returns and qualifications of their respective members x x x
Term: 3 years
Art VIII, Sec 19(2) He shall have the power to grant amnesty with the
concurrence of a majority of all the members of the Congress
Senator
House of Representatives
Art VI, Sec 5(1) The HOR shall be composed of not more than 250
members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the
metropolitan manila area x x x
This provision is already Functus Officio!
Congress has the power to reapportion legislative district every
census, under - Art VI, Sec 5(4)
Within 3 years following the term of every census, the congress shall make a
re-apportionment of legislative districts based on the standards provided in
this section.
Representative
(1) Citizenship
Natural born
(2) LIteracy
(3) Voter
Registered voter
(4) Age
35 years of age on
the day of election
(5) Residence
2 years residence
(6) Term
6
years,
2
consecutive
termlimit
SEMA v COMELEC
Creation of Shariff Kabunsuan
was declared unconstitutional.
Power to create legislative district
is legislative in character. Only
Congress can make legislative
district not ARMM Assembly. An
inferior legislative body like
ARMM created by a superior
22
Qualifications:
Marcos vs. COMELEC (248 SCRA 300 [1995])
In her application for candidacy, Imelda wrote 7 months
requirement, then amended it and wrote, Since birth. The SC decided in
favor of Imelda.
The party list system is one such tool intended to benefit those who hae less
in life. It gives the great masses of our people the genuine hope and genuine
power. It is a message to the destitute and the prejudiced, and even to those
in the underground (e.g. rebels), that change is possible. It is an invitation for
them to come our of their limbo and seize the opportunity.
Q: Is it open to all?
A: No. It is not open to all but only to the marginalized and the
underrepresented.
Allowing all individuals and groups, including those which now dominate
district elections, to have the same opportunity to participate in the party-list
elections would desecrate this lofty. Objective and mongrelize the social
23
To make it open to all, without qualifications would not only weaken the
electoral chances of the marginalized and the underrepresented it also
prejudices them. To allow the non-marginalized and the overrepresented to
vie under the party list system would not only dilute, but also prejudice the
chance of the marginalized and underrepresented contrary to the laws
intention to enhance it. It would gut the substance of the party-list system.
Instead of generating hope, it would create a mirage. Instead of enabling the
marginalized, it would further weaken them and aggravate their
marginalization.
Uphold Social Justice principle to give those who have less life, more in
law.
While political parties may participate in the party-list system, then must
comply with the declared statutory policy of enabling Filipino citizens
24
The party must not only comply with the requirements of the law; its
nominees must likewise do so x x x
By the very nature of the party-list system, the party or organization must be
a group of citizens, organized and operated by citizens.
Bar
25
In the case of Labo vs. COMELEC, reaffirmed in the case of Grego vs.
COMELEC, the court declred that the votes case for an ineligible or
disqualified candidate cannot be considered stray, because this would
disenfranchise the voters/majority; valid votes.
However, votes cast for a notoriously disqualified candidate may be
considered stray and excluded from the canvass.
This does not apply to the party-list elections!
Because of the express rule in Sec 10, RA 7941 x x x that a vote cast for
a party, sectoral organization or coalition not entitled to be voted for shall not
be counted x x x
The LABO doctrine applies only to SINGLE ELECTIVE POST/ELECTIONS
(e.g. Mayor); In the party-list system, even the 2 nd, 3rd, etc... candidate may
get seats.
See RA 7941.
The three (3) seat limit
Each qualified part, regardless of the number of votes actually obtained, is
entitled to a maximum of 3 seats 1 qualifying and 2 additional seats.
Rationale: To avoid domination/monopoly will go against the purpose of
the party-list system.
Proportional Representation
The additional seats to which a qualified party is entitled to shall be
computed in proportion to their total number of votes.
Q: To determine the total votes cast for the party-list system, should the
votes tallied to the disqualified candidates be deducted/excluded in
computing the 2% threshold?
A: Yes. The votes for the disqualified parties should be excluded.
(Ang Bagong Bayani OFW vs. COMELEC [June 25, 2003 En Banc])
26
A: Three categories:
Ex: Budget hearings usual means of renewing policy and auditing the use
of previous appropriation to ascertain whether they have been disbursed for
purposes authorized in an appropriation act.
Ex: GSIS.
Sec 11, Article VI A senator of member of the HOR shall, in all offenses
punishable by not more than 6 years imprisonment, be privileged from arrest
while the congress is in session. No member shall be questioned nor be
held liable in any other place for any speech or debate in Congress or in any
committee thereof.
3 Privileges:
27
the opening of the session is also the time the President delivers his STATE
OF THE NATION ADDRESS (SONA) part of the informing power of the
President (Art VII, Sec 23)
Art VII, Sec 23 The president shall address the Congress at the opening
of its regular session x x x
This is a deviation from the 1935 constitution, under which the opening of
the regular session is every 4 th Monday of January and the duration of the
session is for a fixed period of 100 days. It was patterned after the American
Constitution.
Freedom of Speech and Debate
No more because of the fact that he was convicted in RTC indicates that his
guilt is strong. Bail is even not a matter of discretion.
In relation to Doctrine of Condonation (Aguinaldo v Santos)
Note: Doctrine of Condonation is no longer available as defense. It has been
overturned by SC in a recent case.
Art VI, Sec 15 the Congress shall convene once every year on the
Fourth Monday of July for its regular session, unless a different date is
fixed by Law, and shall continue to be in session for such number of
days as it may determine until thirty days before the opening of its next
regular session, exclusive of Saturdays, Sundays, and legal holidays x
xx
28
Q: What is As remedy?
A: Ask the house to punish the congressman.
cannot be extended by
Intendment
Implication
Equitable considerations
Q: During pendency of his appeal from conviction of RTC, should he be
allowed to post bail?
A. NO. Evidence of guild is strong; should wait for decision on appeal inside
the penitentiary.
1987 Constitution says
Art III, Sec 13 All persons, except those charged with offenses punishable
by reclusion perpetua, when the evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on recognizance
as may be provided by law. x x x
Rules of Court says
Rule 114 Sec 4 Bail, a matter of right; exception:
29
It is investigative.
30
Section 21
Section 22
Q: May members of Cabinet and other top executive officials validly refuse
to appear before congressional inquiries without the consent of the President
by invoking EO 464 (prohibiting members of the cabinet and other Executive
officials from appearing in Congressional Inquiries) promulgated by the
President?
A: If the requirement then to secure presidential consent under EO 464 is
limited only to appearances in the Question hour, then it is VALID. For under
Section 22, Article VI of the Constitution, the appearance of department
heads in question hour is discretionary on their part. However, this cannot be
applied to department heads in inquiries in aid of legislation. Congress is not
bound in such instances to respect the refusal of the department heads to
appear in such inquiry, unless a valid claim of privilege is subsequently
31
Organization
Q:
A: 25
Exeption:
When exercised by the Congress or any of its committees
when conducting inquiries in aid of legislation (legislative contempt), one can
be held in detention/sent to prision.
How
many
Senate President ex officio chairman
members?
12 Senators
12 Representatives (from the House of Representatives)
Example:
Senate composition:
K4 = 10
KNP = 8
LOP = 4
LAKAS = 2
Formula to determine seats per party in the Commission on
Appointments:
# of senators of party
x 12
32
Total # of senators
Follow the same formula for HOR component just use the # of
congressmen.
Therefore:
K4 = 5
KNP = 4
LOP = 2
Membership 9 members
LAKAS = 1
33
HELD: The dismissal (of the case) is incorrect. This is a recognition of the
jurisdictional boundaries between COMELEC and HRET. In an electoral
contest where the validity of the proclamation of a winning candidate who
has taken his oath of office and assumed his post as congressman is raised,
the issue is best addressed to the HRET. This avoids duplicity of
proceedings and a dash of jurisdiction between constitutional bodies.
A: YES. A special civil action (an original action not a mode of appeal) for
certiorari under Rule 65 may be filed. This is based on grave abuse of
discretion amounting to lack or excess of jurisdiction. This will be filed before
the SC.
[Thus, once a winning candidate has been proclaimed, taken his oath of
office and assumed office as a member of the HOR, the COMELECs
jurisdiction over election contests relating to his election returns and
qualifications ends, and the HRETs own jurisdiction begins.]
b.
c.
34
Appropriations bill
Private bills
Revenue or Tariff bills
FACTS: There were 2 versions of the EVAT the HOR and the Senate
version. The HOR bill was first filed and the Senate suspended its own
deliberations until the HOR version was sent to the Senate. Then, the senate
passed its own version. Both versions were sent to the Bicameral
Conference Committee. What eventually became the EVAL law was the
senates version.
HELD: It is not the law, but the revenue bill that is required to originate
exclusively in the HOR. What the constitution simply means is that the
INITIATIVE for filing revenue, tariff bills, etcmust come from the HOR on
the theory that since the HOR members are elected from the districts, they
can be expected to be more sensitive to the local needs and problems. A bill
originating in the HOR may undergo such extensive changes in the Senate.
The result may be a rewriting of the whole. To insist that the revenue statute
must be substantially the same as the house bill would deny the senates
power to concur and propose amendments. This would violate the coequality of the legislative power between the HOR and the Senate. Thus, the
power of the senate to propose amendments includes the power to propose
its own version. Amendments may be amendments by substitution.
2 rules:
1) One-subject-one-title rule
Sec 26(1), Art VI Every bill passed by the Congress shall embrace only 1
subject, which shall be expressed in the title thereof.
Objectives (De Guzman Jr. vs. COMELEC)
To prevent hodge-podge or log-rolling legislation;
35
This, for as long as various provisions are germane to the subject matter
which is expressed in the title the rule is complied with.
[Here, when a statute repeals a former law, such repeal is the effect not
the subject of the law and it is the subject and not the effect that is required
to be briefly expressed in the title.]
the bills title is read; it is assigned a number, and then referred to the
appropriate committee
no deliberations yet
In the committee to which the bill was referred to, it may die a natural death
if said committee sits on it.
36
If the members of the committee endorse the bill to the plenary, it will be
calendared for 2nd reading.
If both houses have different versions of the Bill, said versions will be sent
to the Bicameral Conference Committee for reconciliation.
Second Reading
The bill is sent back to the plenary.
In the plenary, it will be discussed in its entirety; there will be sponsorship
speech, interpellations, deliberations; amendments may also be introduced.
Third Reading
Requirement: 3 days before the scheduled 3rd reading. Printed copies of the
bill will have to be distributed to each member of the house.
Here, there are no more deliberations, discussions, or amendments.
There is only voting; the yeas and nays must be entered in the journal.
After 3 readings, the bill will be sent to the other house where it will
undergo the same cumbersome process.
Referral back to the Senate and the HoR from the bicameral conference
committee, the consolidated bill will be sent back to each House.
There, the consolidated bill will be subject to voting; no more readings
If the yeas prevail over the nays the bill is passed and will be sent to the
Senate Predient and the HoR speaker for signing.
37
If the nays prevail over the yeas another bicameral conference committee
will be created until an acceptable version of the bill is created; the court did
not say that the bill is killed.
38
the that the House Bill No. 9266 had been passed by the Senate with
amendments, he attached a certification of the amendment, which were the
ones actually approved by the senate. The thereafter signified its
approval of the bill and caused copies thereof to be printed. The printed
copies were then certified and attested by the secretaries of the and the
senate and the speaker of the and the Senate president. When the
printed copies were sent to the President, he affixed his signature thereto by
was of approval. The bill became R.A. 4065. However, Senator Tolentino
issued a press statement that the bill signed into law by the President was
the wrong version. Consequently, the Senate President withdrew his
signature.
Sec 27 (1), Art VI Every bill passed by Congress shall, before it becomes
a law, be presented to the President x x x otherwise, he shall veto it and
return the same with his objections to the House where it originated.
Requirements:
Sent the bill back to Congress,
Together with his objections (veto message)
A: YES! With a 2/3 vote as provided under Sec 27(1) Art VI If after such
reconsideration, 2/3 of all members of such House agree to pass the bill, it
shall be sent, together with the objections to the other house by which it
shall likewise be considered, and if approved by 2/3 of all members of that
house, it shall become a law.
Kinds of Veto
many
options
does
the
president
have?
bill
does
Item Veto or Line Veto Art VI, Sec 27, par 2 The President shall have the
power to veto any particular item or items in an appropriation, revenue, or
tariff bill, but the veto shall not affect the item or items to which he does not
object.
not
General Rule: President may not veto a provision without vetoing the entire
bill.
The rule is all or nothing; selective veto is not allowed.
The president may not veto a bill without vetoing the entire bill. The
executive must veto a bill in its entirety or not at all. He cannot be an editor
crossing our provisions which she dislikes. (Bengzon vs. Drilon)
Exceptions: Selective veto is allowed in 3 kinds o bill (ART)
Appropriation bills
39
Revenue Bills
Chief Executive
Tariff Bills
Lupong Tagapamayapa
[UP]
Ultra-vires/
prejudicial to public welfare
Sec 55 of LGC par. B: on Item/line veto:
Appropriation Ordinance
Punong Baranggay
Persons-in-
Lupong taga-pamayapa
A: NO.
40
HELD: The Court sustained the validity of the exercise by the President of
her veto power, invoking the doctrine of inappropriate provision.
EXECUTIVE DEPARTMENT
EXECUTIVE POWER
Third option: President does not do anything (inaction)
Sec 27 (1), Art VI [last sentence] x x x The president shall communicate
his veto of any bill to the House where it originated within thirty days after
the ate of receipt thereof; otherwise, it shall become a law as if he had
signed it.
ARTICLE VII, Sec. 1: The executive power shall be vested in the President
of the Philippines.
41
ARTICLE VII, Sec. 3, 2nd par. No Vice President shall serve for more than
two successive terms.
- no longer an idle official
ARTICLE VII, Sec. 3, 2nd par. The vice President may be appointed as a
Member of the Cabinet. Such appointment requires no confirmation.
PRESIDENTIAL SUCCESSION
- Enumeration is exclusive!
- The Constitution specifically provided that the Congress cannot add nor
subtract from the list.
4 INSTANCES:
(1) Death
(2) Permanent disability
(3) Removal
- The President can only be removed by means of impeachment.
- ARTICLE XI, Sec. 2 : the list of impeachable officer is exclusive!
(1) President
(2) Vice President
(3) Members of the Supreme Court
(4) Members of the Constitutional Commission
(5) Ombudsman
- Hence, the provision in the law creating the Sandiganbayan
(1980) is already doubtful! (The law creating Sandiganbayan provides that
SB Justices may only be removed by impeachment.)
- Grounds:
(a)
(b)
(c)
(d)
42
43
II.
SPECIFIC
CONSITUTION
POWERS
FOUND
SOMEWHERE
ELSE
IN
THE
44
(3) Officers of the armed forces from the rank of colonel or naval captain
Q: What about officers of PNP of equivalent ranks?
A: No.
MANALO VS. SISTOZA
- President Aquino promoted 15 police officers by appointing them
to positions in the PNP with the rank of Chief Superintendent to Director.
Without their names submitted to the Commission on Appointments for
confirmation, the said police officers took their oath and assumed their
45
respective positions. Manalo questioned this on the ground that both under
Sec. 16, ARTICLE VII of the 1987 Constitution and RA. 6975 (Local Govt Act
of 1990) require their appointments to be submitted for confirmation and that
PNP is akin to the AFP.
EX: Chairmen and members of CSC, Comelec, COA (by express provision)
- The PNP is separate and distinct from the AFP. The Constitution
no less, sets forth the distinction. Under Sec. 4, ARTICLE XVII, the armed
forces of the Philippines shall be composed of a citizen armed force which
shall undergo military training and service, as may be provided by law. It
shall keep a regular force necessary for the security of the state. On the
other hand, Sec. 6 of the same article ordains that: The state shall
establish and maintain one police force, which shall be national in scope and
civilian in character to administered and controlled by a national police
commission. The authority of local executives over the police units in their
jurisdiction shall be provided by law.
SECOND SENTENCE
INSTANCES WHEN CONFIRMATION IS NO LONGER REQUIRED
(1) All other officers of the government whose appointments are not
otherwise provided by law
(4) Other officers of the government whose appointments are vested in him
in this Constitution
46
REGULAR
Congress was not in session. These ad interim appointments were bypassed by the Commission on Appointments.
However, they were
subsequently re-appointed by the President to the same positions. Upon
assumption to office, Benipayo transferred Matibag to another department.
Matibag now questions the validity of the appointments on the grounds that:
(1) the ad interim appointments violate ARTICLE IX-C, Sec. 1, Par. 2 In
no case shall any member be appointed or designated in a temporary or
acting capacity (Matibag is of the impression that such ad interim
47
appointments are temporary because they are revocable at the will of the
President); and (2) even assuming they are valid, their re-appointment
violates ARTICLE IX-C, Sec. 1, Par. 2 The chairman and the
commissioners shall be appointed xxx for a term of seven years without
reappointment.
SC: (1) An ad interim appointment is permanent in character (Summers vs.
Ozaeta). The Consitution imposes no condition on the effectivity of an ad
interim appointment and thus an ad interim takes effect immediately.
(2) There are four situations where ARTICLE IX-C, Sec. 1, Par. 2 will apply:
a)
where an ad interim appointee to the Comelec, after
confirmation by the Commission on appointment, serves his full seven-year
term;
- Appointment is discretionary.
Q: What if the appointments were actually disapproved and not simply bypassed, can they still be validly reappointed?
Acting Appointments
permanent in nature
merely temporary
48
requires
confirmation
by
Commission on Appointments
the
(1) those made for buying votes (to influence the outcome of
Presidential elections)
(1) ARTICLE VII, Sec. 13, Par. 2 The spouse and relative by
consanguinity or affinity within the fourth civil degree of the President shall
not, during his tenure be appointed as member of the Constitutional
Commissions, or the Office of the Ombudsman, or as secretaries,
undersecrataries, chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and their subsidiaries.
(nepotic appointments)
Q: To what positions?
49
50
- Section 13, ARTICLE VII is a new provision not found in 1935 and 1973
Constitution.
- This was a reaction to what happened during the Marcos Regime. There
was proliferation of newly created agencies, instrumentalities, and
government-owned or controlled corporations created by presidential
decrees and other modes of presidential issuances where cabinet members,
their deputies and assistants were designated to head or sit as member of
the board with the corresponding salary, emoluments, per diems,
allowances, and other perquisites of the office. This practice of holding
multiple offices or positions in the government soon led to abuses by
unscrupulous public officials who took advantage of this scheme for
purposes of self-enrichment.
FORBIDDEN OFFICE
more of an inhibition
more of a prohibition
A: Yes.
51
CONTROL POWER
ARTICLE VII, Sec. 17 The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed.
- Control is said to be the very heart of the power of the President. (Joson
vs. Torres)
Q: What is an EXECUTIVE DEPARTMENT, BUREAU, OR OFFICE?
CONTROL
exercised
over
all
executive
departments bureaus, and offices
GENERAL SUPERVISION
exercised over local governments
ARTICLE X, Section 4 The
President of the Philippines shall
exercise general supervision over
local governments xxx
ARTICLE II, Section 25 The State
shall ensure the autonomy of local
governments.
Q: What is CONTROL?
A: (1) to direct the performance of a duty;
(2) to restrain the commission of acts;
52
MILITARY POWERS
ARTICLE VII, Sec 18
3 DISTINCT MILITARY POWERS OF THE PRESIDENT
(1) Calling out power as the Commander-in-chief of the Armed Forces of the
Philippines
(2) Power to proclaim martial law
(3) Power to suspend the privilege of the writ of habeas corpus
SC: Such withholding clearly contravenes the Constitution and the law. The
Constitution vests the President with the power of supervision, not control,
over LGUs. Such power enables him to see to it that LGUs and their
officials execute their tasks in accordance with law. While he may issue
advisories and seek their cooperation in solving economic difficulties, he
cannot prevent them from performing their tasks and using available
resources to achieve their goals. He may not withhold or alter any authority
or power given them by law. Thus, the withholding of a portion of internal
revenue allotments legally due them cannot be directed by administrative
fiat.
GANZON VS. CA
There were 10 administrative charges against Mayor Ganzon of Iloilo in the
Office of the President. The Office of the President investigated. DILG
Secretary, as the Presidents alter ego, preventively suspended Ganzon.
Ganzon questioned this contending that the Constitution has left the
President mere supervisory powers which supposedly excludes the power of
investigation and denied her control which allegedly embraces disciplinary
authority. According to him, the President may not validly investigate and
much more cannot place him under preventive suspension which is an
incident of the power to investigate.
SC: The impression of Ganzon is mistaken. Legally, supervision is not
incompatible with disciplinary authority. Investigating is not inconsistent with
overseeing although it is a lesser power than altering.
- How can you expect the President to determine that the following performs
their powers and functions in accordance with law if you will deny him the
power to investigate.
53
- While the case was pending before the SC, EDSA I happened.
- Justice Teehankee, the lone dissenter in the Aquino case,
became the Chief Justice of SC and he penned the Olaguer doctrine.
- ARTICLE VII, Sec. 18, Par. 5 The suspension of the privilege of the writ
shall apply only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion.
- In connection with ARTICLE III, Sec. 13 If the offense is bailable, one
can still post bail because under this The right to bail shall not be impaired
even if the privilege of the writ of habeas corpus is suspended.
- ARTICLE VII, sec. 18, Par. 6 During the suspension of the privilege of
the writ, any person thus arrested or detained shall be judicially charged
within 3 days, otherwise he shall be released.
OLAGUER DOCTRINE
- Superseded AQUINO VS. COMMISSIONER
PARDONING POWER
civilians
- Ninoy Aquino questioned the assumption of jurisdiction of the
military tribunals
- predictably, he was sentenced to death by musketry (firing squad)
He shall also have the power to grant amnesty with the concurrence of a
majority of all the Members of the Congress.
- sentence was not carried out but he died just the same
(1)
(2)
(3)
(4)
(5)
To grant reprieves
To grant commutations
To grant pardons
To remit fines and forfeitures
To grant amnesty
AMNESTY
- segregated from the 4 others
- concurrence of the majority of all member of congress is required
- conviction by final judgment is not required unlike the 4 others
54
AMNESTY
conviction
required
is
not
by
final
judgment
but
55
It involves
his criminal act, thereby restoring him his clean name, good reputation and
unstained character prior to the finding of guilt.
- Hence, she is excused from serving sentence; but in the eyes of the law,
she is still a convict. Unless the grant expressly so provides, she cannot be
reinstated. And since she is not entitled to be reinstated, with more reason
that she is not entitled to backwages.
- It does not impose upon the government any obligation to make reparation
for what has been suffered since the offense has been established by
judicial proceedings, that which has been done or suffered while they were
in force is presumed to have been rightfully done and justly suffered and no
satisfaction for it can be required.
- He is entitled to full backwages for 8 years. Verily, law, equity, and justice
dictate that Garcia be afforded compassion for the embarrassment,
humiliation, and above all injustice caused to him and his family by his
unfounded dismissal. This is a little measure. SC even commended him for
protecting government property.
56
A: The power to ratify is vested in the President and not in the legislature.
The role of the Senate is limited only to giving or withholding its consent or
concurrence to the ratification. (Bayan vs. Zamora)
Q:
Is an EXECUTIVE AGREEMENT
INTERNATIONAL AGREEMENT?
BORROWING POWER
ARTICLE VII, Sec. 20 The President may contract or guarantee foreign
loans on behalf of the Republic of the Philippines with the prior concurrence
of the Monetary Board, and subject to such limitations as may be provided
by law xxx.
as
an
INTERNATIONAL
Q: Is VFA a treaty?
binding
TREATY-MAKING POWER
equally
EXECUTIVE
-
involves implementation of
57
58
59
} as ex officio members
I.
Taada v. Angara By its very nature, Art. II are policies and principles that
may guide the Legislature in the enactment of laws and the courts in its
interpretation
Hence, as a general rule, these provisions are non-self-executing
General Considerations:
- Term:
The regular members of the Council shall be appointed by
the President for a term of 4 years with the consent of the Commission on
Appointments.
(2) ARTICLE VIII, Sec. 3 The Judiciary shall enjoy fiscal autonomy.
Appropriations for the Judiciary may not be reduced by the legislature below
the amount appropriated for the previous year and after approval, shall be
automatically and regularly released.
II.
60
IV.
A:
NO! This clause should not be lifted out of context. Look
at the 1st sentence of the provision that the civilian authority is supreme
over the military. Thus, the AFPs role must be understood within the context
of civilian supremacy.
61
A:
4.
5.
Sec. 16, Art. II The State shall protect and advance the
right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.
Q:
This refers to a right of the people. Why is this
found in Art. II and not in Art. III (Bill of Rights)?
A:
This right belongs to a different category of rights!
Oposa v. Factoran (224 SCRA 792, 1993)
HELD: While this right is found under the
Declaration of Principles and State Polivies, it does not
follow that it is less important than any of the c ivil and
political rights under the Bill of Rights. This right belongs
to a different category of rights, since it concerns nothing
less than self preservation and self- perpetuation, the
advance of which may be said to predate all governments
and Constitutions, since they are presumed to exist from
the inception of humankind.
This is self-executing provision! (Oposa v. Factoran)
Thus, its violation gives rise to a cause of action.
A:
servitude:
Exceptions to the rule on involuntary servitude:
1. Military service to defend the State
2. Penal punishment
3. Assumption of jurisdiction of DOLE in labor
cases
62
2.
VIII.
Provisions on Education
Academic Freedom Art. XIV, Sec. 5 (2) Academic freedom
shall be enjoyed in all institutions of higher learning.
Note that the provision says institutions of higher
learning
This refers to the tertiary level only!
63
Q:
A:
2.
3.
4.
accept a student
IX.
64
FACTS:
The constitutionality of RA 8371
(Indigenous Peoples Reform Act) was quesrioned. The
SC en banc voted 7-7, hence, since the presumption is for
constitutionality, such presumption was not overthrown,
and the law was declared unconstitutional. Each justice
wrote a separate opinion, and all opinions form part of the
decision.
SALIENT POINTS
1.
2.
65
4.
5.
66
A:
NO!
Significant Laws
BP 881 Omnibus Election Code
RA 6646 Electoral Reform Law of 1987
RA 7166
RA9006 Fair Election Act
RA 9189 Absentee Voters Act of 2003
Election Process divided into 3 stages:
(1) Pre-election
(2) During election
(3) Post Election
PRE-ELECTION STAGE
Registration of Voters
Q:
A:
VOTERS QUALIFICATIONS
In Cario v. Insular Government, the
SC has held that when as far back as testimony
or memory goes, the land has been held by
individuals under a claim of private ownership, it
will be presumed to have been held in the same
way from before the Spanish conquest, and
never to have been public land.
Native title is an exception to jura
regalia.
67
(4) resident of the Philippines for at least one year and of the place wherein
they propose to vote for at least six months immediately preceding the
elections
Sec. 4 RA 7166
Mitmug v. COMELEC
-
Election Period: 90 days before the day of the election and shall end 30 days
thereafter
-Registration
Art. V. Sec 1
-Political Parties
Art. IX-C, Sec 2(5)
Q:
A:
Effects of Disqualification
-Campaign Period Sec. 6, RA 7166
Guerrero v. COMELEC
-Substitution of Candidates
Loong v. COMELEC
Sec. 77 OEC
Salcedo v. COMELEC
Sec. 12 RA 9006 Tecson v. COMELEC
Section 8, BP 881
-
Failure of Elections
Sec. 6 OEC
Election Protest
Counter protest
Kho v. COMELEC
Quo Warranto
-
Effect of Death
De Castro v. COME
Santiago v. FVR
-Disqualification Cases
Art. V, Sec. 2 The Congress shall provide a system for securing
Sec. 68 OEC the secrecy and sanctity of the ballot as well as a system for
Sec. 69 OEC (5
days) voting by qualified Filipinos abroad xxx
absentee
Sec. 78 OEC (25 days)
Provides for:
(1) A system for securing the security and sanctity of ballots
(2) A system for absentee voting
MACALINTAL v. COMELEC
Pre-Proclamation
Sec. 241,242,243 OEC
Sec. 15, RA 7166
EXIT POLLS
The reason for securing the sanctity/secrecy of ballots is to avoid vote
buying through voter identification. What is forbidden is the association of
voters with their respective votes for the purpose of assuring that votes have
been cast in accordance with the instruction of a third party.
Exit polls conducted by ABS-CBN does not violate the sanctity of ballots.
The contents of the ballots are not exposed. The revelation is not
compulsory but voluntary. Also, voters are not required to reveal their
names. (ABS-CBN v. COMELEC)
Q:
A:
68
A:
MULTI-PARTY SYSTEM
We are supposed to have a multi-party system as provided under Art. IX-C,
Sec. 6 A free and open party system shall be allowed to evolve according
to the free choice of the people, subject to the provisions of this Article.
ELECTION PERIOD
Q:
A:
69
Q:
Does Pichays as itanim sa senado even before the elections and
campaign period violate Sec. 80 of the OEC?
WITHDRAWAL
Q:
A:
No. At that time, Pichay has not yet filed his certificate of candidacy.
He is not yet a candidate within the meaning of the law. Therefore, it cannot
be considered as an election campaign.
FILING OF CERTIFICATE OF CANDIDACY
Sec.76. Omnibus Election Code Ministerial duty of receiving and
acknowledging receipt The Commission, provincial election supervisor,
election registrar or officer designated by the Commission or the board of
election inspectors under the succeeding section shall have the ministerial
duty to receive and acknowledge receipt of the certificate of candidacy.
It is a ministerial duty on the part of the election official to receive and
acknowledge receipt of the certificate of candidacy. The question of whether
or not a person is disqualified belongs to another tribunal in an appropriate
disqualification case.
A:
Yes. A person who has filed a certificate of candidacy may, prior to
the election, withdraw the same by submitting to the office concerned a
written declaration under oath. (Sec. 73, 2nd sentence, OEC)
MONSALE v. NICO
On the last day of filing of certificate of candidacy. March 31, Jose Monsale
withdrew his certificate of candidacy. April 1, campaign started. On April 2,
he wanted to run again so he filed a written declaration withdrawing his
withdrawal.
HELD: The withdrawal of the withdrawal of the certificate of candidacy
made after the last day of filing is considered as filing of a new certificate of
candidacy. Hence, it was not allowed since it was filed out of time.
EFFECT OF FILING OF A CERTIFICATE OF CANDIDACY
Q:
Ka Roger went to Laguna to file COC. The election officer refused
because he seeks to achieve goals through violence. Valid?
A:
No. It is the ministerial duty on the part of the election official to
receive and acknowledge receipt of the certificate of candidacy. The
question of whether or not a person is disqualified belongs to another
tribunal in an appropriate disqualification case.
PERIOD
Sec. 73, 1st sentence, OEC No person shall be eligible for any elective
public office unless he files a sworn certificate of candidacy within the period
fixed herein xxx
The certificate of candidacy must be filed within the period prescribed by law.
Late filing not allowed
Sec. 73, 3rd sentence, OEC No person shall be eligible for more than one
office to be filled in the same election, and if he files his certificate of
candidacy for more than one office, he shall not be eligible for any of them
xxx
The certificate of candidacy must be filed for only one office in an election
If a candidate files his certificate of candidacy for more than one office, he
shall not be eligible for any of them.
Appointive Officials
Sec. 66. OEC Candidates holding appointive office or position Any
person holding a public appointive office or position, including active
members of the Armed Forces of the Philippines, and officers and
employees in the government-owned or controlled corporations, shall be
considered ipso facto resigned from his office upon the filing of his certificate
of candidacy.
Q:
X, a municipal treasurer filed a certificate of candidacy for governor.
What is the effect?
A:
He is considered ipso facto resigned.
Q:
Is there a need to resign?
A:
NO! The appointive official is ipso facto resigned. Ipso facto means
no need to resign.
Q:
A:
PNOC-EDC v. NLRC
HELD: The OEC does not distinguish between employees of GOCCs which
have original charters and those that do not have one.
70
Elective Officials
Sec. 67, OEC Candidates holding elective office xxx has already been
repealed by the Repealing Clause of the Fair Election Act under Sec. 14, RA
9006 Repealing Clause. Sec 67 and 85 0f the EOC xxx are hereby
repealed.
Q:
Q:
A:
Q:
A:
Secton 38, COMELEC Resolution 7767 (30 Nov 2006),
Implementing Rules of the Fair Election Act Effect of Filing Certificate of
Candidacy of Elective Officials Any elective official, whether national or
local, who has filed a certificate of candidacy for the same or other office
shall not be considered resigned from his office.
A:
FARIAS v. EXECUTIVE SECRETARY
HELD: The provision of the Fair Election Act (RA 9006) to the extent that it
repealed Sec.67 of OEC is constitutional.
Q:
Vice-governor filed a certificate of candidacy for governor. What is
the effect?
A:
He is NOT ipso facto considered resigned. Sec. 67 OEC has been
repealed by the FAIR ELECTION ACT (RA 9006). Any elective official,
national or local shall not be considered as resigned from their elective
office.
Q:
A:
SUBSTITUTION OF CANDIDATES
Q:
A:
A:
Yes! As a general rule, under RA 9006, Sec. 12, the same will be
considered as stray votes but will not invalidate the whole ballot.
Exception is when the substitute carries the same family name, the said
provision will not apply.
71
Q:
A:
LABO DOCTRINE
The thrust is what to do with the votes cast for a disqualified candidate.
Should they be considered as stray votes?
SC:
No! That would disenfranchise the majority. The votes cast for the
disqualified are not stray votes they are valid votes only that the candidate
was later on found to be disqualified.
It would have been different if his disqualification was so apparent,
so notorious, so much so that the people, notwithstanding that they knew
him to be disqualified, they still voted for him in which case the votes cast for
him shall be considered as protest votes. Protest votes are considered as
stray votes. But not in this case, where the people of Baguio voted for Labo
only to find out that he is disqualified.
You cannot apply Labo Doctrine in Party-List because of Section 10, RA
7941
CAYAT v. COMELEC
FACTS: Rev. Fr. Nardo Cayat ran for Mayor. Palileng, his opponent, found
out that Cayat, before the elections, was previously convicted of acts of
lasciviousness although he was granted probation. His candidacy was then
questioned in a disqualification case invoking Section 40 pf the LGC.
(Disqualification The following persons are disqualified from running for
any elective local position: (a) those sentenced by final judgment for an
offense involving moral turpitude or for an offense punishable by one (1)
year or more of imprisonment, within (2) years after serving sentence ; xxx) .
COMELEC disqualified Cayat on the ground of conviction of an offense
involving moral turpitude. However, Cayat alleged that he did not receive a
copy of the judgment. That decision disqualifying Cayat became final even 2
weeks before the election. Still, Cayat won in the election. Palileng claimed
that since Cayat is disqualified, he should be the one proclaimed.
HELD: The Court agreed and did not apply the doctrine of the rejection of
the second placer. The one who obtained the second highest number of
votes was the one actually proclaimed. This is very peculiar because here,
there is only one candidate. Since Cayat was disqualified, it is as if he is not
a candidate. Hence, there is no second placer here.
The doctrine of the rejection of second placer is not applicable because of
Sec.6 of RA 6646
72
A:
SALCEDO v. COMLELEC
HELD: Material misrepresentation refers to the QUALIFICATIONS of the
elective official for the elective office and NOT to any innocuous mistake.
73
Q:
After election, but before proclamation, what is the remedy?
A:
Pre-proclamation case. But this presupposes that there was
election
Q:
A:
ROMUALDEZ-MARCOS v. COMELEC
There was yet no proclamation, hence not yet a member of the HOR.
COMELEC still has jurisdictom
Section 242, OEC Commission's exclusive jurisdiction of all preproclamation controversies. - The Commission shall have exclusive
jurisdiction of all pre-proclamation controversies. It may motu proprio or upon
written petition, and after due notice and hearing, order the partial or total
suspension of the proclamation of any candidate-elect or annual partially or
totally any proclamation, if one has been made, as the evidence shall
warrant in accordance with the succeeding sections.
GUERRERO v. COMELEC
Farias was elected, proclaimed and took his oath. The COMELEC ousted
itself of jurisdiction. SC upheld COMELEC. It was recognition of the power
of the HRET and the constitutional boundaries.
POST ELECTION
PRE-PROCLAMATION CASE
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
74
Any objection on the election returns before the city or municipal board of
canvassers, or on the municipal certificates of canvass before the provincial
board of canvassers or district boards of canvassers in Metro Manila Area,
shall be specifically noticed in the minutes of their respective proceedings.
Eg. Ballot box switching not proper for pre-proclamation case; does not fall
under any of the instances under Art. 243 of OEC.
FAILURE OF ELECTION
Section 6, OEC Failure of election. - If, on account of force majeure,
violence, terrorism, fraud, or other analogous causes the election in any
polling place has not been held on the date fixed, or had been suspended
before the hour fixed by law for the closing of the voting, or after the voting
and during the preparation and the transmission of the election returns or in
the custody or canvass thereof, such election results in a failure to elect, and
in any of such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a verified petition
by any interested party and after due notice and hearing, call for the holding
or continuation of the election not held, suspended or which resulted in a
failure to elect on a date reasonably close to the date of the election not
held, suspended or which resulted in a failure to elect but not later than thirty
days after the cessation of the cause of such postponement or suspension
of the election or failure to elect.
GROUNDS FOR FAILURE OF ELECTION
(1) Force majeure
(2) Violence
75
(3) Terrorism
(4) Fraud
(5) Analogous Causes
SITUATIONS
(1) No election
The election in any polling place has not been held on the
date fixed on account of FVTFA
(2) Election is suspended
The election in any polling place has been suspended
before the hour fixed by law for the closing of the voting on
account of FVTFA
(3) There is a failure to elect
After the voting and during the preparation and
transmission of the election returns or to the custody or
canvass thereof, such election results in a failure to elect
on account of FVTFA; nobody emerged as winner
Q:
A:
What are the two (2) conditions that must concur before the
COMELEC can act on a verified petition seeking to declare a failure
of election?
(1) no voting took place in the precinct
(2) on the date fixed by law or even if there was voting, the election
resulted in a failure to elect.
Q:
Where to file a petition to declare a failure of election?
A:
COMELEC EN BANC. The majority of the Commission may grant
the petition and schedule special election in areas affected.
(Section 4, RA 7166 Postponement, Failure of election and
special Elections The postponement, declaration of failure of election and
the calling of special elections as provided in Sec. 5, 6, and 7 of the OEC
shall be decided by the Commission sitting en banc by a majority vote of its
Members. The causes for the declaration of a failure of election may occur
before or after the casting of votes or n the day of the election xxx)
BANAGA v. COMELEC
Failure of election is the same with petition to annul election returns
General Rule: xxx All such election cases shall be heard and decided in
division, provided that motions for reconsideration of decisions shall be
decided by the Commision en banc. (Art IX-C, Section 3)
Exception: A petition to declare a failure of election shall be heard by the
COMELEC en banc.]
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
Q:
A:
It is the ministerial duty of the BOC to proclaim the winning candidate. It has
no discretion whether to proclaim or not. After the last official act, which is
the proclamation, the BOC becomes functus officio and may not validly
reconvene motu proprio. However, when the COMELEC ordered the
reconveyance of the BOC, it may.
POST-ELECTION REMEDIES After election
ELECTION PROTEST v. QUO WARRANTO
ELECTION PROTEST
- who really won in the election?, determination of real
choice of electorate
- only the candidate running for the same can file
- if the protestant wins, he shall be proclaimed and shall
replace the previously proclaimed winner.
QUO WARRAN
- whether the winning candidate is
lack of qualifications of the candida
76
From the decision of the COMELEC, file first a motion for reconsideration. It
is only
the decision
of COMELEC
-eg. Citizenship, residence,
disloyalty
to Republic
of the EN BANC that is reviewable by the SC.
Philippines
TECSON v. COMELEC
DUMAYAS v. COMELEC
Before the election, a petition was filed on the ground of material
Election Protest is a contest between the defeated and winning candidates
misrepresentation. COMELEC dismissed the petition. TECSON et. al.
on the ground of frauds or irregularities in the casting and counting of the
argued tha the jurisdiction with the SC.
ballots or in the preparation of returns. It resolves the question of who
actually obtained the plurality of the legal votes and therefore is entitled to
HELD: Contest refers to post-election scenario and not pre-election
hold the office.
scenario. It shall consist of either an election protest or quo warranto which
Quo warranto raises in issue the disloyalty or ineligibility of the winning
are two (2) distinct remedies but with one objective, to unseat winning
candidate. It is a proceeding to unseat the respondent from office but not
candidate. SC has jurisdiction over election contests of President/Vicenecessarily to install the petitioner in his place.
President and NOT candidates. It does NOT include a petition qualifying a
candidate for President/Vice-President.
Sc is the sole judge for
JURISDICTION
and NOT over candidates for President/Vice(1) President/ VP
- SC en banc , acting as
- EP President/Vice-President
30 days from proclamation
Hence,
the action was dismissed for lack of jurisdiction and
Presidential Electoral Tribunal
QW President.
10 days from
proclamation
prematurity.
(Art. VII, Sec. 4[7])
sole judge
election returns refers to election protest
refers to quo warranto
(2) Members of the Congress
-EP orqualification
QW
-Senators
-Senate Electoral Tribunal
- 15 days after proclamation
GALIDO
COMELEC
-Congressmen
-HR Electoral Tribunal
- 10 daysv.
after
proclamation
Notwithstanding the finality of COMELECs decision, the parties are NOT
(Art. VI, Sec. 17)
precluded from filing a petition for certiorari with the SC.
No appeal
Or Rule 65 (Special Civil Action
FRIVALD0 v. COMELEC ; LOONG v. COMELEC
on Certiorari)
If the
ground
relied upon is lack of citizenship or disloyalty to the Republic,
(3) Governor/ Vice-Governor
-COMELEC (Original)
-10 days
from
proclamation
the period must be extended.
(Art. IX-C, Sec. 2[2])
-SC (Appellate)
EFFECT OF DEATH OF A PARTY
Q:
What is the effect of death of a party in an election protest? Should
(4) Regional/ Provincial/City
-COMELEC (Original)
it warrant the dismissal of the protest?
-SC (Appellate)
- eg. coercion, terrorism, ballot box switching, vote
buying.
-RTC (Original)
(trial courts of general jurisdiction)
-COMELEC (Appellate)
(Art. IX-C, Sec. 2[2])
-MTC (Original)
(trial courts of limited jurisdiction)
-COMELEC (Appellate)
A:
The death of the protestant neither constitutes a ground for the
dismissal of the contest not ousts the trial court of its jurisdiction to decide
the election contest. An election protest involves both the private interests of
the rival candidates and the public interest in the final determination of the
real choice of the electorate, and for this reason, an election contest
necessarily survives the death of the protestant or the protestee. But while
the right to public office is personal and exclusive to the public officer, an
election protest ins not purely personal and exclusive to the protestant or to
the protestee such that after the death of either would oust the court of all
authority to continue the protest proceedings. An election contest, after all,
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INCLUSION/EXCLUSION PROCEEDINGS
- within the jurisdiction of MTC appealable to RTC
-RTC decision is not appealable
WHEN ELECTION PROTEST BECOMES MOOT
78
conduct of election.
- This is an executive function.
But the law may vest the agency quasi-judicial and quasi-legislative
powers.
2. Professor Goodnow
it is that part of public law which fixes the organization of the government
and determines the competence of the authorities who execute the law and
indicates to the individual remedies for the violation of his rights.
2 COMPONENTS:
(1) Corporate governmental entity, through which the functions of
government are exercised throughout the Philippines.
In both definitions, the focus is on the executive department acting in quasilegislative and quasi-judicial functions.
(2) Various arms through which political authority is made effective in the
Philippines.
It implements or enforces
Ex: COMELEC - main function is to enforce the laws relative to the
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
79
owned
or
ARTICLE VII, Section 17
ARTICLE X, Section 4
controlled
Control power of the President Power of General Supervision corporations,
The President shall have control of all The President of the Philippines shall exercise general
or a local
executive departments, bureaus and offices. He supervision over local governments xxx
government
shall ensure that the laws be faithfully
or district unit
executed.
therein.
CONTROL is the power of the superior to direct POWER OF GENEREAL SUPERVISION means to generally
(Section
the performance of a duty, restrain the oversee, see to it that the local governments and their officials
commission of acts, review, revise, modify, perform their functions in accordance with law (no more than
*LGU's are not under the
reverse or alter the decisions and even to that)
control power of the
substitute the superiors own decision.
President. It falls under the
CONTROL is the very heart of the power of the
general supervision of the
President. (Joson V. Torres)
President.
CONSTITUTION).
DEPARTMENT
The territorial and political subdivisions of the Republic of the
refers to man executive department created by law. (Section
Philippines are the provinces, cities, municipalities and barangays.
2[7] Introductory Provisions E.O. 292)
There shall be autonomous regions in Muslim Mindanao and the
Ex: DOJ, DENR, DOH
Cordilleras.
(b) They are
referred to as
territorial and
political
subdivisions
of
the
Republic
of
the
Philippines
(Article
X,
Section
1,
1987
BUREAU
-
OFFICE
-
80
CHARTERED INSTITUTIONS
refers to any agency organized or operating under a special
charter, and vested by law with functions relating to specific
constitutional policies or objectives.
this term includes the state universities and colleges and the
monetary authority of the state. Section 2 [12] Introductory
Provisions, E.O. 292)
Ex: BSP
ATTACHMENT
This refers to the lateral relationship between the department or its
equivalent and the attached agency or corporation for purposes of policy and
program coordination. The coordination may be accomplished by having the
department represented in the governing board of the attached agency or
corporation either as chairman or as a member, with or without voting rights.
If this is permitted by the charter, having the attached corporation or
agency comply with a system of periodic reporting which shall reflect the
progress of programs and projects and having the department or its
equivalent provide general policies through its representative in the board,
which shall serve as the framework for the internal policies of the attached
corporation or agency.
OTHER AGENCIES
INSTRUMENTALITY
refers to any agency of the National Government, not
integrated within the department framework vested with special
functions or jurisdiction by law, endowed with some if not all
corporate powers, administering special funds, and enjoying
operational autonomy, usually through a charter.
this term includes regulatory agencies, chartered institutions
and GOCC's. (Sec.2 [16], Introductory Provisions, E.O. 292)
REGULATORY AGENCY
refers to any agency expressly vested with jurisdiction to
regulate, administer, or adjudicate matters affecting substantial
rights and interests of private persons, the principal powers of
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
81
power
QUASI-LEGISLATIVE POWER
Q. What do you mean by Quasi-legislative?
A. It refers to the power or authority of an administrative agency to
promulgate rules and regulations in order to implement a law or a given
legislative policy.
ILLUSTRATION
Delegation of Powers
Conferment of Jurisdiction
QUASI- LEGISLATIVE ADMINISTRATIVE AGENCY QUASI JUDICIAL
Administrative Regulations
Q. Other names?
A. (1) Rule-making power of an agency
(2) Power of Subordinate Legislation
Legislative
Supplemental
Interpretative
Contingent
Due Process
Contempt Power
Appeals
Q. In what capacity did the Secretary of Labor acted in promulgating the
rules and regulations implementing the Labor Code?
A. He acted in his quasi-legislative capacity.
POWERS AND FUNCTIONS OF ADMINISTRATIVE AGENCIES
Q. Generally, how will you describe the functions of an administrative
agency?
A. The functions of an administrative agency are to enforce, implement,
administer and execute laws.
Q. What kind of function?
A. Executive. These agencies belong to the executive branch. They do not
perform legislative and judicial functions. However, these agencies may
perform quasi-legislative and quasi-judicial functions.
Ex: COMELEC - to administer all laws relative to plebiscite,
referendum, recall
CSC - to administer the Civil Service Law
Note: Not all administrative agencies perform all kind of functions.
Ex: NLRC - exercises in general quasi-judicial function
DOLE - the agency that administers labor law
SEC - has an executive function and quasi-legislative; no more
quasi-judicial
Political Law Review Notes (Atty. Edwin Sandoval)
Prepared by: Atty Joan P. Gamboa
82
When Article 2 of the New Civil Code refers to laws, these do not
only refer to those enacted by Congress but includes administrative
regulations promulgated by administrative bodies in their quasilegislative functions except those which are merely internal or
interpretative in nature. (Tanada v. Tuvera)
83
Elements: CD-DIP
84
SELECTION
2 ways:
4. It is not a property.
It is therefore not protected or guaranteed by the due process
clause.
Ex: A is holding public office, Congress decided to abolish it. A cannot
complain that there was a violation of the due process clause if he was not
given an opportunity to be heard, provided that the abolition is done in good
faith.
ABOLITION VS REMOVAL
In abolition, what is abolished is the office itself, while in removal, it
is the occupant that is removed, but the office remains.
Ex: A is holding a public office, he was removed. In this case, A may validly
invoke his security of tenure. He can only be removed for a just and valid
cause and there must be an observance of due process.
PUBLIC OFFICER
Who is a public officer?
A public office is one who holds a public office.
1. Election
2. Appointment
DESIGNATION -refers to the imposition of additional duties, usually by law,
on any person already in public office. It presupposes that a person is
already appointed.
SEVILLA VS CA
Generoso Sevilla was appointed as Asst. City Engineer of Palayan
City, Nueva Ecija until he was designated as the Acting Engr of Cabanatuan
City. After the EDSA Revolution, Sevilla was ousted when the City Mayor of
Cabanatuan appointed Nerito Santos as the new City Engineer. This was
later confirmed by the Ministry of Public Works and Highways and approved
by the CSC. This was questioned by Sevilla in an action/petition for Quo
warranto filed against Santos.
85
The head of an agency who is the appointing power is the one who
is most knowledgeable to decide who can best perform the function of an
office.
Nature of designation
FLORES VS DRILON
Hence, when the Congress clothes the President with the power to appoint
an officer, it cannot at the same time limit the choice of the President to only
one candidate. Once the power of appointment is conferred on the
President, such conferment necessarily carries the discretion on whom to
appoint.
NEXT IN RANK RULE
Where can you find the said rule?
Civil Service Law
REMONTE VS CSC:
86
Q: If the next to the Head Chief Accountant is the Deputy accountant and the
third is the Administering Officer IV, then the office of Chief Accountant
became vacant and the then Deputy accountant and Administering Officer IV
applied, assume that another Chief Accountant applied and was appointed,
can the Deputy Accountant claim that there was a violation of the next in
rank rule?
A: No. The next in rank rule applies only in case of promotion. What is
involved here is a mere transfer, a lateral movement involving same rank
and position.
In case of a promotion, vertical movement from lower to a higher position.
Q: What if the one that was appointed was the Administering Officer, can
Deputy Accountant complain?
A: Yes, because it was filled by a promotion.
Q: Can the Deputy Officer claim that he should be the one to be appointed?
A: No, appointment is discretionary.
Rules:
1. It applies only in cases of promotion.
2. Even in promotions, it can be disregarded for sound reasons made
known to the next in rank as the concept does not import any mandatory or
preemptory requirement that the person next in rank must be appointed to
the vacancy.
3. The appointing authority is allowed to fill vacancies by promotion,
transfer, reinstatement, etc.
4. There is no legal fiat that a vacancy must be filled only by promotion, the
appointing authority is given wide discretion to fill a vacancy from among
several alternatives provided by law.
5. One who is next in rank is entitled to preferential consideration for
promotion to higher vacancy BUT it does not necessarily follow that he and
no one else can be appointed.
ABILA VS CSC
When Amado Villafuerte retired from his position as Admin Officer
IV in DOH-Qeuzon City, the Officer-in-Charge appointed Alex Abila, who had
been the Acting Asst. Civil Security Officer, as his successor. This was
questioned by Florentina Aleria, the Admin Officer III of DOH.
PRINCIPLE OF VACANCY
Q: Jose, an employee working for ten years already, was surprised to learn
that Pedro replaced him. Jose was removed. But the CSC ordered the
reinstatement of Jose which became final. Can Pedro validly complain that
there was a violation of security of tenure?
87
A: No. This is because there was no vacancy, hence security of tenure did
not attach.
2. Art IX-B, Sec. 4 All public officers and employees shall take an oath or
affirmation to uphold and defend the Constitution.
2 PRINCIPLIES:
3. Art. XV, Sec. 5, par. 1 All members of the armed forces shall take an
oath or affirmation to uphold and defend the Constitution.
2. As an endowment
QUALIFICATION AS AN ACT
-consists in taking of an oath
-in case of an accountable officer (Ex: Treasurer), consist in the posting of a
bond.
Constitutional provisions related to it:
1. Art. 7, sec. 5 before they enter on the execution of their office, the
President, the Vice President or the Acting President shall take the following
oath or affirmation XXX.
88
EXCEPTIONS:
1. There is no de jure officer claiming for the salary OR
2. Assumption was made in good faith.
FLORES VS DRILON
SC: Gordon should not be made to reimburse for such emoluments.
Otherwise the govt will be unjustly enriched by his services. Gordon was a
de facto officer.
Prescriptive Period to attack a colorable title:
1 year from the disposition from office. After 1 year, the de facto
officer will ripen into a de jure one.
REQUIREMENTS OF A DE FACTO OFFICERSHIP
In Civil Law, residence and domicile are different. In the said law, a person
may only have several residences but may only have one domicile. In
Ploitical Law, particularly in election law, residence and domicile are the
same.
3 CLASSES OF DOMICILE
1. Domicile of Birth
2. Domicile of Choice
3. Domicile by Operation of Law
MACALINTAL VS COMELEC
2. Color of title.
Domicile of Choice
-
89
under the Civil Code, when the woman gets married, she gets the residence
of the husband by operation of law. Pres. Marcos was a resident of San
Juan. At that time, Family Code does not exist yet.
SC: With the death of her husband, her adoption of the San Juan residency
is lost.
SC: Argument No.1) he was voted by the people, hence the defect was
cured:
Merito was disqualified. People of Bolinao cannot amend the
Omnibus Election Code (OEC). His election thereto was null and void. The
law applicable to him is Sec. 68 of the OEC Any person who is a
permanent resident of or an immigrant to a foreign country shall not be
qualified to run for any elective office under this Code, UNLESS such person
has waived his status as permanent resident or immigrant of a foreign
country in accordance with the residence requirement provided for in the
election laws.
d). education
--a qualification under Civil Service Law
--true only to appointive officials, in case of elective official, minimum
requirements are that he must be able to read and write
e). civil service eligibility
Religious Affiliations
--cannot be a valid disqualification to hold public office
--No religious test shall be required for the exercise of civil or political rights
Political Affiliation
G.R. Not a valid qualification
Xpn: Can be a valid qualification under:
1. Party-list system
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DISQUALIFICATIONS:
Sec. 40, LGC. Disqualifications. The following persons are disqualified
from running for any elective local position:
1. Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one year or more of imprisonment
within two years after serving the offense;
2. Those removed from office as a result of an administrative offense;
3. Those convicted by final judgment for violating an oath of allegiance to
the Republic;
4. Those with dual citizenship;
LINGATING VS COMELEC
The administrative case must have attained finality for the
disqualification to apply.
If still pending appeal or on certiorari,
disqualification is not applicable.
Q: What offenses?
MARQUEZ JR VS COMELEC
1. Moral turpitude
2. Punishable by one year or more of imprisonment
91
SC: No. Fugitive from justice applies not only to those convicted by final
judgment and who absconds to evade punishment BUT also to one, where a
valid criminal information is already filed and he absconded to evade
jurisdiction.
RODRIGUEZ VS COMELEC
Although there was indeed fraud insurance case before
California court, HE IS NOT A FUGITIVE FROM JUSTICE because
cases were filed 5 months after he has returned to the Philippines,
controlling factor was the intent to evade jurisdiction. He could not have
intent to evade because there is no information yet.
been elected to the same position for the same number of times before the
disqualification can apply.
the
the
the
the
SC: Borja is qualified. The term limit for elective local officials must be
taken to refer to the right to be elected as well as the right to serve in the
same elective position. Consequently, it is not enough that an individual has
served three consecutive terms in an elective local office, he must also have
Q: Mayor was elected in 1988. He ran and won again on 1992 and 1995
election. But there was an election protest regarding the 1995 election. On
March 1998, he was removed because of a COMELEC decision. Is he
qualified to run in the 1998 election?
A: YES. He was only elected twice since he eventually lost in the election
protest. In 1995, he is merely a presumptive winner. There is a failure of the
two conditions (LONZANIDA VS COMELEC).
92
Q: X was elected in 1992. In 1995 and 1998, he ran and won again. In
2000, as a result of an administrative case, he was removed but he has able
to appeal seasonably. In May 2001, he filed his certificate of candidacy. The
administrative case was not yet decided. Is he qualified?
A: Yes he is qualified to run.
Q: What if in 2004 and 2007 he wins again, then in 2010, he wants to run
again, is he qualified to run?
A: SC in the same case said that: The service of a recall term shall
constitute one full term. Reason: Elected official in a recall election should
know that the service of recall term shall constitute one full term. (OBITER
DICTUM)
MENDOZA VS COMELEC
In 1992, Tet Garcia won as governor. In 1993, Recall election was
made, Ting Roman won as governor. In 1995 and 1998 elections, Roman
won again. In 2001, Roman ran again. Is he qualified to run?
A: No. What has been abandoned in Socrates was a mere Obiter Dictum.
No actual controversy yet.
Service of recall term will not constitute one full term in applying the
disqualification.
93
SC: Philippine National Red Cross is a GOCC with an original charter under
R.A> 95, as amended. The test to determine whether a corporation is
government owned or controlled or private in nature is simple. Is it created
by its own charter for the exercise of a public function or by incorporation
under the general incorporation law? Those with special charters are
government corporations subject to its own provisions and its employees are
under the jurisdiction of CSC and are compulsory members of the GSIS.
The PNRC was not impliedly converted to a private corporation simply
because its charter was amended.
KINDS OF APPOINTMENTS
1. Permanent extended to one who possesses all the qualifications
including civil service eligibility.
2. Temporary - extended to one who possesses all the qualifications but
without the civil service eligibility.
The law requires publication of all vacant positions in the government. This
is mandatory so that all eligible can apply.
94
2. Non-Career
a. Entrance is based other than those tests of merit and fitness
utilized for the career service;
one year
but it may even be shorter
b. Tenure is:
1. Limited to a period specified by law;
2. Coterminous with that of the appointing authority or
subject to his pleasure; or
3. Limited to the duration of a particular project for which
the purpose for employment was made.
Q:
How do you classify position of members of the Sangguniang
Panlalawigan?
A: Non-career. It is an elective office.
2. Non-career Service
HIGHLY TECHNICAL POSITIONS
BAR Question:
What are the characteristics pf career positions as well as non-career
positions?
1. Career
a. Entrance is based on merit and fitness to be determined based
on competitive examination or it is based on highly technical qualifications;
b. There is security of tenure;
95
A: NO! They may possess technical skills or training but not in the supreme
or superior degree, hence non-career.
CSC VS SALAS
PRIMARILY CONFIDENTIAL POSITIONS
Q: What are their classifications?
A: Non-Career. There tenure is co-terminous with that of the appointing
authority or subject to his pleasure.
PROXIMITY RULE
SC: Applying the proximity rule, Salas cannot be removed on the said
ground. The position of Salas as a supervisor is too remote from the
appointing authority, the Chairman. There are so many intermediaries
between them.
Art. IX-B sec. 2 par. 2 Appointment in the Civil Service shall be made only
according to merit and fitness to be determined as far as practicable and
except to positions which are policy-determining, primarily confidential or
highly technical, by competitive examination. (It has nothing to do with the
classification of his position as career on non-career).
96
FABIAN VS DESIERTO
Secretary/head of bureau-CSC-CA
CSCCA
97
d. reprimand;
e. admonition
EXCLUSIO UNIUS EST INCLUSIO ALTERIUS The suspension against
Lapid is clearly not among those enumerated as immediately executory. The
clear import of these provisions, taken together, is that all other decisions
of the Office of the Ombudsman which impose penalty outside than those
which are enumerated are not final and unappealable, hence not
immediately executory. An appeal timely filed will suspend or stay
immediate execution of the decision.
CSC VS DACOYCOY
Dacoycoy was the head of a government vocational school in
Samar. Two of his sons were extended permanent appointment under his
administrative supervision although he was not the one who neither
appointed nor recommended them. A case was filed against him for
violation of the law on nepotism. CSC found him guilty. The penalty was
dismissal.
As the party adversely affected, he appealed to CA. CA
exonerated him. If we will follow the Paredes ruling, there is no more appeal
and the complainant cannot appeal because is merely a complaining
witness.
SC: CSC can appeal because it was their decision that was reversed by the
CA. To this extent only, CSC became the party adversely affected. By this
ruling, the Paredes Doctrine, up to this extent, is abandoned. The phrase
party adversely affected refers to the government employee against whom
the administrative case is filed for the purpose of a disciplinary action which
may take the form of suspension, demotion in rank or salary, etc. and not
98
included are the cases where the penalty imposed is suspension for not
more than 30 days or fine in an amount not exceeding 30 days salary.
(PAREDES VS CSC)
LAYNO VS SANDIGANBAYAN
PREVENTIVE SUSPENSION (pending investigation)
Nature: Not a penalty. It is imposed while the case is being investigated or
pending appeal. It should be distinguished from dismissal or suspension
which may only be imposed upon investigation and subsequent finding of
guilt.
BEJA, SR VS CA
Preventive suspension is not a penalty by itself; it is imposed only
during the pendency of an administrative investigation. It is merely a
measure of precaution so that the employee who is charged may be
separated for obvious reasons, from the scene of his alleged misfeasance,
ehilr the same is being investigated. Thus, preventive suspension is distinct
from the administrative penalty of removal from office such as the one
mentioned in Sec 8 (d) of PD 807. While preventive suspension may be
imposed on a respondent during the investigation of the charges against
him, the removal from office is a penalty which may only be meted out upon
him at the termination of the investigation or the final disposition of the case.
GLORIA VS CA
Preventive suspension pending investigation is not a penalty. It is
simply a means of preventing the latter from interfering or intimidating the
witnesses against him.
YABOT VS OMBUDSMAN VASQUEZ
An administrative case was filed against Vice-Mayor Yabot by an
American doctor. He was placed under preventive suspension for 60 days.
Yabot contends that he was already suspended and hence, can no longer be
suspended again.
3. Ombudsman Act
Period 6 months
Case Hagad vs Gonzales
B. CRIMINAL CASE
SC: The first suspension that was imposed was not the penalty. It is merely
a preventive suspension. The second suspension was the penalty. The two
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JURISDICTION
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Appointive Officials
Q: Where do you file an administrative complaint against local
appointive officials?
A: From Local chief executive Civil Service Commission Court
of Appeals
Elective Officials
Q: where do you file an administrative complaint against local
elective offificals?
A: (1) Barangay official in a
a.
b.
SC:
There is nothing in the LGC (RA 7160) to indicate that it has
repealed the pertinent provisions of the Ombudsman Act (RA 6770). Repeals
by implication are not favored. Every statute must be so interpreted and
brought into account with other laws as to form a uniform system of
jurisprudence. Besides, the grounds to impose preventive suspension under
the LGC and the Ombudsman Act are different. The Ombudsman has
concurrent jurisdiction with the officers who have authority to impose
preventive suspension pursuant to Section 63 of LGC.
PREVENTIVE SUSPENSION IN CRIMINAL CASE
GANZON vs. CA
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A: Depends
a. Salary grade 27 and over Sandiganbayan
b. Below salary grade 27 RTC or MTC
shall be suspended from office
*Section 13 RA 3019 does not state that the officer concerned must be
suspended only for the office he was charged.
*Moreover, should the purposes behind preventive suspension become
manifest, the respondent court is not bereft of remedies or sanctions. The
petitioner may still be suspended but for specifically expressed reasons and
not from an automatic application of Section 13, RA 3019.
SANTIAGO vs. SANDIGANBAYAN/ PAREDES vs. SANDIGANBAYAN
When X was a governor, a criminal complaint against him for
violation of anti-graft was filed. While the Ombudsman was investigating,
there was an election. X ran for Congressman and won. In the meantime,
the Ombudsman filed the criminal information against X before the
Sandiganbayan. The Sandiganbayan issued a suspension order addressed
to the Speaker of the House of Representatives for him to carryout the order.
The Speaker refused to execute because it violated Section 16 par 3 Article
VI of the Constitution (Each House may determine the rules of its
proceedings, punish its own members for disorderly behavior and either the
concurrence of 2/3 of all its members, suspend or expel a member. A penalty
of suspension, when imposed shall not exceed 60 days)
SC:
there is no encroachment here. What is being imposed by the
Sandiganbayan is not a penalty but merely a preventive suspension.
Members of Congress are not exempted from the operation of Section 10,
RA 3019. The law says any incumbent public officer. We are only
interpreting the law as you wrote it. The Speaker of the House was held in
contempt of the Sandiganbayan.
SUSPENSION AS A PENALTY
Q: Can imprisonment of 10 days be imposed if found guilty?
A: No. Administrative cannot impose penalties which involve deprivation of
life and liberty. Hence cannot impose imprisonment,
Doctrine of Condonation only in administrative cases
AGUINALDO vs. SANTOS term of elective officials are distinct
from each other and when elected again the public is deemed to have
condoned his past misconduct; he cannot be punished under the new term
of office.
PROHIBITIONS/ INHIBITIONS/ DISQUALIFICATIONS
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1.
General Rule: Appointive official not allowed from holding other position in
the government
4.
5.
6.
Law on Nepotism
Violation results to dismissal with forfeiture of benefits
Found in the Civil Service Law
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c.
d.
Prohibited relationships
Under the Civil Service Law = 3rd Civil Degree
Under the LGC = 4th civil degree SEC. 79. Limitation on
Appointments. - No person shall be appointed in the career
service of the local government if he is related within the fourth
civil degree of consanguinity or affinity to the appointing or
recommending authority.
DEBULGADO vs. CIVIL SERVICE COMMISSION
It was contended that the law on nepotism applies only to original
appointments but not to promotional appointments.
SC:
The law on nepotism applies to all kinds of appointment because
the law does not distinguish.
A textual examination of Section 69 at once reveals that the
prohibition was cast in comprehensive and unqualified terms. Firstly, it
explicitly covers all appointments without seeking to make ay distinction
between differing kinds or types of appointments. Secondly, Section 59
covers all appointments to the national, provincial, city, and municipal
governments, as well as any branch or instrumentality thereof and all
government owned or controlled corporations. Thirdly, there is a list of
exceptions set out in Section 59 itself, but it is a short list.
Both an original appointment and a promotion are particular
species of personnel action. The original appointment of a civil service
employee and all subsequent personnel actions undertaken by or in respect
of that employee such as promotion, transfer, reinstatement, reemployment,
etc. must comply with the Implementing Rules including of course the
prohibition against nepotism in Rule XVIII.
The conclusion we reach is that Section 59 Book V, EO 292 means
exactly what it says in plain and ordinary language. It refers to all
appointments whether original or promotional in nature. The public policy
embodied in section 59 is clearly fundamental in importance, and the court
has neither authority nor inclination to dilute that important public policy by
introducing a qualification or discretion here.
LAUREL vs. CSC
Laurel who was the governor of Batangas granted his brother,
Benjamin Laurel a promotional appointment as Civil Security Officer, a
position classified as primary confidential by the Civil Service.
Q: Was there a violation of the law on nepotism?
A: No. It is under the exceptions of the law
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(c) Doctors of medicine may practice their profession even during official
hours of work only on occasions of emergency. Provided, that officials
concerned do not derive monetary compensation therefrom.
Q: Can a mayor practice his profession?
A: No.
Q: Can members of the sanggunian practice their profession?
A: Yes, except during session hours.
Q: Can Vice mayor exercise his profession?
A: Yes. Vice Mayor belongs to the legislative, while sanggunian members must
be interpreted in general terms. There is no prohibition. Hence, the Vice
Mayor can e belongs to the legislative, while sanggunian members must be
interpreted in general terms. There is no prohibition. Hence, the Vice Mayor
can exercise or practice his profession. However, in case the Vice Mayor
becomes acting mayor or acting governor, he cannot practice or exercise his
profession because in such case then, he exercises an executive position.
(Atty. Sandoval)
JAVELLANA vs. DILG
*for purposes of the law on nepotism, appointment and designation are the
same.
7. Section 90, LGC Practice of Profession
(a) All governors, city and municipal mayors are prohibited from
practicing their profession or engaging in any occupation other than the
exercise of their functions as local chief executives.
(b) Sanggunian members may practice their professions, engage in
any occupation, or teach in schools except during session hours,
Provided, that sanggunian members who are also members of the Bar
shall not:
(1) Appear as counsel before any court in any civil case wherein a
local government unit or any office, agency or instrumentality of the
government is the adverse party;
(2) Appear as counsel in any criminal case wherein an officer or
employee of the national or local government is accused of an offense
committed in relation to his office;
(3) Collect any fee for their appearance in administrative
proceedings involving the local government unit of which he is an official;
and
(4) Use property and personnel of the Government except when the
Sanggunian member concerned is defending the interest of the government.
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(d) The successors as defined herein shall serve only the unexpired
terms of their predecessors.
For purposes of this Chapter, a permanent vacancy arises when an
elective local official fills a higher vacant office, refuse to assume office, fails
to qualify, dies, is removed from office, voluntarily resigns, or is otherwise
permanently incapacitated to discharge the functions of his office.
For purposes of succession as provided in this chapter, ranking in
the sanggunian shall be determined on the basis of the proportion of votes
obtained by each winning candidate to the total number of registered voters
in each district in the immediately preceding local election.
*In case of permanent vacancy (section 44) automatic succession applies,
so in case of death of mayor, the vice mayor succeeds, in case of the vice
mayor, the highest ranking sangguniang member succeeds.
Illustration:
1.
2.
3.
Pedro
Mario
Jose
District I (10,000)
5,000
District II (8,
4,500
5,000
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(b) Except for the sangguniang barangay, only the nominee of the
political party under which the sanggunian member concerned had been
elected and whose elevation to the position next higher in rank created the
last vacancy in the sanggunian shall be appointed in the manner herein after
provided. The appointee shall come from the same political party as that of
the sanggunian member who caused the vacancy and shall serve the
unexpired term of the vacant office. In the appointment therein mentioned, a
nomination and certificate of membership of the appointee from the highest
official of the political party concerned are conditions sine qua non, and any
appointment without such nomination and certification shall be null and void
ab initio and shall be ground for administrative action against the official
responsible therefor.
(c) In case the permanent vacancy is caused by a sanggunian
member who does not belong to any political party, the local chief executive
shall, upon recommendation of the sanggunian concerned, appoint a
qualified person to fill the vacancy.
(d) In case of vacancy in the representation of the youth and the
barangay in the sanggunian, said vacancy shall be filled automatically by the
official next in rank of the organization concerned.
SC:
Neither of the two appointees should assume position.
Sec 45 (c) LGC must be read together with Sec 45 (a). Since this is a
municipality, the governor should appoint but with the recommendation of
the sanggunian concerned which is the sanggunian bayan where the
vacancy took place.
NAVARRO vs. CA
Composition of the municipal government:
Mayor Lakas
NUCD
Vice Mayor. Lakas
NUCD
1st to 5th sanggunian member.. Reporma
6th Sanggunian Member.. Lakas NUCD
7th Sanggunian Member.. Reporma
8th Sanggunian Member.. Lakas NUCD
Therefore in the Sanggunian, there were 6 Reporma and 2 Lakas.
The mayor died. The Vice mayor became the Mayor. The last ranking
position became vacant so the governor appointed someone from Reporma.
Lakas protested because the vacancy came from Lakas.
SC:
Governor is correct. What is crucial is the interpretation of Sec. 45
(6). The reason behind the right given to the political party to nominate a
replacement is to maintain the party representation as willed by the people in
the election.
With the elevation of Tamayo (Reporma) as the Vice Mayor it
diminished the Repormas representation in the Sanggunian. Hence, the one
appointed should come from Reporma.
GAMBOA JR. vs. AGUIRRE JR.
July 20, 1994
The governor went abroad. He was away for 3 months. Governor
issued an administrative order designating the Vice governor as acting
governor. The acting governor wants to preside in the session of the
sanggunian.
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SC:
Being the acting governor, he cannot simultaneously exercise the
functions of his office. The power of the vice governor to preside over
sanggunian session is suspended as long as he is the acting governor.
The creation of temporary vacancy in the office of the governor
creates a corresponding vacancy in the office of the vice governor.
Q: Then who will preside in the meantime?
A: Under sec. 49 (b) LGC In the event of the inability of the regular
presiding officer to preside at a sanggunian session, the members present
and constituting a quorum shall elect from among themselves a temporary
presiding officer. He shall certify within ten (10) days from the passage of
ordinances enacted and resolutions adopted by the sanggunian in the
session over which he temporarily presided. Hence, the members present
and constituting a quorum shall elect from themselves the temporary
presiding officer. Do not apply the rule in permanent vacancy.
Q: Who appoints the barangay treasurer, secretary and other appointive
officials of the barangay?
A: Punong barangay appoints barangay secretary, treasurer, and other
appointive official with the approval of the majority of the members of the
sangguniang barangay. (ALGUIZOLA vs. GALLARDO)
The power of appointment is exercised with approval of sanggunian,
therefore in removing or replacing an appointive official, there must also be
approval of the majority of sanggunian barangay members.
Sec. 388, LGC Persons in authority For purposes of the RPC,
the punong barangay, sanggunian barangay members and members of the
lupong tagapamayapa in each barangay shall be deemed as persons in
authority in their jurisdiction, while other barangay officials and members
who may be designated by law or ordinance and charged with the
maintenance of public order, protection and security of life and property, or
the maintenance of a desirable and balanced environment and any
barangay member who comes to the aid of persons in authority shall be
deemed agents of persons in authority.
RECALL
-
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adopted a resolution calling for the recall of Vice mayor Navarro. Mayor
Miranda was removed by SC. The Vice mayor assumed office.
SC:
The recall elections become moot and academic. It is clear from
the resolution that they wanted to remove him from being a vice mayor.
AFIALDO vs. COMELEC
Before vice mayor Amelita Navarro assumed mayorship, Joel
Miranda was still mayor. Decision in MIRANDA vs. ABAYA was not yet
promulgated. When she was vice mayor, the members of the PRA of
Santiago City adopted a resolution calling for the recall of vice mayor. This
resolution was submitted to Comelec. A special recall election was then
scheduled. Meanwhile the decision in the Miranda vs. Abaya was
promulgated. Vice mayor Navarro assumed the mayorship upon the removal
of Joel Miranda as mayor. What happens now to the special recall election
for vice mayor?
SC:
it has been rendered moot and academic. It is clear from the
resolution of the members of the preparatory center of Santiago City that
they wanted to recall her as vice-mayor. They got what they wanted. She is
no longer the Vice-mayor. She is now the Mayor.
LOCAL
GOVERNMENT
ADMINISTRATIVE REGIONS
UNITS/
AUTONOMOUS
REGIONS/
110
OR SUBSTANTIAL
111
*The doctrine under Paredes has been abandoned by TAN vs. COMELEC,
as reaffirmed in the Padilla vs. Comelec.
Q: In the income requirement, should the IRA be included in the
computation?
A: Yes.
SC:
The basis of IRA is Article X, Sec 6. This is not self-executing. It is
implemented in the LGC.
LGUs are entitled to 40% of the total national taxes. The
allocations in Sec 285 LGC- Allocations to Local Government Units.- The
share of local government units in the internal revenue allotment shall be
allocated in the following manner:
a. Provinces 23%
b. Cities 23%
c. Municipalities 34%
d. Barangays 20%
1.
SC:
Resolution
- merely a declaration of sentime
lawmaking body
- temporary
- no reading in its enactment is req
by majority of sanggunian members
112
* Two views:
a.) Traditional view only states are subject of international law.
- only states have rights which may be directly enforced or
have obligation
for which it may be held directly accountable
under international law.
b.) Modern view not only states are proper subjects of
international law.
proper subjects
proper subject of
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a.) genocide
b.) crimes against humanity
c.) war crimes
d.) crimes of aggression
common characteristics of the four they are the most serious crimes
of international concern.
to eliminate
body.
other judges
ICC
114
of court)
Principle of Complementarity
- the international criminal court shall be complementary to
national criminal jurisdiction.
- this gives primacy to national jurisdiction. If the national
court has already assumed jurisdiction, icc can no longer assume
jurisdiction.
a.) 1st generation of human rights consisting of civil and political rights
b.) 2nd generation of human rights consisting of economic, social and
cultural rights.
c.) 3rd generation of human rights consisting of right to development,
right to peace and right to environment.
a) individual
Human Rights
- those liberties, immunities, and benefits which all human
beings should
be able to claim as of right of the
society in which they live by accepted
contemporary values.
- those fundamental and inalienable rights which are
essential for life as a
human being.
human rights in
115
c) Laws of Neutrality govern the relations of third states not parties to the
war with any of the belligerent states. (but the relations of third parties inter
se shall still be governed by the laws of peace)
* Principal legal documents are:
116
HRL
117
conduct
of
a) spies
118
simply
* Concept of Belligerency
119
120
- it is not even required that the designation of the offense be the same in
both jurisdictions.
- follows the principle of double criminality
Wright vs. CA
a) requesting state the state where the offenses was alleged to have
been committed
121
- it was only much later when the two states entered into an
extradition treaty
SC:
(decided October 17, 2000 by a 9-6 vote) reconsidered;
controlling
doctrine!!!
- an extradition proceeding is sui generis
- it is not a criminal proceeding which will call into operation all the
rights of an accused as guaranteed by the Bill of Rights.
- presumption of innocence does not apply
- as an extradition proceeding is not criminal in character and the
evaluation stage in an extradition proceeding is not akin to a preliminary
investigation, the due process safeguards in the latter may not necessarily
apply during the initial evaluation stage in an extradition proceeding.
- this we hold for the procedural due process required by a given
set of circumstances must begin with a determination of the precise nature
of the government function involved as well as the private interest that has
been affected by governmental action.
- the concept of due process is flexible for not all situations calling
for procedural safeguards call for the same kind of procedure.
* Mark Jimenez is not entitled to the documents he was requesting
only at the early stage of the proceeding.
- eventually he will be furnished those documents at the
of filing of the case before the court
time
Extradition
the
issue
* Distinctions between extradition proceedings and criminal
proceedings
1) the process of extradition does not involve the determination of
the guilt or
innocence of an accused.
- his guilt or innocence will be adjudged in the court of the
state where he will be extradited
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resulting revolution, death, injuries, chaos, were the substantive evils, even if
it did not take place.
- the arrest and dispersal of the rally will be justified under this rule.
123
rule
interest that will
SC:
Mayor Bagatsing is wrong. Any act of the government
alleged to have infringed upon fundamental freedoms comes to court with
a heavy presumption of unconstitutionality. So that the burden now is on the
part of the government to justify the act.
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fundamental
SC:
The more compelling state interest must be upheld to
prevent the escape of
potential extraditee which can be precipitated by
premature information of the basis for the request of his extradition.
always presumed
entitled to a copy of
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126
127