PREAMBLE WE, THE SOVEREIGN FILIPINO PEOPLE, IMPLORING THE AID OF ALMIGHTY GOD, IN ORDER TO BUILD A JUST AND HUMANE SOCIETY AND ESTABLISH A GOVERNMENT THAT SHALL EMBODY OUR IDEALS AND ASPIRATIONS, PROMOTE THE COMMON GOOD, CONSERVE AND DEVELOP OUR PATRIMONY, AND SECURE TO OURSELVES AND OUR POSTERITY THE BLESSINGS OF INDEPENDENCE AND DEMOCRACY UNDER THE RULE OF LAW AND A REGIME OF TRUTH, JUSTICE, FREEDOM, LOVE, EQUALITY AND PEACE, DO ORDAIN AND PROMULGATE THIS CONSTITUTION. Q. What is the function of the Preamble in the Constitution? A. The Preamble is not a source of rights or of obligations. Jacobson v. Massachussetts, 197 U.S. 11,22 (1905). Because, however, it sets down the origin, scope, and purpose of the Constitution, it is useful as an aid in ascertaining the meaning of ambiguous provisions in the body of the Constitution. It is thus a source of light. Q. What is the origin, scope and purpose of the Constitution as set out in the Preamble? A. Its origin, or authorship, is the will of the "sovereign Filipino people." Its scope and purpose is "to build a just and humane society and to establish a government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality and peace." Q. What is the significance of the use of the grammatical first person "We?" A. The use of the first person stresses the active and sovereign role of the Filipino people as author of the Constitution. The language thus differs from that of the 1935 Constitution which 1 2 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 1 used the third person "The Filipino people," thereby suggesting that another power was merely announcing that the Filipinos were finally being allowed to promulgate a constitution. Q. Why does the Constitution now say "Almighty God" instead of "Divine Providence," as the 1935 and 1973 Constitutions did? A. The phrase "Almighty God" is more personal and more consonant with personalist Filipino religiosity. Q. What is the meaning of "common good" and how does it differ from the "general welfare" of the 1935 and 1973 Constitutions? A. The phrase "common good" projects the idea of a social order that enables every citizen to attain his or her fullest development economically, politically, culturally, and spiritually. The phrase "general welfare" was avoided because it could be interpreted as "the greatest good for the greatest number" even if what the greater number wants does violence to human dignity, as for instance when the greater majority might want the extermination of those who are considered inferior. Q. What is the significance of the specification of "equality?" A. It emphasizes that a major problem in Philippine society is the prevalence of gross economic and political inequalities. Q. What other significant addition to previous preambles does the new version have? A. It adds the final phrase "under the rule of law and a regime of truth, justice, freedom, love, equality and peace." "Love" is inserted as a monument to the love that prevented bloodshed in the February Revolution. The mention of "truth" is a protest against the deception which characterized the Marcos regime. And "peace" is mentioned last as the fruit of the convergence of truth, justice, freedom, and love. Q. What is the import of "the rule of law?" A. This expresses the concept that government officials have only the authority given them by law and defined by law, and that such authority continues only with the consent of the people. The statement is: "Ours is a rule of law and not of men." ARTICLE I THE NATIONAL TERRITORY SECTION 1. THE NATIONA^ -PERRITORY COMPRISES THE PHILIPPINE ARCHIPELAGO, WITH ALL THE ISLANDS AND WATERS EMBRACED THEREIN, AND ALL OTHER TERRITORIES OVER WHICH THE PHILIPPINES HAS SOVEREIGNTY OR JURISDICTION, CONSISTING OF ITS TERRESTRIAL, FLUVIAL, AND AERIAL DOMAINS, INCLUDING ITS TERRITORIAL SEA, THE SEABED, THE SUBSOIL, THE INSULAR SHELVES, AND OTHER SUBMARINE AREAS. THE WATERS AROUND, BETWEEN, AND CONNECTING THE ISLANDS OF THE ARCHIPELAGO, REGARDLESS OF THEIR BREADTH AND DIMENSIONS, FORM PART OF THE INTERNAL WATERS OF THE PHILIPPINES. Q. What is the force of the-assertion of a territorial claim in a constitution? A. It should be remembered that a constitution is municipal law. As such, it binds only the nation promulgating it. Hence, a definition of national territory in the constitution will bind internationally only if it is supported by proof that can stand in international law. Q. Why does the Constitution contain a definition of National Territory? A. Like the 1935 and 1973 (^prostitutions, the new Constitution defines the national territory of the Philippines. But the 1935 Constitution had a very special reason for defining the National Territory. To be effective, the 1935 Constitution had to be accepted by the President of the United States. Since at the time of the adoption of the 1935 Constitution there was still some fear that the United States government might dismember "Philippine territory, the delegates to the 1935 Constitution believed that such dismemberment could be forestalled by 3 4 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 1 including a definition of Philippine territory in the Constitution. It was argued that acceptance of the Constitution by the U.S. President would oblige the American government to keep the integrity of Philippine territory as defined in the Constitution. No such special reason compelled the inclusion of a definition of National Territory in the 1973 Constitution. Some delegates, however, argued that a definition of national territory should be placed in the constitution for the preservation of the national wealth, for national security, and as a manifestation of our solidarity as a people. Mor& importantly, it was the wish of some to project in the Constitution Philippine adherence to the "archipelagic principle" (which will be discussed below). The deliberations of the 1986 Constitutional Commission on the subject repeated much of the discussion of the 1971 Constitutional Convention. In the end there was recognition of the fact that an article on national territory would have an educational value. Moreover, there was apprehension that it would be difficult to explain why after the 1935 and 1973 provisions on the national territory the new Constitution should fail to provide for one. Q. Briefly, what is the scope of the national territory defined in Article I, Section 1? A. It includes: (1) the Philippine archipelago; (2) all other territories over which the Philippines has sovereignty or jurisdiction; and (3) the territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas corresponding to (1) and (2). Moreover, (1) and (2) consist of terrestrial, fluvial, and aerial domains. elf- • Q. What is an archipelago? w A. Ah archipelago is a body of water studded with islands. Q. Where exactly is the Philippine archipelago situated? A. The Philippine archipelago is that body of water studded ,with islands which is delineated in the Treaty of Paris of December 10,1898, as modified by the Treaty of Washington of November 7,1900 and the Treaty with Great Britain of January 2,1930. These are the same treaties that delineated Philippine territory in Article I of the 1935 Constitution. Sec. 1 ART. I - THE NATIONAL TERRITORY 5 Q. If these treaties delineate the Philippine archipelago, why are they not mentioned in the Constitution? A. The 1973 Constitution omitted specific mention of these treaties because Constitutional Convention delegates wanted to erase every possible .trace of our colonial history from the new organic document. The new Constitution follows the lead of the 1973 Constitution. Q. What is included by the clause "all other territories over which the Philippines has sovereignty or jurisdiction?" A.1 This includes any territory which presently belongs or might in the future belong to the Philippines through any of the internationally accepted modes of acquiring territory. Foremost among these territories are what are referred to by the 1935 Constitution as "all territory over which the present (1935) Government of the Philippine Islands exercises jurisdiction.0 This had reference to the Batanes Islands which, although indisputably belonging to the Philippines, apparently lay outside the lines drawn by the Treaty of Paris. It also includes what was referred to under the 1973 Constitution as territories "belonging to the Philippines by historic right or legal title," that is, other territories which) depending on available evidence, might belong to the Philippines {e.g., Sabah, the Marianas, Freedomland). Q. By dropping the phrase "belonging to the Philippines by historic right or legal title" has not the Constitution in effect dropped the Philippine claim to Sabah? A. No, it has not. It has, however, avoided the use of language historically offensive to Malaysia and has used instead the clause "over which the Philippines has sovereignty or jurisdiction." The clause neither claims nor disclaims Sabah. It prescinds from an evaluation of the strength of the Philippine claim. The formula is a recognition of the fact that unilateral assertions in a constitution, which is municipal law, by themselves do not ^establish an international- right to a territory. Q. Were the U.S. military bases in the Philippines still part of Philippine territory? A. Definitely. The precise reason why the Philippine government could cede part of its authority over these bases to the United 6 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 1 States was the fact that they were part of the Philippine territory over which the government exercised sovereign control. Reagan v. Commissioner, 30 SCRA 968 (1969); People v. Gozo, 53 SCRA 476 (1973). Q. What is the extent of the Philippine claim to its aerial domain, territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas? A. The Philippines lays claim to them to the extent recognized by international law. The definition of these areas and right of the Philippines over these areas are provided for in customary and conventional international law, principally the 1982 Convention on the Law of the Sea and the Chicago Convention on International Civil Aviation of 1944. Q. What is the special claim made by the Philippines with respect to the "waters around, between and connecting the islands of the archipelago?" A. The Philippines claims them as part of its "internal waters" irrespective of their breadth and dimension. This is one of the elements of the archipelagic principle which is now recognized by the 1982 Convention on the Law of the Sea. Q. What is the other element of the archipelagic principle? A. The other element is the straight baseline method of delineating the territorial sea. This consists of drawing straight lines connecting appropriate points on the coast without departing to any appreciable extent from the general direction of the coast. These baselines divide the internal waters from the territorial waters of an archipelago. Q. Does the 1982 Convention on the Law of the Sea accept the entirely of the Philippine position on the archipelagic principle. A. Not exactly. The vast areas of water between islands which the Philippines considers internal waters (and therefore not subject to the right of innocent passage) the 1982 Convention calls "archipelagic waters" subject to the right of innocent passage through passages designated by the archipelago concerned. Q. Has the Philippines recognized this distinction? A. No, because it is contrary to what Article I says about these waters being internal. For this reason, the Philippines ratified Sec. 1 ART. I - THE NATIONAL TERRITORY 7 the 1982 Convention on the Law of the Sea with reservations. However, in practical terms the Philippines has designated sea lanes for foreign vessels. Q. What are baselines? A. Baselines are lines drawn along the low water mark of an island or group of islands which mark the end of the internal waters and the beginning of the territorial sea. Each country must draw its own baselines according to the provisions of the Law of the Sea. Q. What is our Baseline Law? A. R.A. 9522. This law provides for one baseline around the archipelago and separate baselines for the "regime of islands" outside the archipelago. It i. ARTICLE II DECLARATION OF PRINCIPLES AND STATE POLICIES Q. What is the function of the "Declaration of Principles and State Policies" in the Constitution? A. The "Declaration of Principles and State Policies" is a statement of the basic ideological principles and policies that underlie the Constitution. As such, the provisions shed light on the meaning of the other provisions of the Constitution and they are a guide for all departments of the government in the implementation of the Constitution. PRINCIPLES SECTION 1. THE PHILIPPINES IS A DEMOCRATIC AND REPUBLICAN STATE. SOVEREIGNTY RESIDES IN THE PEOPLE AND ALL GOVERNMENT AUTHORITY EMANATES FROM THEM. Q. Define a "state" and enumerate its elements. A. It is a community of persons more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing an organized government to which the great body of inhabitants render habitual obedience. Hence, commentators break down tthe concept into the following four elements: people, territory, sovereignty, government. (Montevideo Convention of 1933) Q. Distinguish "state" from "nation." A. Although for the purpose of political sociology a state, which is a legal concept, may be distinguished from nation, which is an ethnic concept, for the purpose of constitutional law the two terms are not distinct. The Constitution uses them 8 Sec. 1 ART. II - DECLARATION OP PRINCIPLES AND STATE POLICIES 9 interchangeably to designate the legal concept of state as defined above. Q. Define "people." A. As an element of a state, "people" simply means a community of persons sufficient iiL number and capable of maintaining the continued existence of the community and held together by a common bond of law. It is of no legal consequence if they possess diverse racial, cultural, or economic interests. Q. Define sovereignty. A. Legal sovereignty is the -shpreme power to affect legal interests either by legislative, executive or judicial action. This is lodged in the people but is normally exercised by state agencies. Stated in terms of auto-limitation, sovereignty "is the properly of a state-force due to which it has the exclusive capacity of legal self-determination and self-restriction." (Jellinek). Political sovereignty is the sum total of all the influences in a state, legal and non-legal, which determine the course of law. Q. Define "government." A. Government, as an element of a state, is defined as "that institution or aggregate of institutions by which an independent society makes and carries out those rides of action which are necessary to enable men to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them." Q. How were the functions of government classified in Bacani v. Naeoco, 100 Phil. 468 (1956)? A. The functions of governing were classified into constituent and ministrant functions. The former are the compulsory functions which constitute the very bonds of society. For example, the keeping of order and providing for the protection of persons and property from violence and robbery, or the fixing of the legal relations between man and wife and between parents and r children are obligatory or constituent functions of government. i ■ ■ Ministrant functions are the optional functions of government. "The principles for determining whether or not a government shall exercise certain of these optional functions are: (1) 10 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 1 that a government should do for the public welfare those things which private capital would not naturally undertake and (2) that a government should do those things which by its very nature it is better equipped to administer for the public welfare than is any private individual or group of individuals." Q. Is this classification still valid? ' A. The conceptual definitions of constituent and ministrant function are still acceptable. However, the growing complexities of modern society can necessitate a realignment. ACCFA v. CUGCO, 30 SCRA 649 (1969). Among more recent decisions, housing has been found to be a governmental function since housing is considered an essential service. PHHC v. Court of Industrial Relations, 150 SCRA 296, 310 (1987). But undertaking to supply water for a price, as does the government corporation National Irrigation Authority, is considered a trade and not a governmental activity. Spouses Fontanilla v. Hon. Maliaman, G.R. Nos. 55963 & 61045, February 27,1991. Q. How are governments classified according to their legitimacy? A. According to legitimacy, governments are either de jure or de facto merely. A government de jure is one established by authority of the legitimate sovereign whereas a government de facto merely is one established in defiance of the legitimate sovereign. Q. Classify de facto governments. A. There are several kinds oide facto governments. The first is that government that gets possession and control of, or usurps, by force or by the voice of the majority. • The second is that whiqfcjis established and maintained by invading military forces. .r And the third is that established as an independent government by the inhabitants of a country who rise in insurrection against the parent state, such as the gpvernment of the Southern Confederacy in revolt against the Union during the war of secession. Co Kim Cham v. Valdez Tan Keh, 75 Phil. 113 (1945). Q. Was the government under Cory Aquino and the Freedom Constitution a dejure government? Sec. 1 ART. n - DECLARATION OF PRINCIPLES AND STATE POLICIES 11 A. Yes, because it was established by authority of the legitimate sovereign, the people. It was a revolutionary government established in defiance of the 1973 Constitution. In re Letter of Associate Justice Puno, 210 SCRA 589,598 (1992). Q. Was the government under Gloria Macapagal Arroyo established after the ouster of President Estrada dejure or de facto merely? A. De jure. See materials under Article VII, Section 8. Q. What law governed ^.the revolutionary government under Aquino? . q fi f A. The resulting government was indisputably a revolutionary government bound by no constitution or legal limitations except treaty obligations that the revolutionary government, as the dejure government in the Philippines, assumed under international law. During the interregnum from February 25, 1986 to March 24, 1986 before the Freedom Constitution took effect by presidential proclamation, the Bill of Rights under the 1973 Constitution was not operative. However, the protection accorded to individuals under the Covenant on Civil and Political Rights and the Universal Declaration remained in effect under international law during the interregnum. Republic v. Sandiganbayan, G.R. No. 104768, July 21, 2003. Q. Describe the presidential form of government. A. Its principal identifying feature is what is called the "separation of powers.'' Legislative power is given to the Legislature whose members hold office for a fixed term; executive power is given to a separate Executive who also holds office for a fixed term; and judicial power is held by an independent Judiciary. The system is founded on the belieMat, by establishing equilibrium among the three power holders, harmony will result, power will not be concentrated, and thus tyranny will be avoided. Because of the prominent position, however, which the system gives to the President as chief executive, it is designated as a presidential form of government. Q. What are the essential' characteristics of a parliamentary form of government? A. They are the following: (1) The members of the government or cabinet or the executive arm are, as a rule, simultaneously 12 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 1 members of the legislature; (2) the government or cabinet, consisting of the political leaders of the majority party or of a coalition who are also members of the legislature, is in effect a committee of the legislature; (3) the government or cabinet has a pyramidal structure at the apex of which is the Prime Minister or his equivalent; (4) the government or cabinet remains in power only for as long as it enjoys the support of the majority of the legislature; (5) both government and legislature are possessed of control devices with which each can demand of the other immediate political responsibility. In the hands of the legislature is the vote of non-confidence (censure) whereby government may be ousted. In the hands of government is the power to dissolve the legislature and call for new elections. Q. What constitutional forms of government have been experienced by the Philippines since 1935? A. Presidential and presidential only. Even the government of President Marcos under the 1973 Constitution, as revised in 1981, had the distinguishing marks of a presidential form of government: (1) separation of powers and (2) the preeminence of the President. The President was "head of state and chief executive" (VII, 1); he inherited the powers of the President under the 1935 Constitution (VII, 16); he was superior to the Prime Minister by the fact that he nominated the Prime Minister (IX, 1), approved the program of government to be administered by the Prime Minister (IX, 2), terminated the term of the Prime Minister when he nominated the successor (IX, 4), and could delegate powers to the Prime Minister. He also had control over the ministries (VII, 7). Moreover, while there was closer relationship between the executive and the legislature (an understatement!), thus manifesting "features of parliamentarism," there Was separation between them. Separation from the Judiciary also conceptually remained. Free Telephone Workers Union v. Minister of Labor, 108 SCRA 757 (October 30,1981). Q. What is a "republican state?" A. A republican state is a state wherein all government authority emanates from the people and is exercised by representatives chosen by the people. Sec. 2 ART. n - DECLARATION OF PRINCIPLES AND STATE POLICIES 13 Q. Why is the Philippines also called a "democratic state" by the new Constitution? A. In the view of the new Constitution the Philippines is not only a representative or republican state but also shares some aspects of direct democracy such as "initiative and referendum" in Article VI, Section 32, and Article XVII, Section 2. The word "democratic" is also a monument to the February Revolution which re-won freedom through direct action of the people. Q. What is "constitutional authoritarianism" and is it compatible with a "republican state?f 9ri A. "Constitutional authoritarianism," as understood and practiced in the Marcos regime under the 1973 Constitution, was the assumption of extraordinary powers by the President, including legislative and judicial and even constituent powers. Constitutional authoritarianism is compatible with a republican state if the Constitution upon which the Executive bases his assumption of power is a legitimate expression of the people's will and if the Executive who assumes power received his office through a valid election by the people. Q. How do state, government and administration differ from each other? A. State is the corporate entity; government is one of the elements of a state and is the institution through which the state exercises power, administration consists of the set of people currently running the institution. Administrations change without a change in either state or government. Q. How are these affected by political changes? A. The transitions from ,vthe 1935 Constitution to the 1973 Constitution, and fromuthe 1973 Constitution to the 1987 Constitution involved changes of government but not of state The transition from President Estrada to President Arroyo did not involve a change of government but only of administration. SEC. 2. THE PHILIPPINES RENOUNCES WAR AS AN INSTRUMENT OF NATIONAL POLICY, ADOPTS THE GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW AS PART OF THE LAW OF THE LAND AND ADHERES TO THE POLICY OF PEACE, EQUALITY, JUSTICE, FREEDOM, COOPERATION, AND AMITY WITH ALL NATIONS. 14 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 Q. What kind of war is renounced by the Philippines? A. Aggressive, not defensive, war. Q. What are the generally accepted principles of international law? A. Among the principles of international law acknowledged by the Court as part of the law of the land are: the right of an alien to be released on bail while awaiting deportation when his failure to leave the country is due to the fact that no country will accept him, Mejoffv. Director of Prisons, 90 Phil. 70 (1951); the right of a country to establish military commissions to try war criminals, Kuroda v. Jalandoni, 83 Phil. 171 (1949). Some generally accepted principles have been incorporated in treaties. E.g., the Vienna Convention on Road Signs and Signals, Agustin v. Edu, 88 SCRA 195, 213 (1979); the duty to protect the premises of embassies and legations, J.B.L. Reyes v. Bagatsing, G.R. No. 65366, October 25,1983. Q. Does the affirmation of amity with all nations mean automatic diplomatic recognition of all nations? A. No. Amity with all nations is an ideal to be aimed at. Diplomatic recognition, however, remains a matter of executive discretion. SEC. 3. CIVILIAN AUTHORITY IS, AT ALL TIMES, SUPREME OVER THE MILITARY. THE ARMED FORCES OF THE PHILIPPINES IS THE PROTECTOR OF THE PEOPLE AND THE STATE. ITS GOAL IS TO SECURE THE SOVEREIGNTY OF THE STATE AND THE INTEGRITY OF THE NATIONAL TERRITORY. Q. How is the principle of civilian supremacy institutionalized? A. The principle is institutionalized by the provision which makes the President, a civilian and precisely as civilian, commander- in-chief of the armed forces. But this does not mean that civilian officials are superior to military officials. Civilian officials are superior to military officials only when a law makes them so. Q. What is the reason for the existence of the armed forces? A. They exist in order to secure the sovereignty of the State, and to preserve the integrity of the national territory. In extraordinary circumstances they may also be called upon to protect the people when ordinary law and order forces need assistance. Sees. 4-7 ART. II - DECLARATION OP PRINCIPLES AND STATE POLICIES 15 SEC. 4. THE PRIME DUTY OF THE GOVERNMENT IS TO SERVE AND PROTECT THE PEOPLE. THE GOVERNMENT MAY CALL UPON THE PEOPLE TO DEFEND THE STATE AND, IN THE FULFILLMENT THEREOF, ALL CITIZENS MAY BE REQUIRED, UNDER CONDITIONS PROVIDED BY LAW, TO RENDER PERSONAL MILITARY OR CIVIL SERVICE. Q. How does the first sentence differ from its counterpart in the 1973 Constitution? A. The 1973 and the 1935 versions spoke of the "defense" of the State being a prime duty of government. It therefore easily lent itself to interpretations which justified a national security state offensive to the people. The present version places the emphasis on service to and protection of the people. The phrase "under conditions provided by law" in the second sentence also emphasizes the primacy of serving the interest of the people and protecting their rights even when there is need to defend the State. Section 5, below, also has a similar emphasis. SEC. 5. THE MAINTENANCE OF PEACE AND ORDER, THE PROTECTION OF LIFE, LIBERTY, AND PROPERTY, AND THE PROMOTION OF THE GENERAL WELFARE ARE ESSENTIAL FOR THE ENJOYMENT BY ALL THE PEOPLE OF THE BLESSINGS OF DEMOCRACY. SEC. 6. THE SEPARATION OF CHURCH AND STATE SHALL BE INVIOLABLE. Q. What is the meaning of the inviolability of the separation of Church and State? A. See Article III, Section 5. 130 STATFE POLICIES SEC. 7. THE STATE SHALL PURSUE AN INDEPENDENT FOREIGN POLICY. IN ITS RELATIONS WITH OTHER STATES THE PARAMOUNT CONSIDERATION SHALL BE NATIONAL SOVEREIGNTY, TERRITORIAL INTEGRITY, NATIONAL INTEREST, AND THE RIGHT TO SELF-DETERMINATION. Q. What is the general characteristic of the provisions protecting rights in Article II? A. In general they are not self-executing provisions. They need implementing acts of Congress. Thus, when some provisions 16 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 1 of the Health Sector Reform Agenda were challenged on the ground that they violated 15, 18 of Article II; Section 1 of Article III; Sections 11 and 14 of Article XIII; and Sections 1 and 3(2) of Article XV, all of the 1987 Constitution, which directly or indirectly pertain to the duty of the State to protect and promote the people's right to health and well-being, the Court clarified that provisions are not self-executing. They require implementing legislation.1 Q. In the conduct of the nation's foreign relations, what principles must guide the government? "lT9Tfv A. The government must maintain an independent foreign policy and give paramount consideration to national sovereignty, territorial integrity, national interest, and self-determination. SEC. 8. THE PHILIPPINES, CONSISTENT WITH THE NATIONAL INTEREST, ADOPTS AND PURSUES A POLICY OF FREEDOM FROM NUCLEAR WEAPONS IN ITS TERRITORY. Q. What is the constitutional policy on nuclear weapons? A. The Constitution prescribes a policy of freedom from nuclear weapons. The policy includes the prohibition not only of the possession, control, and manufacture of nuclear weapons but also nuclear arms tests. Exception to this policy may be made by the political departments; but it must be justified by the demands of the national interest, ("consistent with the national interest.") But the policy does not prohibit the peaceful uses of nuclear energy. Q. What is the implication of this, policy for the presence of American troops or for any American military base that might be established in the Philippines^ A. Any new agreement on bases or the presence of troops, if ever there is one, must embody the basic policy of freedom from nuclear weapons. Moreover, it would be well within the power of government to demand ocular inspection and removal of nuclear arms. 'Tondo Medical Center Employees v. CA, G.R. No. 167324, July 17,2007. Sees. 9-12 ART. n - DECLARATION OF PRINCIPLES AND STATE POLICIES 17 SEC. 9. THE STATE SHALL PROMOTE A JUST AND DYNAMIC SOCIAL ORDER THAT WILL ENSURE THE PROSPERITY AND INDEPENDENCE OF THE NATION AND FREE THE PEOPLE FROM POVERTY THROUGH POLICIES THAT PROVIDE ADEQUATE SOCIAL SERVICES, PROMOTE FULL EMPLOYMENT, A RISING STANDARD OF LIVING, IWD AN IMPROVED QUALITY OF LIFE FOR ALL. SEC. 10. THE STATE SHALL PROMOTE SOCIAL JUSTICE IN ALL PHASES OF NATIONAL DEVELOPMENT. Q. What are the underlying premises of Sections 9 and 10? A. They derive from the premises that poverty and gross inequality are major problems besetting the nation and that these problems assault the dignity of the human person. Q. What is social justice? A. Social justice, in the sense it is used in the Constitution, simply means the equalization of economic, political, and social opportunities with special emphasis on the duty of the state to tilt the balance of social forces by favoring the disadvantaged in life. In the language of the 1935 Convention, it means justice for the common tao; in the shibboleth of the 1973 Convention, those who have less in life must have more in law. Q. What has been the special impact of the social justice provision in Philippine jurisprudence? A. The provision has been chiefly instrumental in the socialization of the state's attitude to property rights thus gradually eradicating the vestiges oilaissez faire in Philippine society. Q. How is the promotion of. social justice to be carried out in all phases of national development? A. See Article XIII. SEC. 11. THE STATE VALUES THE DIGNITY OF EVERY HUMAN PERSON AND GUARANTEES FULL RESPECT FOR HUMAN RIGHTS. >'•'• SEC. 12. THE STATE RECOGNIZES THE SANCTITY OF FAMILY LIFE AND SHALL PROTECT AND STRENGTHEN THE FAMILY AS A BASIC AUTONOMOUS SOCIAL INSTITUTION. IT SHALL EQUALLY PROTECT THE LIFE OF THE MOTHER AND THE LIFE OF THE UNBORN FROM CONCEPTION. THE NATURAL AND PRIMARY RIGHT AND DUTY OF PARENTS IN THE REARING OF THE YOUTH FOR 18 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 CIVIC EFFICIENCY AND THE DEVELOPMENT OF MORAL CHARACTER SHALL RECEIVE THE SUPPORT OF THE GOVERNMENT. SEC. 13. THE STATE RECOGNIZES THE VITAL ROLE OF THE YOUTH IN NATION-BUILDING AND SHALL PROMOTE AND PROTECT THEIR PHYSICAL, MORAL, SPIRITUAL, INTELLECTUAL, AND S^IAL WELL-BEING. IT SHALL INCULCATE IN THE YOUTH PATRIOTISM AND NATIONALISM, AND ENCOURAGE THEIR INVOLVEMENT IN PUBLIC AND CIVIC AFFAIRS. Q. What is the meaning of "family" in Section 12? A. It simply means a stable heterosexual relationship. Q. What effect does the declaration of family autonomy have? A. It accepts the principle that the family is anterior to the State and is not a creature of the State. It protects the family from instrumentalization by the State. Q. What is the legal meaning and purpose of the protection that is guaranteed for the unborn? A. First, this is not an assertion that the unborn is a legal person. Second, this is not an assertion that the life of the unborn is placed exactly on the level of the life of the mother. When necessary to save the life of the mother, the life of the unborn may be sacrificed; but not when the purpose is merely to save the mother from emotional suffering, for which other remedies must be sought, or to spare the child from a life of poverty, which can be attended to by welfare institutions. Q. Why is the protection made to begin from the time of conception? A. The overriding purpose in assertmg that the protection begins fronl the time of conception^jL to prevent the State from adopting the doctrine in the t^S. Supreme Court decision of Roe v. Wade, 410 U.S. 113 (19^) which liberalized abortion laws up to the sixth month of pregnancy by allowing abortion any time during the first six months of pregnancy provided it can be done without danger to the mother. The understanding is that life begins at conceptioiji, although the defimtioncfrf conception can be a matter for science to specify. Incidentally, the respect for life manifested by the provision harmonizes with the abolition of the death penalty and the ban on nuclear arms. Sec. 14 ART. n - DECLARATION OF PRINCIPLES AND STATE POLICIES 19 Q. In the matter of education, how do the respective rights of parents and of the State compare? A. The primary and natural right belongs to the parents. The Constitution affirms the primary right of parents in the rearing of children to prepare them for a productive civic and social life and at the same time it affirms the secondary and supportive role of the State. The principle is also rooted in the basic philosophy of liberty guaranteed by the due process clause. Q. May the state prohibit the teaching of foreign langtiages to children before they reach a certain age? A. Such restriction does violence to both the letter and the spirit of the Constitution, Meyer v. Nebraska, 262 US 390 (1922). Q. May the State require children to attend only public schools before they reach a certain age? A. The fundamental theory of liberty upon which the government under the Constitution reposes excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right coupled with the high duty, to recognize and prepare him for additional obligations. Pierce v. Society of Sisters, 262 U.S. 510 (1925). Q. May the State require children to continue schooling beyond a certain age even against the honest and sincere claim of parents that such schooling would be harmful to their religious upbringing? A. No. Only those interests of the state "of the highest order and those not otherwise served can overbalance" the primary interest of parents in the religious upbringing of their children. Wisconsin v. Yoder, 40 LW 4476 (May 15,1972). Q. Does all this mean that the State cannot intervene in the relation of parent and child? A. No. As parens patriae the State has the authority and duty to step in where parents fail to or are unable to cope with their duties to their children. SEC. 14. THE STATE RECOGNIZES THE ROLE OF WOMEN IN NATIONBUILDING, AND SHALL ENSURE THE FUNDAMENTAL EQUALITY BEFORE THE LAW OF WOMEN AND MEN. 20 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 15-17 Q. Does this provision repeal the inequalities that are found in the Civil Code? A. The provision is so worded as not to automatically dislocate the Civil Code and the civil law jurisprudence on the subject. What it 4pes is to give impetus to the removal, through statutes, of existing inequalities. The general idea is for the law to ignore sex where sex is not a relevant factor in determining rights and duties. Nor is the provision meant to ignore customs and traditions. SEC. 15. THE STATE SHALL PROTECT AND PROMOTE THE RIGHT TO HEALTH OF THE PEOPLE AND INSTILL HEALTH CONSCIOUSNESS AMONG THEM. SEC. 16. 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. Does Section 16 provide for enforceable rights? A. Yes. This provision, as worded, recognizes an enforceable "right." Hence, appeal to it has been recognized as conferring "standing" on minors to challenge logging policies of the government. Oposa v. Factoran, Jr., 224 SCRA 792 (1993). On this basis too the Supreme Court upheld the empowerment of the Laguna Lake Development Authority to protect the inhabitants of the Laguna Lake Area from the deleterious effects of pollutants coming from garbage dumping and the discharge of wastes in the area as against the local autonomy claim of local governments in the area. Laguna Lake Development Authority v. Court of Appeals, G.R. No. 12086511, December 7,1995. Significantly, too, by authority of Section 16 embodying the people's right to a balanced ecology and under various statutes, several government agents were required by mandamus to undertake the cleaning of Manila Bay and its surroundings. MMDA v. Residents of Manila Bay, G.R. No. 171947-48, December 18,2008. SEC. 17. THE STATE SHALL GIVE PRIORITY TO EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS TO FOSTER PATRIOTISM AND NATIONALISM, ACCELERATE SOCIAL PROGRESS, AND PROMOTE TOTAL HUMAN LIBERATION AND DEVELOPMENT. Sees. 18-22 ART. H - DECLARATION OF PRINCIPLES AND STATE POLICIES 21 NOTE: This does not mean that the government is not free to balance the demands of education against other competing and urgent demands. SEC. 18. THE STATE AFFIRMS LABOR AS A PRIMARY SOCIAL ECONOMIC FORCE. IT SHALL PROTECT THE RIGHTS OF WORKERS AND PROMOTE THEIR WELFARE. Q. What is meant when labor is called "a primary social economic force?" A. It means that the human factor has primacy over the non- human factors in production. NOTE: The rights of labor are discussed under Article XIII. SEC. 19. THE STATE SHALL DEVELOP A SELF-RELIANT AND INDEPENDENT NATIONAL ECONOMY EFFECTIVELY CONTROLLED BY FILIPINOS. Q. How is this provision related to the article on the National Economy and Patrimony? A. This is a guide for interpreting provisions on the national economy and patrimony. Any doubt must be resolved in favor of self-reliance and independence and in favor of Filipinos. SEC. 20. THE STATE RECOGNIZES THE INDISPENSABLE ROLE OF THE PRIVATE SECTOR, ENCOURAGES PRIVATE ENTERPRISE, AND PROVIDES INCENTIVES TO NEEDED INVESTMENTS. SEC. 21. THE STATE SHALL PROMOTE COMPREHENSIVE RURAL DEVELOPMENT AND AGRARIAN REFORM. U ff Q. How comprehensive must rural development be? , A. It includes not only agrarian reform. It also encompasses a broad spectrum of social, economic, human, cultural, political, and even industrial development. NOTE: Agrarian reform is discussed under Article XIII. SEC. 22. THE STATE RECOGNIZES AND PROMOTES THE RIGHTS OF INDIGENOUS CULTURAL COMMUNITIES WITHIN THE FRAMEWORK OF NATIONAL UNITY AND DEVELOPMENT. 22 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 23-28 NOTE: Indigenous cultural communities are discussed under the National Economy and Patrimony and under Local Governments. . i SEC. 23. THE STATE SHALL ENCOURAGE NON-GOVERNMENTAL, COMMUNITY-BASED, OR SECTORAL ORGANIZATIONS THAT PROMOTE THE WELFARE OF THE NATION. SEC. 24. THE STATE RECOGNIZES THE VITAL ROLE OF COMMUNICATION AND INFORMATION IN NATION-BUILDING. &SC. 25. THE STATE SHALL ENSURE THE AUTONOMY OF LOCAL GOVERNMENTS. NOTE: See Article X. SEC. 26. THE STATE SHALL GUARANTEE EQUAL ACCESS TO OPPORTUNITIES FOR PUBLIC SERVICE, AND PROHIBIT POLITICAL DYNASTIES AS MAY BE DEFINED BY LAW. Q. What is the purpose of this provision? A. Its purpose is to give substance to the desire for the equalization of political opportunities. However, the definition of "political dynasties" is left to the legislature. Q. Does this provision mean that everyone has a right to be a candidate for President? A. No. First of all, this provision is not self-executory. The provision does not contain any judicially enforceable constitutional right but merely specifies a guideline for legislative or executive action. Secondly, it is within the power of the state to limit the . .jwmber of qualified candidates only to those who can afford to i wage a nationwide campaign and/or are nominated by political ^parties. Pamatong v. Comelec, G.R. No. 161872, April 13,2004. SEC. 27. THE STATE SHALL MAINTAIN HONESTY AND INTEGRITY IN PUBLIC SERVICE AND TAKE POSITIVE AND EFFECTIVE MEASURES AGAINST GRAFT AND CORRUPTION. .V NOTE: See Article XI. SEC. 28. SUBJECT TO REASONABLE CONDITIONS PRESCRIBED BY LAW, THE STATE ADOPTS AND IMPLEMENTS A POLICY OF FULL PUBLIC DISCLOSURE OF ALL ITS TRANSACTIONS INVOLVING PUBLIC INTEREST. ARTICLE III BILL OF RIGHTS SECTION 1. No PERSON SHALL BE DEPRIVED OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF LAW, NOR SHALL ANY PERSON BE DENIED THE EQUAL PROTECTION OF THE LAWS. Q. What is the significance of the Bill of Rights? A. Government is powerful. When unlimited, it becomes tyrannical. The Bill of Rights is a guarantee that there are certain areas of a person's life, liberty, and property which governmental power may not touch. Q. What powers of government are limited by the Bill of Rights? A. All the powers of government are limited by the Bill of Rights. Q. What in general are these powers? A. The totality of governmental power is contained in tliree great powers: police power, power of eminent domain, and power of taxation. Q. Why are these powers considered inherent powers? A. Because they belong to the very essence of government and without them no government can exist. A constitution^ can only define and delimit them and allocate their exercise among various government agencies. A constitution does not grant them. Q. Name one major difference between the guarantees of the Bill of Rights and the guarantees that are found in Article XIII on Social Justice. A. The Bill of Rights focuses on civil and political rights, whereas Article XIII focuses on social and economic rights. Moreover, 23 24 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 the guarantees in the Bill of Rights are generally self-implementing, i.e., they can be appealed to even in the absence of implementing legislation. On the other hand, the social and economic rights guaranteed in Article XIII as also recognized in Article II generally require implementing legislation. Police power Q. What is "police power?" A. Police power has been characterized as "the most essential, insistent and the least limitable of powers, extending as it does to all the great public needs." Negatively, it has been defined as "that inherent and plenary power in the State which enables it to prohibit all that is hurtful to the comfort, safely, and welfare of society." Ermita-Malate Hotel and Motel Operators Association Inc. v. Mayor of Manila, L-24693, July 31,1967. Q. What is the scope of police power? A. Police power rests upon public necessity and upon the right of the State and of the public to self-protection. For this reason, its scope expands and contracts with changing needs. Churchill v. Rafferty, 32 Phil. 580, 602-603 (1915). Q. Who exercises police power? A. The national government, through the legislative department, exercises police power. But police power is also delegated, within limits, to local governments. Q. Does Metro Manila Development Authority (MMDA) possess police power? . J Li 9' A. No. Not being a political subdivision but merely an executive authority it has no police pow$r. Police power in Metro Manila is exercised by the cities and municipalities. MMDA v. Bel-Air Village Assoc., G.R. No. 135962, March 27,2000. Q. May a municipality be prevented by COA from giving burial assistance to indigents? A. Police power is a broad concept covering efforts to contribute to the comfort of the public. Moreover, the fact that not all receive the dole out does not make it less public because the drift of the law is in the direction of public welfare and social justice. Binay v. Domingo, G.R. No. 92389, September 11,1991. Sec. 1 ART. Ill - BILL OF RIGHTS 25 Q. May the state prohibit gambling? A. The state may do so, if it so chooses, and make violation a criminal offense. But gambling is not immoral per se. Magtajas v. Price Properties, 234 SCRA 255 (1994). valid? Q. Is the law ordering the closure of commercial ttfoodbanks A. Yes. It is a valid exercise police power to protect public health. Beltran v. Secretary of Health, G.R. No. 133640, November 25, 2005. Q. ABS-CBN has a legislative franchise to operate!£elevision stations. It broadcasts from its Channel 2 and Channel 23. Philippine Multi Media System Inc. (PMSI) also has a legislative franchise which authorizes it to do Direct to Home service. Moreover, its franchise includes a mandatory duty to carry the television signals of the authorized television broadcast stations. For that reason it carries Channels 2 and 23 OF ABS-CBN. ABS-CBN contends that PMSrs unauthorized rebroadcasting of Channels 2 and 23 is a taking of property for public use without just compensation. A. Franchises are subject to police power and the mandatory rule is not a form of taking but a form of police power regulation. ABS-CBN Broadcasting Corporation v. PMSI, G.R. Nos. 175769-70, January 19,2009. Protected rights; life Q. What rights are protected by the Bill of Rights? A. In veiy general terms, the right to life, liberty and property. The manner of protecting these is elucidated in subsequent Sections. Q. What is the right to "life?" A. The constitutional protection of the right to life is not just a protection of the right to be alive or to the security of one's Hmb against physical harm. The right to life is the right to a good life. The emphasis on the quality of living is found in Article II where Section 6 commands the State to promote <a life of "dignity" and where Section 7 guarantees "a decent standard of living." Q. Do the unborn have a constitutional right to life? A. See Article II, Section 12. 26 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 Right to property Q. What does "property" include? A. Protected property includes all kinds of properly found in the Civil Code. It has been deemed to include vested rights such as a perfected mining claim, or a perfected homestead, or a final judgment. It also includes the right to work and the right to earn a living. A license to operate a cockpit is not considered protected properly. It is deemed merely a privilege withdrawable when public interest require its withdrawal. In Tike manner it has been ruled that a certificate of public COTlviiiience granted to a transportation company confers no property right on the route covered thereby. A mere privilege, however, may evolve into some form of property right protected by due process, as for instance when a privilege, in this case an export quota, has been enjoyed for so long, has been the subject of substantial investment and has become the source of employment for thousands. American Inter-Fashion Corporation v. Office of the President, 197 SCRA 409(1991). ' Q. Is one's employment, profession, or trade "property" protected by the Constitution? . A. Yes. Thus, an order of preventive suspension without opportunity for hearing at all violates property right. Crespo v. Provincial Board, 160 SCRA 66 (1988). Q. A law limiting deployment of overseas workers to skilled workers only was challenged as violative of the right to work. Decide. A. No right is absolute, and the proper regulation of a profession, calling, business or trade has always been upheld as a legitimate f ct of a valid exercise of the police power by the state particuwhen their conduct affects either the execution of legitimate govental functions, the preservation of the State, the public health ana welfare and public morals. Executive Secretary v. CA, G.R. No. 131719, May 25,2004. Q. May the license of harbor pilots be cancelled without a hearing? A. No. Corona v. United Harbor Pilots Association of the Phils., G.R. No. 111953,283 SCRA 31,43. Q. When property is classified into historical treasures or landmarks, should such classification be done with both procedural and substantive due process? Sec. 1 ART. Ill - BILL OF RIGHTS 27 A. Yes, when classification "will involve imposition of limits on ownership." Army and Navy Club of Manila, Inc. v. Court of Appeals, G.R. No. 110223, April 8,1997. Q. Do life and property enjoy identical protection from the Constitution? A. No. The primacy of human rights over property rights is recognized. In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they are essential to the preservation and vitality of our civil and political institutions. "The superiority of these freedoms over property rights is underscored by the fact that a mere reasonable or rational relation between the means employed by the law and its object or purpose — that the law is neither arbitrary nor discriminatory nor oppressive — would suffice to validate a law which restricts or impairs property rights. On the other hand, a constitutional or valid infringement of human rights requires a more stringent criterion, namely existence of a grave and immediate danger of a substantive evil which the State has the right to prevent." Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co. Inc., 50 SCRA 189,202-3(1973). Q. Glaxo Wellcome has a policy against employees marrying employees of competitor companies. This is well known to and is accepted by employees. An employee who, after repeated warnings, violated this rule by marrying an employee of Astra, a competitor company, was dismissed. He challenges the policy as a violation of the right to marry. Decide. A. Glaxo has a right to guard its trade secrets, manufacturing : formulas, marketing strategies and other confidential programs and information from competitors. Glaxo and Astra are rival companies in the highly competitive pharmaceutical industry. Duncan Association of Employees Employees v. Glaxo Wellcome, G.R. No. 162994, September 17,2004. Where, however, there is no reasonable necessity for the prohibition, it is illegal. Star Paper v. Simbol, G.R. No. 164774, April 12, 2006. Q. What is the nature of the right to collect from a pension plan? A. In a pension plan where employee participation is mandatory, the prevailing view is that employees have contractual or vested 28 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 rights in the pension where the pension is part of the terms of employment. Thus, where the employee retires and meets the eligibility requirements, he acquires a vested property right to benefits that is protected by the due process clause. GSIS v. Montesclaros, G.R. No. 146494, July 14,2004. A law that orders discontinuance of a pension of a retired military officer if he becomes a citizen of another country was held not to violate equal protection. Pension of military retirees is purely gratuitous. Parreno c. COA, G.R. No. 162224, June 7,2007. Right to liberty Q. The military detainees question the correctness of the restriction on contact visits. A. Block v. Rutherford, 468 U.S. 576 (1984), which reiterated Bell v. Wolfish, upheld the blanket restriction on contact visits as this practice was reasonably related to maintaining security. Contact visits make it possible for the detainees to hold visitors and jail staff hostage to effect escapes. Contact visits also leave the jail vulnerable to visitors smuggling in weapons, drugs, ;and other contraband. The security consideration in the imposition of blanket restriction on contact visits was ruled to outweigh the sentiments of the detainees. In the Matter of the Petition for Habeas Corpus, G.R. No. 160792, August 25, 2005. Moreover, where the only limitation imposed upon police officers is that their movements within the premises of the camp shall be monitored, that they have to be escorted whenever the circumstances warrant that they leave the camp, and that their estimated time of departure and arrived shall be entered in a logbook, there is no deprivation of liberty. Manalo v. PNP Chief, G.R. No. 178920, October 15, 2007. Q. Do people have the right to bear arms? A. No. Only those authorized by law may bear arms. Even the provision in the American Constitution has reference only to a collective right of militia to bear arms. No similar provision is found in our Constitution. United States vs. Villareal, 28 Phil. 390 (1914). Chavez v. Executive Secretary, G.R. No. 157036, June 9,2004. Two kinds of due process Q. What are the two aspects of due process? A. Due process has both a procedural and a substantive aspect. As a substantive requirement, it is a prohibition of arbitrary laws; because, if all that the due process clause Sec. 1 ART. Ill - BILL OF RIGHTS 29 required were proper procedure, then life, liberty, or property could be destroyed arbitrarily provided proper formalities are observed. As a procedural requirement, it relates chiefly to the mode of procedure which government agencies must follow in the enforcement and application of laws. It is a guarantee of procedural fairness. Its essence was expressed by Daniel Webster as a law which hears before it condemns." Procedural due process in courts in non-criminal cases Q. What are the essential requirements of procedural due process in courts? A. These are: (1) These must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceedings; (3) the defendant must be given an opportunity to be heard; and (4) judgment must be rendered upon lawful hearing. Banco EspaHol Filipino v. Palanca, 37 Phil. 921, 934 (1918). Procedural due process in criminal cases is treated in Section 14 below. The details of procedural due process for both criminal and non criminal cases are spelled out in the Rules of Court. Q. Does an extraditee have a right of access to the evidence against him? A. During the executive phase of an extradition proceeding an extraditee does not have the right of access to evidence in the hands of government. But during the judicial phase he has. Secretary v. Judge Lantion, G.R. No. 139465, October 17,2000. Q. Does a teacher in a school administrative proceeding have a right to be assisted by counsel? A. Yes. Due process demands this. Gonzales v. NLRC and Ateneo de Davao, G.R. No. 125735, August 26, 1999. {Compare this with due process for students in Judge Dames.) Q. When is a law so "vague" as not to satisfy the due process need for notice? A. It is vague when it lacks comprehensible standards that men "of common intelligence must necessarily guess as to its meaning 30 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 and differ as to its application." It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. But to be unconstitutional the law must be utterly vague on its face, that is to say, it cannot be clarified by either a saving clause or by construction. People v. Nazario, 165 SCRA186 (1988); People v. de la Piedra, G.R. No. 121777, January 24,2001. A statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them; much less do we have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and eveiy word in an enactment. The Plunder Law under which former resident Estrada is being prosecuted is not vague. The words "series" and "combination" of crimes can be understood in their ordinary meaning. Estrada v. Sandiganbayan, G.R. No. 148560, November 19,2001. Q. Article 202 of the Penal Code defines vagrants thus: "Any person found loitering about public or semi-public buildings or places or tramping or wandering about the countiy or the streets without visible means of support..." The law prohibiting vagrancy is challenged as vague. A. The void-for-vagueness doctrine holds that a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application. This is not such a law. Romualdez v. Comelec, G.R. No. 167011, December 11, 2008. Procedural due process in administrative cases Q. What are the essential requirements of procedural due process before administrative agencies? A. Briefly, the following are required: "(1) the right to actual or constructive notice of the institution of proceedings which may affect a respondent's legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in one's favor, and to defend one's rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and Sec. 1 ART. Ill - BILL OF RIGHTS 31 (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained the records or made known to the parties affected." Fabella v. Court of Appeals, G.R. No. 110379, November 28, 1997, 282 SCRA 256, 267 (citing Air Manila, Inc. v. Balatbat, 38 SCRA 489, 492 [1971]); Ang Tibay v. Court of Industrial Relations, 69 Phil. 635 (1940). Q. Is publication a requirement of due process? A. Yes. The rule that requires publication for the effectivity of laws applies not only to statutes but also to presidential decrees : and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Republic u. Filipinos Shell, G.R. No. 173918, April 8, 2008. Q. Is a respondent in an administrative case entitled to be informed of the findings and recommendations of an investigating committee created to inquire into charges filed? A. No. He is entitled only to the administrative decision based on substantial evidence made of record, and a reasonable opportunity to meet the charges and the evidence presented against him during the hearing of the investigation committee. It is the administrative resolution, not the investigation report, which should be the basis of any further remedies that the losing party in an administrative case might wish to pursue. Pefianco v. Moral, G.R. No. 132248, January 19, 2000. Q. What quantum of proof is need in administrative proceedings? A. In administrative proceedings, the quantum of proof required is only substantial evidence. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Q. Are notice and hearing always required in administrative proceedings? A. In quasi-judicial proceedings, yes; but in the performance of executive or legislative functions, such as issuing internal rules and regulations, an administrative body need not comply with the requirements of notice and hearing. 32 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 Q. Without conducting any hearing the National Telecommunications Commission ordered PHILCOMSAT to reduce its rates by 15%. Valid? A. Changing existing rates is quasi-judicial in nature. Hence, it must be preceded by a hearing. The fact of the order being merely interlocutory does not alter the situation because for all practical purposes it is final as to the period covered. PHILCOMSAT v. Alcuaz, G.R. No. 84818, December 18,1989. Q. Police officer Torcita was charged on twelve counts of conduct unbecoming an officer. The twelve counts were dismissed but he was convicted of Simple Irregularity in the Performance of Duty of having alcohol in his breath. Proper? A. No. While the definition of the more serious offense is broad, and almost all-encompassing, a finding of guilt for an offense, no matter how light, for which one is not properly charged and tried cannot be countenanced without violating the rudimentary requirements of due process. Summary Dismissal Board v. Torcita, G.R. No. 130442, April 6,2000. NOTE: See also cases on schools under Article XIV, Section 4. Q. What kind of due process is required in deportation proceedings? A. Although deportation proceedings are not criminal in nature, the consequences can be as serious as those of a criminal prosecution. The provisions in the Rules of Court for criminal cases are applicable. Lao Gi alias Chia, Jr. v. Court of Appeals, G.R. No. 81789, December 29,1989. Substantive due process Q. When do laws which interfere with life, liberty, or property satisfy substantive due process? A. To justify the State in interposing its authority in behalf of the public, it must appear, (1) that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, (2) that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interest, arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations. United States v. Toribio, 15 Phil. 85 (1910). Sec. 1 ART. Ill - BILL OF RIGHTS 33 Q. Is the requirement of substantive due process a rigid concept? A. Definitely not. The heart of substantive due process is the requirement of "reasonableness," or absence of exercise of arbitrary power. These are necessarily relative concepts which depend on the circumstances of every case. Q. What is the presumption when the State acts to interfere with life, liberty, or property? A. Generally, the presumption is that the action is valid. (In rare cases, however, as in the imposition of "prior restraint," to be discussed under Section 4, there is a presumption of invalidity). Q. Is the allowable scope of reasonable interference with property the same as that with life or liberty? A. No. See Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills, supra. Rarely has a law interfering merely with property rights been declared unconstitutional. Q. Ordinance No. 4964 of Manila reads: "It shall be prohibited for any operator of any barber shop to conduct the business of massaging customers or other persons in any adjacent room or rooms of said barber shop, or in any room or rooms within the same building where the barber shop is located as long as the operator of the barber shop and the rooms where massaging is conducted is the same person." Does this amount to deprivation of property without due process? A. No. This is valid exercise of police power, under the general welfare clause, for the protection of morals. Velasco v. Mayor Villegas, G.R. No. 24153, February 14,1983. Q. In an effort to curb immorality, the city of Manila passed an ordinance which disallows "the operation of sauna parlors, massage : parlors, karaoke bars, beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns in the Ermita- Malate area. Valid? A. Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute and establishments of the like which the City Council may lawfully prohibit, it is baseless and insupportable to bring within that classification sauna parlors, massage parlors, karaoke bars, night dubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns. This is not warranted under the accepted definitions of these terms. The enumerated establishments are lawful pursuits which are not per se offensive to the moral welfare 34 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 of the community. City of Manila v. Judge Laguio, G.R. No. 118127, April 12,2005. A Manila ordinance prohibits motels, etc. from offering shorttime admission, as well as pro-rated or "wash up" rates for such abbreviated stays. The ordinance was invalidated as violative of the right to property of motel operators (as in the Laguio case) and of liberty of potential clients. The hotel operators were allowed to raise the issue of liberty of clients by appealing to "third party standing." White Light Corp v. City of Manila, G.R. No. 122846, January 20, 2009. Q. An Executive Order issued by President Marcos read: "Executive Order No. 626 is hereby amended such that henceforth, no carabao regardless of age, sex, physical condition or purpose and no carabeef shall be transported from one province to another. The carabao or carabeef transported in violation of this Executive Order as amended shall be subject to confiscation and forfeiture.. The original Executive Order was for prohibiting the slaughter of carabaos, except under certain conditions, for the purpose of preserving them for the benefit of small farmers. Is the amendment valid? A. No. Outright confiscation is not reasonably related to the purpose. Moreover, it is unduly oppressive. The owner of the property is denied the opportunity to be heard and the property is immediately confiscated and distributed. Ynot v. Intermediate Court of Appeals, 148 SCRA 659 (1987). Q. May the state prohibit candidates for board examinations from attending review classes or similar exercises? A. The Court said that the rule of the Professional Regulatory Commission which restricts reviewees from attending review classes, briefing conferences or the like, and receiving any hand out, review material, etc. was unreasonable and arbitrary and violative of the academic freedom of schools. Lupangco v. Court of Appeals, 160 SCRA 848(1988). Q. The City of Butuan issues an ordinance prescribing that children between the ages of 7 and 12 should be charged only half the admission price in movie houses. Is this a valid exercise of police power? A. No. For the benefit of parents then the cost is passed on to cinema owners. There is no discernible relation between the ordinance and the promotion of public health, safety, morals, and the general welfare. Balacuit v. Court of First Instance, 163 SCRA 182 (1988). Sec. 1 ART. Ill - BILL OF RIGHTS 35 NOTE: A Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct was held to violate the Due Process Clause. Petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause. Lawrence v. Texas, Decided June 26,2003. Equal protection Q. What is the meaning of "equal protection of the law?" A. The equal protection clause is a specific constitutional guarantee of the Equality of the Person. The equality it guarantees is legal equality or, as it is usually put, the equality of all persons before the law. Under it, each individual is dealt with as an equal person in the law, which does not treat the person differently because of who he is or what he is or what he possesses. The goddess of justice is portrayed with a blindfold, not because she must be hindered in seeing where the right lies, but that she may not discriminate against suitors before her, dispensing instead an even handed justice to all." Q. Does equal protection prohibit classification? A. No, but the classification must be reasonable. And the classification, to be reasonable, (1) must rest on substantial distinctions; (2) must be germane to the purpose of the law; (3) must not be limited to existing conditions only; and (4) must apply equally to all members of the same class. People v. Cayat, 68 Phil. 12,18 (1939). Q. R.A- 7227 is challenged as violative equal protection because it grants tax and duty incentives only to businesses and residents within the "secured area" of the Subic Special Economic Zone and denying them to those who live within the Zone but outside such "fenced-in" territory. Decide. A. The Constitution does not require absolute equality among residents. The real concern of RA 7227 is to convert the lands formerly occupied by the US military bases into economic or industrial areas. In furtherance of such objective, Congress deemed it necessary to extend economic incentives to attract and encourage investors, both local and foreign. Tiu v. court of Appeals, G.R. No. 127410, January 20,1999. Q. Filipino teachers in the International School challenge the legality of the school's practice of giving higher pay for foreign hires than Fililipinos of equal rank. Is the practice constitutional? 36 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 A. No. The principle of "equal pay for equal work" requires that persons who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should be paid similar salaries. While we recognize the need of the School to attract foreignhires, salaries should not be used as an enticement to the prejudice of local-hires. The dislocation factor and limited tenure affecting foreignhires are adequately compensated by certain benefits accorded them which are not eqjoyed by local-hires, such as housing, transportation, shipping costs, taxes and home leave travel allowances. International School Alliance of Educators v. Quisumbing, G.R. No. 128845, June 1, 2000. Q. Petitioners theorize that Section 44 of RA 8189 is violative of the "equal protection clause" because it singles out the City and Municipal Election Officers of the COMELEC as prohibited from holding office in the same city or municipality for more than four (4) years. Valid? A. Yes. The singling out of election officers in order to "ensure the impartiality of election officials by preventing them from developing familiarity with the people of their place of assignment" justifies the distinction. De Guzman, Jr., et al. v. Comelec, G.R. No. 129118, July 19, 2000. Q. A law prescribes that an appointive official who files a certificate of candidacy is considered resigned. The law does not apply to elective officials. Valid? A. Yes. Appointive officials and elective officials do not belong to the same class. Farinas et al. v. Executive Secretary, G.R. No. 147387, December 10, 2003; Quinto v. Comelec, G.R. No. 189698, December 1, 2009. Q. A law provides that "In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less." Other employees, however, are given full coverage for the unexpired term. Valid? A. It is discriminatory against overseas workers in a matter involving fundamental right. Serrano v. Gallant Maritime Service, G.R. No. 167614, March 24,2009. Q. Executive Order No. 1 created the Truth Commission with power to investigate graft and corruption committed during the Arroyo administration. Valid. Sec. 1 ART. Ill - BILL OF RIGHTS 37 A. No. It violates equal protection for focusing only of what happened during the arroyo administration. Biraogo v. Truth Commission, G.R. No. 192935, December 7,2010. See dissents. NOTE: A different tax treatment for new brands of cigarettes was justified on the basis of practicality and efficiency. That is, since the new brands were not yet in existence at the time of the passage of RA 8240, then Congress needed a uniform mechanism to fix the tax bracket of a new brand. It is argued that the freeze provision violates the equal protection and uniformity of taxation clauses because other brands are taxed based on their 1996 net retail prices while new cigarette brands are taxed based on their present day net retail prices. The Court said that since this is not a case which involves suspect classification nor impinges on fundamental rights, the rational test basis is what is applicable. It has been held that "in the areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." British American Tobacco v. Camacho, G.R. No. 163583, April 15,2009. Reconsideration. Q. Can a provision of law, initially valid, become subsequently unconstitutional, on the ground that its continued operation would violate the equal protection of the law? A. Yes. E.g., with the passage of the subsequent laws amending the charter of seven (7) other governmental financial institutions (GFIs) removing limitations on employees, the continued operation of the limitation on Central Bank employees under Section 15(c), Article II of the Central Bank law constitutes invidious discrimination on the 2,994 rank-and-file employees of the Bangko Sentral ng Pilipinas (BSP). This is a case of relative unconstitutionality. Central Bank Employees v. Bangko Sentral. G.R. No. 148208, December 15, 2004 (See dissents). Q. What does the new Constitution say about equal rights for women? A. See Article II, Section 14. Q. Does PT&Ts company policy of not accepting or considering as disqualified from work any woman worker who contracts marriage violate women's right against discrimination afforded by the Constitution? A. Yes. Philippine Telegraph and Telephone Company v. NLRC, G.R. No. 118978, May 23,1997,272 SCRA 596. 38 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 Q. The following disqualification for local elective office found in Batas Big. 52, section 4, is challenged as discriminatory: Any retired elective provincial, city or municipal official who has received payment of retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elected, shall not be qualified to run for the same elective local office from which he has retired. A. The provision satisfies all the requirements of valid classification. Dumlao v. COMELEC, 95 SCRA 392, January 22,1980. Q. A law is passed prohibiting women from becoming licensed bartenders. Valid? A. The object of the law is to protect the morals of women. The physical and psychological differences between men and women make the distinction reasonably related to the valid purpose. Goesart v. Cleary, 335 U.S. 464 (1948). Q. A law is passed prohibiting women from becoming teachers. Valid? A. No. The distinction between men and women serves no valid purpose. Q. A law is passed requiring courts to give free transcript of records to indigent litigants. Valid? A. Yes. The classification serves to equalize opportunities in courts between rich and poor. Q. A law is passed prohibiting indigents from running for public office. Valid? A. No. The discrimination against indigents serves no valid purpose. Q. Ormoc City imposes a tax on Ormoc Sugar Central by name. Ormoc Sugar Central is the only sugar central in Ormoc City. Valid? A. No. Should another sugar centred arise in Ormoc City, the ordinance would be discriminatory against Ormoc Sugar Central which alone comes under the ordinance. Ormoc Sugar Central v. Ormoc City, L-23794, February 17,1968. Q. P.D. 1486 creating the Sandiganbayan is challenged as violative of the equal protection clause because rights under it, such as the right to appeal to the Supreme Court, are less than in other proceedings. Decide. A. The question here is whether those coming under the special compass of the Sandiganbayan merit special classification. The Sec. 1 ART. Ill - BILL OF RIGHTS 39 constitutional call for the creation of the Sandiganbayan is a call for a special solution to a special problem. It is already a recognition that dishonesty in public service is a valid basis for classification. The Constitution's call for this special court prevails over general provisions of the Bill of Rights. Nunez v. Sandiganbayan, 111 SCRA 433, Januaiy 30, 1982. Makasiar, J. filed an extensive dissent which is worth studying. Q. A law provides that a police officer under investigation may be preventively suspended beyond the usual 90 days and until the case is decided. Does the law deny equal protection to police officers? A. The special law for police officers is justified by their status. In upholding the provision the Court said that the "reason why members of the PNP are treated differently from the other classes of persons charged criminally or administratively insofar as the application of the rule on preventive suspension is concerned is that policemen carry weapons and the badge of the law which can be used to harass or intimidate witnesses against them, as succinctly brought out in the legislative discussions." Himagan v. People, 237 SCRA 538, 551 (1994). Q. Does the equal protection clause merely prohibit the State from passing discriminatory laws? A. No. The clause also commands the State to pass laws which positively promote equality or reduce existing inequalities. SEC. 2. THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS AGAINST UNREASONABLE SEARCHES AND SEIZURES OF WHATEVER NATURE AND FOR ANY PURPOSE SHALL BE INVIOLABLE, AND NO SEARCH WARRANT OR WARRANT OF ARREST SHALL ISSUE EXCEPT UPON PROBABLE CAUSE TO BE DETERMINED PERSONALLY BY THE JUDGE AFTER EXAMINATION UNDER OATH OR AFFIRMATION OF THE COMPLAINANT AND THE WITNESSES HE MAY PRODUCE, AND PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED AND THE PERSONS OR THINGS TO BE SEIZED. Q. What is the purpose of this provision? A. The purpose of the provision is to protect the privacy and sanctity of the person and of his house and other possessions against arbitrary intrusions by State officers. Q. Does the provision prohibit all searches and seizures? A. No. What it prohibits are Unreasonable searches and seizures." 40 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 1 Q. When are searches and seizures unreasonable? A. Searches and seizures are normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental protection given by the search and seizure clause is that between person and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of arrest. Q. Is there a presumption of regularity in search cases? A. No. To prevent stealthy encroachment upon, or gradual depreciation of the right to privacy, a liberal construction in search and seizure cases is given in favor of the individual. Sony Music v. Judge Espanol, G.R. No. 156804, March 14, 2005. Q. Does Section 2 of the Bill of Rights protect citizens from unreasonable searches and seizures perpetrated by private individuals? A. No. "The constitutional proscription against unlawful searches and seizures . .. applies as a restraint directed only against the government and its agencies tasked with enforcement of the law..People v. Marti, G.R. No. 81561, January 18,1991. However, it may be possible to find a remedy in the Civil Code. Q. When does an inquiry become a search such that it comes under the rule of Section 2? Are "check points,0 for instance, "search points?" Are checkpoints constitutional? A. "Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case." Valmonte v. General de Villa, G.R. No. 83988, September 29,1989. Q. When are checkpoints allowed? A. Checkpoints are not illegal per se. Thus, under exceptional circumstances, as where the survival of organized government is on the balance, or where the lives and safety of the people are in grave peril, checkpoints may be allowed and installed by the government. Routine Sec. 1 ART. Ill - BILL OF RIGHTS 41 inspection and a few questions do not constitute unreasonable searches. If the inspection becomes more thorough to the extent of becoming a search, this can be done when there is deemed to be probable cause. In the latter situation, it is justifiable as a warrantless search of a moving vehicle. Valmonte v. General de Villa, G.R. No. 83988, May 24,1990. Q. Must checkpoints be announced? A. We see no need for checkpoints to be announced. Not only would it be impractical, it would also forewarn those who intend to violate the ban. Even so, badges of legitimacy of checkpoints may still be inferred from their fixed location and the regularized manner in which they are operated. People v. Escano, G.R. Nos. 129756-58, January 28, 2000. Q. Is every warrantless search or seizure unreasonable? A. No. As will be shown later, there are exceptions to the rule. Q. What are the essential requisites of a valid warrant? A. The following are the requisites: (1) it must be issued upon "probable cause;" (2) probable cause must be determined personally by a judge; (3) such judge must examine under oath or affirmation the complainant and the witnesses he may produce; (4) the warrant must particularly describe the place to be searched and the person or things to be seized. Probable cause Q. What is "probable cause?" A. Probable cause means such facts and circumstances antecedent to the issuance of a warrant that are in themselves sufficient to induce a cautious man to rely upon them. Specifically, probable cause must be defined in relation to the action which it justifies. Probable cause for the issuance of a warrant of arrest would mean such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. Probable cause for a search would mean such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are 42 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 in the place sought to be searched. Henry v. United States, 361 U.S. 98,102 (1959). Q. What kind of evidence is needed to establish probable cause? A. As implied by the words themselves, "probable cause" is concerned with probability, hot absolute or even moral certainty. The prosecution need hot present at this stage proof beyond reasonable doubt. The standards of judgment are those of a reasonably prudent man, hot the exacting calibrations of a judge after a full-blown trial. Microsoft Corporation v. Maxicorp, G.R. No. 140946, September 13,2004. NOTE: To establish probable cause of illegal possession of firearms the witness must have personal knowledge of the existence of the firearms and of the absence of license for such firearms. Betoy v. Judge, A.M. No. MTJ-05-1608, February 26, 2006. Q. The affidavit of Col. Castillo stated that in several issues of the Philippine Times: .. we found that the said publication in fact foments distrust and hatred against the government of the Philippines and its duly constituted authorities, defined and penalized by Article 142 of the Revised Penal Code .. and the affidavit of Lt. Ignacio read: . . the said periodical published by Rommel Corro, contains articles tending to incite distrust and hatred for the Government of the Philippines or any of its duly constituted authorities." Do the affidavits establish probable cause? A. No. They are nothing but conclusions of law. Corro v. Using, 137 SCRA 541 (July 15,1985). Q. A search warrant for the newspaper WE Forum is issued on the basis of a broad statelnent of the military that Burgos, Jr. "is in possession or has in his control printing equipment and other paraphernalia, news publications and other documents which were used and are all continuously being used as a means of committing the offense of subversion." Is such allegation sufficient to establish probable cause? A. No. It is a mere conclusion of law unsupported by particulars. Burgos, Sr. v. Chief of Staff, AFP, 133 SCRA 800 (December 26, 1984). Sec. 1 ART. Ill - BILL OF RIGHTS 43 Q. Must proof of probable cause for a warrant point to a specific offender? A. For a search warrant for things, no; for warrants of arrest, yes. Webb v. de Leon, G.R. No. 121234, August 23,1995. Q. Who may detehnine probable cause for the purpose of issuing a warrant? A. Only a judge. Q. Who determines probable cause for the purpose of filing an information? A. The prosecution. The determination of probable cause during a preliminary investigation is an executive function. Its correctness is a matter that the trial court itself does not and may not be compelled to pass upon. People v. Court of Appeals, G.R. No. 126005, January 21,1999. Q. An anonymous caller tipped off police officers that a man and a woman were repacking prohibited drugs at a certain house. The officers immediately proceeded to the house. When they reached the house they "peeped (inside) through a small window and ... saw one man and a woman repacking suspected marijuana." They entered the house and confiscated the tea bags and some drug paraphernaliA. Subsequent examination of the tea bags by NBI confirmed the suspicion that the tea bags contained marijuana. Ws there a valid search and seizure? A. No. The State cannot in a cavalier fashion intrude into the persons of its citizens as well as into their houses, papers and effects. The constitutional provision protects the privacy and sanctity of the person himself against unlawful arrests and other forms of restraint, and prevents him from being irreversibly "cut off from that domestic security which renders the lives of the most unhappy in some measure agreeable." People v. Bolasa, G.R. No. 125754, December 22,1999. Q. May the Commissioner on Immigration issue warrants of arrest? A. Since the Commissioner on Immigration is not a judge, he may not issue warrants of arrest in aid merely of his investigatory power. However, he may order the arrest of an alien for the purpose of carrying out a deportation order that has already become final. Qua Chee Gan v. Deportation Board, 9 SCRA 27 (1963); Dalamal v. Deportation Board, 9 SCRA 382 (1963); Calacday v. Vivo, 33 SCRA 413 (1970); Board of Commissioners (CID) v. de la Rosa, 197 SCRA 853,879 (1991). 44 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 Q. Where the PCGG issues a search and seizure order which has all the features of a search warrant, is such order valid? A. No, because only a judge may issue a search warrant. (Besides, in this case, there was no probably cause.) Republic v. Sandiganbayan, G.R. Nos. 112708-09, March 29,1996. Q. What is needed in order to show probable cause of infringement of copyright by renting agencies of cassette tapes? Is the presentation of master tapes required? A. Not all the time. It is needed only where there is doubt as to the true nexus between the master tape and the pirated copies. Columbia Pictures v. CA, G.R. No. 110318, August 28,1996. Personal examination Q. What is the meaning of "personally" in the search and seizure clause? A. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest the judge is not required to personally examine the complainant and his witnesses and on the basis thereof, issue a warrant of arrest. He may also rely on the fiscal's report or if on the basis thereof he finds no probable cause he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. This means that what is required is personal determination and not personal examination. Sound policy dictates this procedure; otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints. Note that in the text the adverb "personally" modifies "determined." Soliven u. Judge Makasiar, Beltran v. Makasiar, G.R. No. 8287, November 14,1988. NOTE: A judge is not required to personally examine the complainant and his witnesses or to await the submission of counter affidavits from an accused. Following established doctrine and procedure, the judge shall (1) personally evaluate the report and the supporting documents submitted by the prosecutor regarding the existence of probable cause, and on the basis thereof, he may already make a personal determination of the existence of probable cause; and (2) if he is not satisfied Sec. 1 ART. Ill - BILL OF RIGHTS 45 that probable cause exists, he may disregard the prosecutor's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Borlongan, Jr. v. Pefia, G.R. No. 143591, November 23, 2007. To establish probable cause of illegal possession of firearms the witness must have personal knowledge of the existence of the firearms and of the absence of license for such firearms. Betoy v. Judge, A.M. No. MTJ-05- 1608, February 26, 2006. NOTE: Compare this with Bache and Co. case, infra. Q. What procedure must be followed in determining probable cause? A. The judge must examine the complainant and his witnesses under oath or affirmation. This has been interpreted as requiring a personal and not merely delegated examination by the judge or by the proper officer, because the purpose of the examination is to convince the judge or officer himself and not any other individual. Alvarez v. Court, 64 Phil. 33 (1922); Bache and Co. v. Ruiz, 37 SCRA 823 (1971). Q. For the purpose of satisfying the requirement that the judge examine under oath the complainant and the witnesses, are affidavits of the complainant and of the witnesses sufficient? A. No. The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and to attach them to the record. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his declarations are false. People v. Mamaril, G.R. No. 147607, January 22, 2004. [But the actual taking of deposition, etc. maybe done by the prosecutor but it is the judge who evaluates the evidence.] Q. Can a judge rely solely on the certification or recommendation of a prosecutor that probable cause exists in issuing a warrant of surest? A. No. By itself, the Prosecutor's certification of probable cause is ineffectual. The judge must look at the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification. Lirn v. Felix, G.R. No. 94054-57,19 February 1991. 46 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 Particularity of description Q. What is the meaning of particularity of description? A. A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow and by which the warrant officer may be guided in making the search and seizure. Backe & Co. v. Ruiz, 37 SCRA 823,835 (1971). Q. What is the purpose of requiring particularity of description? A. Its purpose is to prevent abuse by the officer enforcing the warrant by leaving to him no discretion as to who or what to search or seize. Q. Where the warrant describes what is to be seized as "an undetermined amount of marijuana," is it sufficient? A. Yes. It is not required that technical precision of description be required , particularly where, by the nature of the goods to be seized, their description must be rather general, since the requirement of a technical description would mean that no warrant could issue. People v. Tee, G.R. Nos. 140546-47, January 20, 2003. Q. Does a "John Doe" warrant satisfy the requirement of particularity of description? A. Yes, provided that it contains a descriptio personae such as will enable the officer to identify the accused. People v. Veloso, 48 Phil. 169 (1925). But a warrant of arrest against 50 John Does is of the nature of a general warrant clearly violative at least of the requirement of particularity of description. Pangandaman v. Casar, 159 SCRA 599,611 (1988). Q. Is the following description sufficient? "Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit journals, typewriters, and other documents and/or papers showing all business transactions including disbursement receipts, balance sheets and related profit and loss statements." A. No. This amounts to a general warrant authorizing the officer to pick up anything he pleases. Stonehill v. Diokno, L-19550, June 19,1967. See also Microsoft Corporation v. Maxicorp, Inc., G.R. No. 140946, September 13,2004. Sec. 1 ART. Ill - BILL OF RIGHTS 47 Q. The search warrant described the articles sought to be seized as: "All printing equipment, typewriters, cabinets, tables, communications, recording equipment used or connected in the printing of the "WE FORUM" newspaper and any other documents/ communications, letters and facsimile of prints related to the "WE FORUM" newspaper." Is this description adequate? A. No. The sweeping tenor of the description makes the document a general warrant. Burgos, Sr. v. Chief of Staff, AFP, 133 SCRA 800 (December 26,1984). Q. The military applied for a search warrant for two addresses of the newspaper WE Forum: 728 Units C & D, RMS Building, Quezon Avenue, Q.C. and No. 19, Road 3, Project 6, Q.C. Two warrants were issued both of them referring to the Project 6 address. Search nonetheless was made of the RMS Building address. The search of the latter is sought to be invalidated on the ground that the place was not sufficiently described. Decide. A. The defect pointed out is obviously a typographical error. In determining the sufficiency of the description of the address, the executing officer's prior knowledge of the place intended in the warrant is relevant. In this case the executing officer was also the affiant on whose affidavit the warrant had issued. He therefore knew what addresses were referred to. Burgos, Sr. v. Chief of Staff, AFP, 133 SCRA 800 (December 26,1984). Q. If in a warrant for the search of the place there is a mistake in the identification of the owner of the place, does it invalidate the warrant? A. Not if the place is properly described. Frank Uy v. BIR, G.R. No. 129651, October 20,2000. Q. What could be referred to by the phrase searches and seizures "of whatever nature and for whatever purpose?" A. It is submitted that the phrase effectively extends the search and seizure clause to at least two penumbral areas. The first is the sub poena duces tecum under Rule 27 of the Rules of Court. See Material Distributors v. Judge, 84 Phil. 127 (1949) and Oklahoma Press v. Walling, 327 U.S. 186, 208-9 (1948). The second, as yet untouched by Philippine jurisprudence, is building inspection by administrative officers. See Camara v. Municipal Court, 387 U.S. 523 (1967), overruling Frank v. Maryland, 359 U.S. 360 (1959). Q. What is the rule on examination of bank deposits? A. An examination of the secrecy of bank deposits law (R. A. No. 1405) would reveal the following allowable exceptions: 48 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Where the depositor consents in writing; Impeachment case; By court order in bribery or dereliction of duty cases against public officials; Deposit is subject of litigation; Sec. 8, R.A. No. 3019, in cases of unexplained wealth as held in the case of PNB vs. Gancayco. Marquez v. Desierto, G.R. No. 135882, June 27,2001. Q. Are warrantless drug tests in public schools allowable? A. In the criminal context, reasonableness usually requires a showing of probable cause. The probable-cause standard, however, is peculiarly related to criminal investigations and may be unsuited to determining the reasonableness of administrative searches where the Government seeks to prevent the development of hazardous conditions. The American Court has held that a warrant and finding of probable cause are unnecessary in the public school context because such requirements would unduly interfere with the maintenance of the swift and informal disciplinary procedures [that are] needed. Vernonia Sch. Dist. 47J v. Acton, Decided June 26,1995; Board of Education v. Earls, No. 01332, Decided June 27,2002. Republic Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain offenses, among other personalities. As applied to candidates for national office, the requirement is unconstitutional because it adds to the exclusive qualifications for such offices prescribed by the Constitution. As applied to students, following US jurisprudence, the Court upheld the law for the reasons that: (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and wellbeing of their students and may adopt such measures as may Sec. 10 ART. Ill - BILL OP RIGHTS 49 reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory. Essentially this is the reasonable test. As to employees, the reasonable test was applied. As to candidates for local office, the mandatory character was found to be unreasonable ad oppressive to privacy. Similarly it was declared unconstitutional for people charged before the prosecutor's office. Social Justice Society v. Dangerous Drugs Board, G.R. Nos. 157870,158633,161658, November 03,2008. NOTE: The Constitution and the Rules of Court prescribe particular requirements attaching to search warrants. These are not imposed by the AMLA with respect to bank inquiry orders. A constitutional warrant requires that the judge personally examine under oath or affirmation the complainant and the witnesses he may produce such examination being in the form of searching questions and answers. Those are impositions which the legislative did not prescribe as to the bank inquiry order under the AMLA. Simply put, a bank inquiry order is not a search warrant or warrant of arrest as it contemplates a direct object but not the seizure of persons or property. Republic v. Eugenio, G.R. No. 174629, February 14, 2008. Exclusionary rule Q. What is the consequence of a search or seizure without a warrant or by authority of an invalid warrant? A. Any evidence obtained in such search or seizure, "shall be inadmissible for any purpose in any proceeding." Article III, ! Section 3 (2). The Constitution explicitly follows the exclusionary rule. Q. Does an application for bail have the effect of waiver of the right to challenge the validity of a warrant? A. No. Section 26, Rule 114 of the Revised Rules on Criminal Procedure is a new one, intended to modify previous rulings of this Court that an application for bail or the admission to bail by the accused shall be considered as a waiver of his right to assail the warrant issued for his arrest on the legalities or irregularities thereon. The new rule has reverted to the ruling of this Court in People v. Red, [55 Phil. 706 50 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 11 (1931)]. The new rule is curative in nature because precisely, it was designed to supply defects and curb evils in procedural rules. Okabe v. Judge de Leon, G.R. No. 150185, May 27,2004. Q. Are firearms which have been illegally seized in a "zona" admissible in evidence? A. No. "Pending determination of the legality of such articles, however, they shall remain in custodia legis, subject to such appropriate disposition as the corresponding courts may decide." Alih v. Castro, 151 SCRA 279 (1987). Q. Must goods illegally seized be returned? A. Yes, unless the possession of such goods is prohibited by law. Castro v. Judge Pabalan, L-28642, April 30,1976. Q. Petitioner was the owner of a motorcycle suspected to be the get-away vehicle of the assailant of the late Moises Espinosa. It was seized two days after the killing in the house of petitioner. There was no warrant for the seizure. When petitioner sought to recover the vehicle, police claimed that it was needed for the prosecution. Comment. A. It must be returned. The fact that it might be needed for the prosecution of an important crime is no exception to the rule on warrants. Bagalihog v. Fernandez, G.R. No. 96356, June 27,1991. Q. Who may avail of the defense of an unlawful search or seizure? A. The objection to an unlawful search or seizure and to evidence obtained thereby is purely personal and cannot be availed of by third parties. Stonehill v. Diokno, 20 SCRA (June 19,1967); Nasiad v. Court of Tax Appeals, 61 SCRA 238 (November 29, 1974). Q. Is it required that the property to be searched should be owned by the person against whom the search warrant is directed? A. No. It is sufficient that the property is under the control or possession of the person sought to be searched. Burgos, Sr. v. Chief of Staff, AFP, 133 SCRA 800 (December 26,1984). Allowable warrantless searches Q. Is every warrantless search an illegal search? A. No. According to People v. Aruta, G.R. No. 120915, April 3, 1998. ART. Ill - BILL OP RIGHTS Sec. 10 51 1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 16 of the Rules of Court and by prevailing jurisprudence. But the tests for a valid warrantless search incidental to a lawful arrest are: (1) "the item to be searched was within the arrestee's custody or area of immediate control" (United States v. Tarazon, 989 F2d 1045,1051 [1993]) and (2) "the search was contemporaneous with the arrest" (Shipley v. California, 395 U.S. 818, 819 [1969]). Padilla v. Court of Appeals, G.R. No. 121917, March 12, 1997, 269 SCRA 402,421. 2. Seizure of evidence in "plain view." The requisites for this are the elements of which are: (1) a prior valid intrusion in to a place; (2) the evidence was inadvertently discovered by the police who had the right to be where they are; (3) the illegality of the evidence must be immediately apparent; and, (4) and is noticed without further search. People v. Evaristo, 216 SCRA 413 [1992]). 3. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy. But there must be a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity. 4. Consented warrantless search. De Garcia v. Locsin, 65 Phil. 689, 694-5 (1938) says: But it must appear first, that the right exists; secondly, that the person involved had knowledge, either actual or constructive, of the existence of such right; lastly, that said person had an actual intention to relinquish the right." Thus, where the accused has voluntarily surrendered his gun, he cannot claim illegality of the seizure. People v. Agbot, 106 SCRA 325,331 (L-376541, July 31,1981). 5. Customs search or Seizure of goods concealed to avoid duties. Uykheytin v. Villareal, 116 U.S. 746 (1886); Papa v. Mago, 22 SCRA 857 (February 28,1968); Pacis v. Pamaran, 56 SCRA 16 (March 15,1974). 6. Stop and Frisk; situations (see below). 7. Exigent and Emergency Circumstances. (See below). 52 11 THE 1987 PHILIPPINE CONSTITUTION: Sec. A COMPREHENSIVE REVIEWER Q. What is the "stop and frisk" rule? A. The U.S. Supreme Court laid down stop-and-frisk as an instance of a valid warrantless search in Terry v. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L. Ed. 2d. 889 (1968). The Philippine Supreme Court adopted it in Posadas v. Court of Appeals, G.R. No. 89139, August 2,1990,188 SCRA 288. Subsequently, the Court notably applied it in the following cases: People v. Solayao, G.R. No. 119220, September 20,1996,262 SCRA 255; and, Malacat v. Court of Appeals, G.R. No. 123595, December 12,1997,283 SCRA 159. The rule is stated thus by Terry: "[Wjhere a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous, where in the course of investigation of this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is reasonable search under the Fourth Amendment..." Malacat, 283 SCRA at 176 (quoting Terry , 20 L.Ed.2d at 911); Solayao, 262 SCRA at 261. In Malacat, the Court discussed the ^justification for and allowable scope of a 'stop-and-frisk' as a limited protective search of outer clothing for weapons. Thus, the Court said that: "...while probable cause is not required to conduct a 'stop and frisk,' it nevertheless holds that mere suspicion or a hunch will not validate a 'stop and frisk.' A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. Finally, a 'stop-and-frisk' serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self- preservation which permit the police officer to take steps to Sec. 10 ART. Ill - BILL OP RIGHTS assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer." Malacat, 283 SCRA at 176-77. Q. Illustrate the warrantless search arising from exigent circumstance. A. This was applied in People v. De Gratia, G.R. Nos. 10200910, July 6,1994, 233 SCRA 716 where there were intelligence reports that the building was being used as headquarters by the RAM during the 1989 coup d'itat. Surveillance indicated rebel activities in the building. Nearby courts were closed and general chaos and disorder prevailed. Under the situation then prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the courts. Under such urgency and exigency of the moment, a search warrant should lawfully be dispensed with." De Gratia, 233 SCRA at 729. Q. Police operatives went to Zamora and Pandacan Streets, Manila to confirm reports of drug pushing in the area. They saw E selling "something" to another person. After the latter had left, they approached E, introduced themselves as policemen, and frisked him. The search yielded 2 plastic cellophane tea bags of marijuana. When asked if he had more, E replied that there were more in his house. The policemen went to his house where they found 10 more cellophane tea bags of marijuana. E charged with and convicted of possession of prohibited drugs. E assails the admissibility in evidence of the seized tea bags. Decide. A. "The articles seized from [E] during his arrest were valid under the doctrine of search made incidental to a lawful arrest. The warrantless search made in his house, however, which yielded ten cellophane bags of marijuana became unlawful since the police officers were not armed with a search warrant at the time. Moreover, it was beyond the reach and control of [E]." Espano v. Court of Appeals, G.R. No. 120431, April 1,1998, 288 SCRA 558, 567. Q. Do these exceptions declare a field day for searching officers? A. No, because "[t]he essential requisite of probable cause [except in stop and frisk] must still be satisfied before a warrantless 53 54 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 search and seizure can be lawfully conducted." People v. Aruta, G.R. No. 120915, April 3,1998, 288 SCRA 626, 638. "Probable cause, in these cases, must only be based on reasonable ground of suspicion or belief that a crime has been committed or is about to be committed as determined by the searching officer/' Q. May a fishing vessel found to be violating fishery laws be seized without a warrant? A. Yes, on two grounds: (1) because they are usually equipped with powerful motors that enable them to elude pursuit, and (2) because the seizure would be incidental to the lawful arrest of the crew. Roldan, Jr. v. Area, 65 SCRA 336 (July 25,1975). Q. Convicted by the RTC of illegal fishing, petitioners contend that the NBI finding of sodium cyanide in the fish specimens should not have been admitted because the fish samples were seized from their fishing vessel without a search warrant. Decide. A. This is a case of search of moving vehicle. Hizon v. Court of Appeals, G.R. No. 119619, December 13,1996,265 SCRA 517,527-28. Q. Twenty meters away from the gate of the Batasan, a truck was stopped and searched. The motorists had not given any evidence of suspicious behaviour nor had the searching officers received any confidential information about the car. Could the search be justified as a warrantless search of a moving vehicle? A. No. There was no probable cause. Aniag, Jr. v. Commission on Elections, 237 SCRA 424 (1994). Q. On the basis of a tip, accused was arrested and searched upon disembarking from M/V Wilcon in Hoilo City. The detention and search yielded marijuana. The officers were not armed with a warrant although the officers had at least two days to obtain a warrant. Was the search and seizure valid? A. No. The officers had all the. time to obtain a warrant. People v. Amminudin, 163 SCRA 402. Q. Accused, Malmstedt, was a passenger on a bus from Sagada to Baguio City which was stopped at a checkpoint in Camp Dangwa. The checkpoint was set up on the basis of reports that vehicles from Sagada were being used to transport marijuana. Moreover, information had been received that a Caucasian coming from Sagada had prohibited in his possession. During the inspection, officers noticed a bulge in accused's waist. When accused refused to comply with the request for identification papers, he was made to show what .2 ART. m - BILL OF RIGHTS 55 he had on his waist. It was found to contain hashish. On stepping outside, accused stopped to pick up two traveling bags which, upon being opened, were also found to contain prohibited drugs. Accused claimed illegal search. Decide. A. The search was made as an incident to his arrest when he was found in possession of illegal drugs. The arrest was made on probable cause that he was committing a crime. The warrantless search of the bus was a valid search of a moving vehicle. People v. Malmstedt, G.R. No. 91107, June 19,1991. (See dissents and compare Math People v. Amminudin, 163 SCRA 402.) Q. Upon arrival at the NAIA and after boarding a taxi, defendants' vehicle was stopped by the PC after a tip from a "deep penetration agent" of the arrival of the defendants with metamphetamine hydrochloride ("shabu"). Defendants allege that it is an illegal search as the PC knew two days in advance of their arrival and yet did not obtain a search warrant. A. It is a legal search falling under the exception of search of a moving vehicle. People v. Lo Ho Wing, et al., G.R. No. 88017, 21 January 1991. Q. Upon a warrantless search of a hotel room, consent was given and voluntary surrender of papers belonging to the registered but absent occupant was given by a woman identified as the wife of the occupant but who in fact was a "mere manicurist." Was such consent sufficient to justify a warrantless search? A. Yes. The officers of the law cannot be blamed if they would act on the appearances. There was a person inside who from all indications was ready to accede to their request. Even ordinary courtesy would preclude them from inquiring too closely as to why she was there. Lopez v. Commissioner of Customs, 68 SCRA 320 (December 12, 1975) (Comment: If the right against unreasonable search and seizure is a personal right, may it be waived by somebody other than the person himself?) NOTE: A permission granted for officers to enter a house to look for rebel soldiers does not include permission for a room to room search for firearms. Spouses Veroy v. Layague, G.R. No. 95632, June 18,1992. NOTE: Where marijuana sticks fall before the eyes of a police officer from an object a person is carrying, seizure of the sticks would not require a warrant. They are evidence "in plain view." People v. Tabar, 222 SCRA 144 (1993). Where, however, police officers find an object only after making some search, the "plain view" rule cannot be applied. Roan v. Gonzales, 145 SCRA 687 (November 25,1986). 56 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Warrantless arrests Q. Is every warrantless arrest illegal? A. No. Rule 113, Section 5, Rules of Court, summarizes the exceptions thus: A peace officer or a private person may, without warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or attempting to commit an offense; (b) When an offense has in fact been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Q. Appellant assails as unconstitutional the manner in which the so-called buy-bust operation is conducted in order to enforce the Dangerous Drugs Act. He stigmatizes it as no different from seizure of evidence from one's person or abode without a search warrant. Comment. A. A buy-bust operation is a form of entrapment. The method is for an officer to pose as a buyer. He, however, neither instigates nor induces the accused to commit a crime because in these cases the "seller" has already decided to commit a crime. And since the offense happens right before the eyes of the officer, there is no need for a warrant either for the seizure of the goods or for the apprehension of the offender. People v. de la Cruz, G.R. No. 83260, April 18,1990. Q. What is entrapment and when is it allowed? A. "It is recognized that in every arrest, there is a certain amount of entrapment used to outwit the persons violating or about to violate the law. Not every deception is forbidden. The type of entrapment the law forbids is the inducing of another to violate the law, the 'seduction' of an otherwise innocent person into a criminal career. Where the criminal intent originates in the mind of the entrapping person and the accused is lured into the commission of the offense charged in order to prosecute him, there is entrapment and no conviction may be had. Where, however, the criminal intent originates in the mind of the accused and the criminal offense is Sec. 10 ART. Ill - BILL OP RIGHTS 57 completed, the fact that a person acting as a decoy for the state, or public officials furnished the accused an opportunity for commission of the offense, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him, there is no entrapment and the accused must be convicted. The law tolerates the use of decoys and other artifices to catch a criminal." People v. Doria, G.R. No. 125299, January 22,1999. Q. A surveillance team of police officers saw two men "looking from side to side," and one of them holding his abdomen. When approached, the two men ran away but were caught. When searched, they yielded a .38 caliber Smith and Wesson revolver with six live bullets in the chamber. The weapons were taken, given to the police who used it as evidence in a prosecution for possession of an unlicensed firearm. Was the warrantless arrest and search valid? A. The Court ruled the evidence inadmissible saying that no offense was involved in "looking from side to side" and holding the abdomen. People v. Mengote, G.R. No. 87059, June 22, 1992. (Is this not a "stop and frisk situation?") Q. From a report, a police officer hears of the recent commission of a crime. Does such knowledge justify a warrantless arrest? A. No. Regarding Section 5(b), "it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has been committed is an essential precondition." And the arresting officer must have personal knowledge of the commission of the crime. Go v. Court of Appeals, 206 SCRA 138,150 (1992). Moreover, an arrest made nineteen hours after the offense has been committed cannot be of one whose crime "in fact has just been committed." People v. Manlulu, 231 SCRA 701 (1994). See also People v. Rodrigueza, 205 SCRA 791, 796-797 (1992) and People u. Enrile, 222 SCRA 586 (1993). Q. While patrolling in their car, policemen received a radio message from their camp directing them to proceed to "Ihaw-Ihaw" where there had been a shooting. They went to the place and there saw the victim. Bystanders pointed to the accused as the assailant. The accused by then was fleeing but had not gone very far from the place. The police officers arrested the accused and seized the gun from him. Valid warrantless arrest and search? A Valid warrantless arrest under Rule 113, §5(b): an offense has in fact just been committed, and the officers had personal knowledge of the facts indicating that the accused has committed it. Valid warrantless search under Rule 126, §12: search incidental to a lawful arrest. People v, Jayson, G.R. No. 120330, November 18, 1997, 282 SCRA 166. THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER 73 Q. Must a police officer who mistakenly arrests a person on the ground of being in flagrante delicto be made liable? A. For the arrest of one in flagrante delicto to be valid under Rule 112, Section 5(a), the law tilts in favor of authority. Thus, speech which in an officer's estimation is criminally seditious can justify warrantless arrest in flagrante delicto even if upon prosecution the officer is proved wrong. The criminal character of speech is something that is not easily determined and must await court estimation. Espiritu v. Lim, G.R. No. 85727, October 3,1991. But see dissents. Q. May a person charged with rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof be arrested without a warrant? A. Yes, since these are continuing offenses and therefore the accused are assumed to be always continuing the offense. Umil and Dural v. Fidel Ramos, G.R. No. 81567, July 9,1990. (The decision was a reaffirmation of the notorious Garcia-Padilla v. Enrile, 121 SCRA 472 [April 20, 1983]). Reaffirmed on reconsideration in In re Umil, October 3,1991. Q. Armed with a search warrant elements of PC/INP conducted a raid at a residence where they found several people in conference who scampered in different directions leaving behind subversive materials of various kinds, a .38 caliber revolver, assorted ammunition, money, medicine, and printing paraphernalia. The persons there and then were arrested. Was the arrest legal? A. Yes. This is arrest of persons actually committing a crime justified, even without warrant, under Rule 113, Section 6(a). GarciaPadilla v. Enrile, G.R. No. 61388, April 20,1983. Q. The accused raised the issue of the irregularity of his arrest only during trial. Will it prosper? A. No. "Any objection involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of the accused must be made before he enters his plea, otherwise the objection is deemed waived." People v. Cabiles, G.R. No. 112035, January 16,1998,284 SCRA 199,210 (citingPeople v. Lopez, Jr., 245 SCRA 95 [1995], People v. Rivera, 245 SCRA 421 [1995]). Q. When is the accused estopped from assailing the illegality of his arrest? A. "[J]urisprudence is settled that an accused is estopped from assailing the illegality of his arrest if he fails to move for the quashing of the Information against him before his arraignment." People v. Hernandez, G.R. No. 117624, December 4, 1997, 282 SCRA 387, 402 (citing People v. Lopez, Jr., 245 SCRA 95, 105-06 [1995]; Sec. 10 Sec. 10 ART. Ill - BILL OP RIGHTS 59 People v. Samson, 244 SCRA 146, 150 [1995]; People v. Compil, 244 SCRA 135,144 [1995]). SEC. 3. (1) THE PRIVACY OF COMMUNICATION AND CORRESPONDENCE SHALL BE INVIOLABLE EXCEPT UPON LAWFUL ORDER OF THE COURT, OR WHEN PUBLIC SAFETY OR ORDER REQUIRES OTHERWISE AS PRESCRIBED BY LAW. (2) ANY EVIDENCE OBTAINED IN VIOLATION OF THIS OR THE PRECEDING SECTION SHALL BE INADMISSIBLE FOR ANY PURPOSE IN ANY PROCEEDING. Q. What is the reason for Section 3(1)? A. When the 1935 Constitution was being formulated, the controlling doctrine was that the search and seizure clause did not prohibit non-trespassory wiretaps. This was the doctrine established in 1928 in Olmstead v. United States, 277 U.S. 438 (1928). Briefly, the argument in Olmstead was that where there is no physical trespass there is no search, and where the object is not tangible it cannot be seized. The "tangibles only" rule was anchored on the text of the Fourth Amendment which enumerates tangibles: house, person, papers, effects. Id. at 464-465. The framers of the 1935 Constitution were quite aware of the Olmstead doctrine and their realization of the inadequacy of the search and seizure clause as a protection for personal privacy must have at least partly motivated the adoption of the privacy provision. It has no counterpart in the American Constitution nor in earlier Philippine organic law. In effect, the privacy provision anticipated future development of American jurisprudence, for in 1967 Katz v. United States, 389 U.S. 347 (1967) overruled the Olmstead doctrine and placed wiretapping, with or without physical trespass, under the ban of the search and seizure clause. Q. What forms of correspondence and communication are covered by this provision? A. It covers letters, messages, telephone calls, telegrams, and the like. Q. When is intrusion into the privacy of communication and correspondence allowed? A. It is allowed "upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law." 60 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Q. Upon what grounds may a court allow intrusion? A. The text does not give any ground. It is submitted that the requirement of probable cause in the preceding section should be followed. After all, as may be seen in the development of American jurisprudence on the subject, the privacy right is but an aspect of the right to be secure in one's person. Cf. Material Distributor Inc. v. Natividad, 84 Phil. 127,136 (1949). Q. Should the order also particularly describe the communication or correspondence sought to be seized? A. When the correspondence soiight is written correspondence, it would seem that there should be no inconvenience in requiring particularity of description. But if the intrusion is to be done through wiretaps, how is the description to be made? Evidently, it would be impossible to describe the contents of a communication that has not yet been made. Hence, it would be unreasonable to require a description of the contents of the communication. But the identity of the person or persons whose communication is to be intercepted, and the identity of offense or offenses sought to be prevented, and the period of the authorization given can be specified. In fact, an attempt in this direction is made by Section 3 of R.A. 4200, the Anti- Wiretapping Law, and similar safeguards are also found in Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. Section 2518, which was discussed in the wiretapping case of United States v. U.S. Districts Ct., Eastern Michigan, 40 LW 4761 (1972). Q. What are the requisites when intrusion is made without judicial order? Gii A. When intrusion is made without a judicial order, it would have to be based upon a government official's assessment that public safety and order demand such intrusion. In addition to what has been said about what transpired at the 1935 Convention, it was also made clear in the 1972 Convention that an executive officer can order intrusion when in his judgment and even without prior court approval he believes that public safety or order so requires. And public order and safety were defined as 'the security of human lives, liberty and property against the activities of invaders, insurrectionists, and rebels." 1971 Constitutional Convention, Session of November 25,1972. The Sec. 10 ART. Ill - BILL OP RIGHTS 61 discretion of the public officer, moreover, must be exercised "as prescribed by law." This is a phrase added to the 1973 version by the new Constitution. It should also be added that the exercise of this power by an executive officer is subject to judicial review. Moreover, other than the President who may be deemed to have this power because under the Constitution he is charged with the exercise of executive power, other executive officers should first be properly authorized. To hold otherwise would be to opt for a government of men and not of laws. Every police agent would feel authorized to snoop. Q. Is there any implementing statute covering this subject? A. Yes. R.A. 4200 known as the Anti-Wiretapping Law provides penalties for specific violations of private communication. Note that Section 3 of the Act allows court- authorized taps, under specific conditions, for the crimes of "treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping." Q. What is the effect of violation of Sections 2 and 3(1)? A. "Any evidence obtained . . . shall be inadmissible for any purpose in any proceeding." As already discussed in the preceding section, however, this defense is purely personal. Q. Mr. Job Reyes, proprietor of Manila Packing and Export Forwarders, a private firm, opened boxes of Andre Martin for final inspection as part of standard operating procedure before delivery to the Bureau of Posts or Bureau of Customs. Reyes found dried marijuana leaves inside and took samples to the NBI, who verified thai'the dried leaves were marijuana leaves. An information was filed against Martin for violation of RA 6425, or the Dangerous Drugs Act. Martin says that the marijuana leaves are fruits of an illegal search and therefore under the exclusionary rule of Section 3(2) of the Bill of Rights. Can an act of a private individual, allegedly in violation of appellant's constitutional rights, be invoked against the State? A. No. In the absence of governmental interference, the constitutional right against unreasonable search and seizure cannot be invoked against the State. "[T]he protection against 62 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 unreasonable search and seizure cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government." People v Andre Marti, G.R. No. 81561,18 January 1991. Q. Are firearms which have been illegally seized in a"zona" admissible in evidence? A. No. "Pending determination of the legality of such articles, however, they shall remain in custodia legis, subject to such appropriate disposition as the corresponding courts may decide." Alih v. Castro, 151 SCRA 279 (1987). NOTE: Section 26, Rule 114 of the Revised Rules in Criminal Procedure says that an application for bail or the admission to bail by an accused is not considered a waiver of his right to assail the warrant issued for his arrest or the legalities or irregularities thereof. This is a new rule intended to modify previous rulings of this Court. The new rule is curative in nature because precisely, it is designed to supply defects and curb evils in procedural rules. Okabe v. Judge de Leon, G.R. No. 150185, May 27,2004. But it is long settled that where the accused, by his voluntary submission to the jurisdiction of the court, as shown by the counsel-assisted plea he entered during the arraignment and his active participation in the trial thereafter, voluntarily waives his constitutional protection against illegal arrests and searches. We have consistently ruled that any objection concerning the issuance or service of a warrant or a procedure in the acquisition by the court of jurisdiction over the person of the accused must be made before he enters his plea, otherwise, the objection is deemed waived. People v. Rivera, G.R. No.177741, August 27^009. SEC. 4. No LAW SHALL BE PASSED ABRIDGING THE FREEDOM OF SPEECH, OF EXPRESSION, OR OF THE PRESS, OR THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES. Q. What do "speech," "expression," and "press" include? A. Speech, expression, and press include every form of expression, whether oral, written, tape or disc recorded. It also includes movies as well as what is referred to as symbolic speech such Sec. 10 ART. Ill - BILL OP RIGHTS 63 as the wearing of an armband as a symbol of protest. Peaceful picketing has also been included within the meaning of speech. No prior restraint Q. What is the first prohibition of the free speech and press clause? A. The first prohibition of the constitutional provision is a prohibition of prior restraint. Prior restraint means official government restrictions on the press or other forms of expression in advance of actual publication or dissemination. Its most blatant form is a system of licensing administered by an executive officer. Movie censorship, although not placed on the same level as press censorship, also belongs to this type of prior restraint. Also similar to the licensing system is judicial prior restraint which takes the form of an injunction against publication. Equally objectionable as prior restraint are license taxes measured by gross receipts for the privilege of engaging in the business of advertising in any newspaper or flat license fees for the privilege of selling religious books. Q. The offices of the WE FORUM , were searched and closed on the basis of an invalid warrant. Comment. A. "Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, and constitutes virtual denial of petitioners' freedom to express themselves in dissent." Burgos, Sr. v. Chief of Staff, AFP, 133 SCRA 800 (1984) See also Corro v. Lising, 137 SCRA 541 (July 15,1985). NOTE: Another case of violation of freedom of expression through the harassment of media was the summons the military sent to several women in media. The Court, however, did not pass judgment on the case but instead considered it moot since the military had discontinued the interviews. See Babst v. National Intelligence Board, 132 SCRA 316 (September 28,1984). The warning on media against airing the alleged wiretapped conversation between the President and other personalities constitute unconstitutional prior restraint on the exercise of freedom of speech and of the press. Chavez v. Gonzales, G.R. No. 168338, February 15, 2008. Q. Is the prohibition of "prior restraint" absolute? A. No. Although any system of prior restraint comes to court bearing a heavy presumption against its constitutionality, New 64 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 York Times v. United States, 403 U.S. 713 (1971), there are exceptions to the rule. Near v. Minnesota, 283 U.S. 697 (1931), enumerates them thus: "When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right." No one would question but that government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. Q. Does the Comelec's power, under IX, C, 4, to regulate time in broadcast media and space in the papers violate freedom of expression? A. No. The effect of the provision is to create "an exception to freedom-of-speech-and-press clause on account of considerations more paramount for the general welfare and public interest, which exceptions after all would operate only during limited periods, that is, during the duration of the election campaign filed in the charter itself and/or by law." UNIDO v. Comelec, 104 SCRA 17,38 (April 3,1981); National Press Club v. Commission on Elections, 207 SCRA 1 (1992) Q. As a measure of electoral reform, Republic Act 6646, Section 11(b) made it unlawful "for any newspaper, radio broadcasting or television station, other mass media, or any person making use of the mass media to sell or to give-free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Section 90 and 92 of Batas Pambansa Big. 881." Batas Big. 881 had also commanded the Commission to procure print space and broadcast time to be allocated impartially among the candidates. Is such law valid? A. This law has since been repealed. But the reasoning behind the decision which upheld it remains valid. In upholding the reasonableness of the provisions National Press Club v. Commission on Elections, 207 SCRA 1 (1992), said that the objective of the prohibition was the equalizing, as far as practicable, of the situation of rich and poor candidates by preventing the former from enjoying Sec. 10 ART. Ill - BILL OP RIGHTS 65 undue advantage offered by huge campaign "war chests." The Court said that the provision on freedom of expression must be read in conjunction with the power given to the Commission on Elections to supervise and regulate media during elections as well as with the various provisions in the Constitution which place a high premium on equalization of opportunities. Q. Relying on Section 11 of Republic Act 6646, the Comelec prohibited the posting of decals and stickers of candidates on "mobile" places, public or private. Valid? A. Adiong v. Commission on Elections, 207 SCRA 712 (1992) declared Section 11 invalid ,f<?r infringing freedom of speech and for being an undue delegation of rule making authority. The prohibited acts were found to present no substantial danger to government interest. The prohibition therefore did not satisfy the requirements of the clear and present danger rule. Moreover, the prohibition was found to suffer from over "breadth." It encompassed the use of privately owned property such as a vehicle. It therefore was an unreasonable restriction on the use of property. Finally, the constitutional objective to give rich and poor candidates equal opportunity was not seen as served by the prohibition of decals. Q. In the exercise of its authority to regulate the holders of media franchises during the election period the Comelec banned "exit polls." It contends that "an exit poll has the tendency to sow confusion considering the randomness of selecting interviewees, which further make[s] the exit poll highly unreliable. The probability that the results of such exit poll may not be in harmony with the official count made by the Comelec... is ever present.." Valid? A. Exit polls, i.e., random polling of voters as the come out of the booths, and the dissemination of their results through mass media constitute an essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and credible elections. The ban does not satisfy the clear and present danger tale because the evils envisioned are merely speculative. ABS-CBN v. Comelec, G.R. No. 133486, January 28,2000. Q. Section 1 of R.A. 9006, the Fair Election Act, says: "Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election." The provision as well as the implementing resolution of the Comelec is challenged as violative of freedom of expression. The Comelec, however, justifies the rule as necessary to prevent the manipulation and corruption of electoral process by unscrupulous and erroneous surveys just before election. Decide. THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER 81 A. As prior restraint, the rule is presumed to be invalid. The power of the Comelec over media franchises is limited to ensuring "equal opportunity, time, space and the right to reply" as well as to reasonable rates of charges for the use of media facilities for "public information and forums among candidates." Here the prohibition of speech is direct, absolute and substantial. Nor does the rule pass the &Brien test for content related regulation because (1) it suppresses one type of expression while allowing other types such as editorials, etc. and (2) the restriction is greater than what is needed to protect government interest because the interest can be protected by narrower restriction such as subsequent punishment. SWS v. Comelec, G.R. 147571, May 5, 2001. Q. Newsounds had been operating a radio station in Cauayan, Isabela. When renewal of the permit was sought to continue operation in the same place, he was denied on the basis of a zoning ordinance. Was this a form of regulation of speech? A. Jurisprudence distinguishes between a content-neutral regulations, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under welldefined standards; and a content-based restraint or censorship, i.e., the restriction based on the subject matter of the utterance or speech. Content-based laws are generally treated as more suspect than content-neutral laws because of judicial concern with discrimination in the regulation of expression. Content-neutral regulations of speech or of conduct that may amount to speech, are subject to lesser but still heightened scrutiny. Ostensibly, the ordinance was a content neutral zoning ordinance. However, under the circumstances of the case, the real purpose of the ordinance was to silence the station which had been a strong critic of the local administration. The ordinance therefore must be viewed as a content-based regulation. Newsounds Broadcasting v. Dy, G.R. Nos. 170270 & 179411, April 2,2009. NOTE: Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy x x x." The second sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides that "[a]ny person who files his certificate of candidacy within [the period for filing] shalLoniy be considered as a candidate at the start of tfift period for which he filed his certificate of candidacy." The immediately succeeding proviso in the same third paragraph states that "unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforggnifl campaign period." These two provisions determine the resolution of this case. This means that outside of these conditions a person's right to campaign is protected by the freedom of speech clause. Penera v. Comelec, G.R. No. 181613, November 25, 2009, reversing an earlier decision. Sec. 10 .4 ART. Ill - BILL OF RIGHTS 67 Q. Since movie censorship is a form of prior restraint, how can it escape unconstitutionality? A. The U.S. Supreme Court ruled in Freedman u. Maryland, 380 U.S. 51 (1965): [W]e hold that a non-criminal process which requires prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate dangers of a censorship system. First, the burden of proving that the film is unprotected expression must rest on the censor... Second,... the requirement cannot be administered in a manner which would lend an effect of finality to the censor's determination... The teaching of our cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid fined restraint... To this end, the exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution. Moreover,... the procedure must also assure a prompt judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license. Q. Do we follow Freedman v. Maryland? A. Our Court, has held that, while Freedman has a lot to commend itself, "we are not ready to hold that it is unconstitutional for Congress to grant an administrative body quasi-judicial power to preview and classify TV programs and enforce its decision subject to review by our courts." Iglesia ni Kristo v. Court of Appeals, G.R. 119673, July 26,1996. Q. Respondents claim that the television program "The Inside Story" is a "public affairs program, news documentary and socio-political editorial," the airing of which is protected by the constitutional provision on freedom of expression and of the press and therefore not subject to prior review before showing. A. Albeit, respondent's basis is not freedom of religion, as in Iglesia ni Crista, but freedom of expression and of the press, the ruling in Iglesia ni Cristo applies squarely to the instant issue. It is significant to note that in Iglesia ni Cristo, this Court declared that freedom of religion has been accorded a preferred status by the framers of our fundamental laws, past and present, "designed to protect the broadest 68 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 possible liberty of conscience, to allow each man to believe as his conscience directs x x x." Yet despite the fact that freedom of religion has been accorded a preferred status, still this Court, did not exempt the Iglesia ni Cristo's religious program from petitioner's review power. MTRCB v. ABS-CBN, G.R. No. 155282, January 17,2005. Q. May live tv coverage of a criminal trail be prohibited? A. With the possibility of losing not only the precious liberty but also the very life of an accused, it behooves all to make absolutely certain that an accused receives a verdict solely on the basis of a just and dispassionate judgment, a verdict that would come only after the presentation of credible evidence testified to by unbiased witnesses unswayed by any kind of pressure, whether open or subtle, in proceedings that are devoid of histrionics that might detract from its basic aim to ferret veritable facts free from improper influence, and decreed by a judge with an unprejudiced mind, unbridled by running emotions or passions. Re: request for Radio-TV Coverage of the Estrada Trial, AM. No. 01-4-03-SC. June 29,2001 Q. Does every form of speech enjoy the same degree of protection? A. No. The doctrine on freedom of speech was formulated primarily for the protection of "core" speech, i.e., speech which communicates political, social or religious ideas. These enjoy the same degree of protection. Commercial speech, however, does not. Commercial speech Q. What is the meaning of commercial speech? A. It is communication which "no more than proposes a commercial transaction." Advertisement of goods or of services is an example. Q. In order for government to curtail commercial speech what must be shown? 0J A. To enjoy protection, commercial speech must not be false or misleading Friedman v. Rogers, 440 U.S. 1 (1979) and should not propose an illegal transaction. Pittsburgh Press Co. v. Human Relations Commission, 413 U.S. 376 (1973). However, even truthful and lawful commercial speech may be regulated if (1) government has a substantial interest to protect; (2) the regulation directly advances that interest; and (3) it is not more extensive than is necessary to protect that interest. Central Hudson Gas & Electric Corp. v. Public Service Commission of NY, 447 U.S. 557 (1980). Sec. 10 ART. Ill - BILL OP RIGHTS 69 NOTE: The advertising and promotion of breast milk substitutes falls within the ambit of the term commercial speech, a separate category of speech which is not accorded the same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless entitled to protection. An absolute ban on advertising is unduly restrictive and is more than necessary to further the avowed governmental interest of promoting the health of infants and young children. Pharmaceutical v. Secretary of Health, G.R. No. 173034, October 9, 2007. ' "V ' Subsequent punishment Q. What is the second basic prohibition of the free speech and press clause? A. The free speech and press clause also prohibits systems of subsequent punishment which have the effect of unduly curtailing expression. For, indeed, if prior restraint were all that the constitutional guarantee prohibited and government could impose subsequent punishment without restraint, freedom of expression would be a mockery and a delusion. Q. What are the standards for allowable subsequent punishment of expression? A. Since freedom of expression ranks in the hierarchy of constitutional rights higher than property, Salonga v. Pano, 134 SCRA 438 (February 18,1985), the norms for the regulation of expression place more stringent limits on state action. Jurisprudence has evolved three tests: (1) the dangerous tendency test; (2) the clear and present danger test; (3) the balancing of interests test. Of these, the second and third are in favor. Q. What is the dangerous tendency rule? A. In the early stages of Philippine jurisprudence, the accepted rule was that speech may be curtailed or punished when it "creates a dangerous tendency which the State has the right to prevent." This standard has been labeled the "dangerous tendency" rule. All it requires, for speech to be punishable, is that there be a rational connection between the speech and the evil apprehended. 70 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER rule. Sec. 10 Q. Give an example of the application of the dangerous tendency A. In a political discussion held at a town municipio, citizen Perez made this remark: "And the Filipinos, like myself, must use . bolos for cutting off Wood's head for having recommended a bad thing for the Philippines." Prosecuted for seditious speech, Perez was convicted. "Criticism," Justice Malcolm said for the Court, "no matter how severe, on the Executive, the Legislature, and the Judiciary, is within the range of liberty of speech, unless the intention and effect be seditious." Such apparently, in the judgment of the Court were the intention and effect of Perez' remarks. Malcolm found in them "a seditious tendency" which could easily produce disaffection among the people and a state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws." People v. Perez, 45 Phil. 599 (1923). Q. Espiritu, in a gathering of drivers and sympathizers at the corner of Valencia Street and Magsaysay Boulevard, said, among others: "Bukas tuloy ang welga natin . . . hanggang sa magkagulo na." Later, at a conference at the National Press Club he called for a nationwide strike. He was arrested, without warrant, for inciting to sedition. Was the arrest valid? A. Yes. People may differ as to the criminal character of the speech, which at any rate will be decided in court. But for purposes of the arrest, not for conviction, there was sufficient ground for the officer to believe that Espiritu was in the act of committing a crime. For purposes of arrest, the law tilts in favor of authority. Espiritu v. General Lim, G.R. No. 85727, October 3,1991. But see dissents. Q. State and explain the clear and present danger rule. A. The rule was formulated by Justice Holmes in Schenck v. United States, 249 U.S. 47 (1919) thus: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to'fereate a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." As the Supreme Court was later on to explain in Dennis v. United States, 341 U.S. 494,509 (1951): Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If the Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the cir Sec. 10 ART. Ill - BILL OP RIGHTS 71 cumstances permit, action by the Government is required. The argument that there is no need for Government to concern itself, for Government is strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease, needs no answer. For that is not the question. Certainly an attempt to overthrow the government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for Congress to prevent. The damage which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success, or the immediacy of a successful attempt ... We must therefore reject the contention that success or probability of success Is the criterion. Citing Justice Learned Hand, the Supreme Court summarized the rule thus: "In each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justified such invasion of free speech as is necessary to avoid the danger." Id. Q. Explain the balancing of interests test. A. Professor Kauper explained the rule thus: The theory of balance of interests represents a wholly pragmatic approach to the problem of First Amendment freedom, indeed, to the whole problem of constitutional interpretation. It rests on the theory that it is the Court's function in the case before it when it finds public interests served by legislation on the one hand and First Amendment freedoms affected by it on the other, to balance the one against the other and to arrive at a judgment where the greater weight shall be placed. If on balance it appears that the public interest served by restrictive legislation is of such a character that it outweighs the abridgment of freedom, then the Court will find the legislation valid. In short, the balance-of-igjterests theory rests on the basis that constitutional freedoms are nqt absolute, not even those stated in the First Amendment, and that they may be abridged to some extent to serve appropriate and important interests. Cited in Gonzales v. Comelec, 27 SCRA 835,899 (1969). test? Q. What is the special usefulness of the balancing of interests A. The dangerous tendency rule and the clear and present danger rule were evolved in the context of prosecution for seditious speech. They are thus couched in terms of degree of evil and proximity of the evil. But not all evils easily lend themselves, like sedition, to measurement of proximity and degree. For legislation therefore whose 72 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 object is not the prevention of evil measurable in terms of proximity and degree, another test had to be evolved. The balancing of interests test serves the purpose. It is used, for instance, for commercial speech. Q. Give an example of the application of the balancing of . interests test. A. Republic Act No. 4880 among other things prohibits the too early nomination of political candidates and limits the period for partisan political activity. Its purpose is to prevent the debasement of the political process. In determining the validity of the law, free speech as a social value must be weighed against the political process as a social value. Castro Gonzales v. Comelec, 27 SCRA 835 (1969). Similarly, in the case of Lagunzad v. Soto Vda. de Gonzales, 92 SCRA 476,488-9 (L-32066, August 6,1979), where there was conflict between the right of the family of the late Moises Padilla to have their privacy protected and the right of a writer to write about a public figure like Moises Padilla, the Court applied the balancing of interests test and held in favor of the family's right to have their privacy protected. Hence, the licensing agreement which required compensation to the family was upheld as valid. Q. Which test has found preference with the Supreme Court? A. It should be noted that between the dangerous tendency rule and the clear and present danger rule, the difference is chiefly one of degree. Hence, it is difficult to speak of preferences independently of the factual context. This much, however, may be said, that in early speech cases involving incitement to sedition, an analysis of Supreme Court decisions yields a language that favors the more restrictive dangerous tendency rule. See People v. Perez, 45 Phil. 599 (1923); People v. Feleo, 57 Phil. 451 (1932); People v. Evangelista, 57 Phil. 354 (1932); Espuelas v. People, 90 Phil. 524 (1951). In cases of contempt of the Supreme Court, the only test conclusively established by the Supreme Court is the "dangerous tendency" rule; however, in certain cases involving contempt of inferior courts, the "clear and present danger" rule has also been given at least a nodding assent. Bernas, CONSTITUTIONAL RIGHTS AND DUTIES, 181-192. With the restoration of democracy, the clear and present danger test is again coming into favor. Eastern Broadcasting Corp. v. Dans, Jr., 137 SCRA 628 (July 19,1985). Sec. 10 ART. Ill - BILL OP RIGHTS 73 Q. Enrile seeks to enjoin the movie company from producing "The Four Day Revolution," a dramatization of the February 1986 revolution, for public showing, on the ground that it would violate his right to privacy. Decide. A. Motion pictures are protected medium for the communication of ideas and the expression of the artistic impulse. This freedom is available to both local and foreign owned production companies even if they are commercial. Indeed there is such a thing as the right to privacy. But this cannot be invoked to resist publication of matters of public interest. What the right to privacy protects is the right against unwarranted intrusions and wrongful publication of the private affairs and activities of individuals which are outside the sphere of legitimate public concern. Enrile's role in that revolution is a matter of public interest because he was a principal figure in that event. Ayer Productions Pty. Ltd. v. Judge Capidong, 160 SCRA 861 (1988). Q. On the occasion of the ratification campaign for the Autonomy Act for the Cordillera, the COMELEC issued a resolution prohibiting columnists, commentators, and announcers from using their columns or radio or television time to campaign for or against the plebiscite during the period of the campaign. Valid? A. The resolution is unconstitutional. The authority given by the Constitution is over holders of franchises. The purpose is to assure candidates equal opportunity and equal access to media. Sanidad is not a candidate and in fact in a plebiscite there are no candidates. Plebiscite issues are matters of public concern and the people's right to be informed must be preserved. Moreover, the people's choice of forum for discussion should not be restricted. Sanidad v. COMELEC, G.R. No. 90878, January 29,1990. Symbolic speech Q. O'Brien burned his Selective Service registration certificate before a sizable crowd in order to influence others to adopt his anti-war beliefs. He was indicted, tried, and convicted for violating 50 U.S.C.App. § 462(b), a part of the Universal Military Training and Service Act. O'Brien argued that the law violated his freedom of speech. Decide. A. When "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on free speech. A governmental regulation is sufficiently justified if (1) it is within the constitutional power of the Government and (2) furthers an important or substantial governmental interest unrelated to the suppression 74 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 of free expression, and (3) if the incidental restriction on alleged freedom is no greater than is essential to that interest. The law meets this test. U.S. v. O'Brien, 391 U.S. 367,20 L. Ed. 2d 672 (1968). Unprotected speech Q. Are there any forms of speech which are not protected by the Constitution? A. "There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any constitutional problems." Chaplinsky v. New Hampshire, 315 U.S. 568, 571-2 (1942). These are libel and obscenity. "It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interests in order and morality." Chaplinsky v. New Hampshire, 315 U.S. 572 (1942). Libel Q. Define libel. A. Article 353 of the Revised Penal Code defines libel thus: A libel is a public and malicious imputation of a crime, or of a vice or a defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. Q. What are the elements of libel? A. To be liable for libel, the following elements must be shown to exist: (a) the allegation of a discreditable act or condition concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice. Q. When is a defamatory imputation malicious? A. 'There is malice when the author of the imputation is prompted by ill-will or spite and speaks not in response to duty but merely to injure the reputation of the person who claims to have been defamed." Alonzo v. Court of Appeals, G.R. No. 110088, February 1, 1995, 241 SCRA 51, 59-60 (reiterated in Sec. 10 ART. Ill - BILL OP RIGHTS 75 Ledesma v. Court of Appeals, G.R. No. 113216, September 5, 1997, 278 SCRA 656,685.) Q. What does publication in libel mean? A. It means "making the defamatory matter, after it has been written, known to someone other than the person to whom it has been written. The reason for such rule is that 'a communication of the defamatory matter to the person defamed cannot injure his reputation though it may wound his self-esteem. A man's reputation is not the good opinion he has of himself, but the estimation in which others hold him."' Ledesma v. Court of Appeals, G.R. No. 113216,"September 5,1997, 278 SCRA 656, 686-87. Q. What is the rule on privileged communications in the Revised Penal Code? A. Article 354: Every defamatory imputation is presumed to be malicious, even if it be true if no good intention and justifiable motive for making it is shown, except in the following cases: 1. A private communication made by any person to another in the performance of any legal, moral, or social duty; and 2. A fair and true report, made in good faith, without any comments or remarks, of any juridical, legislative, or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. Q. Explain the rule further. A. In order to prove that a statement falls within the purview of a qualifiedly privileged communication under Article 354, No. 1, the following requisites must concur: (1) the person who made the communication had a legal, moral, or social duty to make the communication, or at least, had an interest to protect, which interest may either be his own or of the one to whom it is made; (2) the communication is addressed to an officer or a board, or superior, having some interest or duty in the matter, and who has the power to furnish the protection sought; and (3) the statements in the communication are made in good faith and without malice. 76 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Q. Does Article 354(2) cover the total scope of privileged communication? A. No, the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. The concept of privileged communications is implicit in the freedom of the press. Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. Borjal v. Court of Appeals, G.R. No. 126466, January 14,1999; Flor v. People, G.R. No. 139987, March 31,2005. Q. In a suit for collection of money owed, the answer of defendants attributed "usurious loan transaction" to the plaintiff, called plaintiff "scheming," and accused plaintiff of "fraudulent distortions." Can such an answer be a ground for damages? A. No. The prevailing rule is that parties, counsel, and witnesses are exempted from liability in libel or slander for words otherwise defamatory published in the course of judicial proceedings, provided the statements are relevant to the case. The statements are relevant to the defense of usury. Armovit, et al. v. Judge Purisima, G.R. No* 39258, November 15,1982. Q. Is the publication of a complaint filed with the Securities and Exchange Commission before any judicial action is taken thereon privileged as a report of a judicial proceeding? A. Yes. Cuenco v. Cuenco, 70 SCRA 212,234-5 (1976). Santos v. Court of Appeals, G.R No. 45031, October 21,1991. (Note, however, that the privilege is merely from the presumption of malice. The privilege disappears when actual malice is proved.) Q. When are derogatory remarks in newspapers etc. immune from punishment? A. Newspapers may publish news items relative to judicial, legislative, or other official proceedings, which are not of a confidential nature, because the public is entiled to know the truth with respect to such proceedings, which, being official and non-confidential, are open to public consumption. But to enjoy immunity, a publication containing derogatory information must be not only true but also, fair, and it must be made in good faith and without comments or remarks. Policarpio v. Manila Times Publishing Co., L-16027, May 30, 1962; Lopez v. Court of Appeals, 34 SCRA 116 (1970). Libel of public officials and public figures Q. What is the rule in the United States regarding defamatoiy imputation against a public official? Sec. 10 ART. Ill - BILL OP RIGHTS 77 A. The constitutional guarantee requires a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice.' Q. What does actual malice mean? A. It means with knowledge that it was false or with reckless disregard of whether it was false or not. New York Times v. Sullivan, 376 U.S. 254 (1964). This rule was later extended to defamation of private sector public figures. Rddenblatt v. Boer, 383 U.S. 75 (1966); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Hustler Magazine v. Falwell, 485 U.S. 46 (1988). Q. Do we follow this rule? A- Yes. We have even extended it to defamatory imputation against a barangay official. A PCGG Commissioner also comes under this rule. Jalandoni v. Drilon, G.R. Nos. 115239-40, March 2, 2000; Borjal v. Court of Appeals, G.R. No. 126466, January 14,1999; Flor v. People, G.R. No. 139987, March 31, 2005. For this purpose, Japan Airlines is treated as a public figure. JAL v. Simangan, G.R. No. 170141, April 22,2008. However, public figures are not unprotected. If the utterances are false, malicious or unrelated to a public officer's performance of his duties or irrelevant to matters of public interest involving public figures, the same may give rise to criminal and civil liability. While personalities in the entertainment business, media people, including gossip and intrigue writers and commentators, do not have the unbridled license to malign their honor and dignify by indiscriminately airing fabricated and maSfcious comments, Fermin v. People, G.R. No. 157643, March 28,2008. Obscenity and indecency Q. What is the test for obscenity? A. The basic guidelines for the trier of facts must be: "(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined 78 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 by the applicable state law, and (c) whether the work, taken as a whole lacks serious literary, artistic, political, or scientific value." Miller v. California, 37 L. Ed. 2nd 419,431 (1973). This was substantially followed for movies in Gonzales v. Kalaw Katigbak, 137 SCRA 717 (July 22,1985), but the Court noted that stricter rules could be followed for television. NOTE: Stricter rules have also been allowed for radio especially because of its pervasive quality and because of the interest in the protection of children. FCC v. Pacifica Foundation, 438 U.S. 726 (1978). Likewise, stricter rules have teen allowed for speech in schools because of the nature of the community that is involved and the relationship between school and parents. Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986); Hazelwood Sch. Dist. v. Kulmeier, 484 U.S. 260 (1988). See also allowable zoning regulations which affect indecent shows, e.g., Renton v. Playtime Theaters, 475 U.S. 41 (1986). NOTE: Relative obscenity: The host of Ang Dating Daan was found to have used on television language which Movie and Television Classification Board found to be unsuitable for television. Hence a three month suspension was imposed on the program. Was there unconstitutional prior restraint? The Court found that the language used could "be treated as obscene, at least with respect to the average child. Hence, it is, in that context, unprotected speech." The Court noted that there was "no perfect definition of obscenity" and that ultimately therefore "obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on the judge's sound discretion." The Court admitted that the language in question "may not appeal to the prurient interests of an adult" but that tike problem with the challenged statements was that "they were uttered in a TV program that is rated 'G' or for general viewership, and in a time slot that would likely reach even the eyes and ears of children." Soriano v. Laguardia, G.R. No. 164785, April 29, 2009. Affirmed on reconsideration March 15, 2010. See dissent. Q. May sex in the internet be banned? A. It depends. Obscenity may be banned. But attempts to regulate sex, which does not come under the definition of obscenity for the purpose of protecting minors, have failed on the argument that Sec. 10 ART. Ill - BILL OP RIGHTS 79 the regulations deprive adults of shows, which do not come under the definition of obscenity and are therefore legitimate for adults. Reno v. American Civil Liberties Union, No. 96-511. Decided June 26, 1997;Ashcroft v. Free Speech Coalition, Decided April 16, 2002; US v. American Library Association, et al., Decided June 23, 2003. Assembly and petition Q. What is the right of assembly and petition? A. Historically, the right of petition is the primary right, the right peaceably to assemble a subordinate and instrumental right, as if the provision read: The right of the people peaceably to assemble" in order to "petition the government." In de Jonge v. Oregon, 299 U.S. 353,364 (1937), the Supreme Court affirmed, "The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental." It is therefore more than just the right to form associations found in Article III, Section 8. Hence, since the right of assembly and petition is equally as fundamental as freedom of expression, the standards for allowable impairment of speech and press are also used for assembly and petition. Q. What is the extent of the authority of the state to regulate public assemblies? A. In Navarro v. Villegas, 31 SCRA 731 (1970), where the petitioner wanted the use of Plaza Miranda whereas the Mayor would allow only the use of the Sunken Gardens, the Supreme Court ruled that the Mayor possessed "reasonable discretion to determine or specify the streets or public places to be used for the assembly in order to secure convenient use thereof by others and provide adequate and proper policing to minimize the risks of disorder and maintain public safety and order." Navarro v.pilegas, 31 SCRA 721 (1970). A later case, Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co. Inc., 51 SCRA 189 (1973), started when the petitioner labor unions, against the wishes of management and in order to be able to stage a mass demonstration against alleged abuses of local police, did not report for work. The Court of Industrial Relations adjudged their "concerted act and the occurrence of a temporary stoppage of work" a violation of the collective bargaining agreement and upheld the dismissal of some union leaders. The Supreme Court reversed saying through Justice Makasiar that: "As heretofore stated, the primacy of human rights — freedom of expression, of peaceful assembly and of petition for redress of 80 11 THE 1987 PHILIPPINE CONSTITUTION: Sec. A COMPREHENSIVE REVIEWER grievances — over property rights has been sustained. Marsh v. Alabama, 326 U.S. 501; Tucker v. Texas, 326 U.S. 517." Q. Retired Justice J.B.L. Reyes, in behalf of the Anti-Bases Coalition, sought a permit from the Mayor of Manila for the use of the empty field in front of the Luneta Grandstand and Roxas Boulevard in front of the U.S. Embassy on October 26, 1983, from 2 to 5 p.m. The petitioners were sponsoring an International Conference for General Disarmament, World Peace, and the Removal of All Foreign Military Bases and proposed a March for Philippine Sovereignty and Independence, participated in by foreign and Philippine delegates. The march was to proceed from the Luneta to the gate of the U.S. Embassy where a short program $6uld be held. The Mayor refused the permit (1) because his office was "in receipt of police intelligence reports which strongly militate against the advisability of issuing such permit at this time at the place applied for" and (2) because Ordinance No. 7295, in accordance with the Vienna Convention, prohibits rallies or demonstrations within a radius of500 feet from any foreign mission or chancery. Should permit be granted? A. Permit should be granted. (1) To justify limitations on freedom of assembly there must be proof of sufficient weight to satisfy the "clear and present danger test." (2) There is no showing that the distance between the chancery and the gate is less than 500 feet. And even if it were, the ordinance would not be conclusive because it still must be measured against the requirement of the Constitution. Resolution, J.B.L. Reyes v. Mayor Bagatsing, G.R. No. L-65366, October 25,1983. Extended opinion, November 9,1983. Q. Summarize the rules on assembly and petition enunciated in J.B.L. Reyes v. Bagatsing. A. The applicant for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. (If it is a private place, only the consent of the owner or of the^one entitled to its legal possession is required.) Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but to another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. The presumption must be to incline the weight of the scales of justice on the side of liberty. If public authority is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, the decision of public authority, whether favorable or adverse, must be transmitted to the applicants at the earliest opportunity. Thus, if so minded, they can have recourse to the proper judicial authority. Id. Sec. 10 ART. Ill - BILL OP RIGHTS 81 (Reiterated in Ruiz v. Gordon, G.R. No. 65695, December 19, 1983. The concurring opinion of Teehankee, J. is worth reading.) Q. But what of the Philippine obligation under the Vienna Convention to protect the premises of embassies? A. This must be honored because the Philippines adheres to the generally accepted principles of international law as part of the law of the land. However, observance of the obligation under the Convention does not preclude application of the clear and present danger rule (which precisely is a way of measuring the degree of protection needed for safeguarding the premises of embassies). NOTE: What was called by the government as "calibrated preemptive response" to demonstration and rallies has no place in the constitutional system. The proper response is "maximum tolerance" prescribed in Batas Pambansa 880 which is a codification of the JBL Reyes case. Moreover, BP 880 also orders political units set up freedom parks. Bayan v. Ermita, G.R. No. 169659, February 14,2006. Q. Are demonstrations allowed in the vicinity of courts? A. In re: Petition to Annul 98-7-02 SC involved the rule promulgated by the Supreme Court governing demonstrations in the vicinity of courts. Among the prescriptions of the rule was the following: Demonstrators, picketers, rallyists and all other similar persons are enjoined from holding any activity on the sidewalks and streets adjacent to, in front of, or within a radius of two hundred (200) meters from, the outer boundary of the Supreme Court Building, any Hall of Justice, and any other building that houses at least one (1) court sala. Such activities unquestionably interrupt and hamper the working conditions in the salas, offices and chambers of the courts. The validity of the resolution was upheld on the basis of the power of the Court to promulgate rules for the protection of rights. [NOTE: See contrary rule in United States v. Grace, 461 U.S. 171 (1983)] Q. During a strike against PNB, employees displayed during a peaceful picket a placard saying: "PCIB BAD ACCOUNTS TRANSFERRED TO PNB-NIDC?" PCIB sued for libel. Decide. A Peaceful picketing is constitutionally protected. The offending question in the placard and the reaction of the PCIB both illustrate the strong emotional undertones of labor disputes. In the continuing confrontation between management and labor "it is far from likely that the language employed would be both courteous and polite." The guarantee of free speech protects the strikers. PCIB v. Philnabank Employees, 105 SCRA 314 (July 2,1981). 82 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Q. After having obtained a permit from university authorities, students of the Gregorio Araneta University Foundation held a rally but in places around the university other than that specified by the permit. The speeches and other activities resulted in the disturbance of classes and of other activities in the university. After due hearing, a suspension of one year was imposed on the student leaders. The students appealed on the ground that the suspension was violative of their right of assembly and of speech. Decide. A. Disciplinary action may be taken against students for conduct which "materially disrupts class work or involves substantial disorder or invasion of the rights of others." Such was the conduct of the students in this case. However, considering the importance of the right of assembly and petition, the penalty imposed is too severe. A lighter penalty is proper. Malabanan v. Ramento, 129 SCRA 359 (G.R. No. 62270, May 21,1984). See also Villar v. Technological Institute of the Philippines, 134 SCRA 706 (April 17,1985) and Areza v. Gregoria Araneta University Foundation, 137 SCRA 94 (June 19,1985). SEC. 5. No LAW SHALL BE MADE RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF. THE FREE EXERCISE AND ENJOYMENT OF RELIGIOUS PROFESSION AND WORSHIP, WITHOUT DISCRIMINATION OR PREFERENCE, SHALL FOREVER BE ALLOWED. NO RELIGIOUS TEST SHALL BE REQUIRED FOR THE EXERCISE OF CIVIL OR POLITICAL RIGHTS. Q. What are the two principal parts of Section 5? A. They are (1) the non-establishment clause and (2) the free exercise clause. The first prohibits the establishment of any religion and the second guarantees the free exercise of religion. Q. Are there other provisions in the Constitution expressing the non-establishment principle? A. Yes. Article VI, Section 29(2) says: "No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher or dignitary as such, except when such priest, preacher minister, or dignitary is assigned to the Armed Forces, or to any penal institution, or government orphanage or leprosarium." And Article II, Section 6 says: "The separation of Church and State shall be inviolable." Along this line too is the provision which prohibits religious denominations and sects from being Sec. 10 ART. Ill - BILL OP RIGHTS 83 registered as political parties or organizations. Article IX, C, Section 2(5). Q. What is the purpose of the non-establishment clause? A. While there is no unanimity in the interpretation of non- establishment as a political principle, there is substantial agreement on the values non-establishment seeks to protect. These are two: voluntarism and insulation of the political process from interfaith dissension. Voluntarism as a value is both personal and social. As a personal value, it is nothing more than the inviolability of the human conscience which is also protected by the free exercise clause. As a social value, protected by the non-establishment clause, it means that the growth of a religious sect as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular society will benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage. Such voluntarism cannot be achieved unless the political process is insulated from religion and unless religion is insulated from politics. Non-establishment assures such insulation and thereby prevents interfaith dissention. Non-establishment of religion Q. What is the meaning of the non-establishment clause? A. Board of Education v. Everson, 330 U.S. 1, 15-16 (1946) interpreted the clause thus: Neither a State nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another... Neither... can, openly or secretly, participate in the affairs of riiiy religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between Church and State." Yet, despite this absolutist language, the Everson Court upheld a statute authorizing local districts to reimburse parents of Catholic school children for the cost of bus transportation to and from parochial school. Q. If, as jurisprudence indicates, the non-establishment clause does not prohibit all government aid that might redound to 84 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 the benefit of religion, how does one distinguish allowable from non-allowable aid? A. To be allowable, government aid (1) must have a secular legislative purpose; (2) must have a primary effect that neither advances nor inhibits religion; (3) must not require excessive entanglement with recipient institutions. Thus, state sponsored Bible readings and prayers in public schools have been invalidated for violation of (1) and (2). School District v. Schempp, 374 U.S. 203 (1963). On the other hand, the lending of secular textbooks to parochial school children and the grant of construction aid for science buildings have been allowed as satisfying (1) and (2). Board of Education v. Allen, 392 U.S. 236 (1968); Lemon v. Kurtzman, 403 U.S. 602 (1971); Tilton v. Richardson, 403 U.S. 672 (1971). Similarly, our Court has allowed the issuance of religious commemorative stamps as giving merely incidental benefits to religion. Aglipay v. Ruiz, 64 Phil. 201 (1937). However, in the same Lemon case; supra, salary payments and reimbursements for secular textbooks and other instructional materials under a system involving close government supervision were invalidated as not satisfying (3). Also Committee for Public Education v. Nyquist, 413 U.S. 756 (1973). NOTE: The expropriation of the birthplace of Felix Y. Manalo, founder of Iglesia ni Kristo, for the purpose of preserving it as a historical landmark, was upheld as for "public use" under the broadened definition of public use. Moreover, the non-establishment objection was answered by the argument that whatever benefits the adherents of Iglesia would reap would only be incidental to the public historical purpose. Manosca v. Court of Appeals, G.R. No. 106440, January 29,1996. Q. The barangay council, through funds obtained by solicitations and donations from residents, purchased a statue of San Vicente Ferrer and placed it under the care of the hermano mayor. On the occasion of the fiesta, the statue was lent to the church. Subsequently, the parish priest refused to return the statue. The council passed a number of resolutions towards taking steps to recover the statue. The validity of these resolutions was challenged on the ground, among others, of violating the non-establishment clause and the prohibition against the use of public money for religious purposes. Decide. A. The Court answered this problem thus: That contention is glaringly devoid of merit. The questioned resolutions do not directly or indirectly establish any religion, Sec. 10 ART. Ill - BILL OP RIGHTS 85 nor abridge religious liberty, nor appropriate public money or property for benefit of any sect, priest or clergyman. The image was purchased with private funds, not with tax money... The wooden image was purchased in connection with the celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion nor interfering with religious matters or the religious beliefs of the barrio residents. One of the highlights of the fiesta was the mass. Consequently, the image of the patron saint had to be placed in the church when the mass was celebrated. If there is nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio, then any activity intended to facilitate the worship of the patron saint (such as the acquisition and display of his image) cannot be branded as illegal. As noted in the first resolution, the barrio fiesta is socioreligious affair. Its celebration is an ingrained tradition in rural communities. The fiesta relieves the monotony and drudgery of the lives of the masses. Garces v. Estenzo, 104 SCRA 510, 516-8 (L-53487, May 25,1981). Q. In a dispute over property belonging to a voluntary religious organization (a cofradia) strictly independent of the church, what rule is followed? A. The use of properties of a "religious congregation" in case of schism "is controlled by the numerical majority of the members. The minority in choosing to separate themselves into a distinct body, and refusing to recognize the authority of the government body, can claim no rights in the properly from the fact that they once had been members." Cafiete v. Court of Appeals, G.R. No. 45330, March 7,1989 (citing Fonacier v. C.A., 96 Phil. 442-443 (1955). NOTE: Is the dual character of municipal corporations relevant at all in this case? Q. Pastor Austria has been a pastor of the Seventh Day Adventist for 28 years. An investigation by the congregation authorities revealed that Austria could not account for church tithes and offerings collected by his wife. He was dismissed and the dismissal was upheld by the NLRC, Austria challenges the jurisdiction of the NLRC saying that the matter was an ecclesiastical affair outside the jurisdiction of the NLRC. Decide. The case does not concern an ecclesiastical or purely religious affair. An ecclesiastical affair is "one that concerns doctrine, creed 86 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 or form or worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of the membership, and the power of excluding from such associations those deemed unworthy of membership. Simply stated, what is involved here is the relationship of the church as an employer and the minister as an employee. It is purely secular and has no relation whatsoever with the practice of faith, worship or doctrines of the church. Austria v. NLRC, G.R. No. 124382, August 16,1999. " . . . in matters purely ecclesiastical the decisions of the proper church tribunals are conclusive upon the civil tribunals. A church member who is expelled from the membership by the church authorities, or a priest or minister who is by them deprived of his sacred office, is without remedy in the civil courts, which will not inquire into the correctness of the decisions of the ecclesiastical tribunals." Long andAlmeria v. Basa et al., G.R. Nos. 134963-64, September 27,2001. Q. Is certification of food as halal, that is, suitable for consumption by Muslims according to their religious belief, a religious exercise? A. Yes. Hence, it may not be performed by a government agency. Islamic Da'wah Council v. Executive Secretary, G.R. No. 153888, July 9,2003. Q. Does the Court have jurisdiction to entertain a complaint about an expulsion or excommunication from a church? A. No. We agree with the Court of Appeals that the expulsion/ excommunication of members of a religious institution/organization is a matter best left to the discretion of the officials, and the laws and canons, of said institution/organization. It is not for the courts to exercise control over church authorities in the performance of their discretionary and official functions. Rather, it is for the members of religious institutions/organizations to conform to just church regulations. Taruc, et al. v. Bishop, G.R. No. 144801, March 10,2005. Q. Are there constitutionally created exceptions to the non- establishment clause? A. Yes. Article VI, Section 28(3) says: "Charitable institutions, churches, parsonages or convents appurtenant thereto, mosques, and non-profit cemeteries, and all lands, buildings, and improvements actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation." Article VI, Section 1(2) says: "No public money or property shall ever be appropriated, applied, paid, or employed, directly Sec. 10 ART. Ill - BILL OP RIGHTS 87 or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the Armed Forces, or to any penal institution, or government orphanage or leprosarium." Article XIV, Section 3(3) says: "At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated orapproved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government." Free exercise Q. What is the meaning of free exercise of religion? A. Cantwell v. Connecticut, 310 U.S. 296,303-4 (1940), put it thus: The constitutional inhibition on legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the amendment embraces two concepts, — freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be. Q. Explain further this double aspect of freedom of religion. A. The absoluteness of the freedom to believe carries with it the corollary that the government, while it may look into the good faith of a person, cannot inquire into a person's religious pretensions. "Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs." United States v. Ballard, 322 U.S. 78, 86 (1944). The moment, however, belief flows over into action, it becomes subject to government regulation. It does not follow that "because no mode of worship can be established or religious tenets enforced in this country, therefore . . . any tenet, however, destructive of society, may be held and advocated if asserted to be part of the religious doctrine of those advocating and practising them . . . Whilst 88 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 legislation for the establishment of religion is forbidden, and its free exercise is permitted, it does not follow that everything which may be so called can be tolerated. Crime is not the less odious, because sanctioned by what any particular sect may designate as religion." Davis v. Beason, 133 U.S. 333, 345 (1890) (polygamy). Also Reynolds v. United States, 98 U.S. 145 (1879). Or again: "Whether an act is immoral within the meaning of statute is not to be determined by the accused's concept of morality. Congress has provided the standard. The offense is complete if the accused intended to perform, and did in fact perform, the act which the statute condemns." Cleveland v. United States, 329 U.S. 14,20^1946). Q. How does one tell whether a case is a free exercise case or a non-establishment case? A One simple guide is this: every violation of the free exercise clause involves compulsion whereas a violation of the non-establishment clause need not involve compulsion. Q. Would it be proper for a public officer to make derogatory remarks about a religious group? A Where a judge in his decision referred to the interest of Iglesia ni Kristo members in a case as "gimmickry," the court saw violation of free exercise. "Freedom of religion implies respect for every creed. No one, much less a public official, is privileged to characterize the actuation of its adherents in a derogatory sense. Iglesia ni Kristo v. Gironella, 106 SCRA 1,4 (July 25,1981). [But compare this with some of the language of the Court in Pamil v. Teleron, L-34854, November 20,1978 and Garcia v. Faculty Admissions Committee, 68 SCRA 277 (November 28,1975).] Q. May the State require a license for the dissemination of religious literature? A Unless the dissemination is done as a business operation for profit, no license may be required. "The constitutional guarantee of the free exercise and enjoyment of religious, profession and worship carries with it the right to disseminate religious information. Any restraint of such right can only be justified like other restraints of freedom of expression on the grounds that there is a clear and present danger of any substantive evil which the State has the right to prevent." American Bible v. City of Manila, 101 Phil. 398 (1957). NOTE: In Tolentino v. Secretary of Finance, 234 SCRA 630 (1994), the Philippine Bible Society questioned the validity of the registration provisions of the Value Added Tax Law, Republic Act .5 ART. m - BILL OF RIGHTS 89 7716, as a prior restraint. The Court prefaced its discussion by saying that "as the U.S. Supreme Court unanimously held in Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 107 L. Ed.2d 796 (1990), the Free Exercise of Religion Clause does not prohibit imposing a generally applicable sales and use tax on the sale of religious materials by a religious organization." 235 SCRA at 680. As to the registration requirement itself, the Court distinguished the earlier American Bible Society case thus: . . . in this case, the fee in B 107, although a fixed amount (PI,000), is not imposed for the exercise of a privilege but only for the purpose of defraying part of the cost of registration. The registration requirement is a central feature of the VAT system. It is designed to provide a record of tax credits because any person who is subject to the payment of the VAT pays an input tax, even as he collects an output tax on sales made or services rendered. The registration fee is thus a mere administrative fee, one not imposed on the exercise of a privilege, much less a constitutional right. Likewise, in an obiter dictum in Centeno v. Villalon-PornUlos, 235 SCRA 197, 207 (1994). the Court ruled that solicitation of contributions in general, which may include contributions for religious purposes, may be regulated by general law for the protection of the public: . . . even the exercise of religion may be regulated, at some slight inconvenience, in order that the State may protect its citizens from iqjury. Without doubt, a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent. The State is likewise free to regulate the time and manner of solicitation generally, in the interest of public safety, peace; convert or convenience. The Court, however, also ruled that the law in question did not prohibit solicitation for religious purposes but only solicitation of contributions for charitable or general welfare purposes. Q. Does the Flag Salute Law requiring compulsory participation by public school students in flag ceremonies violate either the free exercise or the non-establishment clause? A. Yes. Earlier, Gerona v. Secretary of Education, 106 Phil. 11 (1969) had upheld the validity of the law saying: "The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of national cohesion and of freedom and liberty which it and the Constitution guarantee and protect. Considering the THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER 105 complete separation of church and state in our system of government, the flag is utterly devoid of any religious significance. Saluting the flag consequently does not involve any religious ceremony." However, following the doctrine in West Virginia State Board v. Barnette, 319 U.S. 624 (1943), the Supreme Court reversed Gerona in Ebralinag v. Division Superintendent of Schools ofCebu, 219 SCRA 256 (1993) saying that freedom of religion requires that protesting members be exempted from the operation of the law. Q. Where a religious sect has a system of informal education which ensures the physical and mental welfare of the child and prepares him to discharge the duties and responsibilities of citizenship, may it decline to send its children $o public or private high school on the contention that high school attendance is contrary to their religion and way of life and will endanger the salvation of the children? A. Yes. "The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. We can accept it as settled, therefore, that however strong the State's interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests." Wisconsin v. Yoder, 40 LW 4476 (May 15,1972). Q. Smith and black were fired by a private drug rehabilitation organization because they ingested peyote, a hallucinogenic drug, for sacramental purposes at a ceremony for their Native American Church. Sacramental peyote use is proscribed by the State's controlled substance law, which makes it a felony to knowingly or intentionally possess the drug. Their application for unemployment compensation was denied by the State of Oregon under a state law disqualifying employees discharged for work related "misconduct." Did this denial violate religious liberty of the respondents? A. No. The Free Exercise clause permits the state to prohibit peyote use, and thus to deny unemployment benefits to persons discharged for such use. The religion clause does not relieve an individual of the obligation to 'Comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specific act for religious reasons. Employment Division v. Smith, 494 U.S. 872 (1990). Q. Where a clerk of court is living with a man without benefit of marriage but in accordance with her religion, is that ground for disciplinary action? A. The Supreme Court remanded the case to the Office of the Court Administrator, and the Solicitor General was ordered to Sec. 10 Sec. 10 ART. Ill - BILL OP RIGHTS 91 intervene in the case. He was instructed (a) to examine the sincerity and centrality of respondent's claimed religious belief and practice; (b) to present evidence on the state's "compelling interest" to override respondent's religious belief and practice; and (c) to show that the means the state adopts in pursuing its interest is the least restrictive to respondent's religious freedom. On reconsideration, the clerk of court's right was upheld on the basis of "benevolent neutrality." Estrada v. Escritor, AM. No. P-02-1651, August 4,2003, Reconsidered June 22, 2006. Q. What is the purpose of the prohibition of religious tests? A. The purpose of this provision, which is but a corollary Of the freedom and non-establishment clause, is to render the government powerless "to restore the historically and constitutionally discredited policy of probing religious beliefs by test oaths or limiting public offices to persons who have, or perhaps more properly, profess to have a belief in some particular kind of religious concept." Torcaso v. Watkins, 367 U.S. 488 (1961). For, indeed, to allow religious tests would have the effect of "formal or practical 'establishment' of particular religious faiths . . . with consequent burdens imposed on the free exercise of the faiths of non-favored believers." Id. at 490. Q. Section 2175 of the Revised Administrative Code (1917) disqualifies an "ecclesiastic" from being elected or appointed to a municipal office. Is this consistent with the religion clause of the Constitution? A. Seven Justices voted to consider this a prohibited "religious test." Five Justices said it is not a religious test but a safeguard against the constant threat of union of Church and State that has marked Philippine history. (Hence, since the majority vote needed under the 1973 Constitution to nullify a statute was not reached, the disqualification remains enforceable.) Pamil v. Teleron, L-34854, November 20,1978. NOTE: In McDaniel v. Patty, 435 U.S. 618 (1978), in the same year the U.S. Supreme Court declared a similar law to be violative of the free exercise clause. Q. Ang Ladlad is an association of gays and lesbians. May it be excluded from participation in the party-list system on the ground, among others, that the group holds principles contrary to accepted norms of morality that have seeped into Philippine culture after 500 years of Muslim and Christian teaching? A. Reliance by the Comelec on religious justification violates the constitutional teaching on religious neutrality. As a matter of fact, 92 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Philippine law has not criminalized homosexual conduct and much less homosexual preferences. Nor has any overt immoral conduct been identified by the Comelec. Nor is sexual preference a valid basis for classification. Ang Ladlad v. Comelec, G.R. No. 190582, April 8,2010. Q. The Constitution imposes the duty to defend the state. The 1973 Constitution also imposed the duty to register and vote. May the State allow exemptions on religious grounds? A. Yes. It should be noted, however, that when the State exempts a person from military service on religious grounds, the State in effect gives preferential treatment to religious affiliations which object to war over religious affiliations which do not object to war. ' "Ts not such an exemption then contrary to the non-establishment clause? Gillete v. United States, 401 U.S. 437 (1971) dealt with this question and answered that the exemption could violate neutrality only if it is religiously motivated on its face. Id. at 450 (1971), or when it is religiously discriminatory. Id. at 452. This was not the case in Gillete because the Court found that the exemption in question was supported by valid reasons, neutral with respect to religion, such as the need to insure a fair and uniform system for deciding, who will and will not be forced to serve. Id. at 461. .......... Moreover, the duty to register and vote is not as compelling as the duty to defend the state. Nor is it as ancient as religious freedom. Hence, in the hierarchical balancing of values, the duty.to. vote, when that is constitutionally imposed, may well be made to yield to free exercise of religion. Q. Republic Act 3350 amended the Industrial Peace Act to exclude from the application and coverage of a closed shop agreement employees belonging to any religious sect which prohibits affiliation of their members with any labor organization. Does the amendment violate the contract clause? the equal protection clause? A. No. Victoriano v. Elizalde Rope Workers Union, 59 SCRA 54, 72 (September 12,1974), said: ll£ "It may not be amiss to point out here that the free exercise of religious profession or belief is superior to contract rights. In case of conflict, the latter must, therefore, yield to the former. . . See also Basa v. Federation Obrera, 61 SCRA 93 (November 19,1974) and Gonzalez v. Central Azucarera de Tarlac Labor Union, 139 SCRA 30 (October 3,1985). SEC. 6. THE LIBERTY OF ABODE AND OF CHANGING THE SAME WITHIN THE LIMITS PRESCRIBED BY LAW SHALL NOT BE IMPAIRED EXCEPT UPON LAWFUL ORDER OF THE COURT. NEITHER SHALL THE RIGHT TO TRAVEL BE IMPAIRED EXCEPT IN THE INTEREST OF NATIONAL SECURITY, PUBLIC SAFETY, OR PUBLIC HEALTH, AS MAY BE PROVIDED BY LAW. Sec. 10 ART. Ill - BILL OP RIGHTS 93 Q. What rights are protected by Section 6? A. The right to choose a person's abode and the right to travel both at home and going out of the country. Q. How are these rights limited? A. The liberty of abode may be limited only upon lawful order of a court whereas the right to travel may be limited by administrative authorities as may be provided by law in the interest of national security, public safety or public health. ■o SEC. 7. THE RIGHT OF THE PEOPLE TO INFORMATION ON MATTERS OF PUBLIC CONCERN SHALL BE RECOGNIZED. ACCESS TO OFFICIAL RECORDS, AND TO DOCUMENTS AND PAPERS PERTAINING TO OFFICIAL ACTS, TRANSACTIONS, OR DECISIONS, AS WELL AS TO GOVERNMENT RESEARCH DATA USED AS BASIS FOR POLICY DEVELOPMENT, SHALL BE AFFORDED THE CITIZEN, SUBJECT TO SUCH LIMITATIONS AS MAY BE PROVIDED BY LAW. Q. What rights are guaranteed by Section 7? A. They are (1) the right to information on matters of public concern and (2) the corollary right of access to official records and documents. These are political rights available to citizens only. Q. What are the limits on these rights? A. They are "subject to such limitations as may be provided by law." Q. What are the limits on the authority to curtail these rights? A. It is submitted that the standards that have been developed for the regulation of speech and press and of assembly and petition and of association are applicable to the right of access to information. Q. Petitioner had requested respondent for information on the eligibility of certain sanitary inspectors. (1) Is such information a matter of public concern? (2) Does petitioner have standing to assert the right to information? (3) If denied, what remedy does he have? A. (1) "Public concern," like "public interest," eludes exact definition. They embrace a broad spectrum of subjects which the THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER 109 public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen. Each case must be examined separately. In this particular case, it must be said that a public official must be accountable to the people for his eligibility. (2) This is a matter of "public right" where the real party in interest is the people. Any citizen therefore has "standing." (3) The remedy is mandamus. Legaspi v. Civil Service Commission, 150 SCRA 530 (1987); Tafiada, et al. v. Tuvera, 136 SCRA 27 (1985). NOTE: The refusal of the Comelec to reveal the names of the nominees for party-list seats violates the right of the people to information on matters of public concern. It also violates the rule on transparency in Article II, Section 27. Ba-Ra 7941 v. Comelec, G.R. No. 177271, May 4,2007. However, that trade secrets are of a privileged nature is beyond quibble. Q. May the government, through the PCGG, be required to reveal the proposed terms of a compromise agreement with the Marcos heirs as regards their alleged ill-gotten wealth? {i.e., does the right to information include access to the terms of government negotiations prior to their consummation or conclusion?) A. It is incumbent upon the PCGG, and its officers, as well as other government representatives, to disclose sufficient public information on any proposed settlement they have decided to take up with the ostensible owners and holders of ill-gotten wealth. Such information, though, must pertain to definite propositions of the government, not necessarily to intra-agency or inter-agency recommendations or communications during the stage when common ' assertions are still in the process of being formulated or are in the 'explorator/ stage." Chavez v. Presidential Commission on Good Government, G.R. No. 130716, December 9,1998. Information, for instance, on on-going evaluation or review of bids or proposals being undertaken by the bidding or review committee is not immediately accessible under the right to information. While the evaluation or review is still on-going, there are no "official acts, transactions, or decisions" on the bids or proposals. However, once the committee makes its official recommendation, there arises a "definite proposition" on the part of the government. From this moment, the public's right to information attaches, and any citizen can access all the non-proprietary information leading to such definite proposition. Chavez v. PEA andAMARl, G.R. No. 133250, July 9,2002. Sec. 10 Sec. 10 ART. Ill - BILL OP RIGHTS 95 Q. Are court records covered by the right to information? A. A distinction must be made. Decisions and opinions of a court are, of course, matters of public concern or interest. Unlike court orders and decisions, however, pleadings and other documents filed by parties to a case need not be matters of public concern or interest. They are filed for the purpose of establishing the basis upon which the court may issue an order or a judgment affecting their rights and interests. In fine, access to court records may be permitted at the discretion and subject to the supervisory and protective powers of the court, after considering the actual use or purpose for which the request for access is based and the obvious prejudice to any of the parties. Hilado, et al. v. Judge, G.R. No. 163155, July 21, 2006. Q. What are some of the recognized limitations to the exercise of the right to information and the state policy of public disclosure? A. 1) National security matters. 2) Trade secrets and banking transactions. 3) Criminal matters or classified law enforcement matters, "such as those relating to the apprehension, the prosecution and the detention of criminals, which courts may not inquire into prior to such arrest, detention and prosecution." Otherwise, efforts at effective law enforcement would be seriously jeopardized. Other confidential matters. The Ethical Standards Act (R. A. No. 6713) prohibits public officials and employees from using or divulging "confidential or classified information officially known to them by reason of their office and not made available to the public." Other acknowledged limitations include diplomatic correspondence, closed door Cabinet meetings and executive sessions of wither house of Congress, and the internal deliberations of the Supreme Court. Chavez v. President Commission on Good Government, G.R. No. 130716, December 9,19£3. 4) SEC. 8. THE RIGHT OF THE PEOPLE, INCLUDING THOSE EMPLOYED IN THE PUBLIC AND PRIVATE SECTORS, TO FORM UNIONS, ASSOCIATIONS, OR SOCIETIES FOR PURPOSES NOT CONTRARY TO LAW SHALL NOT BE ABRIDGED. Q. What is the meaning of this provision? A. All it means is that the right to form associations shall not be impaired except through a valid exercise of police power. It is therefore an aspect of the general right of liberty. More 96 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 specifically, it is an aspect of freedom of contract; and in so far as associations may have for their object the advancement of beliefs and ideas, freedom of association is an aspect of freedom of expression and of belief. The guarantee also covers the right not to join an association. Q. A land buyer buys a lot with an annotated lien that the lot owner becomes an automatic member of the homeowner's association. Does such an annotation violate the right freely to join or not to join associations? A. No. The fact that the obligation is annotated in the title does not make it a government act forcing one to join an association. Rather, the buyer freely buys the lot knowing that the purchase will entail an obligation. Bel air Village Association v. Dionisio, 174 SCRA 589,597 (1989). Q. The first sentence of Article 245 of the Labor Code provides that: "Managerial employees are not eligible to join, assist or form any labor organization.0 The Petitioner-Union contends that this provision contravenes the constitutional right to form associations. Decide. A. The Article 245 ban is valid because the "right guaranteed in Art. Ill, §8 is subject to the condition that its exercise should be for purposes 'not contrary to law.' In the case of Art. 245, there is a rational basis for prohibiting managerial employees from forming or joining labor organizations." Id. Philips Industrial Development, Inc. v. NLRC, 210 SCRA 399 (1992) stated the rationale thus: "because if these managerial employees would belong to or be affiliated with a Union, the latter might not be assured of their loyalty to the Union in view of evident conflict of interest. The Union can also become company-dominated with the presence of managerial employees in the Union membership." Id. at 45. (See also the separate opinions)." United Pepsi-Cola Supervisory Union (UPSU) v. Laguesma, G.R. No. JO122226, March 25,1998. Q. Batas Big. 222 prohibits any candidate in the Barangay election of May 17, 1982 from representing or allowing himself to be represented as a candidate of any political party and prohibits a political party, political group, political committee from giving aid or support, directly or indirectly, material or otherwise, favorable to or against a barangay candidate's campaign for election. Does this violate the right to form associations? A No. The right is not absolute and the prohibition found in the law is couched in very narrow terms. The law is intended to meet a clear and imminent danger of the debilitation of the electoral process Sec. 10 ART. Ill - BILL OP RIGHTS 97 and also the danger of disenabling barangay officials from adequately performing their function as agents of a neutral community. Occefia v. COMELEC, 127 SCRA 404 (G.R. No. 60258, January 31,1984). Q. Do all societies and associations enjoy the same constitutional protection? A. As already seen, under Section 1, the Constitution recognizes a hierarchy of values. Philippine Blooming Mills Employees v. Philippine Blooming Mills, 51 SCRA 189, 2200-3 (1973). Hence, the degree of protection an association enjoys depends on the position which the association's objective or activity occupies in the constitutional hierarchy of values. Thus, for instance, where theobject of an association is the advancement of a common political belief such as racial equality, any law that either has the effect of limiting membership in such association or blunting its effectivity must satisfy the more stringent standards for allowable limitation of expression and belief. NAACP v. Alabama, 357 U.S. 449 (1958); NAACP v. Button, 371 U.S. 415 (1963). In the latter cases, the standards discussed in Section 4 are applicable. Q. Is the Communist Party of the Philippines, otherwise known as Partido Komunista ng Pilipinas, a subversive association as defined in R.A. 1700 as amend by E.O 276? A. No. It is distinct from the CPP-NPA. Dizon v. Bautista, Jr., G.R; No. 84355-56, March 21,1989. Q. Do government employees have the right to form unions? A. Yes. This right is guaranteed by Article III, Section 8, Article IX,B, Section 2(5) and Article Xni, Section 3. Trade Union of the Philippines v. NHC, G.R. No. 49677, May 4,1989. [See also cases reported under Article XIII, Section 3.] Q. Do government employees have the right to strike? A. The right to strike may be limited by law. The Supreme Court has definitively ruled that employees of the Social Security System, Social Security System v. the Court of Appeals, G.R. No. 85279, July 28, 1989, and public school teachers, Manila Public School Teachers Association v. Secretary of Education, G.R. No. 95445, August 6, 19£)1, do not have a constitutional right to strike. But the current ban on them against strikes is statutory and may be lifted by statute. (The dissenting justices in the public school teachers' case argued that the right to strike could be deduced from freedom of speech.) ■> 98 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 SEC. 9. PRIVATE PROPERTY SHALL NOT BE TAKEN FOR PUBLIC USE WITHOUT JUST COMPENSATION. Q. What is the power of eminent domain? A. It is the power of the state to take private property for public use upon payment of just compensation. Q. What are the constitutional provisions on eminent domain? A. They are Article III, Section 9, which sets down the limits on the inherent power; and Article XII, Sections 18 (public utilities), Article XIII, Section 4 (land reform), and Article XVIII, Section 22 (idle or abandoned agricultural lands), which are specific examples of the uses to which the power of eminent domain may be put. Q. Where does the power of eminent domain reside? A. Inherently, it is possessed by the State and is exercised by the national government Q. What is the scope of the power of eminent domain? A. In the hands of Congress the scope of the power is, like the scope of legislative power itself, plenary. Barlin v. Ramirez, 7 Phil. 41,56 (1906). Q. What are the elements of the exercise of the power of eminent domain? A. The elements are: (1) there is "taking" of private property; (2) the taking must be for needed "public use;" (3) there must be "just compensation." <\■ TaWing Q. What circumstances constitute "taking" for purposes of eminent domain? A. The following circumstances must concur: (1) The expropriator must enter upon the private property; (2) The entrance must not be for a momentary period, that is, the entrance must be permanent; (3) The entry must be under warrant or color of legal authority; (4) The property must be devoted to public use . or otherwise informally appropriated or injuriously affected; (5) The utilization of the property must be in such a way as to Sec. 10 ART. Ill - BILL OP RIGHTS 99 oust the owner and deprive him of all beneficial enjoyment of the property. Republic v. Vda. de Castellvi, 58 SCRA 336, 350352 (August 15,1974). Q. Give other examples of taking? A. Where the entry into private property is not just a simple right-of-way, which is Didipio Earth Savers, et al. v. Secretary, G.R. No. 157882, March 30,2006. So also, where the nature and effect of the installation of the 230 KV Mexico-Limay transmission lines results in the imposition of limitation against the use of the land for an indefinite period, there is compensable taking. NPC v. San Pedro, G.R. No. 170945, September 26, 2006. Q. ABS-CBN has a legislative franchise to operate television stations. It broadcasts from its Channel 2 and Channel 23. Philippine Multi Media System Inc. (PMSI) also has a legislative franchise which authorizes it to do Direct to Home service. Moreover, its franchise includes a mandatory duty to carry the television signals of the authorized television broadcast stations. For that reason it carries Channels 2 and 23 OF ABS-CBN. ABS-CBN contends that PMSrs unauthorized rebroadcasting of Channels 2 and 23 is a taking of property for public use without just compensation. A. The Court ruled that franchises are subject to police power and the mandatory rule is not a form of taking but a form of police power regulation. The Court also said that ABS-CBN did not prove that PMSI was profiting from the broadcast of Channels 2 AND 23. ABS-CBN Broadcasting Corporation v. PMSI, G.R. Nos. 175769-70, January 19,2009. Q. Distinguish the manner in which police power and eminent domain affect the right of private property. A. Police power regulates or may even destroy private property but there is no transfer of ownership nor compensation; emiijpnt domain transfers ownership and must be compensated. Q. When injurious private property is destroyed in the public interest is there compensable taking? A. No. Q. When municipal property is taken by the State, is there compensable taking? A. It depends on the nature of the property. If it is patrimonial property of the municipality, yes. Otherwise, no. 100 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Public use Q. What is "public use?" A. Time was when "public use" was understood to mean "use by the public." It is equivalent to "public welfare" in police power. Expropriation for socialized housing, for instance, is for public use. Q. What happens if the expropriator does not use the property for a public purpose but sells it to a private user? . T.-Ilf A. The predominant precept is that upon abandonment of real property condemned for public purpose, the party who originally condemned the property recovers control of the land if the condemning party continues to use the property for public purpose; however, if the condemning authority ceases to use the property for a public purpose, property reverts to the owner in fee simple. Heirs of Moreno v. Mactan- Cebu International Airport, G.R. No. 156273, August 9, 2005. The requirement of public use means that the expropriator must use the property for the purpose specified in the petition. If this is not done, the expropriator must return the property, even if there was no agreement for reversal. But the owner must return to the expropriator the compensation it had received with legal interest and must pay the expropriator for benefits the lot may have obtained. Mactan Cebu International Airport v. Lozada, Jr., G.R. No. 176625, February 25,2010. NOTE: As a rule, the determination of whether there is genuine necessity for the exercise of eminent domain is a justiciable question. However, when the power is exercised by Congress, the question of necessity is essentially a political question. Manapat v. CA, G.R. No. 110478, October 15,2007. Juatcompensation Q. What is just compensation? A. Just compensation has been described as "the just and complete equivalent of the loss which the owner of the thing expropriated has to suffer by reason of the expropriation." It means payment that matches "market value." Just compensation includes not only the correct determination of the amount to be paid to owner of the land but also the payment for the land within a reasonable period of time from its taking. Municipality ofMakati v. Court of Appeals, 190 SCRA 206,213 (1990). Sec. 10 ART. Ill - BILL OP RIGHTS 101 Q. When eminent domain is exercised, who are entitled to just compensation? A. All whose rights might be affected by the taking by the state. Q. The contract for the construction of the NAIA International Airport was nullified for being contrary to law and public policy but after the construction of the building had almost been completed. What remedy does the contractor have? A. Since the state is taking over the property, the contractor is entitled to just compensation. Under RA 8974 the government must make a direct payment (not just a deposit under Rule 67) of the proffered value of tibte property before it can enter and exercise proprietary rights. Republic v. Judge Gingoyon, G.R. No. 166429, December 19,2005. NOTE: Carpio and Puno dissented from the order to make direct payment saying that a statute may not amend a Rule of Court. Q. In terms of time, what is the point of reference for valuating a piece of property? A. The general rule is that the value must be that as of the time of the filing of the complaint for expropriation. (Section 4, Rule 67, Rules of Court). Moreover, the filing of the case generally coincides with the taking. When, however, the filing of the case comes later than the time of taking and meanwhile the value of the property has increased because of the use to which the expropriator has put it, the value is that of the time of the earlier taking. Otherwise the owner would gain undeserved profit. But if the value increased independently of what the expropriator did, then the value is that of the later filing of the case. National Power Corporation v. Court of Appeals, G.R. No. 113194, March 11,1996; NPC v. Lucman Ibrahim, G.R. No. 168732, June 29, 2007; Republic v. Sarabia, G.R. No. 157847, August 25, 2005. The general rule in the Rules of Court for determining ^just compensation" in eminent domain is the value of the property tea of the date of the filing of the complaint. Where the government occupied a piece of private land for the airport runway but without expropriating it and after lapse of many years the owner seeks compensation and rental, for purposes of compensation the value of the land should be based on what it was worth at the time of entry and not its value after many years. Beyond the payment for the value of the land the owner is entitled to legal interest, not rental. MIAA v. Rodriguez, G.R. No. 16183, February 28, 2006. Q. Is just compensation required in agrarian reform? A. Yes. 102 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Q. What does just compensation include? A. The concept of just compensation embraces not only the correct determination of the amount to be paid to the owners of the land, but also payment within a reasonable time from its taking. Q. May entry into the property be made before just compensation? A. Yes. For purposes of entry into the property prior to full payment, Section 10 of R.A. No. 7160 requires a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated. Knecht v. Municipality of Cainta, G.R. No. 145254, July 20,2006; City oflloilo v. Legaspi, G.R. No. 154614, November 25, 2004. However, where the expropriation is public works, R.A. 8974 requires prior full payment. Republc v. Judge Gingoyon, G.R. No. 166429, December 19, 2005. NOTE: Carpio and Puno dissented from the order to make direct payment saying that a statute may not amend a Rule of Court. Q. Are commissioners required for determining just compensation? A. Yes. For purposes of determining just compensation, trial by commissioners is a substantive right which a judge may not dispense with. Manila Electric Co. v. Pineda, 206 SCRA 196, 204 (1992). Q. Must compensation be in money? A. No. However, it must be in some form that embodies certainty of value and of payment, such as government bonds. Judicial review OAQ. Is the exercise of the powers of eminent domain subject to judicial review? A. (1) the adequacy of the compensation, (2) the necessity of the taking, and (3) the "public use" character of the purpose of the taking. Q. Can there be any instance or aspect of the exercise of the power of eminent domain which is not subject to judicial review? A. Yes, when it is exercised directly by Congress and not through subordinate bodies. Sec. 10 ART. Ill - BILL OP RIGHTS 103 Q. When is res judicata applicable in expropriation cases? A. "While the principle of res judicata does not denigrate the right of the State to exercise eminent domain, it does apply to specific issues decided in a previous case. For example, a final judgment dismissing an expropriation suit on the ground that there was no prior offer precluded another suit raising the same issue; it cannot, however, bar the State or its agent form thereafter complying with this requirement, as prescribed by law, and subsequently exercising its power of eminent domain over the same property." Municipality of Paranaque v. V.M. Realty Corporation, G.R. No. 127820, July 20, 1998,292 SCRA 678,693 (citing National Power Corporation v. Court of Appeals, 254 SCRA 577 [1996]). Q. Is expropriation proper as a substitute for the enforcement of a valid contract? A. No. Expropriation lies only when it is made necessary by the opposition of the owner to the sale or by the lack of any agreement as to price. Where there is a valid and subsisting contract, between the owners of the property and the expropriating authority, there is no reason for the expropriation. Noble v. City of Manila, 67 Phil. 1, 6 (1938). Q. May the state enter into a contract which in effect binds it not to exercise the power of eminent domain? A. No, the state may not waive its right to exercise an inherent power. Q. What are the essential requisites for a local government unit to validly exercise eminent domain? A. An ordinance must authorize it. Thus, a local government may not expropriate on the strength of a sanggunian resolution alone. Heirs ofSuguitan v. City ofMandaluyong, G.R. No. 135087, March 14, 2000; Municipality ofParanaque v. V.M. Realty Corporation, G.R. No. 127820, July 20,1998,292 SCRA 678. Q. What other limitation are there on the eminent domain powers of local governments? A. Since local governments possess only delegated power of eminent domain, it is subject to limitations specified by law on the delegated power. Thus there are mandatory limits with respect to (1) the order of priority in acquiring land for socialized housing and (2) the resort to expropriation proceedings as a means to acquiring it. Private lands rank last in the order of priority for purposes of socialized housing. In the same vein, expropriation proceedings may be resorted to only after the other modes of acquisition are exhausted. Compliance with these conditions is mandatory because these are the only safeguards of often times helpless owners of private property against what may be a tyrannical violation of due process when their 104 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 property is forcibly taken from them allegedly for public use. Estate ofJBL Reyes v. City of Manila, G.R. No. 132431, February 13, 2004; Lagcao v. Judge, G.R. No. 155746, October 13,2004. NOTE: For the Water District to exercise its power of eminent domain, two requirements should be met, namely: first, its board of directors passed a resolution authorizing the expropriation, and; second, the exercise of the power of eminent domain was subjected to review by the LWUA In this case, petitioner's board of directors approved on 27 February 2004, Board Resolution No. 015-2004 authorizing its general manager to file expropriation and other cases. Moreover, the LWUA did review and give its stamp of approval to the filing of a • 'complaint for the expropriation of respondent's lot. Metropolitan Cebu Water v. J. King & Sons, G.R. No. 175983, April 16, 2009. SEC. 10. No LAW IMPAIRING THE OBLIGATION OF CONTRACTS SHALL BE PASSED. Q. When may a law be said to have impaired the obligation of contracts? A. A law which changes the terms of a legal contract between parties, either in the time or mode of performance, or imposes new conditions, or dispenses with those expressed, or authorizes for its satisfaction something different from that provided in its terms, is a law which impairs the obligation of a contract and is null and void. Clemens v. Nolting, 42 Phil. 702 (1922). Q. A & B enter into a contract for the sale of cigars. Before delivery is made a law is passed imposing a sales tax on the seller. Does the law impair the obligation of the contract? A. No, since it does not change the relation between the parties to the contract. 'i Q.rr, Does every impairment of the substance of a contract violate the Constitution? A. No. Jurisprudence has established that a valid exercise of police power is superior to the obligation of contracts. Q. Does a rehabilitation plan violate the contract clause? A. A rehabilitation plan approved by statute which merely suspends the actions for claims does not violate the contract clause. GSIS v. Kapisanan, G.R. No. 170132, December 6,2006; PNB v. CA, G.R. No. 165571, January 20,2009. It is a different matter, however, if the amount of rental is changed. The Sec. 10 ART. Ill - BILL OP RIGHTS 105 amount of rental is an essential condition of any lease contract. Needless to state, the change of its rate in the Rehabilitation Plan is not justified as it impairs the stipulation between the parties. Leca Realty v. Manuela Corporation, G.R. No. 166800, September 25, 2007. Q. In 1981, while Philippine Airlines was still Owned by the Philippine government, the government entered into a Commercial agreement with Kuwait Airways about flights and revenue sharing between the two countries. The Agreement had this preambular "Whereas" clause:. "NOW, it is hereby agreed, subject to and without prejudice to any existing or future agreements between the Government Authorities of the Contracting Parties hereto ..." In 1992, after PAL had been privatized, a government panel entered into a Confidential Memorandum of Understanding with the Government of Kuwait effectively revoking significant provision of the Commercial Agreement to the prejudice of PAL. Was it right? A. No. The government cannot prejudice private rights without due process. True, CAB has extensive regulatory authority over airlines; but the authority must be exercised by CAB (which was not true in this case) and with due process. Kuwait Airways v. Philippine Airlines, G.R. No. 156087, May 8, 2009. [What is the international law implication of this case?] Q. Does the contract clause protect public contracts? A. Yes, the clause protects contracts with the government. Moreover, franchises are contracts and therefore are covered by the clause. However, the obligation arising from franchises are subject to modification by police power. Besides, with reference to public utilities, Article XII, Section 11 says: "Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires." Q. Petitioner contends that the cancellation of its timber license constitutes an impairment of the obligation of its contract. Decide. A. "Timber licenses, permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, 106 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 11 and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause." C & M Timber Corporation v. Alcala, G.R. No. 111088, June 13,1997, 273 SCRA 402, 418 (quoting Felipe Ysmael, Jr. & Co., Inc. v. Deputy Executive Secretary, 190 SCRA 673, 682-84 [1990]). Q. Is a license protected by the contract clause? A It is one of the first principles in the field of administrative law that a license or a permit is not a contract between the sovereignty and the licensee or permitee, and is not a property in any constitutional sense, as to which the constitutional prescription against impairment of the obligation of contracts may extend. A license is rather in the nature of a special privilege, or a permission or authority to do what is within its terms. It is not in any way vested, permanent, or absolute. A license granted by the State is always revocable. As a necessary consequence of its main power to grant license or permit, the State or its instrumentalities have the correlative power to revoke or recall the same. And this power to revoke can only be restrained by an explicit contract upon good consideration to that effect. The absence of an expiry date in a license does not make it perpetual. Notwithstanding that absence, the license cannot last beyond the life of the basic authority under which it was issued." Gonzalo Sy v. Central Bank, L-41480, April 30,1976. This is also affirmed in Oposa v. Factoran, Jr., 224 SCRA 792 (1993). But the distinction between license and contract is really unnecessary because even contracts yield to police power. Q. Is the obligation of contracts superior to religious freedom? A. As to freedom of religion, in Victoriano v. Elizalde Rope Union, 59 SCRA 54 (1974) the Court also ruled that the free exercise of religion is superior to contract rights. See supra under Section 5. SEC. 11. FREE ACCESS TO THE COURTS AND QUASI-JUDICIAL BODIES AND ADEQUATE LEGAL ASSISTANCE SHALL NOT BE DENIED TO ANY PERSON BY REASON OF POVERTY. Q. What is the significance of this provision? A. Under the 1973 Constitution the counterpart of this provision simply read: "Free access to the courts shall not be denied to Sec. 10 ART. Ill - BILL OP RIGHTS 107 any person by reason of poverty." This constitutional provision is the basis for the provision of Section 17, Rule 5 of the New Rules of Court allowing litigation in forma pauperis. Those protected include low paid employees, domestic servants and laborers. Cabangis v. Almeda Lopez, 70 Phil. 443 (1940). They need not be persons so poor that they must be supported at public expense. "It suffices that plaintiff is indigent... And the difference between 'paupers' and 'indigent' persons is that the latter are 'persons who have no property or sources of income sufficient for their support aside from their own labor though self-supporting when able to work and in employment.'" Acar v. Rosal, L-21707, March 18,1967. The new Constitution has expanded the right so that in addition to giving free access to courts it now guarantees free access also to "quasi judicial bodies" and to "adequate legal assistance" as well. SEC. 12. (1) ANYPERSONUNDERINVESTIGATIONFORTHE COMMISSION OF AN OFFENSE SHALL HAVE THE RIGHT TO BE INFORMED OF HIS RIGHT TO REMAIN SILENT AND TO HAVE COMPETENT AND INDEPENDENT COUNSEL PREFERABLY OF HIS OWN CHOICE. IF THE PERSON CANNOT AFFORD THE SERVICES OF COUNSEL, HE MUST BE PROVIDED WITH ONE. THESE RIGHTS CANNOT BE WAIVED EXCEPT IN WRITING AND IN THE PRESENCE OF COUNSEL. (2) NO TORTURE, FORCE, VIOLENCE, THREAT, INTIMIDATION OR ANY OTHER MEANS WHICH VITIATES THE FREE WILL SHALL BE USED AGAINST HIM. SECRET DETENTION PLACES, SOLITARY, INCOMMUNICADO, OR OTHER SIMILAR FORMS OF DETENTION ARE PROHIBITED. (3) ANY CONFESSION OR ADMISSION OBTAINED IN VIOLATION OF THIS OR SECTION 17 HEREOF SHALL BE INADMISSIBLE IN EVIDENCE AGAINST HIM. (4) THE LAW SHALL PROVIDE FOR PENAL AND CIVIL SANCTIONS FOR VIOLATIONS OF THIS SECTION AS WELL AS COMPENSATION TO AND REHABILITATION OF VICTIMS OF TORTURE OR SIMILAR PRACTICES, AND THEIR FAMILIES. General matters Q. What rights are made available to a person under investigation? A. They are (1) the right to remain silent; (2) the right to competent and independent counsel preferably of his own choice; (3) the right to be informed of such rights. 108 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Q. What is the reason for making the rule applicable to investigations? A. It is but a recognition of the fact that the psychological if not physical atmosphere of custodial investigations, in the absence of proper safeguards, is inherently coercive. Miranda v. Arizona, 384 U.S. 436 (1966). Q. Is the right to have counsel present during investigation intended Jo stop the accused from saying anything that may incriminate him? tii A. No. "The right to counsel is intended to preclude the slightest coercion as would lead the accused to admit something false. The lawyer, however, should never prevent an accused from freely and voluntarily telling the truth." People v. Layuso, G.R. No. 69210, July 5,1989. Q. Accused was made to undergo a paraffin test of his hands to determine whether he had recently fired a gun. Accused claims violation of his constitutional right as it was not conducted in the presence of his lawyer. A. This constitutional right extends only to testimonial compulsion and not when the body of the accused is proposed to be examined as in this case. People v. Gamboa, G.R. No. 91374, February 25,1991. Q. When did these guarantees in favor of a person under investigation take effect? A. They took effect only upon the effectivity of the 1973 Constitution on January 17,1973. In Magtoto v. Manguera, L-3720102, March 3,1975, the Supreme Court ruled that the provision has no retroactive effect. I lis Q. »T<What is the immediate jurisprudential antecedent of this provision? A. In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court said that the following constitutional requirements must be observed in custodial investigations: (1) The person in custody must be informed at the outset in clear and unequivocal terms that he has a right to remain silent. (2) After being so informed, he must be told that anything he says can and will be used against him in court. (3) He must be clearly informed that he has the right to consult with a lawyer Sec. 10 ART. Ill - BILL OP RIGHTS 109 and to have the lawyer with him during the interrogation. He does not have to ask for a lawyer. The investigators should tell him that he has the right to counsel at that point. (4) He should be warned that not only has he the right to consult with a lawyer but also that if he is indigent, a lawyer will be appointed to represent him. (5) Even if the person consents to answer questions without the assistance of counsel, the moment he asks for a lawyer at any point in the investigation, the interrogation must cease until an attorney is present. (6) If the foregoing protections and warnings are not demonstrated during the trial to have been observed by the prosecution, no evidence obtained as a result of the interrogation can be used against him. Q. Does the presumption of regularity of official acts apply to "in custody confessions?" A. No. Hence, for in-custody confessions to be admissible, the prosecution must show that the constitutional safeguards were observed in obtaining the confession. People v. Tolentino, 145 SCRA 597 (1986). When and in what circumstances the rights are available Q. When do the above rights begin to be available? A. These rights begin to be available where "the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogation that lends itself to eliciting incriminating statements." Escobedo v. Illinois, 378 U.S. 478 (1964). As our Supreme Court has put it, these rights are available "after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." People v. Loveria, G.R. No. 79138, July 21, 1990, citing People v. Caguioa, 95 SCRA 2,9 (1980). The rights enumerated are not available before police investigators become involved. Thus the protection is not available to a person undergoing audit because an audit examiner is not a law enforcement officer. Navallo v. Sandiganbayan, 234 SCRA 175 (1994). Nor for that matter does it apply to a situation where a person, not being under investigation, presents himself to the police and in the process makes his admissions. People v. Taylaran, 108 SCRA 373,378-9 (1981). 110 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 The accepted rule is that the rule covers only situations when the person is already in custody, for which reason Escobedo refers to them as rights "under custodial investigation." People v. Caguioa, 95 SCRA 2, 9 (1980). Q. Was there ever a departure from this rule? A. Yes, in the solitary case of Galman v. Pamaran, 138 SCRA 294, 319 (August 30, 1985). The Court there sustained the contention of General Ver that the provision covered even persons not yet in custody but already under investigation because the 1973 text did not speak of "custodial" investigation but only of "person under investigation." without the word "custodial." Jurisprudence under the 1987 Constitution, however, has consistently held, following Escobedo, the stricter view, that the rights begin to be available only when the person is already in custody. As Justice Regalado emphasized in People v. Marra: 236 SCRA 565, 573 (1994). Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the rule begins to operate. NOTE: R.A. No. 7438 has extended the constitutional guarantee to situations in which an individual has not been formally arrested but has merely been "invited" for questioning. People v. Domantay, G.R. No. 130612, May 11,1999; People v. Tan, G.R. No. 117321, February 11,1998,286 SCRA 201,213; People v. Rapeza, G.R. No. 169431, April 3,2007. >rt i Q. Does the rule apply to a reenactment of a crime? A. Yes. "This constitutional privilege has been defined as a protection against testimonial compulsion, but this has since been extended to any evidence 'communicative in nature' acquired under circumstances of duress. . . . Thus, an act, whether testimonial or passive, that would amount to disclosure of incriminatory facts is covered by the inhibition of the Constitution." People v. Olvis, 154 SCRA 525-526 (1987). Likewise, photos of reenactment are not admissible where accused was not provided with counsel. People v. Jungco, 186 SCRA 714 (1990). Sec. 10 ART. Ill - BILL OP RIGHTS 111 Cicumstances not covered Q. Is a person in a police line-up entitled to the right to counsel? A. No, if not questions are asked. However, "the moment there is a move or even an urge of investigators to elicit^admissions or confessions or even plain information which ma^\appear innocent or innocuous at the time, from said suspect, he should then and there be assisted by counsel, unless he waives the right; but the waiver shall be made in writing and in the presence of counsel." Gamboa v. Judge Cruz, 162 SCRA 642 (1988). But a person already under custodial investigation who is placed in a police line-up is entitled to Section 12 rights. People v. Macam, 238 SCRA 566 (1994). Q. Does the protection apply to one who presents himself to the police to surrender? A. No. It can hardly be said that under such circumstance, the surrenderee is already 'under investigation', within the meaning of the constitutional provision. People v. Taylaran, 108 SCRA 373, 378-9 (October 30,1981). NOTEs Sections 12, pars. (1) and (3), Art. Ill, of the Constitution do not cover the verbal confessions to a radio announcer. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. People v. Ordono, G.R. No. 132154, June 29,2000. Q. Accused made his admission to Prosecutor Zarate not in the course of an investigation, but in connection with Maqueda's plea to be utilized as a state witness. Admissible? A. Yes. Q. The accused talked with the mayor as confidant and not as a law enforcement officer. Is his uncounselled admission admissible? A. Yes. People v. Zuela, G.R. No. 112177, January 28,2000. Q. Does the rule on custodial investigations apply when the confession is made not to a public officer but to a private individual? A. No, because the situation then would not be one of custodial investigation. People v. Tawat, 129 SCRA 431 (G.R. No. 62871, May 25,1985). Q. Is investigation by an administrative body covered by Section 12? 112 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 A. No. Such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service. Sebastian, Jr. v. Garchitorena, G.R. No. 114028, October 18. 2000; Manuel o. N.C. Construction Supply, G.R. No. 127553, November 28, 1997; Q. While in police custody, the accused verbally and spontaneously admitted his guilt and pointed out the mastermind of the robbery. Admissible? A. Yes, because "constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby the accused orally admitted having committed the crime — as in the case at bar." People v. Cabiles, G.R. No. 112035, January 16,1998, 284 SCRA 199, 211. Q. An interview was recorded on video and it showed accusedappellant unburdening his guilt willingly, openly and publicly in the presence of newsmen. Admissible? A. Yes. Such confession does not form part of custodial investigation as it was not given to police officers but to media men in an attempt to elicit sympathy and forgiveness from the public. People v. Endino, G.R. No. 133026, February 20,2001. Q. Is a confession to a "bantay bayan" covered by Section 12? A. Yes. In People of the Philippines v. Buendia, this Court had the occasion to mention the nature of a "bantay bayan," that is, "a group of male residents living in [the] area organized for the purpose of keeping peace in their community[, which is] an accredited auxiliary of the x x x PNP." People v. LaugayPina, G.R. No. 186228, March 15, 2010. Right to be informed of his rights Q. The extrajudicial confession was obtained on May 28, 1973. The opening paragraph of the confession contains the following vague statement: "The affiant has been informed of his rights under the Constitution of the Republic of the Philippines, and under the state of Martial Law, and the nature of the investigation, and without violence, intimidation, force or reward the affiant declared as follows:" Was there adequate compliance with the law? A. No. There is no sufficient indication that the specific rights guaranteed were communicated to the accused. People Sec. 10 ART. Ill - BILL OP RIGHTS 113 v. Rojas, 147 SCRA 169 (1987). "When the Constitution requires a person under investigation 'to be informed' of his right to remain silent and to counsel, it must be presumed to contemplate the transmission of a meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. As a rule, therefore, it would not be sufficient for a police officer just to repeat to the person under investigation the provisions of the Constitution. He is not only duty-bound to tell the person the rights to which the latter is entitled; he must also explain their effects in practical terms, (See People v. Ramos, 122 SCRA 312; People v. Caguioa, 95 SCRA 2). In other words, the right of a person under investigation to be informed' implies a correlative obligation on the part of the police investigator to explain, and contemplates an effective communication that results in understanding what is conveyed. Short of this, there is a denial of the right, as it cannot truly be said that the person has been 'informed' of his rights. People v. Nicandro, 141 SCRA 289; People v. Pinlac, 165 SCRA 674 (1988). Q. After being informed of his rights the accused was asked: "Matapos mong mabasa at mabatid itong mga karapatan mo ikaw ba ay kusang loob na magbibigay ng isang salaysay at sasagot ng buong katotohanan lamang sa lahat ng itatanong sa iyo sa inbestigasyon na ito f* The accused briefly answered: "Opo magsasabi lamang po ako ng pawang katutuhanan lamang." Does this satisfy the requirements of Section 12(1)? A. No. There was no clear reply that he was waiving his right to counsel. People v. Broquesa, G.R. No. L-62467, October 31, 1983. See also People v. Galit, 135 SCRA 465 (March 20, 1985) where the question was very involved but asked for a monosyllabic answer. Right to competent and independent counsel Q. What is the significance of the specification that the person has the right to "competent and independent counsel preferably of his own choice?" A. This specification is a product of experience under the Marcos regime when the military authorities used to make available to detainees only counsel of the military's choice, and presumably working also for the interest of the military. Q. When is a lawyer provided by the investigators deemed engaged by the accused? 114 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 A. When the accused "never raised any objection against the [lawyer's] appointment during the course of the investigation and the accused thereafter subscribes to the veracity of his statement before the swearing officer." People v. Jerez, G.R. No. 114385, January 29,1998,285 SCRA 393,401 (citing People v. Suarez, 267 SCRA 119 [1997]). Q. What does the phrase "preferably of his own choice" mean? A. It does not convey the message that the choice of a lawyer by ja person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling the defense; otherwise the tempo of custodial investigation will be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer who, for one reason or another, is not available to protect his interest. Thus, while the choice of a lawyer in cases where the person under custodial interrogation cannot afford the services of counsel — or where the preferred lawyer is not available — is naturally lodged in the police investigators, the suspect has the final choice as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused when he does not raise any objection against the counsel's appointment during the course of the investigation, and the accused thereafter subscribes to the veracity of the statement before the swearing officer. People v. Mojello, G.R. No. 145566, March 9, 2004. Q. Who are not deemed independent counsel? A. (1) Special counsel, public or private prosecutor, counsel of the police, or a municipal attorney whose interest is adverse to that of the accused. People v. Fabro, G.R. No. 95089, August 11,1997,277 SCRA 19. (2) A mayor. People v. Taliman, G.R. No. 109143, October 11, 2000. ^ (3) A barangay captain. People v. Tomaquin, G.R. No. 133188, July 23, 2004. (4) Any other whose interest may be adverse to that of the accused. Sec. 10 ART. Ill - BILL OP RIGHTS 115 Q. Is the right to counsel imperative in administrative investigations? A. No, Lumiqued v. Exevea, G.R. No. 117565, November 18,1997, 282 SCRA 125,140, "because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignify of government service." Id. at 141. Q. A former judge came to assist a person under investigation and told the person "I am here because I was summoned to assist you and I am going to assist you." The former judge was the choice of the police and not of the accused; she did not ask the accused if he wanted her to represent him. Was accused properly represented during investigation? A. No, this does not satisfy the standard of "competent and independent counsel preferably of [the accused's] own choice." People v. Jimenez, G.R. No. 82604, December 10,1991. Q. Where an extrajudicial confession is made in the absence of counsel but where at the closing stage of the interrogation counsel arrives and has the opportunity to read the statement and discuss it with the client who subsequently signs it, is there compliance with the constitutional requirement of the presence of counsel for purposes of the validity of waiver? A. In Estocio v. Sandiganbayan, G.R. No. 75362, March 6, 1990, the Court ruled that there was substantial compliance. This, however, and a similar case, People v. Rous, G.R. No. 103803-04, March 27,1995, was corrected in People v. Lucero, where in the middle of the investigation the lawyer had left to attend a wake, came back when the accused had already signed his statement and affirmed that he did it voluntarily. The Court ruled that the right to counsel was a right to effective counsel from the first moment of questioning and all throughout. G.R. No. 97936, May 29, 1995. Also People v. de Jesus, G.R. No. 91535, September 2,1992 and People v. Bandula, 232 SCRA 566 (1994). ' Q. When accused made the extra-judicial confession, he "was not informed that if he [could] not get a lawyer, the State [would] provide him one, to assist him in the investigation." Is his confession admissible? A. No. People v. Pascual, Jr., 109 SCRA 197 (November 12, 1981). Q. Before being questioned, accused was told that he had the right to avail of the services of counsel. Without even asking whether the accused wanted to avail of the right, the investigators proceeded to ask questions. Is this adequate procedure? 116 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 A. No. People v. Felipe, L-54335, December 14,1981. Q. Accused claimed that he made his extrajudicial confession without counsel. During the trial, however, accused admitted that he had voluntarily signed the extrajudicial statement. Is the statement admissible? A. Yes. Accused's admission in open court removes the case from the in-custody rule. People v. Marcos, 147 SCRA 204 (1987). Q. Does a lawyer who assisted a person to make an extrajudicial confession have to be presented by the prosecution to attest to the fact that counsel was given? A. No. What is stated in the confession and what others testified to about such fact can sustain the conclusion that the rights were respected. People v. Alberca, G.R. No. 117106, June 26,1996. Q. On Oct. 11, 1983, at the Narcom office in City Hall, accused was told of his constitutional right to remain silent, and to have counsel of his choice, and that the statement he would give might be used as evidence against him. Accused stated that he needed no counsel and that he was going to tell the truth, and did not ask for a lawyer. Is the confession admissible? A. No. The authorities failed to apprise him of his right to counsel when he wrote his confession. The accused's waiver of his rights and signification of willingness to make a confession are ceremonies that require the presence of counsel. (Citing Morales v. Moncupa, 121 SCRA 538 [1983]; People v. Galit, 135 SCRA 465 [1985]); Demaisip v. Court of Appeals, G.R. No. 89393, January 25, 1991. Q. Accused signed without objection a Receipt of Seized Property. Proper? A, No. "That receipt was in reality an admission which the accused-appellant was forced to make without assistance of counsel wand without first being informed of the constitutional rights of a person facing custodial investigation. That evidence was totally inadmissible under the Bill of Rights [Sec. 12 (3)] and the consistent rulings of this court since People v. Galit [135 SCRA 465]." People v. cfe Guzman, G.R. No. 86172, March 4,1991; People v. de las Marinas, G.R. No. 87215, April 30,1991. Where appellant was not informed of his right to counsel etc. before he affixed his signature to bundles containing marijuana, such bundles are not admissible in evidence. People v. Bagano, 181 SCRA 747, 761 (1990). Q. While in custody for violation of the Dangerous Drugs Act, accused, unassisted by counsel, wrote his name on the rolled Sec. 10 ART. Ill - BILL OP RIGHTS 117 marijuana cigarettes that had been seized from him. Are the marked cigarettes admissible in evidence? A. No. Appellant's act of writing his name on the cigarettes amounted to an admission of his culpability without the assistance of counsel. The cigarettes are inadmissible. People v. Enrique, Jr., G.R. No. 90738, December 8,1991. Q. What is the legal effect of the violation of the rights in custodial investigations? A. "Any confession or admission obtained in violation of this or Section 17 (provision against self-incrimination) hereof shall be inadmissible in evidence against him." Section 12 (3). Waiver of rights Q. May the rights under custodial investigation be waived? A. Yes, but the Constitution says: "These rights cannot be waived except in writing and in the presence of counsel." This makes explicit the rule already adopted in People v. Galit, 135 SCRA 465 (March 20, 1985) and Morales v. Enrile, 121 SCRA 538 (April 26,1983). Admissible and inadmissible evidence Q. Convicted by the RTC of robbery with homicide, M argues that the victim's wallet should be inadmissible because the investigating policemen did not inform him of his constitutional rights during the custodial investigation wherein he pointed out to the them the place where he hid the wallet. Decide. A Infractions of the so-called "Miranda rights" render inadmissible "only the extrajudicial confession or admission made during custodial investigation. The admissibility of other evidence, provided they are relevant to the issue and is not otherwise excluded by law or rules, is not affected even if obtained or taken in the course of custodial investigation." People v. Malimit, G.R. No. 109775, November 14, 1996,264 SCRA 167,177. Q. Where a bloodstained knife is found as a consequence of an uncounseled extrajudicial confession, may the knife be admitted in evidence? A No, because it is the fruit of a constitutionally infirm interrogation. Aballe v. People, G.R. No. 64086, March 15,1990. Q. In a case of mail pilferage, accused were asked to sign the envelopes purportedly for purposes of identifying the envelopes 118 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 taken from them. This was done in custody without the assistance of counsel. Admissible? A. No. The envelopes would be evidence of guilt. Marcelo v. Sandiganbayan, 6.R. No. 109242, January 26,1999. NOTE: Urine sample is admissible. "What the Constitution prohibits is the use of physical or moral compulsion to extort communication from the accused, but not an inclusion of his body in evidence, when it may be material. In fact, an accused may validly be compelled to be photographed or measured, or his garments or shoes removed or replaced, or to move his body to enable the foregoing things to be done, without running afoul of the proscription against testimonial compulsion." Gutang v. People, G.R. No. 135406, July 11,2000. Q. May a receipt for property seized signed by the accused, without proof that he was assisted by counsel at the time of signing, be admissible in evidence against the accused? A. No, "for this is tantamount to an extra-judicial confession for the commission of the offense." People v. Lacbanes, G.R. No. 88684, March 20,1997,270 SCRA 193,203. Confessions and admissions Q. Does the law cover both "confessions" and "admissions?" A. Yes. The 1987 text covers both "confessions" and "admissions." The difference between confession and admission is found in Rule 130 of the Ruses of Court. Admission is the "act, declaration or omission of party as to a relevant fact" (Rule 130, Section 26) whereas confession is the "declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein." (Rule 130, Section 33). Confessions or admissions covered by the provision, however, need not be explicit; they can be merely implicit in any evidence that is communicative in nature. Thus, the signature of an accused on a receipt for seized property (People v. de Guzman, G.R. No. 86172, March 4, 1991; People v. de las Marinas, G.R. No. 87215, April 30, 1991; People v. Bandin, September 10, 1993) or marijuana cigarettes where the accused wrote his name is not admissible. People v. Enriquez, Jr., G.R. No. 90738, December 8,1991. A signature in the Booking Sheet and Arrest Report, however, is not an admission of guilt but only of the fact of booking and arrest. People v. Bandin, September 10,1993. Sec. 10 ART. Ill - BILL OP RIGHTS 119 Q. What are the fundamental requisites for an extrajudicial confession to be admissible in evidence? A. "1) the confession must be voluntary; 2) the confession must be made with the assistance of competent and independent counsel; 3) the confession must be express; and 4) the confession must be in writing." 5) Signed, or if the confessant does not know how to red and write, thumbmarked by him. People v. Deniega, G.R. No. 103499, December 29,1995, 251 SCRA 626, 637 (reiterated in People v. Calvo, Jr., 269 SCRA 683 [1997] and in People v. Cabiles, 284 SCRA 199 [1998]). People v. Olivarez, Jr., G.R. No. 77865, December 4,1998. Q. Accused claims that the advice of his police-provided counsel during custodial investigation that he execute an extrajudicial confession if he really committed the crime taints the confession with involuntariness. Decide. A. "A confession is not rendered involuntary merely because defendant was told that he should tell the truth or that it would be better for him to tell the truth." People v. Calvo, Jr., G.R. No. 91694, March 14,1997,269 SCRA 676, 683-84. Q. Against whom are illegal confessions and admissions inadmissible? A. The text makes them inadmissible "against him," that is, against the source of the confession or admission. And it is he alone who can ask for exclusion. People v. Balisteros, 237 SCRA 499 (1994). However, where there has been no collusion with reference to several confessions, the facts that statements are in all material respects identical, is confirmatory of the confession of the co-defendants and is admissible against other persons implicated therein. People v. Lising, G.R. Nos. 106210-11, January 30, 1998, 285 SCRA 595, 624 (citing People v. Encipido, 146 SCRA 478 [1986]; People v. Domondon, 43 SCRA 486 [1972]; People v. Sta. Maria, 15 SCRA 222 [1965]). Termination of Section 12(1) rights Q. When does the protection of Section 12(1) end? A. The criminal process includes the investigation prior to the filing of charges, the preliminary examination and investigation after charges are filed, and the period of trial. The Miranda rights or the Section 12(1) rights were conceived for the first of these three phases, that is, when the enquiry is under the control of police officers. It is in this situation that the psychological if not physical atmosphere of custodial investigations, in the 120 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 absence of proper safeguards, is inherently coercive. Miranda v. Arizona, 384 U.S. at 448-58. Outside of this situation, Section 12(1) no longer applies. But Sections 14 and 17 come into play. Conceivably, however, even after charges are filed, the police might still attempt to extract confessions or admissions from the accused outside of judicial supervision. In such situation, Section 12(1) should still apply. But outside of such situation, the applicable provisions are Section 14 and Section 17. It is for this reason that an extrajudicial confession sworn to before a judge even without assistance of counsel enjoys the mark of voluntariness. People v. Pamon, 217 SCRA 501 (1993); People v. Baello, 224 SCRA 218 (1993); People v. Parajinog, 203 SCRA 673 (1993) People v. Marcos, 147 SCRA 204 (1987). Section 12(2) Q. What other rights are guaranteed in Section 12(2)? A. (1) "No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited." (2) "The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families." Q. Why are torture, force, etc. prohibited? A. (1) Because they vitiate truth, and (2) because they are an assault on the dignity of the person. ; This provision has been deliberately separated from the c self-incrimination clause in Section 17 in order to emphasize the need to protect the sacredness of the person. Protection of the sacredness of the person is also the purpose of the prohibition of secret detention places, etc. and of the command to provide for penal and civil sanctions. Moreover, reference to families has in mind psychological damage done to minor children of detainees. SEC. 13. ALL PERSONS, EXCEPT THOSE CHARGED WITH OFFENSES PUNISHABLE BY RECLUSION PERPETUA WHEN EVIDENCE OF GUILT IS STRONG, Sec. 10 ART. Ill - BILL OP RIGHTS 121 SHALL, BEFORE CONVICTION, BE BAILABLE BY SUFFICIENT SURETIES, OR BE RELEASED ON RECOGNIZANCE AS MAY BE PROVIDED BY LAW. THE RIGHT TO BAIL SHALL NOT BE IMPAIRED EVEN WHEN THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IS SUSPENDED. EXCESSIVE BAIL SHALL NOT BE REQUIRED. Q. What is bail? A. Bail is a mode short of confinement which would, with reasonable certainty, insure the attendance of the accused at his trial. It usually takes the form of a deposit of money or its equivalent 88 a of such attendance and which deposit is forfeited upon failure to appear. Q. Why is bail awarded to the accused? A. (1) "to honor the presumption of innocence until his guilt is proven beyond reasonable doubt;" and (2) "to enable him to prepare his defense without being subject to punishment prior to conviction." Cortes v. Catral, A.M. No. RTJ-97-1387, September 10,1997,279 SCRA 1,10 (citing Stack v. Boyle, 342 U.S. 1, 96 L Ed 3, 72 S Ct 1; Dudley v. US, 242 F2d 656). Q. Who have a constitutional right to bail? A. All persons actually detained, except those charged with offenses punishable by reclusiort perpetua or death when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties. One is under the custody of the law either when he has been arrested or has surrendered himself to the jurisdiction of the court, as in the case where through counsel petitioner for bail who was confined in a hospital communicated his submission to the jurisdiction of the court. Paderanga v. Cpurt of Appeals, G.R. No. 115407, August 28,1995. Q. Does a soldier under court martial enjoy the right to bail? A. No. Because of the disciplinary structure of the military and because soldiers are allowed the fiduciary right to bear arms and can therefore cause great havoc, tradition has recognized the nonexistence of the right to bail. Nor can appeal be made to the equal protection clause because equal protection applies only to those who are equally situated. Comendador, et al. v. de Villa, G.R. No. 93177, August 2,1991. 122 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Q. Charged with rebellion, a bailable offense, Salas nevertheless agreed "to remain in legal custody during the pendency of the trial of his criminal case." Does he have the right to bail? A. No. By his act he has waived his right. People v. Donato, G.R. No. 79269, June 5, 1991. (Query: Assuming valid waiver, may he not take it back?) Q. When is there no constitutional right to bail? A. When the following conditions concur: (1) the accused is charged with an offense punishable by reclusion perpetua; (2) the evidence against him is strong. Magno v. Abbas, 13 SCRA 233 (1965). Moreover, after conviction for any offense, bail is discretionary while the case is on appeal. Q. Does a person lose his constitutional right to bail upon the filing of a reclusion perpetua case against him? A. No. Since the loss of the right depends upon the quantum of evidence against him, the loss of the right can be determined only after hearing. Marcos v. Cruz, 67 Phil. 83 (1939). Q. What are the duties of the trial judge in case an application for bail is filed by an accused charged with a capital offense? A. "(1) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of Court as amended); (2) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion (Sections 7 and 8, supra); (3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution (Baylon v. Sison, 243 SCRA 284 [1995]); (4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. (Section 19, supra). Otherwise, petition should be denied." Basco v. Rapatalo, A.M. No. RTJ-96-1335, March 5, 1997, 269 SCRA 220, 243-44. Q. Describe further what should be done in capital cases. A. If the accused is charged with a capital offense, a hearing, mandatory in nature and which should be summary or otherwise Sec. 10 ART. Ill - BILL OP RIGHTS 123 in the discretion of the court, is required with the participation of both the defense and a duly notified representative of the prosecution, this time to ascertain whether or not the evidence of guilt is strong. The burden of proof is on the prosecution to show that the evidence meets the required quantum. The prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may want to introduce before the court may resolve the application, since it is equally entitled as the accused to due process. Likewise, the petitioner has the right to cross-examine the witnesses and present his own evidence in rebuttal When, eventually, the court ig&ttes an order either granting or refusing bail, the same should contain a summary of the evidence for the prosecution, followed by its conclusion as to whether or not the evidence of guilt is strong. The court, though, cannot rely on mere affidavits or recitals of their contents, if timely objected to, for these represent only hearsay evidence, and thus are insufficient to establish the quantum of evidence that the law requires. Marzan-Gelacio v. Flores, A.M. No. RTJ-99-1488, June 20, 2000. Q. What is the meaning of strong evidence of guilt for purposes of denying bail? A. This means "proof evident" or "presumption great." "Proof evident" or "Evident proof" in this connection means clear, strong evidence which leads a well-guarded dispassionate judgment to the conclusion that the offense has been committed as charged, that accused is the guilty agent, and that he will probably be punished capitally if the law is administered. "Presumption great" exists when the circumstances testified to are such that the inference of guilt naturally to be drawn therefrom is strong, clear, and convincing to an unbiased judgment and excludes all reasonable probability of any 6&her conclusion. Even though there is a reasonable doubt as to the guilt of accused, if on an examination of the entire record the presumption is great that accused is guilty of a capital offense, bail should be refused. In other words, the test is not whether the evidence establishes guilt beyond reasonable doubt but rather whether it shows evident guilt or a great presumption of guilt. As such, the court is ministerially bound to decide which circumstances and factors are present which would show evident guilt or presumption of guilt as defined above. People v. Judge Cabral, G.R. No. 131909, February 18,1999. 124 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Q. What is the duty of the judge if the prosecution does not present evidence? A. Even where the prosecutor refuses to adduce evidence in opposition to the application to grant and fix bail, the court may ask the prosecution such questions as would ascertain the strength of the stated evidence or judge the adequacy of the amount of bail. Tolentino v. Judge Camanao, Jr., A.M. No. RTJ-00-1522, January 20,2000. Q. May a judge require a strictly cash bond and disallow petitioner's attempt to post a surety bond for his provisional liberty? A. No. Such a requirement is abhorrent to the nature of bail. The sole purpose of bail is to insure the attendance of the accused. It has neither punitive nor revenue raising purpose. Cash bond is allowed in this jurisdiction only because our rules expressly allow it. Were this not the case, cash bond could not be countenanced because the nature of bail presupposes the attendance of sureties to whom the body of the prisoner can be delivered. Moreover, the burden imposed by requiring a cash bond can make the bail constitutionally "excessive." Almeda v. Villaluz, 66 SCRA 38 (August 6,1975). Q. Are "life imprisonment" and Preclusion perpetua" the same? A. A distinction must be made between the penalty of "life imprisonment" and reclusion perpetua. (1) Life imprisonment is a penalty in special laws while reclusion perpetua is imposed by the Revised Penal Code; (2) life imprisonment does not carry accessory penalties, whereas reclusion perpetua does; (3) life imprisonment is indefinite, whereas reclusion perpetua is for 30 years after which the convict is eligible for pardon. The distinction is important because under the 1985 Rules ^h Criminal Procedure a person charged with an offense npunishable by "life imprisonment" was entitled to bail as a matter of right. However, effective October 1, 1994, Rule 114 was amended placing "life imprisonment" on the same level as death and reclusion perpetua. Cardines v. Rosete, 242 SCRA 557, 562 (1995). Q. For purposes of the right to bail, what is the criterion for determining whether the offense is bailable or not? A. "The criterion to determine whether the offense charged is capital is the penalty provided by the law regardless of the attendant circumstances." To require more will entail consideration not only of evidence showing commission of the crime but also evidence of Sec. 10 ART. Ill - BILL OP RIGHTS 125 the aggravating and mitigating circumstances. In effect, this would already be requiring a complete trial thus defeating the purpose of bail, which is to entitle the accused to provisional liberty pending trial. People v. Intermediate Appellate Court, 147 SCRA 219 (1987). NOTE: But the grant of new trial does not negate strong evidence of guilt as found by the lower court. Nor is humanitarian ground on the mere claim of illness or old age a ground for discretionary grant of bail. This is specially so were there is a finding on record that the accused may repeat the offense (pedophilia). People v. Fitzgerald, G.R. No. 149723, October 27,2006. Q. May a person who does not have a constitutional right°£b bail be released on bail? A. Yes. The matter is discretionary with the court for good and valid reasons, unless there is a statutory prohibition against it. Q. What are the implicit limitations on the right to bail? A. (1) The person claiming the right must be under actual detention. Mendoza v. CFI, 51 SCRA 369 (1973). (2) The constitutional right is available only in criminal cases, not, e.g., in deportation proceedings. Q. Is there a right to bail in extradition cases? A. The Court has had occasion to rule that, since bail is available only in criminal proceedings, a respondent in an extradition proceeding is not entitled to bail. He should apply fors bail in the court where he will be tried. United states v. Judge Puruganan, G.R. No. 148571, September 24,2002. However, there have been later developments. If after his arrest and if the trial court finds that an extraditee is fnot a flight risk, the court may grant him bail. (In this case the grant of bail presupposed that a co-petitioner, the wife, had already presented evidence to prove her right to be on bail, that she was no flight risk, and the trial court had already exercised its sound discretion and had already determined that under the Constitution and laws in force, co-petitioner was entitled to provisional release.) The Court emphasized that bail may be granted to a possible extraditee only upon a clear and convincing showing (1) that he will not be a flight risk or a danger to the community, and (2) that there exist special, 126 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 humanitarian and compelling circumstances. Rodriguez v. Judge, G.R. No. 157977, February 27,2006. In a later case the Court said that it could not ignore the following trends in international law: (1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of the Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other. It added, "If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue." Gov't of Hongkong v. Olalia, G.R. No. 153675, April 19,2007. Q. Aside from release through bail, through what other means may an accused obtain provisional liberty? A. Through recognizance, as may be provided by law. That is, the law will determine when recognizance is an adequate substitute for bail. The new Constitution has made release on recognizance, as provided by law, available on the same terms as release on bail. Q. What is a recognizance? A. It is an obligation of record entered into before a court guaranteeing the appearance of the accused for trial. It is in , the nature of a contract between the surety and the state. JPeople v. Abner, 87 Phil 569. Q. Is the right to bail suspended when the privilege of the writ of habeas corpus is suspended? A. The new Constitution, contrary to past jurisprudence, e.g., Garcia-Padilla v. Enrile, G.R. No. 60349-62, December 29,1983, now says that the right to bail is not thereby suspended. Q. Why does the Constitution prohibit excessive bail? A. Obviously, the requirement of excessive bail can amount to a denial of bail. Thus, a bail fixed by a lower court at PI,195, Sec. 10 ART. Ill - BILL OP RIGHTS 127 200.00 was found to render the right nugatory. De la Camara v. Enage, 41 SCRA 1 (1971). Similarly, a bail bond of P18,000 for an offense punishable with prison mayor or a fine of P5,000 to P10,000 or both was found excessive. NOTE: The Court has had occasion to recall the factors which must be considered in determining bail: 1. ability to post bail; 2. nature of the offense; 3. penalty imposed by law; 4. character and reputation of the accused; 5. health of the accused; 6. strength of the evidence; 7. probability of appearing for trial; 8. forfeiture of bonds; 9. whether accused was a fugitive from justice when arrested; 10. if under bond in other cases. Sunga v. Judge Salud, 109 SCRA 253 (November 19, 1981), citing Abano v. VUlaserior, 21 SCRA 312 (September 29,1967). Q. Does a person admitted to bail necessarily have the right to leave the Philippines? A. No. A court, as a necessary consequence of the nature of a bail bond, may prevent a person admitted to bail from leaving the country. A bail bond is intended to make a person available any time he is needed by the court. Manotoc, Jr. v. Court of Appeals, 142 SCRA 149,153-4 (1986). SEC. 14. (1) No PERSON SHALL BE HELD TO ANSWER FOR A CRIMINAL OFFENSE WITHOUT DUE PROCESS OF LAW. (2) IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL BE PRESUMED INNOCENT UNTIL THE CONTRARY IS PROVED, AND SHALL ENJOY THE RIGHT TO BE HEARD BY HIMSELF AND COUNSEL, TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM, TO HAVE A SPEEDY, IMPARTIAL, AND PUBLIC TRIAL, TO MEET THE WITNESSES FACE TO FACE, AND TO HAVE COMPULSORY PROCESS TO SECURE THE ATTENDANCE OF WITNESSES AND THE PRODUCTION OF EVIDENCE IN HIS BEHALF. HOWEVER, AFTER ARRAIGNMENT, TRIAL MAY PROCEED NOTWITHSTANDING} THE ABSENCE OF THE ACCUSED PROVIDED THAT HE HAS BEEN DULY NOTIFIED AND HIS FAILURE TO APPEAR IS UNJUSTIFIABLE. Due process in criminal cases Q. Explain the requirement of due process in criminal cases. A. The requirement that no person shall be held to answer for a criminal offense without "due process of law" simply that the rules prescribed by Section 14 and all other provisions related to criminal prosecution are followed. 128 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Q. May a judge who replaces another judge validly render a decision although he has only partly heard the testimony of witnesses? A. Yes. "This rule is rooted in practical considerations. Sometimes it is an impossibility for the judge who tried the case to be the same judicial officer to decide it. The judge who tried the case may die, resign or retire from the bench, before he could render judgment thereon" People u. Narqjos, 149 SCRA 99, 105 (1987), quoting from Villanueva v. Estenzo, 64 SCRA 407. Q. Batas Big. 22, a penal law, was published in the April 9, 1979 issue of the Official Gazette which, however, was officially released for circulation only on June 14, 1979. May acts committed "flHor to June 14,1979, be prosecuted under Batas Big. 22? A. No. The penal statute was made public only on June 14, 1979. Prior to such date the prohibition of the law did not exist. People v. Veridiano, 132 SCRA 523 (October 12,1984). Q. May criminal penalties be imposed by administrative agencies? A. Since administrative agencies are not bound to follow the rules of criminal procedure they may not impose criminal penalties. Scoty's Department Store v. Micaller, 99 Phil. 762 (1956). Q. When does publicity prejudice due process? A. The rule is that "to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity." "Petitioners cannot just rely on the subliminal effects of publici t y . . . because these are basically unbeknown and beyond knowing." Webb v. de Leon, G.R. No. 121234, August 23,1995. See also People v. Teehankee, Jr., G.R. No. 111206-08, October 6,1995. Military tribunals Q. May the Supreme Court review decisions of military tribunals? A. '^Generally, the Supreme Court has no supervisory authority over military courts. Kuroda v. Jalandoni, 83 Phil. 171; Martelino v. Alejandro, 32 SCRA 106 (March 25,1970). By the National Security Code, P.D. 1498, June 11, 1978 (74 O.G. 11066), the SC does not review decisions of military commissions but of ,the Court of Military Appeals in cases appealed to the latter by military commissions. Therefore, the issue of denial of the right to present evidence should first be passed upon by military authorities. Buscayno & Sison v. Military Commissions, 109 SCRA 273 (November 19,1981). But see dissents of Fernando and Teehankee and Article VIII, Section 1. Sec. 10 ART. Ill - BILL OP RIGHTS 129 Q. May military commissions or tribunals have jurisdiction to try civilians for offenses allegedly committed during martial law when civil courts were open and functioning? A. No. Olaguer v. Military Commission No. 34, 150 SCRA 144 (1987), explicitly reversing Aquino, Jr. v. Military Commission No. 2, 63 SCRA 264 (1975) and all decided cases affirming the same. Q. The rule is that jurisdiction over a person is acquired only upon arrest. Does this apply to military jurisdiction? A. No. This is a rule for ordinary courts. See Article of War 2 and Section 8 of Manual for Courts Martial, AFP. AbadiUa i). Ramos, 156 SCRA 92 (December 1,1987). [The reasoning here is unconvincing.] Presumption of innocence Q. What is the principal effect of the guarantee of presumption of innocence? A. Its principal effect is that no person shall be convicted unless the prosecution has proved him guilty beyond reasonable doubt. Q. The Return to Work Agreement specified express finding of innocence in a criminal case as ground for reinstatement. The criminal case against petitioner, however, was dismissed on the technicality of failure of witnesses to appear at the trial. Is reinstatement in order? A. Yes. Innocence does not have to be declared. It is presumed. Moreover, the mandate for protection for labor compels interpretation of agreements in favor of labor. Castillo v. Filtex International Corp., G.R. No. L-37788, September 30,1983. Q. For purposes of disqualification in an election, section 4 of Batas Big. 52 says: "the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact [disqualification]." Valid? A. No. This violates the guarantee of presumption of innocence. Dumlao v. COMELEC, G.R. No. 52245, January 22,1980. Q. Section 40 of the Local Government Code disqualifies from running for office a "(e) Fugitive from justice in criminal or non- political cases here or abroad." If applied to one who has not yet been convicted of any offense but was merely fleeing from trial, would there be violation of the presumption of innocence? A. This was defended against the suggestion that it violates presumption of innocence on the argument that the disqualification THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 14 is not a penalty and that Congress is allowed to prescribe reasonable qualifications for local candidates both by Article V, Section 1 and Article X, Section 3. Marquez, Jr. v. Commission on Elections, G.R. No. 112889, April 18,1995. (But the Court remanded the case to the lower court for determination of the fact of being a 'fugitive from justice.") Q. Does preventive suspension pendente lite violate the right to be presumed innocent? A. No, because preventive suspension is not a penalty. Gonzaga v. Sandiganbayan, G.R. No. 96131, September 6,1991. Q. Does presumption of innocence preclude the State from shifting the burden of proof to the accused? A. The State having the right to declare what acts are criminal, within certain well defined limitations, has a right to specify what act or acts shall constitute a crime, as well as what proof shall constitute prima facie evidence of guilt, and then to put upon the defendant the burden of showing that such act or acts are innocent and are not committed with any criminal intent or intention. U.S. v. Luting, 34 Phil. 725 (1916). Q. Article 217 of the Revised Penal Code says that failure of an accountable officer to produce money in his charge upon demand shall be prima facie evidence of malversation. Does such law violate presumption of innocence? A. Clearly, the fact presumed is but a natural inference from the fact proved [failure to produce], so that it cannot be said that there is no rational connection between the two. Furthermore, the statute establishes only a prima facie presumption, thus giving the accused an opportunity to present evidence to rebut it. People v. Mingoa, 92 Phil. 857, 859 (1953); Albores v. Court of Appeals, 132 SCRA 604 (October 23,1984). Q. Article 315, paragraph 2(d) of the RPC prescribes a period of three days from notice within which the issuer of the check must pay the creditor, otherwise, a prima facie inference of deceit constituting false pretense of fraudulent act will arise. Does this offend against the constitutional presumption of innocence? A. No. "There is...no constitutional objection to a law providing that the presumption of innocence may be overcome by a contrary presumption founded upon the experience of human conduct, and enacting what evidence shall be sufficient to overcome such presumption of innocence. The legislature may provide for prima facie evidence of guilt of the accused and shift Sec. 10 ART. Ill - BILL OP RIGHTS 131 the burden of proof provided there be a rational connection between the facts provided and the ultimate fact presumed so that the inference of the one from proof of the others is not unreasonable and arbitrary because of lack of connection between the two in common experience." Citing People v. Mingoa, 92 Phil. 856; Banares v. Court of Appeals, G.R. No. 55992, February 14,1991. Q. When does presumption of innocence end? A. Moreover, where the conviction by a lower court is still on appeal, it has not yet reached finality and the accused still enjoys the constitutional presumption of innocence. It must be remembered that the existence of a presumption indicating the guilt of the accused does not in itself destroy the constitutional presumption of innocence unless the inculpating presumption, together with all the evidence, or the lack of any evidence or explanation, proves the accused's guilt beyond a reasonable doubt. Until the accused's guilt is shown in this manner, the presumption of innocence continues. Thus in Mangubat v. Sandiganbayan, the Court held that respondent Sandiganbayan did not act with grave abuse of discretion, correctible by certiorari, when it ruled that despite her conviction, the accused still enjoyed presumption of innocence. Re: Judge Angeles, AM. No. 06-9-545-RTC, January 31,2008. NOTE: The equipoise rule provides that where the evidence of the parties in a criminal case is evenly balanced, the constitutional presumption of innocence should tilt the scales in favor of the accused. There is no equipoise if the evidence is not evenly balanced. The equipoise rule cannot be invoked where the evidence of the prosecution is overwhelming. Malana v. People, G.R. No. 173612, March 26,2008. Right to be heard Q. What are the elements of the general right to be heard? A. It includes: (1) the right to be present at the trial; (2) the right to counsel; (3) the right to an impartial judge; (4) the right of confrontation; (5) the right to compulsory process to secure the attendance of witnesses. Q. What is the scope of the right to be present at the trial? A. It covers only the period from arraignment to promulgation of sentence. U.S. v. Beecham, 23 Phil. 259 (1972). However, this has been modified by Section 14(2) which says that "after arraignment, trial may proceed notwithstanding the absence 132 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 of the accused provided that he has been duly notified and his failure to appear is unjustifiable." Q. What are the conditions for waiver of the right to be present at the trial? A. The right may be waived "provided that after arraignment he may be compelled to appear for the purpose of identification by the witnesses of the prosecution, or provided he unqualifiedly admits in open court after his arraignment that he is the person named as the defendant in the case on trial. Reason for > requiring the presence of the accused, despite his waiver, is, if allowed to be absent in all the stages of the proceeding without giving the People's witnesses the opportunity to identify him in court, he may in his defense say that he was never identified as the person charged in the information and, therefore, is entitled to acquittal." People v. Presiding Judge, G.R. No. L-64731, October 26,1983; Aquino, Jr. v. Military Commission No. 2, L-37364, April 24,1975. Q. When an accused waives his appearance in further proceedings and says that "he may be identified by witnesses even in his absence," may he still be compelled to appear for purposes of identification? A. Yes. In order for him to be excused completely from appearance it is not enough that he allows himself to be identified by witnesses in his absence. He must further unqualifiedly admit that every time a witness mentions a name by which he is known the witness is to be understood as referring to him. Carredo v. People, G.R. No. 77542, March 19,1990, citing People v. Presiding Judge, 125 SCRA 269 (1983). Q. What are the requisites of a valid trial in absentia? A* "(1) the accused has already been arraigned; (2) he has been duly notified of the trial; and (3) his failure to appear is unjustifiable." Parada v. Veneration, A.M. No. RTJ-96-1353, March 11,1997,269 SCRA 371,376 (citing People v. Salas, 143 SCRA 163 [1986]). Q. Does the provision on trial in absentia preclude forfeiture of bail bond under the Rules of Court for one who jumps bail? A. No, the new provision "does not lend itself to a latitudinarian construction." People v. Judge Prieto, Jr., L-46542, 21 July Sec. 10 ART. Ill - BILL OP RIGHTS 133 1978. (Prieto's argument was that the time to forfeit bail should be after conviction, not upon jumping bail.) Q. What is the reason for allowing trial in absentia? A. To speed up the disposition of criminal cases. People v. Salas, 143 SCRA 163 (1986). Right to counsel Q. Why must an accused enjoy the right to counsel? A. This is a realistic recognition of the obvious truth tR&t the average defendant does not have the professional skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is represented by an experienced and learned counsel. Johnson v. Zerbst, 304 U.S. 458 (1938). Q. What duty is imposed on the judge by the guarantee of the right to counsel? A. If the defendant appears without counsel he must be informed by the court that he has a right to have counsel before being arraigned, and must be asked if he desires the aid of counsel. If he desires and is unable to employ counsel, the, court must assign counsel to defend him. This is a right which the defendant should not be deprived of, and the failure of the court to assign counsel or, after counsel has been assigned, require him to perform this duty by appearing and defending the accused would be sufficient cause for the reversal of the case. U.S. v. Gimeno, 1 Phil. 236 (1905). Q. What are the pre-arraignment duties of the trial judge? " A. Under Section 6 of Rule 116 of the Rules of Court, the four-fold duties are: "(1) to inform the accused that he has the right to have his own counsel before being arraigned; (2) after giving such information, to ask accused whether he desires the aid of counsel; (3) if he so desires to procure the services of counsel, the court must grant him reasonable time to do so; and (4) if he so desires to have counsel but is unable to employ one, the court must assign counsel de oficio to defend him." People v. Agbayani, G.R. No. 122770, January 16,1998, 284 SCRA 315, 333 (citing People v. Holgado, 85 Phil. 752, 756 [1950]) THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 14 Q. Petitioner contends that the trial court should have appointed a counsel de oficio when his counsel consistently failed to appear for his cross-examination. Decide. A. The duty of the court to appoint a counsel de oficio for the accused who has no counsel of choice and desires to employ the services of one is mandatory only at the time of arraignment. No such duty exists where the accused has proceeded to arraignment and then trial with a counsel of his own choice. At the most, the appointment of a counsel de oficio in a situation like the present case would be discretionary with the trial court, which discretion will not be interfered with in the absence of grave abuse. Libuit v. People, G.R. No. 154363, September 13,2005; Sayson v. People, 166 SCRA 680 (1988). Q. Both the transcript of stenographic notes and the order issued by the trial judge failed to disclose categorically that the court informed the accused of his right to counsel. Is this sufficient ground to reverse conviction? A. No. The trial court must be presumed to have complied with the procedure prescribed by law for the hearing and trial of cases, and such a presumption can only be overcome by an affirmative showing to the contrary. People v. Agbayani, G.R. No. 122770, January 16,1998,284 SCRA 315,334. However, the Court admonished all trial courts to have their compliance with their pre-arraignment duties put on record. Id. at 335-36. Q. After conviction, accused discovers that the "lawyer" who defended her was not a member of the bar. May she be granted new trial? A. Yes. She has a right to qualified counsel. Delgado v. Court of Appeals, 145 SCRA 357 (1986); People v. Santocildes, Jr., G.R. No. 109149, December 21,1999. .ni' Q. Appellants fault the trial court for appointing counsel de 'Aoficio despite their insistence to be assisted by counsel of their own choice; and second, for refusing to suspend trial until they shall have secured the services of new counsel. A. We have held that there is no denial of the right to counsel where a counsel de oficio was appointed during the absence of the accused's counsel de parte, pursuant to the court's desire to finish the case as early as practicable under the continuous trial system. Indisputably, it was the strategic machinations of appellants and their counsel de parte which prompted the trial court to appoint counsel de oficio. The unceremonious withdrawal of appellants' counsel de parte during the proceedings of August 24,1998, as well as their stubborn refusal to return to the court for trial undermines the continuity of the Sec. 17 ART. Ill - BILL OF RIGHTS 135 proceedings. Considering that the case had already been dragging on a lethargic course, it behooved the trial court to prevent any further dilatory maneuvers on the part of the defense counsel. Accordingly, it was proper for the trial court to appoint counsel de oficio to represent appellants during the remaining phases of the proceedings. People v. Larrafiaga, et al., G.R. Nos. 138874-75, February 3, 2004. Q. In times of emergency, may a person be denied the right to confer with counsel? A. No. Diokno v. Enrile, L-36315, December 19,1981. Q. Convicted of rape, accused sought to withdraw his appeal to the Supreme Court on the ground that he could not afford counsel. Should he be allowed? A. No. He should be given counsel de officio instead. People v. Rio, G.R. No. 90294, September 24,1991. Q. The accused contends that the judge's appointment of a counsel de oficio deprives him of his constitutional right to be defended by counsel of his own choice. Decide. A. The 'preference in the choice of counsel' pertains more aptly and specifically to a person under investigation [Art. Ill, §12(1)1 rather than one who is the accused in a criminal prosecution [Art. Ill, §14(2)]. Amion v. Judge Chiongson, A.M. No. RTJ-97-1371, January 22,1999. Right to be informed Q. What is the purpose and scope of the right to be informed? A. The object of the written accusation is — first, to furnish the accused with such a description of the charge against him as will enable him to make his defense; and second, to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and third, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. In order that this requirement may be satisfied, facts must be stated, not conclusions of law. Eveiy crime is made up of certain acts and intent; these must be set forth in the complaint with reasonable particularity of time, place, names (plaintiff and defendant), and circumstances. In short, the complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime charged. U.S. v. Karelsen, 3 Phil. 223 (1904). 136 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Q. What must a criminal information contain in order to comply with the constitutional right of the accused to be informed of the nature and cause of the accusation against him? A. According to §§6 and 8 of Rule 110 of the Rules of Court, it must state the following: (1) the name of the accused; (2) the designation given to the offense by the statute; (3) a statement of the acts or omissions so complained of as constituting the offense; (4) the name of the offended party; (5) the approximate time and fate of the commission of the offense; and (6) the place where the offense had been committed. People v. Quit long, G.R. No. 121562, July 10,1998, 292 SCRA 360. Q. Charged under Arts. 293,294,296, RPC, may the accused be convicted under Art. 335? A. Yes, provided that the information alleged facts under Art. 335. "The real question is not did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information in the manner therein set forth. If he did, it is of no consequence to him, either as a matter of procedure or of substantive right, how the law denominates the crime which those acts constitute." People v. Labado, 98 SCRA 730, 747 (L-38548, July 24,1980), citing IV Moran. Q. Two informations each charge R with only one offense of rape. However, the evidence presented during trial established that R raped G on six separate occasions. May R be convicted of six counts of rape? A. No. In view of the right to be informed of the accusation against him, R "cannot be held liable for more than what he was charged with." People v. Ranido, G.R. No. 116450-51, March 31,1998, 288 SCRA 369. Q. The Information charged the accused with statutory rape , Emitted "before and until October 15, 1994...several times." The nKTC convicted him of rape committed in 1993. Was his right to be informed violated? A. No. The information need not allege the precise time of the commission of an offense, unless time is an essential element of the crime charged. The date is not an essential element of rape, its gravamen is carnal knowledge of a woman. "Indeed, the determinative factor in the resolution of the question involving a variance between allegation and proof in respect of the date of the crime is the element of surprise on the part of the accused and his corollary inability to defend himself properly. The records of this case belie appellant's claim of surprise." People v. Bugayong, G.R. No. 126518, December 2, 1998. .21 ART. IH - BILL OF RIGHTS 137 Q. Accused was convicted by the RTC of consummated rape based on the complaint filed against him specifically alleging that he raped the victim on April 25, 1991. However, the victim's testimony during cross examination show that the accused succeeded in raping her in the past, but not on April 25,1991. Was the RTC correct? A. No. aDue process demands that the accused in a criminal case should be informed of the nature of the offense with which he is charged before he is put on trial — an accused cannot be convicted of rape where the evidence shows that the rape was committed on some other date different from the date indicated in the information.'' But, accused is guilty of attempted rape. People v. Cruz, G.R. No. 116728, July 17,1996, 259 SCRA 109. Q. Is the precise time of rape essential for the validity of an information? A. No. The time of occurrence is not an essential element of rape. Its precise date and hour need not be alleged in the complaint or information. Section 11 of Rule 110 of the Rules of Court provides. The Information in this case alleged that the crime was committed "sometime in March 1998" which, according to private complainant, was more or less at the closing of the school year. Being reasonably definite and certain, this approximation sufficiently meets the requirement of the law. After all, Section 6 of Rule 110 of the Rules of Court merely requires that the information must state, among others, the approximate time of the commission of the offense. People v. Cachapero, G.R. No. 153008, May 20, 2004; People v. Razonable, G.R. Nos. 128085-87, April 12,2000. Q. Where the accused charged with rape, may he be convicted for statutory rape if relation to the victim is not included in the information? A. No. The Court has repeatedly held that qualifying circumstances must be alleged. Q. Petitioner has been charged with rebellion complexed with murder and the facts constituting the offense are set dpwn in the information. Petitioner contends that since rebellion may not be complexed with murder, he is charged with a non-existing crime. Is the contention tenable? A. No. Indeed rebellion may not be complexed with murder. But the facts alleged sire enough to constitute the crime of rebellion. The information therefore is valid. Enrile v. Judge Salazar, G.R. No. 92163, June 5,1990. Q. Accused is charged with two informations containing two sets of facts. May the facts in the two informations be combined to allow a conviction for a complex crime consisting of the allegations in the two informations? 138 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 A. No. Although trial of the two cases may be joint, there should be two separate verdicts for the two informations. To combine the two set of facts to form one complex crime would violate his right to be informed of the accusation against him. People v. Ramirez, G.R. No. 92167-68, July 14,1995. NOTE: Void for vagueness and strict scrutiny The doctrine of strict scrutiny is different from void for vagueness rule Strict scrutiny and overbreadth are analytical tools developed for testing "on their face" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that 'one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.' As has been pointed out, Vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant.m The rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes maybe hampered. No prosecution would be possible. A strong criticism against employing a facial challenge in the case of penal statutes, if the same is allowed, would effectively go against the grain of the doctrinal requirement of an existing and concrete controversy before judicial power may be appropriately exercised. A facial challenge against a penal statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third parties who are not before it. As I have said in my opposition to the allowance of a facial challenge to attack penal statutes, such a test will impair the State's ability to deal with crime. If warranted, there would be nothing that can hinder an accused from defeating the State's power to prosecute on a mere showing that, as applied to third parties, the penal statute is vague or overbroad, notwithstanding that the law is clear as applied to him. Spouses Romualdez v. Comelec, G.R. No. 167011, December 11,2008. Right to speedy trial Q. What is the meaning of "speedy trial?" A. The concept of speedy trial is necessarily relative and determination of whether the right has been violated must be based on the balancing of various factors. Length of delay is Sec. 17 ART. Ill - BILL OF RIGHTS 139 certainly a factor to consider, but other factors must also be considered such as the reason for the delay, the effort of the defendant to assert his right, and the prejudice caused the defendant. Conde v. Rivera, 59 Phil. 650 (1924), is the leading case on the subject of speedy trial. After reciting the pitiful plight of petitioner Conde, Justice Malcolm concluded: We lay down the legal proposition that, where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance for more than a year, the accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, by habeas corpus to obtain freedom. Id. at 652. Q. Information was filed and confinement began 27 May 196& Conviction came 2 April 1970 and appeal was perfected immediately. By 1977, there still was no decision on appeal because the stenographer could not be located. The Court of Appeals, by a series of 14 resolutions until July 1977 was doing what it could to have the stenographer arrested, but to no avail. Was there violation of the right to a speedy trial? A. No. Accused was already convicted. The fault was not of the Court of Appeals.' Therefore, delay was not so unreasonable as to outweigh the requirement of justice. Ventura v. People, L-46576, 6 November 1978. Q. Information for frustrated murder was filed 26 November 1963. Arraignment and plea of "Not guilty" was 22 December 1964. Provisional dismissal with consent of accused and counsel was granted 2 June 1965 because prosecution witnesses failed to appear. On 10 September 1969, after 4 years, 3 months, 8 days, information was refiled. Accused moved to quash on the basis of right to speedy trial. Decide. f A. Defense is not proper because (1) there was no delay in trial, there being no indictment as yet; and (2) the consent of the accused was a waiver of right not to be prosecuted for the same offense. Bermisa v. Court of Appeals, L-32506, July 30,1979. Q. Complainant was not charged until after a period of 1 year and 7 months of detention. He asks for release on habeas corpus on the ground of denial of the right to a speedy trial. Proper? A. No. One begins to count the delay of the trial only after the filing of the information. Moreover, the delay contemplated by the Constitution is unreasonable delay. Martin v. General Fabian Ver, 140 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 G.R. No. 62810, July 25, 1983. (But note that the new Constitution guarantees not just "speedy trial" but "speedy disposition of cases," a broader concept than "speedy.") Q. On repeated motions of the accused the reinvestigation and arraignment were delayed for a long time. After arraignment, accused again asked for postponement of the trial. On one trial date, the prosecution was absent. Accused took the opportunity to ask for dismissal of the case on the ground of denial of the right to a speedy trial. The judge acceded and dismissed the case. Does the dismissal bar reinstatement of the case? A. No. The dismissal on the ground of denial of the right to a speedy trial constituted abuse of discretion and was therefore invalid. People v. Jardin, G.R. No. 33037-42, August 17,1983. Q. What is the remedy for violation of the right to speedy trial? A. The accused is entitled to dismissal of the case, and, if he is under detention, to release by habeas corpus. Moreover, dismissal for violation of the right to speedy trial is equivalent to acquittal and is a bar to another prosecution for the same offense. Right to an impartial trial Q. Give an example of a judge who lacks impartiality. A. The application of the right to criminal prosecution was recently emphasized in Mateo Jr. v. Villaluz, 50 SCRA 18 (1972). One of the accused in the case had made an extrajudicial statement, which he subsequently subscribed before the judge, implicating his co-accused. Later, however, the same accused repudiated his statement claiming that he had made it as a result of a threat by a government agent. The co-accused then sought the disqualification of the judge claiming that the 'jfepudiation of the statement would not sit well with the judge before whom it had been subscribed. The Court, noting "the imperative character of the safeguard of due process connoting, at the very least, an impartial tribunal," disqualified the judge. Q. Petitioner accused had been convicted of arson by respondent judge who had attributed to the accused the desire to destroy evidence of altercation as the motive for arson. The same judge is now trying the accused for the same malversation. Should the judge disqualify himself? A Yes. Ignacio v. Villaluz, 90 SCRA 16 (L-37527, May 5, 1979). Sec. 17 ART. Ill - BILL OF RIGHTS 141 Q. In his decision of conviction, the trial judge expressed his indignation and revulsion at the monstrosity of the offense committed. Accused claimed that the language of the decision manifested prejudice and bias on the part of the judge. Decide. A. Standing alone, such statements of the judge do not prove bias in the conduct of the trial. In the absence of evidence that in fact bias characterized the conduct of the trial, the claim of partiality on the part of the judge cannot stand. People v. Regala and Flores, L-23693, April 27,1982. Q. Where a judge conducted preliminary investigation and made a finding of probable cause, must he for that reason be disqualified from trying the case? A. No, in the absence of evidence of partiality. People v. Sendaydiego, L-33252,33254,20 January 1978 (81 SCRA 120). Q. Appellant contends that the lack of impartiality of the judge was shown by the fact that he intervened in the cross- examination. Decide. A. "We have had occasion to hold that it is not only the right but oft-times the duty of a trial judge to examine witnesses when it appears necessary for the elucidation of the record. Under the system of legal procedure in vogue in this jurisdiction, where the trial court is judge of both the law and the facts, it is oft-times expedient or necessary in the due and faithful administration of justice for the presiding judge... to reexamine a witness in order that his judgment when rendered may rest upon a full and clear understanding of the facts." People v. Manalo, 148 SCRA 98,104-105 (1987), quoting U.S. vs. Lim Tiu, 31 Phil. 504, 506 (1915). Right to a public trial Q. When is a trial "public?" A. It is public when attendance is open to all irrespective of relationship to defendants. However, when the evidence to be presented may be characterized as "offensive to decency or public morals," the proceeding may be limited to Mends, relatives, and counsel. Garcia v. Domingo, L-30104, July 25, 1973. Q. What is the purpose of the guarantee of a public trial? A. The purpose of this guarantee is to serve "as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject 142 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power." Garcia v. Domingo, supra. Q. On mandatory review of a death sentence, the defense is raised (for the first time) that the right to a public trial was denied because arraignment and hearing were not in court but in the Bilibid Prison. This was done for security reasons. Is the defense valid? A. No. (1) The public was not excluded; (2) the accused was not prejudiced; (3) the accused did not object during trial. People v. Tampus, L-44690, March 28,1980. Right to meet witness face to face Q. What is the purpose of the right of confrontation? A. The right has a two-fold purpose: (1) primarily, to afford the accused an opportunity to test the testimony of the witness by cross-examination, and (2) secondarily, to allow the judge to observe the deportation of the witness. Q. A witness in a criminal prosecution testified at the preliminary investigation and was extensively cross-examined by the defense. When trial came, the witness could not be found in spite of the combined efforts of national and local law enforcement agencies. May the transcripts of the witness' testimony at the preliminary investigation be admitted in evidence? A. Yes , since admission will be for the same criminal case and extensive opportunity for cross-examination was already given, and the witness is not merely refusing to testify but is actually missing. People v. Villaluz, G.R. No. 33459, October 20,1983. Q. May extrajudicial statements of an accused implicating another be used against the latter even if not repeated in open court? A. No, because that would violate the right of confrontation. People v. de la Cruz, G.R. No. 33030, August 25,1983. Q. May an affidavit executed by a witness be admitted in evidence even if the witness is not produced in court? A. No, because that would violate the right of confrontation. People v. Ramos, G.R. No. 59318, May 16,1983. Q. What are the principal exceptions to the right of confrontation? A. (1) The admissibility of "dying declarations." (2) Trial in absentia under Section 14(2). .21 ART. IH - BILL OF RIGHTS 143 Q. Testimony of witnesses at the preliminary investigation was made part of the evidence of the prosecution. This testimony had been made in the presence of accused and counsel and was admitted subject to the right of defense to recall witnesses at trial for cross- examination, which defense did. Was there violation of right of confrontation? A. No. People v. Liwanag (Linda Bie), L-27683, 19 October 1976. Q. In a prosecution for parricide, after a principal witness finished his direct testimony, the defense immediately proceeded with the cross-examination. Due to lack of material time, however, the cross-examination was not finished and a date was set for continuing the cross-examination. Before the appointed date, however, the witness was shot dead by police officers while attempting to escape from prison. On motion of the defense, the trial judge excluded the entire testimony of the witness. Was the exclusion proper? A. Failure to complete the cross-examination was the fault neither of the defense nor of the prosecution; not of the defense, because he did proceed with the cross-examination to the extent that there was time; not to the prosecution, because it was not the state's fault that the witness should die. In such a situation, the rule is that so much of the testimony as has already been covered by cross- examination should be admissible in evidence. People v. Seneris, 99 SCRA 92 (L-48883, August 6,1980). Q. Where after repeated subpoenas (but not personally served) a witness in a criminal case fails to appear, may his testimony at preliminary investigation be admitted instead if such testimony was made in the presence of accused and subjected to cross-examination? A. Not under the circumstances. Exceptions found in Section 47, Rule 130 must be strictly construed because of the Bill of Rights provision. Here, there was no showing that if was impossible to produce the witness. Toledo, Jr. v. People and Judge Kapunan, Jr., L-36603, 30 September 1978 (also Tan v. Court of Appeals, L-22793, May 26,1967, 20 SCRA 54). Q. Is the right of confrontation available in preliminary investigation? A. No. It is a right available during trial which begins only upon arraignment. Dequito v. Arellano, 81 Phil. 128 (1948). NOTE: "From Section 5 of Rule 112 it is clear that unlike in the preliminary investigation proper, an accused is not entitled as a matter of right to be present during the preliminary examination nor to cross-examine the witnesses presented against him before 144 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 his arrest, the purpose of said examination being merely determine whether or not there is sufficient reason to issue a warrant of arrest. (The provision) commanding the determination of probable cause prior to the issuance of a warrant of arrest, requires no notice to an accused. A preliminary examination is generally a proceeding ex parte in which the person charged has no right to participate or to be present." Marinas v. Siochi, 104 SCRA 423, 437 (L-25707 & 25753-4, May 14,1981). Q. Must an informant who led the police to the arrest of the accused be presented for cross examination? . ,-n n A. No. There is no right of confrontation against informants who are not witnesses. Compulsory process Q. Compare the right to compulsory process in the 1935 Constitution with that in the 1973 and 1987 versions. A. The 1935 version speaks of the right to compulsory process "to secure the attendance of witnesses in his behalf" whereas the 1973 and 1987 versions add the right "to have compulsory process to secure... the production of evidence in his behalf." Q. Relying on the new provision of the 1973 Constitution which grants the right to have compulsory process to secure the production of evidence, petitioners asked the lower court for leave to serve written interrogatories on the physician who had attended to their wounds but who had already moved to the United States. Denied this privilege by the lower court, they filed a petition for certiorari to reverse the lower court's decision. A. Since this is a certiorari petition, the availability of the remedy must be premised on a showing of arbitrary, capricious, and ' Whimsical exercise power. This is not evident. The fact of their having been treated by a doctor can be testified to by other witnesses; the medical certificate as to the alleged wounds could be produced to show maltreatment; the length of stay in the hospital can be verified from records. "In the light of what has been stated, it becomes obvious why as ..of now, there is no need to make a definite pronouncement on the scope of the expanded concept of the constitutional right to secure not only the attendance of witnesses but also the production of evidence." Fajardo v. Garcia, 98 SCRA 514,520 (L-38675, July 2,1980). Q. The accused wanted X to testify on his behalf and a subpoena was issued for this purpose. Instead of taking effective steps, Sec. 17 145 ART. Ill - BILL OF RIGHTS however, to have X brought to court, the judge gave the responsibility for X's attendance to the defense, expressly stating that if the defense was not able to bring X to the court, X's testimony would be dispensed with. Was this proper? A. Considering that this case involved a capital offense, the court acted precipitously in not having the witness brought to court, by ordering her arrest if necessary. People v. Bardaje, 99 SCRA 388, 402-4 (L-29271, August 29, 1980). (NOTE: Should the result have been different if this had not been a capital case?) NOTE: In Webb v. de Leon, G.R. No. 121234, August 23,1995, the Court ruled that, since a preliminary investigation can result in arrest and therefore in a deprivation of liberty, the accused should not be denied access to evidence favorable to him, in this case an earlier version of an affidavit made by a witness for the prosecution. Waiver of rights Q. What is the presumption in the matter of waiver of a constitutional right? A. "Whenever a protection given by the Constitution is waived by the person entitled to that protection, the presumption is always against the waiver. Consequently, the prosecution must prove with strongly convincing evidence to the satisfaction of this Court that indeed the accused willingly and voluntarily submitted his confession and knowingly and deliberately manifested that he was not interested in having a lawyer assist him during the taking of that confession." People v. Jara, 144 SCRA 516,531 (1986). SEC. 15. THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS SHALL NOT BE SUSPENDED EXCEPT IN CASES OF INVASION OR REBELLION WHEN THE PUBLIC SAFETY REQUIRES IT. "J Q. Define a writ of habeas corpus. A. It is defined as a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his caption and detention, to do, submit to, and receive whatever the court or judge awarding the writ shall consider in that behalf. (Hence, an essential requisite for the availability of the writ is actual deprivation of personal liberty). 146 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 Q. What is the "privilege of the writ of habeas corpus?" A. It is the right to have an immediate determination of the legality of the deprivation of physical liberty. Q. What may be suspended, the writ or the privilege of the writ? A. The writ is never suspended. It always issues as a matter of course. What is suspended is the privilege of the writ, i.e., once the officer making the return shows to the court that the person detained is being detained for an offense covered by the suspension, the court may not enquire any further. Q. Who may suspend the privilege? A. The President. Q. When may the privilege be suspended? A . " . . . in cases of invasion or rebellion when the public safety requires it." Article III, Section 15. Hence, for the validity of the suspension, two requisites must concur: (1) the existence of actual invasion or rebellion; (2) public safety requires the suspension. The new Constitution has removed "insurrection" and "imminent danger" of invasion, insurrection, or rebellion as grounds for the suspension. Q. What are the limitations on the power to suspend the privilege? A. See Article VII, Section 18. Q. to bail? Does the suspension of the privilege also suspend the right JV qs A No. Art. Ill, Sect. 13. Q. Released temporarily, petitioner was nevertheless subjected to certain conditions limiting his movements. Is habeas corpus still a proper remedy? A Yes. "A release that renders a petition for a writ of habeas corpus moot and academic must be one which is free from involuntary restraints." Moncupa v. Enrile, 141 SCRA 233,238 (1986). Q. (1) Respondents' defense in a petition for habeas corpus is that they released the detainees for whom the petition was filed. However, the allegation of release is disputed by petitioners, and it is not denied that the detainees have not been seen or heard from Sec. 17 ART. Ill - BILL OF RIGHTS 147 since their supposed release. Do petitioners have the burden in law of proving that detainees are still detained by respondents or does the burden shift to respondents of proving that they did release the detainees? (2) If respondents have the burden of proving, have they discharged that burden in this case? (3) If respondents have not satisfied that burden, what relief may the Court grant petitioners? A. (1) Where there are grounds for grave doubts about the alleged release, particularly where the standard and prescribed procedure in effecting release has not been followed, the burden of proof falls on the respondents. Release is an affirmative defense, like self-defense, and each party must prove his affirmative allegation. (2) The evidence needs further study. The Court is not a trier of facts. (3) The case must be referred to the Commission on Human Rights. Dizon v. Eduardo, 158 SCRA 470 (1988). SEC. 16. ALL PERSONS SHALL HAVE THE RIGHT TO A SPEEDY DISPOSITION OF THEIR CASES BEFORE ALL JUDICIAL, QUASI-JUDICIAL, OR ADMINISTRATIVE BODIES. Q. Compare the right guaranteed by this provision with the right to speedy trial in section 14. A. Speedy trial in section 14 covers only the trial phase of criminal cases, whereas section 16 covers all phases of any judicial, quasi-judicial or administrative proceedings. Q. Explain the concept of "speedy disposition of cases." A. The concept of "speedy disposition of cases," like "speedy trial," is a relative term and must necessarily be a flexible concept. In the determination of whether or not the right has been violated, the factors that may be considered and balanced are length of delay, reason for the delay, assertion of the right or failure to assert it, and prejudice caused by the delay. Caballero v. Alfonso, Jr., 153 SCRA 153 (1987). Q. What remedy does a person have if there has been unreasonable delay in the resolution of a case? A. Dismissal through mandamus. Roque v. Ombudsman, G.R. No. 129978, May 12,1999. NOTE: In Carillo, et al. v. Ombudsman, 148 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 G.R. No. 109271, March 14, 2000, the Court recognized that "the ever increasing caseload of courts has affected the speedy disposition of cases pending before the Sandiganbayan." SEC. 17. No PERSON SHALL BE COMPELLED TO BE A WITNESS AGAINST HIMSELF. Q. What is the purpose of the guarantee against self-incrimination? A. It was established on the grounds of public policy and humanity: Of policy, because, if the party were required to testify, it would place the witness under the strongest temptation to commit peijuiy; and of humanity, because it would prevent the extorting of confession by duress. U.S. v. Navarro, 3 Phil. 143 (1904). Q. When is a question incriminating? A. Chief Justice Marshall explained that usually a crime or a criminal act may contain two or more elements and that a question would have a tendency to incriminate, even if it tends to elicit only one of said elements. The right thus, includes a right to refuse to testify to a fact which would be a necessary link in a chain of evidence to prove the commission of a crime by a witness. Isabela Sugar Co. v. Macadaeg, 98 Phil. 995 (1953); Fernando v. Maglanoc, 95 Phil. 431 (1954). Q. Is subjection to physical examination covered by the self- incrimination clause? A. It was held early in Philippine jurisprudence that what is prohibited by the constitutional guarantee is the use of physical or moral compulsion to extort communication from ithe witness, not an inclusion of his body in evidence, when it may be material. Thus, substance emitting from the body of the defendant was received as evidence in a prosecution for acts of lasciviousness. U.S. v. Tan Teng, 23 Phil. 145, 150 (1912). Morphine forced out of the mouth of the accused was received. U.S. v. Ong Siu Hong, 36 Phil. 735 (1917). An order by the judge for the witness to put on a pair of pants for size was allowed. People v. Otadora, 86 Phil. 244 (1950). And since, according to the Court, the kernel of the privilege" was the prohibition of "testimonial compulsion," the Court was willing to compel a woman accused of adultery to submit to the indignity of being tested for pregnancy. Villaflor v. Summers, 41 Phil. 62, Sec. 17 ART. Ill - BILL OF RIGHTS 149 68 (1920). Similarly, the taking of pictures of an accused even without the assistance of counsel, being a purely mechanical act, is not a violation of his constitutional right against self- incrimination. People v. Gallarde, G.R. No. 133025, February 17, 2000. Q. Accused argues that the admission as evidence of the victim's wallet together with its contents, viz., the victim's residence certificate, ID card and bunch of keys, violate his right against self-incrimination. Decide. A. The right against self-incrimination applies only to testimonial compulsion. "It does not apply to the instant case where the evidence sought to be excluded is not an incriminating statement but an object evidence." People v. Malimit, G.R. No. 109775, November 14,1996, 264 SCRA 167,176. Q. May a person be compelled to produce a sample of his handwriting to be used as evidence in a prosecution against him? A. No. The Court said in Beltran v. Samson, 50 Phil. 570 (1929): . . . writing is something more than moving the body, or the hand, or the fingers; writing is not a purely mechanical act, because it requires the application of the intelligence and attention ... We say that, for the purpose of the constitutional privilege, there is a similarity between one who is compelled to produce a document, and one who is compelled to furnish a specimen of his handwriting, for in both cases, the witness is required to furnish evidence against himself. And we say that the present case is more serious . . . because here the witness is compelled to write and create, by means of the act of writing, evidence which does not exist. Q. After being arrested by NBI agents for pilferage of maiHiiatter in the post office, the petitioner and his companions'were asked to affix their signatures on the envelopes of the letters, which constitute the corpus delicti. Appealing his conviction of qualified theft by the Sandiganbayan, the petitioner invokes the Beltran v. Samson, 53 Phil. 570 (1929) ruling in arguing that the signing of his name was not a mere mechanical act but one which required the use of intelligence and therefore constitutes self-incrimination. Decide. A. "To be sure, the use of specimen handwriting in Beltran is different form the use of petitioner's signature in this case. 150 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 In that case, the purpose was to show that the specimen handwriting matched the handwriting in the document alleged to have been falsified and thereby show that the accused was the author of the crime (falsification) while in this case the purpose for securing the signature of petitioner on the envelopes was merely to authenticate the envelopes as the one seized from him and [his co-accused]." Marcelo v. Sandiganbayan (First Division.), G.R. No. 109242, January 26, 1999. (QUERY: But does not the signature signify owning to the possession of pilfered materials?) Q. May a person be compelled to produce private books and papers to be used against him? A. Compulsory production of private books and papers of the owner is compelling him to be a witness against himself. Boyd v. United States, 116 U.S. 616 (1886). Q. What "persons" are protected by the self-incrimination clause? A. Only natural persons. Thus, a corporation may be compelled to submit to the visitorial powers of the State even if this will result in disclosure of criminal acts of the corporation. Hale v. Henkel, 201 U.S. 43 (1906); Wilson v. United States, 221 U.S. 361 (1911). Q. May a corporate officer prevent the production of corporate papers on the ground that they may incriminate him personally? A. No. That would not be self-incrimination but incrimination by the corporation. Hale v. Henkel, supra. Q. Are all personal papers protected by the self-incrimination glause? sr* A. No. That the self-incrimination clause protects the private papers of a natural individual is not without exception. The case of Shapiro v. United States, 335 U.S. 1 (1948), illustrates this exception. The case arose out of a prosecution for violation of regulations made under the Emergency Price Control Act of 1942. When defendant's records, which he was required to keep by the Office of Price Administration, were ordered produced defendant claimed protection by the constitutional privilege. The High Tribunal ruled that "the privilege which exists as to private papers, cannot be maintained in relation to 'records required by law to be kept in order that there may be suitable information of transaction which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established.'" Id. at 33. Sec. 17 ART. Ill - BILL OF RIGHTS 166 Q. Can government registration requirements violate the self-incrimination clause? A. In more recent cases, the United States Supreme Court has struck down certain registration requirements that presented real and appreciable risks of self-incrimination. These involved statutes directed at inherently suspect groups in areas permeated by criminal statutes, a circumstance which laid the subjects open to real risk of self-incrimination. Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965) ("Communist") Marchetti v. United States, 390 U.S. 39 (1968) ("gamblers"); Grosso v. United States, 390 U.S. 62 (1968) ("gamblers"); Haynes v. United States, 390 U.S. 85 (1968) ("illegal firearms"); Leary v. United States, 395 U.S. 6 (1969) ("drugs"}. JBut see California v. Byers, 402 U.S. 424 (1971) ("hit-and-run statute"). Q. In what proceedings may the right against self-incrimination be asserted? A. In any judicial or administrative proceeding or in any official government enquiry. Q. At what stage of an enquiry may the right against self-incrim- ination be asserted? A. A person who is the accused in a criminal case may assert the right from the moment he is asked to testify, i.e., an accused has an absolute right to be silent; a person who is a witness but not the accused, may assert the right only when the incriminating question is asked. Q. Petitioner was a defendant in a civil case for the annulment of the provincial budget, the reimbursement of disbursements already made, and the payment of damages in the amount equivalent to the amount already disbursed. When petitioner was called by the plaintiff to be a witness in the annulment case, petitioner objected on the ground of self-incrimination. The judge, however, ruled that since the case was civil in character, the time to raise the right against self-incrimination was when the incriminating questions were asked and not before. Decide. A. This is a civil case; the petitioner must wait until the incriminating question is asked. Bagadiong v. Gonzales, 94 SCRA 906 (December 28,1979). Q. Is the right against self-incrimination of an "accused" available in administrative hearings? 152 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 A. Yes, if, because of the nature of the penally that may be imposed by the administrative body, the hearing partakes of the nature of a criminal proceeding. Cabal v. Kapunan, Jr., L-19052, December 29, 1962 ("forfeiture of property under Anti-Graft Law"); Pascual Jr. v. Board of Medical Examiners, L-25018, May 16,1969 ("revocation of license to practice medicine"). Q. May a government officer whose office is under investigation refuse to testify when cited as witness in connection with a factfinding investigation of anomalies in the City Government with the object of filing corresponding charges? A No, because the officer is not yet facing any administrative charge. Evangelista v. Jarencio, 68 SCRA 99 (November 29, 1975). (Dissent: Yes, because citing him as a witness under the circumstances is a mere transparent expedient to circumvent the constitutional inhibition.) SEC. 18. (1) No PERSON SHALL BE DETAINED SOLELY BY REASON OF HIS POLITICAL BELIEFS AND ASPIRATIONS. (2) NO INVOLUNTARY SERVITUDE IN ANY FORM SHALL EXIST EXCEPT AS A PUNISHMENT FOR A CRIME WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED. Q. May the State hold "political prisoners?" A. "No person shall be detained solely by reason of his political beliefs and aspirations." Q. What is involuntary servitude? A. It is every condition of enforced or compulsory service of one to another no matter under what form such servitude may be disguised. Rubi v. Provincial Board, 39 Phil. 660 (1919). Q. • What are some exceptions to the rule against involuntary servitude? A. (1) Involuntary servitude may be imposed as a punishment for a crime whereof the party shall have been duly ,. convicted. Art. Ill, Sec. 18(2). (2) In the interest of national defense all citizens may be compelled by law to render personal military or civil service. Art. II, Sec. 4. (3) A return to work order. "So imperative is the order in fact that it is not even considered violative of the right against Sec. 17 ART. Ill - BILL OF RIGHTS 153 involuntary servitude, as this Court held in Kaisahan ng Mga Manggagawa sa Kahoy v. Gotamco Sawmills [80 Phil. 521]. The worker can of course give up his work . . . if he does not want to obey the order...; but the order must be obeyed if he wants to retain his work even if his inclination is to strike." Sarmiento v. Tuico, 162SCRA 676,685 (1988). Q. May a person, after he has been separated from the office of court stenographer, be compelled to transcribe his court stenographic notes under pain of contempt without violating the prohibition' against involuntary servitude? A. Yes. Obiter dictum in Aclaracion v. Gatmaitan, 64 SCRA 131 (May 26,1975). SEC. 19. (1) EXCESSIVE FINES SHALL NOT BE IMPOSED, NOR CRUEL, DEGRADING OR INHUMAN PUNISHMENT INFLICTED. NEITHER SHALL DEATH PENALTY BE IMPOSED, UNLESS, FOR COMPELLING REASONS INVOLVING HEINOUS CRIMES, THE CONGRESS HEREAFTER PROVIDES FOR IT. ANY DEATH PENALTY ALREADY IMPOSED SHALL BE REDUCED TO RECLUSION PERPETUA. (2) THE EMPLOYMENT OF PHYSICAL, PSYCHOLOGICAL, OR DEGRADING PUNISHMENT AGAINST ANY PRISONER OR DETAINEE, OR THE USE OF SUBSTANDARD OR INADEQUATE PENAL FACILITIES UNDER SUBHUMAN CONDITIONS SHALL BE DEALT WITH BY LAW. Q. When is a penalty "cruel, degrading or inhuman?" A. It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. "The fact that the punishment authorized by the statute is severe does not make it cruel and unusual." Expressed in other terms, it has been held that to come under thS ban, the punishment must be "flagrantly and plainly oppressive," "wholly disproportionate to the nature of the offense as to shock the moral sense of the community," People v. Estoistaf 93 Phil. 647 (1953) or when they involve torture or lingering death. People v. Puda, 133 SCRA 1 (October 31,1984). The following may be used as guides for determining whether a punishment is "cruel and unusual:" (1) A punishment must not be so severe as to be degrading to the dignity of human beings. (2) It must not be applied arbitrarily. (3) It must not be unacceptable to contemporary society. (4) It must not be excessive, i.e., it 154 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 must serve a penal purpose more effectively than a less severe punishment would. Brennan concurring in Furman v. Georgia, 408 U.S. 238 (1972). NOTE The old Constitution used the expression "cruel and unusual." The new Constitution drops the word "unusual," in order to allow for development of penology, and uses instead "degrading and inhuman" in order to emphasize that what is at stake is the dignity of the person.) Q. Why did the new Constitution abolish the death penalty? A. SOT various reasons: (1) it inflicts traumatic pain not just on the convict but also on the family, even if the penalty is not carried out; (2) there is no convincing evidence that it acts effectively as a deterrent of serious crime; (3) penology favors reformative rather than vindictive penalties; (4) life is too precious a gift to be placed at the discretion of a human judge; (5) the law itself, by imposing so many safeguards before a death penalty is carried out, manifests a reluctance to impose the death penalty. Q. What happens to death penalty already imposed? A. It is reduced to reclusion perpetua. Q. Under Article 248 of the Revised Penal Code the penalty for murder was reclusion temporal in its mavimiim period to death. In effect this penalty consisted of three grades: (1) reclusion temporal in its maximum, (2) reclusion perpetua, (3) death. What is the effect of Section 19(1) on this? A. The effect is that the penalty is reduced to only two grades, 1 and 2. This conclusion is reached on the reasoning that the language of the provision does not abolish the death penalty but merely prohibits ,$he imposition of death. (This conclusion was first reached in People J$: Gavarra, 155 SCRA 327. The court however departed from this in People v. Masangkay, 155 SCRA 113 and People v. Atencio, 156 SCRA 242, and People v. Intino, G.R. No. 69934, September 26,1988, which divided the remaining two grades into three new grades.) People v. Munoz, G.R. No. 38968-70, February 9,1989; People v.dela Cruz, 216 SCRA 476 (1992). Q. Now that the Constitution has abolished the death penalty, may the legislature restore it in the future? A. Yes, if it finds "compelling reasons involving heinous crimes." Conversely, Congress may also abolish the death penalty even after it has reimposed it. Sec. 17 ART. Ill - BILL OF RIGHTS 155 Q. Is the power of Congress to re-impose the death penalty subsumed under its plenary legislative power? A. No, because "it is subject to a clear showing of 'compelling reasons involving heinous crimes."' People v. Echegaray, G.R. No. 117472, February 7,1997, 267 SCRA 682, 714. Q. What does the constitutional exercise of the Congress' limited power to re-impose the death penalty entail? A. It entails the following: "(1) that Congress define or describe what is meant by heinous crimes; (2) that Congress specify and penalize by death, only crimes that qualify as heinous in accordance with the definition or description set in the death penalty bill and/or designate crimes punishable by reclusion perpetua to death in which latter case, death can only be imposed upon the attendance of circumstances duly proven in court that characterize the crime to be heinous in accordance with the definition or description set in the death penalty bill; and (3) that Congress, in enacting this death penally bill be singularly motivated by 'compelling reasons involving heinous crimes.'" People v. Echegaray, G.R. No. 117472, February 7, 1997, 267 SCRA 682, 715. Q. What are "heinous crimes?" A. R.A. No. 7659 ("Death Penalty Law;" December 31, 1993) provides that crimes are heinous "for being grievous, odious, and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society." The Court finds this definition or descriptions "to be a sufficient criterion of what is to be considered a heinous crime." People v. Echegaray, G.R. No. 117472, February 7, 1997, 267 SCRA 682, 715. Q. In order for a death penalty bill to be valid must it positively be proved that death penalty is a true deterrent and require that death penalty be the last resort? A. No. "Nothingin [Article III, Section 19(1)] imposes a requirement that for a death penally bill to be valid, a positive manifestation in the form of higher incidence of crime should first be perceived and statistically proven following the suspension of the death 156 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 penalty. Neither does the said provision require that the death penalty be resorted to as a last recourse when all other criminal reforms have failed to abate criminality in society." People v. Echegaray, G.R. No. 117472, February 7,1997, 267 SCRA 682, 725. Q. Are there instances when the death penalty will not be imposed? A. Yes. Art. 47 of the Revised Penal Code says: "The death penalty shall be imposed in all cases in which it must be imposed under existing laws, except when the guilty person is below eighteen (18) years of age at the time of the commission of the crime or is more than seventy (70) years of age or when upon appeal or automatic review of the case bv the Supreme Court, the required majority vote is not obtained for the imposition of the death penalty shall be reclusion perpetual People v. Roque, G.R. No. 130659 & 144002, August 14, 2002 and People v. Purazo, G.R. No. 133189, May 5, 2003 used this provision as occasion for reducing the penalty to reclusion perpetua. Q. When Congress characterizes a crime as "heinous" is such characterization conclusive on the court? A. In People v. Purazo, G.R. No. 133189, May 5, 2003, Justice Vitug answered this question thus: "Section 19 of the Philippine Bill of Rights implicitly empowers Congress to reinstate the death penalty but only if such re-imposition is a) for compelling reasons and b) confined to heinous crimes. Constitutionalists Fr. Joaquin Bernas asks: Should not congress instead preserve judicial discretion to all capital offenses, which, even in the words of this Court (in Echegaray), are equally heinous? Bernas advances that legislative facts are different from judicial facts, the former being of a more limited scope since the legislature, in considering all facts relevant to enacting a piece of legislation, cannot be expected to take full account of all possible situations. In contrast, a trial court judge must point to judicial facts which establish a link between the offense committed and the reality which the penal law envisions to be deserving of the supreme penalty. Senator Arturo Tolentino during the Senate deliberations for the enactment of Republic Act No. 7659, arguing for an optional rather than a mandatory death penalty, has indeed acknowledged that neither the legislative qualification or designation of the crime as "heinous" nor the Sec. 17 ART. Ill - BILL OF RIGHTS 157 imposition of the death penalty per se should be conclusive on the judiciary, both matters being not solely legislative but likewise judicial in concept and nature." It is thus, submitted that the mandatory character of the death penalty for heinous crimes prescribed and defined in Republic Act No. 7659 notwithstanding, the courts are not precluded, given mitigating factors or conditions duly established in evidence, (a) from declaring the crime charged to be, in fact, non-heinous in character, or (b) from concluding that no compelling reasons exist to warrant the imposition of the death penalty. Q. Is the death penalty "cruel and unusual?" A. The old (1973) Philippine Constitution, by recognizing the death penalty, in that it made the imposition of the death penalty automatically reviewable by the Supreme Court, Art. X, Section 5, implicitly admitted that per se it is not cruel and unusual. See People v. Villctnueva, 128 SCRA 488 (April 2, 1984). Similarly, the new Constitution, by allowing the possibility of its restoration, implicitly admits that it need not be cruel and inhuman. However, the circumstances under which a specific law may allow the death penalty may make it cruel and unusual under such law. See Furman v. Georgia, supra. Q. Is death by legal injection cruel and unusual punishment? A. No. It is well-settled in jurisprudence that the death penalty per se is not a cruel, degrading or inhuman punishment. Punishment is so if it involves torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life. People v. Mercado, G.R. No. 116239, November 29, 2000. Q. Does the death penalty violate international law under the International Covenant on Civil and Political Rights? A. Article 6 of the Covenant enshrines the individual's right to life. Nevertheless, Article 6(2) of the Covenant explicitly recognizes that capital punishment is an allowable limitation on the right to life, subject to the limitation that it be imposed for the 158 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 'most serious crimes.' Pursuant to Article 28 of the Covenant, a Human Rights Committee was established and under Article 40 of the Covenant, States Parties to the Covenant are required to submit an initial report to the Committee on the measures they have adopted which give effect to the rights recognized within the Covenant and on the progress made on the enjoyment of those rights within one year of its entry into force for the State Party concerned and thereafter, after five years. On July 27,1982, the Human Rights Committee issued General Comment No. 6 interpreting Article 6 of the Covenant stating that '(while) it follows from Article 6(2) to (6) that State parties are not obliged to abolish the death penalty totally, they are obliged to limit its use and, in particular, to abolish it for other than the 'most serious crimes.' The Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the Abolition of the Death Penalty was adopted by the General Assembly on December 15,1989. The Philippines neither signed nor ratified said document. Evidently, petitioner's assertion of our obligation under the Second Optional Protocol is misplaced." People v. Mercado, G.R. No. 116239, November 29,2000. Q. Does the death penalty violate equal protection since it is most often used against the poor? A. This statement is too sweeping to merit further serious consideration. Anyone, regardless of his economic status in life, may commit a crime. While there may be perceived imbalances in the imposition of penalties, there are adequate safeguards in the Constitution, the law, and procedural rules to ensure due process and equal protection of the law. People v. Mercado, G.R. No. 116239, November 29, 2000. Q. What is the duty of the judge when an accused pleads guilty to a capital offense? A. He must not immediately impose the penalty but must first look into the evidence to see if death is the proper penalty. People v. Vinuya, G.R. No. 125925, January 28,1999. NOTE: Review of death sentences first by the Court of Appeals and next by the Supreme Court is now automatic and mandatory. It may not be waived by the court or by the Sec. 17 ART. Ill - BILL OF RIGHTS 159 accused. People v. Lagua, G.R. No. 170565, January 31, 2006; People v. Flores, G.R. No. 170565, January 31, 2006. (But review of reclusion perpetua may be waived.) Rep. Act No. 9346 now disallows imposition of the death penalty. Q. When is a fine "excessive?" A. It is excessive when under any circumstance it is disproportionate to the offense. Q. Petitioner claims that under his conviction on twelve counts he would be made to serve 92 years, a cruel and unusual punishment. Decide. A. Nonsense. By Article 70(4) R.P.C., petitioner would not be made to serve more than three times the most severe penalty. Veniegas v. People, G.R. No. 57601-06, July 30,1982. Q. The Philippine Medical Association challenges the penalties under the Generics Act ranging from a reprimand to a fine of not less than P10,000 and the suspension of the physician's license to practice his profession for one year. It is alleged that this violates the prohibition against cruel and unusual punishments. A. Penalties are required because laws must have teeth. The penalties are no more objectionable than those that are imposed for instance on misbehaving lawyers. Del Rosario v. Bengzon, G.R. No. 88265, December 21,1989. Q. If a court finds a punishment attached to a law cruel, degrading or inhuman, or a fine excessive, may a person be convicted under such law? A. No. Without a valid penalty, the law is not a penal law. SEC. 20. No PERSON SHALL BE IMPRISONED FOR DEBT OR NONPAYMENT OF A POLL TAX. Q. Explain the prohibition against imprisonment for debt. A. The cases touching on the subject reveal that the constitutional prohibition, stated in full, means this: No person may be imprisoned for debt in virtue of an order in a civil proceeding, either as a substitute for satisfaction of a debt or as a means of compelling satisfaction; but a person may be imprisoned as a penalty for a crime arising from a contractual debt and imposed in a proper criminal proceeding. 160 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Q. What is the meaning of "debt" in the provision? A. It means any liability to pay money growing out of a contract, express or implied. Q. May a person be imprisoned for fraudulent debt? A. Yes, but only if (1) the fraudulent debt constitutes a crime {e.g., estafa) and (2) the debtor has been duly convicted. Otherwise, no. Q. Does the conversion of the monetary indemnify, imposed as part of a criminal penally, into subsidiary imprisonment violate the prohibition of imprisonment for debt? A. No. The obligation to indemnify was not ex contractu but ex delicto. Alejo v. Judge Inserto, A.M. 1098 CFI, May 31,1976. Q. B.P. 22, the anti-bouncing check law, is challenged on the ground that it violates the prohibition of imprisonment for nonpayment of contract. Decide. A. The gravamen of the offense is not the non-payment of a debt but the putting into circulation of a worthless check. Lozano v. Martinez, 146 SCRA 323 (1986). Q. Section 13 of P.D. No. 115 says: "The failure of an entrustee to turn over the proceeds of the sale of the goods, documents or instruments covered by a trust receipt to the extent of the amount owing to the entruster or as appears in the trust receipt or to return said goods, documents or instruments if they were not sold or disposed of in accordance with the terms of the trust receipt shall constitute the crime of estafa ..Does this violate the prohibition of imprisonment for debt? A. With the promulgation of P.D. 115 there is no more doubt that such violation constitutes estafa. Thus, imprisonment here is not for non-payment of contractual obligation but for the criminal act. Lee v. Judge Rodil, G.R. No. 80544, July 5,1989. Q. What is a "poll tax?" A. A poll tax can be understood as the cedula tax or residence tax. The Constitution does not prohibit the cedula tax but it prohibits imprisonment for non-payment of the cedula or residence tax. A poll tax may also be understood as a tax the payment of which is made a requirement for the exercise of the right of Sec. 17 ART. Ill - BILL OF RIGHTS 161 suffrage. The imposition of a poll tax in this sense is prohibited by Article V, Section 1, which disallows "literacy, property, or other substantive requirementf for the exercise of suffrage. SEC. 21. No PERSON SHALL BE TWICE PUT IN JEOPARDY OF PUNISHMENT FOR THE SAME OFFENSE. IF AN ACT IS PUNISHED BY A LAW AND AN ORDINANCE, CONVICTION OR ACQUITTAL UNDER EITHER SHALL CONSTITUTE A BAR TO ANOTHER PROSECUTION FOR THE SAME ACT. Q. What are the requisites for a valid defense of double jeopardy? A. Under present law, to raise the defense of double or second jeopardy, three requisites must be shown: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have terminated; (3) the second jeopardy must be for the same offense as that in the first. These three requisites provide a convenient division for the discussion of the subject. Q. When does jeopardy of punishment attach? A. Jeopardy attaches (a) upon a good indictment, (b) before a competent court, (c) after arraignment, (d) after plea. People v. Ylagan, 58 Phil. 851 (1933). Attachment of jeopardy Q. Accused filed a written manifestation and plea of not guilty while the Military Commission was not in session. Did this place him in jeopardy of conviction? A. No. There was no valid plea because the Commission was not in session. Jimenez v. Military Commission No. 34,102 SCRA 39 (L-54577, January 15,1981). Q. A, after having pleaded guilty, is allowed to present evidence in mitigation. The evidence he presents, however, amounts to complete self-defense and the court acquits him. Prosecuted a second time for the same offense, he pleads double jeopardy. Decide. A. The defense of second jeopardy is not proper because the presentation of evidence of complete self-defense amounted to SL withdrawal of his original plea. Audi since no new plea was entered, there was no first jeopardy. People v. Balisican, August 31,1966. 162 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 Q. Upon arraignment, accused pleaded not guilty and immediately moved to quash the complaint on the ground that it charged no offense. Motion was granted, and correctly. Subsequently, an amended complaint was filed. Is there double jeopardy? A. No, because the defective complaint did not place the accused in first jeopardy, People v. Judge Consulta, L-41251, March 31, 1976. Q. In the above case, suppose that the information was in fact valid, could the case be refiled? A. Yes, because the motion to quash on the ground alleged was a waiver of the right against double jeopardy. Id. Q. A, accused before a municipal court, moves for dismissal on the ground that the offense is cognizable only by the CFI. Motion is granted and, as a matter of fact, the offense is cognizable only by the CFI. When the case is filed with the CFI, accused pleads second jeopardy. Decide. A. The defense is not proper. Since the first court had no jurisdiction, the accused was not in first jeopardy under the municipal court. Q. A, accused before a municipal court, moves for dismissal on the ground that the offense is cognizable only by the CFI. Motion is granted and, as a matter of fact, the offense is cognizable only by the CFI. When the case is filed with the CFI, accused pleads second jeopardy. Decide. A. The defense is not proper. Since the first court had no jurisdiction, the accused was not in first jeopardy under the municipal court. Q. In a petition for early arraignment, for the purpose of being able to leave for work outside the country, the accused waived his right to the defense of double jeopardy should the charge against him be amended from homicide to murder. The petition for early arraignment was granted and, upon arraignment, the accused pleaded not guilty to the charge of homicide. Subsequently the charge was amended to murder. Upon his return, accused pleaded double jeopardy claiming that the original charge of homicide was dismissed without his consent when the new information for murder was filed. Is there double jeopardy? A. When accused waived the defense of double jeopardy, he had not yet been arraigned. Hence, jeopardy had not yet attached Sec. 17 ART. Ill - BILL OF RIGHTS 163 and consequently he had nothing to waive. The waiver had no legal effect. Hence, the defense of double jeopardy was not proper. But since accused pleaded only to the charge of homicide and was never arraigned for murder, he can only be convicted for homicide. People v. Ibasan, Sr., 129 SCRA 695 (June 22,1984). Q. Is double jeopardy a proper defense where the accused had been acquitted without trial but only after pre-trial where the prosecution raised objections? A. No. Jeopardy did not attach. The prosecution was denied a day in court. Hence, the acquittal was rendered without jurisdiction. People v. Judge Santiago, G.R. No. 80778, June 20,1989. Termination of jeopardy Q. How is first jeopardy "terminated" in a manner that satisfies the second element of the defense of double jeopardy? A. (1) By acquittal; (2) by final conviction; (3) by dismissal without express consent of the accused; (4) by "dismissal" on the merits. NOTE: "As a general rule, the dismissal or termination of the case after arraignment and plea of the defendant to a valid information shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or fhistration thereof, or for any offense which necessarily includes or is necessarily included in the complain or information (Section 9, Rule 113). However, an appeal by the prosecution from the order of dismissal (of the criminal case) by the trial court shall not constitute double jeopardy if (1) the dismissal is made upon motion, or with the express consent, of the defendant; (2) the dismissal is not an acquittal or based upon consideration of the evidence or of the merits of the case; and (3) the question to be passed upon by the appellate court is purely legal so that should the dismissal be found incorrect, the case would have to be remanded to the court of origin for further proceedings, to determine the guilt or innocence of the defendant." People v. City of Manila, 154 SCRA 175 (1987), reiterating People v. Desalisa, et al. 125 Phil 27 (1966); People v. Judge Villalon, G.R. No. 43659, December 21,1990. Q. A, is accused before a municipal court. After plea, the prosecution asks for dismissal on the ground that the municipal court has no jurisdiction. Accused opposes the motion but the judge dismisses the case for want of jurisdiction. It turns out, however, that the municipal court had jurisdiction. The case is 164 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 refiled with the municipal court and the accused pleads double jeopardy. Decide. A. The defense is proper because the dismissal was without the express consent of the accused. Q. A is accused before a CFI. After innumerable unreasonable postponements against the wishes of the accused, accused moves for dismissal for denial of the right to a speedy trial. Dismissal is granted. May the case be refiled? A. No. Dismissal for denial of the right to a speedy trial is a dismissal on the merits and amounts to an acquittal. Q. After several postponements because of the unavailability of witnesses, accused moved for the dismissal of the case on the ground of denial of speedy trial. After the judge verbally dismissed the case and proceeded to hear another case, the witness arrived. Upon explanation by the prosecution, the judge resumed hearing the verbally dismissed case. Double jeopardy? A. No. The verbal dismissal is not final until written and signed by the judge. Rivera, Jr. v. People, G.R. No. 93219, August 30, 1990. Q. There were delays in the trial which were beyond the control of both accused and prosecution. At a certain stage, the case was dismissed with the consent of the accused. Later the case was reinstated. Was there double jeopardy? A. No. As stated, first, the delays were not unreasonable; hence, there was no denial of the right to speedy trial. Second, the dismissal was with the consent of the accused. Hence, the reinstatement did not violate the right against double jeopardy. Almaria v. CA, G.R. No. 127772, March 22,2001. Q. Upon the instance of the accused, the case was dismissed on the ground of violation of the right to a speedy trial. Upon examination of the facts, however, the court found that the delays were justifiable and so the case was reinstated. Was there double jeopardy? A. No. The evidence shows that there was no denial of the right to a speedy trial and the dismissal was upon the instance of the accused. Almario v. Court of Appeals, G.R. No. 127772, March 22,2001. Sec. 17 ART. Ill - BILL OF RIGHTS 165 Q. After arraignment and a delay of more than four months, nothing was happening at the trial. Accused moved for dismissal on the ground of denial of the right to a speedy trial. A Justice of the Sandiganbayan dismissed the case orally but did not put the dismissal in writing. Accused pleaded double jeopardy when the case was restored. Decide. A. There were valid reasons for the delay. Moreover, an oral and unwritten dismissal is invalid. No double jeopardy. Jacob v. Sandiganbayan, G.R. No. 162206, November 17,2010. But the state is given by the Rules 60 inextendible days to file certiorari in order to avoid violation of speedy disposition. Labao v. Flores, et al, G.R. No. 187984, November 15, 2010. Q. Accused was charged before the municipal court for serious physical injuries. After trial, when both parties had rested their case, the court, instead of rendering a decision on the merits, dismissed the case "to give way to the filing of a complaint for frustrated murder* in the Court of First Instance. When the case reached the Court of First Instance, the CFI dismissed the case as being barred by the rules on double jeopardy in the Rules of Court for having been previously "dismissed or otherwise terminated without the express consent of the defendant." Was there double jeopardy? A. No. The dismissal contemplated by the Rules is one which finally terminates and definitely disposes of a case. Here the dismissal by the municipal court was precisely to give way to the filing of a proper complaint. Moreover, in dismissing the case instead of rendering a decision on the merits, as was his duty to do, the municipal judge committed grave abuse of discretion. Hence, his order of dismissal was invalid and did not terminate the case. People v. Mogol, 131 SCRA 296 (August 24,1984); but see the dissent of Makasiar, J. Q. When the prosecution moved for the dismissal of the case, the accused through counsel agreed explicitly. The judge dismissed the case. In the afternoon the accused had second thoughts and filed a manifestation objecting to the dismissal. The next day, the accused moved for the reconsideration of the dismissal but the motion was denied. When subsequently a new information was filed, the accused pleaded double jeopardy. Proper? A. No. The dismissal was not on the merits and was with the consent of the accused. People v. Pilpa, L-30250, September 22,1977 (78 SCRA 81). Q. Arraigned on 19 December 1977, petitioner pleaded not guilty. On the day of trial, 25 January 1978, the Fiscal asked for postponement to 22 February 1978 because of the absence of the accused. On 22 February 1978 the Fiscal asked for postponement 166 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 to 28 March 1978. On 28 March 1978, the Fiscal did not appear. A private prosecutor asked for postponement in order to give the Fiscal a chance to appear. When the motion was denied, the accused asked for dismissal of the case on the ground of denial of a speedy trial. The judge dismissed the case on such ground and on the same day. On 8 May 1978 the judge set aside his dismissal and set the trial for 5 June 1978. Accused filed a motion for reconsideration alleging that the prior dismissal was equivalent to acquittal and thus the reinstatement of the case amounted to second jeopardy for the same offense. Decide. A. The accused is correct. Salcedo v. Mendoza, 88 SCRA 811, (L-49375, February 28,1979). Q. Accused of grave coercion, the petitioner pleaded not guilty on January 23,1979. After a number of delays caused either by the complainant or the prosecution, trial was again set for August 16, 1979. Postponement again was requested because of alleged sickness of complainant. The defense opposed postponement invoking the right to a speedy trial. The judge "provisionally" dismissed the case because the case had "been dragging all along and the accused [had been] ready for the hearing." Later, the Fiscal moved to revive the case on the ground that the dismissal was with the conformity of the accused. The accused pleaded double jeopardy. Decide. A. The defense of double jeopardy is proper. A dismissal on the ground of denial of the right to a speedy trial amounts to an acquittal. The use of the word "provisional" does not change the legal effect of the dismissal. Esmena v. Pogoy, 102 SCRA 861, 866-7 (L-54110, February 20,1981), citing Esguerra v. De la Costa, 66 Phil. 134 and Gandicela v. Lutero, 88 Phil. 299. NOTE: Note, however, that when the dismissal of the case clearly constitutes abuse of discretion amounting to lack of jurisdiction, the dismissal, even if made on the merits, is invalid and is therefore no bar to a reinstatement of the case. People v. Pablo, 98 SCRA 301 (L-37271, June 25, 1980). Here the judge dismissed the case after arbitrarily denying prosecution's motion for continuance. Similarly, if the judgement of acquittal is void for having been given without jurisdiction, the judgment cannot be a basis for a plea of double jeopardy. People v. Court of Appeals, 101 SCRA 450,467 (L-54641, November 28,1980). Q. Accused was charged with estafa before a Military Commission. After the prosecution had presented evidence and on the day the accused was to present evidence, one of his co-accused presented a memorandum of the Secretary which had apparently been made so he could study the case. After study the Secretary of National Defense directing the withdrawal of the case from the .21 ART. IH - BILL OF RIGHTS 167 Military Commission pursuant to P.D. No. 39. The directive of the Secretary was apparently made so he could study the case. After the study the Secretary withdrew his previous order and directed the Commission to proceed with the case. Accused contended that the previous withdrawal amounted to termination of the case and hence the reinstatement of the case constituted double jeopardy. Decide. A. Under military law, a decision of a military tribunal, be it of acquittal or of conviction, or dismissal, is merely recommendatory and subject to review by the convening authority, the review boards, and the reviewing authority. A military commission acts merely as a commissioner who takes the evidence and reports thereon with his recommendation. Hence, in the instant case, the action of the Secretary was merely a continuation of the proceeding before the Commission and did not terminate the case. Flores v. Enrile, G.R. No. 38440, July 20,1982. Q. Where the City Fiscal has conducted a preliminary investigation and dismissed the case, may the city court conduct another preliminary investigation without violating the right against double jeopardy? A. Yes. An order of dismissal in a preliminary investigation does not in any way terminate a case. As long as the crime has not yet prescribed, the city court may conduct a preliminary investigation. Tandoc v. Judge, G.R. No. 59241-44, July 5,1989. Q. Can an order of dismissal of a criminal case upon motion of the accused after arraignment for the failure of the prosecution to appear on the first day of hearing be a bar to another prosecution for the same offense? A. Dismissal at the instance of the accused amounts to acquittal and therefore becomes a bar to subsequent prosecution in instances when the dismissal is premised on violation of the right of the accused to a speedy trial. In the instant case, the judge dismissed the case on the first date set for hearing. What he should have done was reset the case for another day. Under the circumstances therefore there is no bar to continuing the case. People v. Hon. Declaro, G.R. No. 64362, February 9,1989. Q. Where the accused was arraigned, pleaded not guilty, and was tried upon a valid and sufficient information but the case was dismissed by the trial court on the ground that the information was not sufficient and without the consent and not upon the motion of the accused, may the case be reinstated? A. Although the dismissal is a miscarriage of justice (because the information was valid), the case may not be reinstated. People v. Judge Laggui, G.R. No. 76262-63, March 16,1989. 168 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Waiver or estoppel Q. Upon motion of the defendant, the case was dismissed on the ground, alleged by the defense, that the prosecution had failed to prove territorial jurisdiction. When the prosecution appealed the dismissal, the defendant pleaded double jeopardy. Decide. A. Defendant's motion to dismiss for lack of jurisdiction constituted waiver of the defense of double jeopardy. People v. Salico, 84 Phil. 722 (1949). Q. A, prosecuted in a military court, assailed the jurisdiction of the court martial. His contention was sustained, and when the case was subsequently filed with a civil court he pleaded double jeopardy alleging that the military court had jurisdiction. Decide. A. Defendant is estopped from asserting the jurisdiction of the military court. Q. After a not guilty plea and before the start of the trial, the accused moved to dismiss the case on the ground that the facts alleged in the information did not constitute an offense. Dismissal was granted. The Supreme Court reversed. Upon reinstatement of the case, the accused pleaded double jeopardy. Decide. A No double jeopardy. The dismissal was not on the merits (because no evidence had yet been presented) and it was with the consent, upon the motion, of the accused. People v. Cuevo, 104 SCRA 312,320 (L-27607, May 7,1981). (NOTE: More properly, this is a case of estoppel. The accused claimed the information did not allege facts constituting an offense. Hence, he was saying he was not in jeopardy under such information.) Q. The accused was charged and duly arraigned for homicide with the CFI. Subsequently and for the same act he was charged with murder and arraigned before a Military Commission. He pleaded not guilty. Later, pleading double jeopardy, the accused sought to prohibit the Commission from trying his case. Proper? A No. Since neither case has as yet been terminated, the defense of double jeopardy is premature. Moreover, by pleading not guilty to the second charge instead of moving to quash, the accused waived the defense of double jeopardy. Silvestre v. Military Commission, G.R. No. 46366, March 8, 1978; Buscayno & Sison v. Military Commission, 109 SCRA 273 (1981). Q. After several postponements, some on motion of the accused others on that of the prosecution, the case, before trial could Sec. 17 ART. Ill - BILL OF RIGHTS 169 start, was provisionally dismissed by agreement of the parties. Seven years later, the case was refiled. The accused, pleading that the dismissal was on the ground of denial of the right to a speedy trial, claimed double jeopardy. Decide. A. By consenting to the provisional dismissal, the accused waived his right to the defense of double jeopardy. What he should have done was to ask for immediate trial and, if the prosecution could not proceed, ask for dismissal on the ground of denial of the right to speedy trial. Moreover, the delay of seven years was not a delay of the trial because the trial had not yet started. Andres v. Judge Cacdac, Jr., March 29,1982. Same offense Q. When is the second offense charged the same as the first offense? A- In order to determine whether the two charges are identical one test used is what is sometimes referred to as "the same evidence test:" Whether the evidence needed in the one case will support a conviction in the other. E.g., U.S. v. Tan Oco, 34 Phil. 772, 783 (1916). Commentators note that this test was found to be correct only in a general sense arid, hence, the Rules of Court have spelled it out more in detail in Section 9 of Rule 117. 4 MORAN, COMMENTS ON THE RULES OF COURT 213 (1963); FRANCISCO, THE REVISED RULES OF COURT: CRIMINAL PROCEDURE 563 (1963). The test now is whether one offense is identical with the other or whether it is an attempt or frustration of the other or whether one offense necessarily includes or is necessarily included in the other. What this test shows is that identity of offenses does not require one-to-one correspondence between the facts and law involved in the two charges. It is necessary, however, that one offense is completely included in the other. Thus, while physical injury is not identical with attempted homicide, for purposes of double jeopardy physical injury is "the same" as attempted homicide (which alleges inflicted injury) because physical injury is necessarily included in such attempted homicide. Q. X performs an act resulting in the complex crime of less serious physical injuries and assault upon a person in authority. He is prosecuted for less serious physical injuries, is convicted, and serves sentence. Subsequently he is charged with assault upon a person in authority. Double jeopardy? 170 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 A. Yes. The constitutional meaning of "the same offense" includes "any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information." Tacas v. People, L-37406, August 31,1976. Q. Accused is charged under RPC 189, (1) for selling pumps to which he had given the appearance of those of another's. Since there was no proof that he had manufactured the pumps himself, he was acquitted. However, he was ordered prosecuted under RPC 188, (2) for knowingly selling goods with fraudulent trademark. He pleaded double jeopardy. Decide. A. The second information is for a different offense for which he could not have been convicted under the first. Sy Y. Lim v. Court of Appeals and Judge Caguioa, March 30, 1982. (The main opinion by De Castro, J. is not a masterpiece of clarity. Read Aquino, J.'s opinion instead.) Q. Convicted of physical injuries through reckless imprudence, accused was subsequently charged with damage to property through the same act of reckless imprudence, both under Article 365, R.P.C. Double jeopardy? A. Yes. The essence of criminal negligence under Article 365 is the imprudent or negligent act. Hence, the second jeopardy is for the same offense. Buerano v. Court of Appeals, G.R. No. 30269, July 19,1982, citing People v. Buan, 22 SCRA 1383 (March 29, 1968). Q. To avail of the defense of double jeopardy must the second offense charged in every case be the same as the first offense? A. The second sentence of Section 22 says: "If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." Hence, in this case the offenses need not be the same, provided, however, that they flow from the same act. Yap v. Lutero, L-12669, April 30,1959. The situation is different when one act violates two different statutes or two different provisions of a statute. The rule in such a case is that if the one act results in two distinct offenses, prosecution under one is not a bar to prosecution under the other. The test "is not whether the defendant has already been tried for the same act, but whether the defendant Sec. 17 ART. Ill - BILL OF RIGHTS 171 has already been put in jeopardy for the same offense." People v. Cabrera, 43 Phil. 82, 97 (1922). Q. Following a vehicular collision in August 2004, petitioner Jason Ivler (petitioner) was charged before the Metropolitan Trial Court of Pasig City, Branch 71 (MeTC), with two separate offenses: (1) Reckless Imprudence Resulting in Slight Physical Injuries (Criminal Case No. 82367) for injuries sustained by respondent Evangeline L. Ponce (respondent Ponce); and (2) Reckless Imprudence Resulting in Homicide and Damage to Property (Criminal Case No. 82366) for the death of respondent Ponce's husband Nestor C. Ponce and damage to the spouses Ponce's vehicle. Petitioner posted bail for his temporary release in both cases. On 7 September 2004, petitioner pleaded guilty to the charge in Criminal Case No. 82367 and was meted out the penalty of public censure. Invoking this conviction, petitioner moved to quash the Information in Criminal Case No. 82366 for placing him in second jeopardy for the same offense/ Decide. A. The two charges against petitioner arose from Article 365 of the Penal Code. The doctrine that reckless imprudence under Article 365 is a single quasi-offense by itself and not merely a means to commit other crimes such that conviction or acquittal of such quasi-offense bars subsequent prosecution for the same quasi-offense, regardless of its various resulting acts, undergirded this Court's unbroken chain of jurisprudence on double jeopardy as applied to Article 365. The reason for this consistent stance of extending the constitutional protection under the Double Jeopardy Clause to quasi-offenses was best articulated by Mr. Justice J.B.L. Reyes in Buan, where, in barring a subsequent prosecution for "serious physical injuries and damage to property thru reckless imprudence" because of the accused's prior acquittal of "slight physical injuries thru reckless imprudence," with both charges grounded on the same act, the Court explained: "Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the 172 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and can not be split into different crimes and prosecutions." Ivler v. Judge San Pedro, G.R. No. 172716, November 17, 2010. Q. Prosecuted for unlawful installation of electrical wiring under an ordinance of Batangas City, accused was spared through dismissal for prescription. For the same act, accused was later prosecuted for theft of electricity under Article 308 of the Revised Penal Code. To the plea of double jeopardy the state answered that the second prosecution was not for the same offense. Decide. A. The second sentence of Section 21 does not require that the second prosecution be for the same offense. It is enough that it be for the same act. "The discussions during the 1934-1935 Constitutional Convention show that the second sentence was inserted precisely for the purpose of extending the constitutional protection against double jeopardy to a situation which would not otherwise be covered by the first sentence." (p.305) People v. Relova, 148 SCRA 292 (March 6,1987). This is a fully discussed decision which was based on Yap v. Lutero, 105 Phil. 1307 (1959) which was not reported in full. Q. For the same act of issuing three bouncing checks, accused was prosecuted first under Section 1 of B.P. Big. 22 and next under Article 315, par. 2(d) of the Revised Penal Code. He pleads double jeopardy. A. The two laws (not merely ordinance) punish two distinct offenses. The evidence required to prove one offense is not the same as the evidence required to prove the other. Hence, there is no double jeopardy. Ada v. Judge Virola, G.R. No. 82346-47, April 17, 1989. [Elements of one not necessarily included in the other?] NOTE: True it is that generally, contempt proceedings are characterized as criminal in nature, but the more accurate juridical concept is that contempt proceedings may actually be either civil or criminal, even if the distinction between one and other may be so thin as to be almost imperceptible. But it does exist in law. It is criminal when the purpose is to vindicate the authority of the court and protect its outraged dignity. It is civil when there is failure to do something ordered by a court to be done for the benefit of a party. (3 Moran, Rules of Court, pp. 343-344,1970 ed; see also Perkins v. Director of Prisons, Sec. 17 ART. Ill - BILL OF RIGHTS 173 58 Phil. 272; Harden v. Director of Prisons, 81 Phil. 741.) And with this distinction in mind, the fact that the injunction in the instant case is manifestly for the benefit of plaintiffs makes of the contempt herein involved civil, not criminal. Accordingly, the conclusion is inevitable that appellees have been virtually found by the trial court guilty of civil contempt, not criminal contempt, hence the rule on double jeopardy may not be invoked. Converse Rubber Corp. v. Jacinto Rubber, 97 SCRA 158,182-183 (April 28,1980). Q. If the accused is charged with homicide and pleads not guilty, may the charge be dismissed in order to amend it to murder? A. No. That would place him in second jeopardy. Dionaldo v. Dacuycuy, 108 SCRA 736 (October 30,1981). NOTE: See also Olaguer v. Military Commission, 150 SCRA 144 (1987), Cruz v. Enrile, 160 SCRA 700 (1987), and Tan v. Barrios, G.R. No. 85481-82, October 18,1990 which are discussed under Article III, Section 14, supra. Q. What is the rule on "supervening facts?" A. This is another exception to the requirements of sameness of offense. In Melo v. People, 85 Phil. 766 (1950), Chief Justice Moran said that the rule for the determination of identity of offenses "did not apply . . . when the second offense was not in existence at the time of the first prosecution, for the simple reason that in such a case there is no possibility for the accused, during the first prosecution, to be convicted for an offense that was then inexistent." Id. at 769. "[W]here after the first prosecution a new fact supervenes for which the defendant is responsible, which changes the character of the offense and together with the facts existing at the time, constitute a new and distinct offense, the accused cannot be said to be in second jeopardy if indicted for the new offense." Id. at 769-70 citing 15 AM.JUR. 66. People v. Buling, L-13315, April 27, 1960, however, added the qualification that where the exact nature of the injury could have been discovered, but was not, because of the incompetence of the physician, the subsequent discovery of the real extent of the injury would not be a supervening fact which could warrant the application of the Melo doctrine. Q. Charged with inflicting physical injuries that would require 5 to 9 days medical attendance, the accused was convicted. Subsequently, when the victim developed a permanent scar and deformity on the face, a more serious charge was filed. Double jeopardy? 174 4-5 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER A. No. The scar and deformity were supervening facts not in existence at the time of the first charge and could not have been foreseen. People v. Mil, L-41863,25 April 1977 (76 SCRA 462). Q. On October 18, 1972, Gapay was charged with serious physical injuries through reckless imprudence committed on October 17,1972. On October 18, the victim died. On October 20, Gapay was arraigned on charges of serious physical injuries through reckless imprudence, pleaded guilty, was sentenced, and there and then commenced serving sentence. On October 24, an information for homicide through reckless imprudence was filed. Gapay pleaded double jeopardy. Does the doctrine on "supervening fact" apply? A. No. No new fact supervened "after the arraignment and conviction of the accused." People v. City Court, G.R. No. 36342, April 27, 1983. (iConcurring, Gutierrez, J. points out that there is no sufficient showing that the hasty arraignment was the result of collusion and fraud amounting to denial of due process.) Appeals Q. May the prosecution appeal a judgment of acquittal? A. No. "No error, however flagrant, committed by the court against the State, can be reserved by it for decision by the Supreme Court when the defendant has once been placed in jeopardy and discharged even though the discharge was the result of the error committed." State v. Rook, 49 L.R.A. 186,61 Kan 382, 59 Pac. 653, quoted in People v. Ang Cho Kio, 95 Phil. 475,480 (1954). See also People v. Pomeroy, 97 Phil. 927 (1955). A judgment of acquittal is immediately final. A judgment of conviction is final when the period for appeal has lapsed or when the sentence has been totally or partially served or when the defendant has expressly waived his right to appeal. Section 7, Rule 120, Revised Rules of Court; Bustamante v. Maceren, 48 SCRA 155 (1972). Q. After trial on the merits, the accused was acquitted for insufficiency of the evidence against him in the cases for murder and frustrated murder and on the finding, in the illegal carrying of firearm, that the act charged did not constitute a violation of law. But the State through a petition for certiorari would want his acquittal reversed. Decide. A. A reading of the questioned decision shows that respondent judge considered the evidence received at trial. While the appreciation thereof may have resulted in possible lapses in Sec. 17 ART. Ill - BILL OF RIGHTS 175 evidence evaluation, it nevertheless does not detract from the fact that the evidence was considered and passed upon. This consequently exempts the act from the writ's limiting requirement of excess or lack of jurisdiction. As such, it becomes an improper object of certiorari. Errors of judgment are not to be confused with errors in the exercise of jurisdiction. People v. Judge Velasco, G.R. No. 127444, September 13, 2000. The special civil action for certiorari is intended for the correction of errors of jurisdiction only or grave abuse of discretion amounting to lack or excess of jurisdiction. Its principal office is only to keep the inferior court within the parameters of its jurisdiction or to prevent it from committing such a grave abuse of discretion amounting to lack or excess of jurisdiction. It is not a remedy for errors of judgment. People v. CA, G.R. No. 142051, February 24,2004. Q. In the face of the prohibition of double jeopardy, how can one justify the reopening of the Galman case after the acquittal of the accused? A. Where there was travesty of justice, there was no valid trial and therefore no termination of the first jeopardy. Galman v. Sandiganbayan, 144 SCRA 43 (1986). The decision here rested on the premise that the proceedings in the Sandiganbayan were characterized by grave abuse of discretion amounting to loss of jurisdiction. Hence, the proceedings were invalid and the "acquittal" did not really acquit and therefore did not terminate the case. NOTE: Where the prosecution has not been given due process, acquittal or dismissal is no bar to refiling of the case. People v. Bocar, 138 SCRA 166 (August 16,1985). Q. After a new trial on the ground of newly discovered evidence, the judge acquitted the accused. The judgment, however, was erroneous because the evidence was not really new. May the State appeal the acquittal? A. No. A judgment of acquittal, even if erroneous, ends the case finally. People v. Hernando, 108 SCRA 121 (October 9,1981.) Q. When an accused appeals a conviction, may the reviewing court impose on him a penalty higher than that imposed in the decision appealed by him? A. The rule in the Philippines, since Trono v. United States, 11 Phil. 726 (1905), is that when an accused appeals his convic 176 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 tion he waives his right to the plea of double jeopardy. What, however, is the extent of that waiver? In Trono, the accused had been prosecuted for a higher offense but was convicted for a lower offense. Hence, equivalently, he had been acquitted of the higher offense. Was his appeal a waiver of this acquittal? The Court answered in the affirmative and ruled that a penalty higher than that of the original conviction could be imposed on him. Q. Accused was prosecuted for estafa and was convicted under Article 315, 2(d), R.P.C. (by issuance of bouncing checks). On appeal the Court of Appeals penalized the accused instead under Article 315, 2(a) (through false pretenses or similar deceits). Accused now contends that since the trial court had said that Article 315, 2(a) could not be applied to him, he equivalently was acquitted of that offense and the appellate court could no longer convict him under such provision. He claimed double jeopardy. Decide. A. "When the petitioners appealed from the sentence of the Trial Court, they waived the constitutional safeguard against double jeopardy and threw the whole case open to the review of the Appellate Court, which is then called upon to render such judgment as the law and justice dictate, whether favorable or unfavorable to them, and whether they are made the subjects of assignment of error or not." Ko Bu Lin v. Court of Appeals, G.R. No. 57170, November 19,1982. NOTE: When an accused is convicted for a lesser offense on a plea of guilty to that lower offense, the conviction is not a bar to a second prosecution if the plea to a lesser offense was made without the consent of the Fiscal. People v. Villarama, Jr., G.R. No. 99287, June 23,1992. The discharge of an accused in order to make him a state witness, even if it is erroneous for failure to comply with all the requirements of Section 9 of Rule 119, is equivalent to an acquittal and is a bar to reinstatement of the case against him. However, if "the accused so discharged fails or refuses to testify against his co-defendant,... the defense of double jeopardy is withdrawn from him and becomes unavailable to him." Bogo-Medellin Milling Co. v. Son, 209 SCRA 329 (1992). SEC. 22. No EX-POST FACTO LAW OR BILL OF ATTAINDER SHALL BE ENACTED. Q. What is an ex post facto law? A. An ex post facto law has been defined as one — (a) Which makes an action done before the passing of the law and which Sec. 17 ART. Ill - BILL OF RIGHTS 177 was innocent when done criminal, and punishes such action; or (b) Which aggravates a crime or makes it greater than when it was committed; or (c) Which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed; (d) Which alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant. Mekin v. Wolfe, 2 Phil. 74 (1903); (e) Assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful; (f) Deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. In Re Kay Villegas Kami, 35 SCRA 429 (October 22,1970). NOTE: A law shortening the prescriptive period for a crime is ex post facto. People v. Sandiganbayan, G.R. No. 101724, July 3, 1992. Analogous to an ex post facto law and covered by the same prohibition would be an official interpretation of a penal law given by the Department of Justice which is subsequently changed to the prejudice of one who had relied on the earlier interpretation. Co v. Court of Appeals, October 28,1993. NOTE: Where the Court had denied Ombudsman jurisdiction over cases before RTC but later reversed its decision while the case was already before the Sandiganbayan, there is no ex post facto law because no new law was passed. The Courts interpretation retroacts to the date the law took effect (Ombudsman Act). Castro v. Judge Deloria, G.R. No. 163586, January 27, 2009. Q. Pursuant to R.A. No. 7975, the Sandiganbayan transferred the Kuratong Baleleng case to the RTC for lack of jurisdiction. R.A. No. 8249 amended R.A. No. 7975 in further defining the jurisdiction of the Sandiganbayan. Pursuant to the new Act, the Sandiganbayan took cognizance of the case. Petitioner and intervenors argue that the statute's retroactive application to the Kuratong Baleleng case constitutes an ex post facto law for it deprives them of their right to procedural due process as they can no longer avail of the two-tiered appeal which they had allegedly acquired under R.A. No. 7975. Decide. A. In general, ex post facto law prohibits retrospectivity of penal laws. R.A. No. 8249 is not a penal law, but a substantive law on jurisdiction which is not penal in character. The contention that the new law diluted their right to a two-tired appeal is 178 4-5 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER incorrect because "the right to appeal is not a natural right but statutory in nature that can be regulated by law. The mode of procedure provided for in the statutory right of appeal is not included in the prohibition against ex post facto laws. R.A. No. 8249 pertains only to matters of procedure, and being merely an amendatory statute it does not partake the nature of an ex post facto law." Lacson v. Executive Secretary, G.R. No. 128096, January 20,1999. Q. Without waiting for accused to file a motion to quash an information, the judge ordered the prosecution to show cause why the case should not be dismissed on the ground that the prosecution was under an ex post facto law. Proper? A. No. Every law carries with it the presumption of constitutionality until otherwise declared by this court. To rule that the CB Circular is an ex post facto law is to say that it is unconstitutional. However, neither private respondent nor the Solicitor- General challenges it. This Court, much more the lower courts, will not pass upon the constitutionality of a statute or rule nor declare it void unless directly assailed in an appropriate action. People v. Judge Nitafan, G.R. Nos. 107964-66, February 1,1999. Q. Does the ex post facto clause prohibit all retrospective laws? A- No. It prohibits only retrospective penal laws. Q. When is a law a penal law? A. A law is penal when it prescribes a criminal penalty imposable in a criminal trial. However, a law is also a penal law if it prescribes a burden equivalent to a criminal penalty {e.g., disqualification from the practice of a profession) even if such burden is imposed in an administrative proceeding. Pascual v. Board of Medical Examiners, 28 SCRA 344 (1909). Q. RA. 1379 is an act declaring forfeiture in favor of the State of any property illegally obtained by a public officer. May this be given retroactive effect? A. Earlier decisions have already held that forfeiture of property under R.A. 1379 partakes of the nature of a penally that is criminal or penal. Hence, it may not be given retroactive effect. Katigbak v. Solicitor General, G.R. No. 19328, December 22, 1989, citing Cabal v. Kapunan, Jr., 6 SCRA 1059, Republic v. Agoncillo, 40 SCRA 579, and de la Cruz v. Better Living, Inc., 78 SCRA 274. Sec. 17 ART. Ill - BILL OF RIGHTS 179 But see Republic v. Sandiganbayan, No. 152154, November 18, 2003 cases which distinguish between forfeiture decision that is in personam and forfeiture that is in rem. " . . . Forfeiture proceedings may be either civil or criminal in nature, and may be in rem or in personam. If they are under a statute such that if an indictment is presented the forfeiture can be included in the criminal case they are criminal in nature, although they may be civil in form; and where it must be gathered from the statute that the action is meant to be criminal in its nature it cannot be considered as civil. If, however, the proceeding does not involve the conviction of the wrongdoer for the offense charged the proceeding is of a civil nature; and under statutes which specifically so provide, where the act or omission for which the forfeiture is imposed is not also a misdemeanor, such forfeiture may be sued for and recovered in a civil action." (37 CJS, Forfeiture, Sec. 5, pp. 15-16) Q. Can a law on criminal procedure be an ex post facto law? A. Yes, when the law alters the legal rules of evidence or mode of trial, Colder v. Bull, 3 Dall 386 (U.S. 1798), unless the changes operate only in a limited and unsubstantial manner to the disadvantage of the accused. Beazell v. Ohio, 269 U.S. 167 (1925). Q. On June 6,1997, Republic Act 8294 amended P.D. 1866 which codified the laws on illegal possession of firearms. Among its amendments was that if homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered as a special aggravating circumstance. The amendment meant: first, that the use of an unlicensed firearm in the commission of homicide or murder shall not be treated as a separate offense, but as a special aggravating circumstance; second, that since a single crime is committed (i.e., homicide or murder with the aggravating circumstance of illegal possession of firearm), only one penalty shall be imposed on the accused. Accused was charged with crimes committed in 1995. Will R.A. 8294 apply to him? A. Yes, because it is favorable to him. People v. Casingal, G.R. No. 132214, August 1, 2000. Q. P.D. 1486 creating the Sandiganbayan is challenged as ex post facto because it dilutes the accused's right of appeal. Decide. A. Granted that the previous procedure has been altered, the new procedure prescribed still gives him adequate protection 180 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 and leaves untouched all the substantial protections surrounding the accused. The test is whether the new law takes away rights "vital for the protection of life and liberty." The removal of the right of appeal to the Court of Appeals does not have that effect. The Supreme Court still has the right to review to determine if presumption of innocence has been overcome. Nunez v. Sandiganbayan, 111 SCRA 433 (January 30,1982); Rodriguez v. Sandiganbayan, G.R. No. 61355, February 18, 1983; Alviar v. Sandiganbayan, 137 SCRA 63 (June 19,1985). Q. Accused was convicted by the Sandiganbayan for estafa on May 30,1980. Accused appealed. On March 16,1982, Batas Big. 195 was passed authorizing suspension of public officers against whom an information may be pending at any stage. On July 22,1982, the court suspended accused. Was there violation of the ex post facto clause? A. Article 24 of the Revised Penal Code says that suspension of an officer during trial shall not be considered a penalty. In fact, if the accused is acquitted, he is entitled to reinstatement and back salaries and benefits. The suspension in the case is merely a preventive and not a penal measure which therefore does not come under the ex post facto prohibition. Bayot v. Sandiganbayan, 128 SCRA 383 (March 23, 1984). NOTE: See also Olaguer v. Military Commission, 150 SCRA 144 (1987), Cruz v. Enrile, 160 SCRA 700 (1987), and Tan v. Barrios, G.R. No. 85481-82, October 18,1990, under Article III, Section 14. Q. What is a bill of attainder? A. "A bill of attainder," according to Cummings v. Missouri, 4 Wall 277, 323 (U.S. 1867), "is a legislative act which inflicts punishment without judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties." The same case, however, also affirmed that, "Within the meaning of the Constitution bills of attainder include bills of pains and penalties." Id. Q. A law is passed requiring every lawyer who wishes to continue the practice of law to take the oath that he or she has not committed an act of disloyalty to the Philippine government. Valid? A. No. This is a bill of attainder. Depriving a person of the right to practice a profession is a penalty. And when this is imposed by the legislature without trial there is a violation of the prohibition against bills of attainder. See Cummings v. Missouri, 4 Wall 277,323 (U.S. 1867). Sec. 17 ART. Ill - BILL OF RIGHTS 181 Q. To be a bill of attainder prohibited by the Constitution, must the law specify by name the person being punished? A. No, legislative acts, "no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without judicial trial are bills of attainder prohibited by the Constitution." United States v. Lovett, 328 U.S. 302 (1946). Q. What then are the essential elements of a bill of attainder? A. (1) There must be a law; (2) the law imposes a penal burden on a named individual or easily ascertainable members of a group; (3) the penal burden is imposed directly by the law without judicial trial. Q. Is the Anti-Subversion Law or R.A. 1700 a bill of attainder? A. No. No one is made to suffer under this law except after conviction in a trial by a proper court. People v. Ferrer, 48 SCRA 382 (1972). NOTE: The Anti-Subversion Law (R.A. 1700) was repealed by the Revised Anti-Subversion Law (P.D. 885, 11 May 1976, 72 O.G. 3826) but P.D. 885 says that acts committed before P.D. 885 shall be prosecuted in accordance with R.A. 1700. This is repeated in the National Security Code, Section 14(i). Buscayno and Sison v. Military Commissions, 109 SCRA 273 (November 19,1981). ARTICLE IV CITIZENSHIP SECTION 1. THE FOLLOWING ARE CITIZENS OF THE PHILIPPINES: (1) THOSE WHO ARE CITIZENS OF THE PHILIPPINES AT THE TIME OF THE ADOPTION OF THIS CONSTITUTION; (2) THOSE WHOSE FATHERS OR MOTHERS ARE CITIZENS OF THE PHILIPPINES; (3) THOSE BORN BEFORE JANUARY 17, 1973, OF FILIPINO MOTHERS, WHO ELECT PHILIPPINE CITIZENSHIP UPON REACHING THE AGE OF MAJORITY; AND (4) THOSE WHO ARE NATURALIZED IN ACCORDANCE WITH LAW. Q. What is citizenship? A. Citizenship is personal and more or less permanent membership in a political community. It denotes possession within that particular political community of full civil and political rights subject to special disqualifications such as minority. Reciprocally, it imposes the duty of allegiance to the political community. Q. What are the modes of acquiring citizenship? A. Modern law recognizes three distinct modes of acquiring citizenship: (1) jus sanguinis — acquisition of citizenship on the basis of blood relationship; (2) jus soli — acquisition of citizenship on the basis of place of birth; (3) naturalization — the legal act of adopting an alien and clothing him with the privilege of a native born citizen. Basic Philippine law follows the rule of jus sanguinis and provides for naturalization. 182 Sees. 4-5 ART. IV - CITIZENSHIP 183 Q. Who are citizens of the Philippines? A. See supra, Section 1. Q. Who are citizens of the Philippines at the time of the adoption of the 1987 Constitution? A. Philippine citizens at the time of the adoption of the 1987 Constitution were those who were citizens under the 1973 Constitution. Q. Who were citizens of the Philippines under the 1973 Constitution? A. Section 1 of the article on Citizenship under the 1973 Constitution was the same as Section 1 under the new Constitution. Q. Who were citizens of the Philippines at the time of adoption of the 1973 Constitution? A. They were those who were citizens under Article IV, Section 1 of the 1935 Constitution, namely: (1) Those who are citizens of the Philippine Islands at the time of the adoption of the (1935) Constitution; (2) Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands; (3) Those whose fathers are citizens of the Philippines; Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine citizenship; (4) (5) Those who are naturalized in accordance with law. Q. How is the principle of jus sanguinis applied in the 1987 Constitution? A. Section 1(2) declares as Filipino citizens "Those whose fathers or mothers are citizens of the Philippines." This is the same rule as that under the 1973 Constitution. This means that if a child is born under the 1973 or 1987 Constitution and either his father or mother is a Filipino citizen at the time the child is born, the child is a Filipino citizen no matter where he may be born. 184 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Q. Emilio Osmena is a holder of an alien registration certificate. He is also a son of a Filipino father (and a grandson of President Osmena) and the holder of a valid subsisting Philippine passport, a continuous resident of the Philippines and a registered voter since 1965. It is contended that he is an alien and therefore disqualified from holding public office. Decide. A. By virtue of his being a son of a Filipino father the presumption is that he is Filipino and remains Filipino until proof is shown that he has renounced or lost Philippine citizenship. There is no proof that he has been naturalized in a foreign country, or has expressly renounced Philippine citizenship, or has sworn allegiance to a foreign country. Possession of an alien registration certificate unaccompanied by proof of performance of acts whereby Philippine citizenship is lost is not adequate proof of loss of citizenship. Aznar v. COMELEC and Osmena, 185 SCRA 703 (1990). Q. What is the citizenship of an illegitimate child of a Filipina mother? A. Filipino. This is true whether the child be born under the 1935 or under the 1973 or 1987 Constitution. Q. What is the citizenship of an illegitimate child of a Filipino father and an alien mother? A. Filipino, if paternity is clear, because of jus sanguinis, which makes no distinction between legitimate and illegitimate children. This was the case of Tecson v. Comelec, G.R. No. 161434, March 3, 2004. Q. If a child was born of a Filipina mother and an alien father before the effectivity of the 1973 Constitution, do the 1973 and 1987 Constitutions recognize such child as Filipino? A. No, unless upon reaching majority the child elects Philippine citizenship pursuant to the 1935 Constitution. In other words, Section 1(2) of the 1973, which is the same as Section 1(2) of the 1987 Constitution, took effect only with the effectivity of the 1973 Constitution on January 17, 1973. Hence, children similarly situated but born prior to January 17, 1973 are governed by Section 1(4) of Article IV of the 1935 Constitution. Q. Who may elect Philippine citizenship under the 1935 Constitution? A. Those born under the 1935 Constitution whose mothers were Philippine citizens (at the time at least of their marriage to an alien father) may elect Philippine citizenship. Sees. 4-5 ART. IV - CITIZENSHIP 185 Q. When must the election be made? A. The election must be made within a reasonable period after reaching majority. InDy Cuenco v. Secretary of Justice, L-18069, May 26, 1962, the Supreme Court cited with approval the ruling of the Secretary of Justice to the effect that three years is a reasonable period within which to make the election, which period, however, may be extended under certain circumstances as when the person concerned has always considered himself a Filipino citizen. Q. How is election made? A. Section 1 of Commonwealth Act 625, enacted on June 7, 1941, says that the election must be expressed in a statement sworn before any officer authorized to administer oaths and filed with the nearest civil registry and accompanied by an oath of allegiance to the Philippine Constitution. However, participating in elections and campaigning for candidates, and similar acts done prior to June 7, 1941, have been recognized as sufficient to show one's preference for Philippine citizenship. In re Florencio Mallare, 59 SCRA 45, 52, September, 1974. Q. May a child born under the 1973 or the 1987 Constitution of a Filipina mother and an alien father elect Philippine citizenship? A. No. If the mother was still a Filipina at the time of the birth of the child then the child is already Filipino by birth, and hence need not elect. If the mother, however, had lost Philippine citizenship by the time of the birth of the child, the child has no right of election and may acquire citizenship only by naturalization. In other words, the provision on election in the 1973 and 1987 Constitution are transitory provisions intended to take care of those who under the 1935 Constitution could have elected Philippine citizenship upon reaching majority but had not yet reached majority at the time of the effectivity of the 1973 or 1987 Constitution. Q. Should children born under the 1935 Constitution of a Filipino mother and an alien father, who executed an affidavit of election of Philippine citizenship and took their oath of allegiance to the government upon reaching the age of majority, but who failed to immediately file the documents of election with the nearest civil registry, be considered foreign nationals subject to 186 4-5 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER deportation as undocumented aliens for failure to obtain alien certificates of registration? A. No. This case involved children who had grown to adult years and for some reason failed to register their election but had all along acted as citizens. Among the things which the Court noted was that the 1973 Constitution had already corrected the chauvinistic provision of the 1935 Constitution by making those born of a Filipina mother a citizen without need for election. Cabiling Ma v. Commissioner, G.R. No. 183133, July 26, 2010. Q. What is naturalization? A. Naturalization is the legal act of adopting a foreigner and clothing him with the privileges of a natural-born citizen. A person may be naturalized either by complying with both the substantive and procedural requirements of a general naturalization law or he may be naturalized by a special act of the legislature. Q. What kind of naturalization laws and procedures have been used in the Philippines? A. The following have been used: 1. General law of naturalization applied through a judicial process. (Revised Naturalization Law, C.A. 473, June 17,1939. This is still in effect.) 2. Special naturalization law, i.e., an act of the legislature making a named individual a citizen of the Philippines. E.g., the Republic Act which made Father James Moran, S.J. a citizen or the Presidential Decree which made Mr. Ronnie Nathanielz a citizen. 3. Mass naturalization law. The Philippine Bill of 1902 made Filipino citizens of "all inhabitants of the Philippine Islands continuing to reside in them who were Spanish subjects" on 11 April 1899 "and then resided in said islands." 4. General law of naturalization applied through a combination of administrative process and presidential legislative process (Letter of Instruction No. 270, in effect for a limited period from its promulgation by President Marcos on April 11,1975.) Sees. 4-5 ART. IV - CITIZENSHIP 187 5. Administrative Naturalization Law, R.A. 9139, enacted in 2000. Q. What kind of requirements must an applicant for naturalization satisfy under the Revised Naturalization Law? A. Both substantive and procedural requirements. Q. What are the substantive requirements for naturalization? A. Briefly, Section 2 of C A. 473 prescribes requirements of age, residence, moral character and political belief, real property or lucrative occupation, language, and education of children. Q. Applicant for citizenship received a favorable decision after the Fiscal failed to raise any objection. In the hearing after the two year probation, however, the Fiscal turned around to say that the respondent had no lucrative business, trade, or profession. May such subject be raised for the first time in the final hearing? A. Yes. In re petition of Martin Ng to be admitted a Filipino Citizen, 158 SCRA 492 (1988). Q. What procedural requirements must be satisfied? A. The applicant must go through the following steps: declaration of intention, filing of petition, hearing and initial judgment, period of probation, rehearing and final judgment. Q. When does the applicant become a Filipino citizen? A. Upon taking the oath provided by law after satisfactorily passing the period of probation. Q. What kind of requirements must an applicant for naturalization satisfy under the Administrative Naturalization Law? A. Both substantive and procedural requirements. Q. What are the substantive Requirements? A. a. The applicant must be born in the Philippines and residing therein since birth; b. The applicant must not be less than eighteen (18) years of age, at the time of filing of his/her petition; c. The iapplicant must be of good moral character and believes in the underlying principles of the Constitution, 188 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 and must have conducted himself/herself in a proper and irreproachable manner during his/her entire period of residence in the Philippines in his relation with the duly constituted government as well as with the community in which he/she is living; d. The applicant must have received his/her primary and secondary education in any public or private educational institution duly recognized by the Department of Education, Culture and Sports, where Philippine history, government and civics are taught and prescribed as part of the school curriculum and where enrollment is not limited to any race or nationality: Provided, that should he/she have minor children of school age, he/she must have enrolled them in similar schools; e. The applicant must have a known trade, business, profession or lawful occupation, from which he/she derives income sufficient for his/her support and if he/she is married and/or has dependents, also that of his/her family: Provided, however, That this shall not apply to applicants who are college degree holders but are unable to practice their profession because they are disqualified to do so by reason of their citizenship; f. The applicant must be able to read, write and speak Filipino or any of the dialects of the Philippines; and g. The applicant must have mingled with the Filipinos and evinced desire to learn and embrace the customs, traditions and ideals of the Filipino people. Q. How is the application handled? A. It is handled through the Special Committee on Naturalization chaired by the Solicitor General. Sec. 5 & 6, R.A. 9139. Q. What is the effect ofthe naturalization ofa father on legitimate minor children? A. In general, the minor children become citizens of the Philippines. (C.A. 473, Sees. 15,16) Q. What is the effect on the wife of the naturalized husband? A. She becomes a Filipino citizen, provided she shows, in an administrative procedure for the cancellation of her alien certificate of registration, that she has none of the disqualifications Sees. 4-5 ART. IV - CITIZENSHIP 189 found in C.A. 473, Sec. 2. Burca v. Republic, 51 SCRA 248 (June 15,1973). Q. What is the effect of the naturalization of a husband under RA. 9139? A. Applicant's alien lawful wife and minor children may file a petition for cancellation of their alien certificates of registration with the Committee. Sec. 11. Q. What is the effect of the naturalization of a wife? A. Her administrative naturalization will not benefit her alien husband but her minor children may file a petition for cancellation of their alien certificate of registration. Sec. 12. SEC. 2. NATURAL-BORN CITIZENS ARE THOSE WHO ARE CITIZENS(3) OF BORN BEFORE JANUARY 17, 1973, OF FILIPINO THE PHILIPPINES FROM BIRTH WITHOUT HAVING TO PERFORM ANY ACTTHOSE TO ACQUIRE OR PERFECT THEIR PHILIPPINE CITIZENSHIP. THOSE WHO ELECTMOTHERS, WHO ELECT PHILIPPINE CITIZENSHIP UPON REACHING THE AGE OF MAJORITY PHILIPPINE CITIZENSHIP IN ACCORDANCE WITH PARAGRAPH (3), SECTION 1 HEREOF SHALL BE DEEMED NATURAL-BORN CITIZENS. Q. Is one who is a Filipino citizen by election a natural-born citizen under Section 1(3)? A. Yes, because of the second sentence of Section 2. This is a clarification made by the 1987 Constitution. Q. Is this a new rule? A. Although this rule has been made explicit only under the 1987 Constitution, there is the view that this was the implicit rule even before 1987, the reason being that a child born of a Filipina mother already has the inchoate right to Filipino citizenship from birth. At any rate, the rule as worded in the 1987 Constitution applies even to those who made their election prior to the effectivity of the 1987 Constitution on February 2, 1987. Q. Jose was born a Chinese and married a natural born Filipina in 1932. Jose was eventuaUy naturalized and took his oath of allegiance in 1955. At that time Jose, Jr. was 9 years old. In 1987 Jose, Jr. was elected to the House of Representatives. 1. May the citizenship of Jose, Sr., already deceased, be attacked collaterally in this case? 190 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER 2. Sec. 10 Did the minor Jose, Jr. become a Filipino citizen with his father? 3. Did he have to elect Philippine citizenship when he came of 4. Is he a natural born citizen? A. 1. age? No. 2. 3. 4. Yes, under the Naturalization Law. No, because he already was one. It would be unnatural to expect him to. Election of Philippine citizenship presupposes that you are not one. Moreover, jurisprudence recognizes both formal and informal election. See e.g., In re Mallare, 59 SCRA 45 (1974). Yes. He benefits from the curative nature of Section 2. He derives his status of being a natural born citizen not from his father, who made election unnecessary for him, but from his mother who was a natural born Filipina. Co v. Electoral Tribunal of the House of Representatives, G.R. No. 92191-92, July 30,1991. Q. May the law treat natural-born citizens and naturalized citizens differently? A. No, except in the instances where the Constitution itself makes a distinction. Otherwise there would be a violation of the equal protection clause. Chen Teck Lao v. Republic, 55 SCRA 1, 5-6 (1974). SEC. 3. PHILIPPINE CITIZENSHIP MAY BE LOST OR REACQUIRED IN THE MANNER PROVIDED BY LAW. Q. What laws govern loss and reacquisition of Philippine citizenship? A. Commonwealth Act No. 63, as amended, and Republic Acts No. 965 and 2639, and P.D. 725 on repatriation. Q. May a certificate of naturalization be canceled? A. Yes, if it is shown to have been obtained fraudulently or illegally, or if the person is shown to have violated the prohibitions Sees. 4-5 ART. IV - CITIZENSHIP 191 imposed on him by C.A. 473, Section 18. But to justify cancellation of such certificate, the evidence must be "clear, unequivocal and convincing" and not merely preponderant. Citizenship acquired through naturalization is not second-class citizenship. Republic v. Cokeng, 23 SCRA 559 (1963) and 34 SCRA 668 (1970). Q. After naturalization proceedings, Cesar Guy took his oath of allegiance on December 22,1959. The government sought the cancellation of his certificate of naturalization on the ground that (1) during the pendency of his petition for naturalization he filed a sworn application for a timber license falsely claiming that he was Filipino (for which he was subsequently convicted for perjury), and that (2) on December 12, 1963 he was convicted of rape. On May 28, 1974, the lower court ordered the cancellation of his certificate on the ground that it had been obtained fraudulently and illegally. On appeal, Guy contended that both convictions were after the two-year probationary period and after the final judgment on his citizenship and hence could not be used against him. Decide. A. 1. A decision in a naturalization proceeding is not res judicata as to any of the matters which could support a judgment canceling the certificate for illegal or fraudulent procurement. In fact, the certificate may be canceled for acts committed after naturalization. 2. Perjury, committed during the pendency of his petition, is evidence of lack of good moral character; hence his having been able to obtain citizenship despite this misconduct rendered his acquisition thereof fraudulent or illegal. (The Naturalization Law allows cancellation of a certificate of naturalization if it is found to have been obtained "fraudulently or illegally.") Republic v. Cesar Guy, G.R. No. 41399, July 20,1982. Q. Petitioner was issued a Portuguese passport in 1971. He was given naturalization as Filipino citizen in 1978. In 1980, however, he still declared his citizenship as Portuguese in commercial documents and in 1981 he still obtained a Portuguese passport which expired in 1986. Has petitioner renounced Philippine citizenship? A. Yes, his actions constitute renunciation. "While normally the question of whether or not a person has renounced his Philippine citizenship should be heard before a trial court of law in adversary proceedings, this has become unnecessary as this Court, no less, upon insistence of petitioner, had to look into the facts and satisfy itself on whether or not petitioner's claim to continued Philippine citizenship is meritorious." In Willie Yu v. Defensor-Santiago, G.R. No. 83882, January 24,1989. 192 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Q. Labo went through a process of naturalization as Australian and thereafter took the oath of allegiance renouncing Philippine citizenship. He claims that his acquisition of Australian citizenship was invalid and that therefore he was still Filipino citizen qualified to run for Philippine office. A. Whether or not he acquired Australian citizenship validly is between him and Australia. The fact is he renounced Philippine citizenship by taking an oath of allegiance to Australia. And since he has not taken any of the steps for re-acquiring Philippine citizenship, he is not one now and is not qualified to hold an elective office. Labo, Jr. v. COMELEC, G.R. No. 86564, August 1,1989. Q. Frivaldo does not deny that he was naturalized an American citizen. He, however, claims that his naturalization was involuntary since it was the only way he could stay in the United States and thereby protect himself from Mr. Marcos. Moreover, he claims that by participating in the Philippine political process and filing his certificate of candidacy, he thereby renounced American citizenship and reacquired Philippine citizenship. Decide. A. He is not Filipino. There were many Filipinos similarly situated in the United States, but they did not find it necessary to abandon Philippine citizenship nor pledge allegiance to the United States. And by participating in the political process of the Philippines, at best it would have rendered him stateless. As to reacquisition of Philippine citizenship, if he really wanted to he could have easily done so through the process of repatriation. He did not. Frivaldo v. Comelec, 174 SCRA 245 (1989). Q. How may lost citizenship be reacquired? A. Either by naturalization or repatriation. Q. What is repatriation? A. Repatriation is the recovery of original citizenship. Thus, if what was lost was naturalized citizenship, that is what will be reacquired. If what was lost was natural born citizenship, that will be reacquired. Bengzon v. Cruz, G.R. No. 142840, May 7, 2001. Q. Who may be repatriated? A. Under Republic Act No. 8171 only (1) women who lost citizenship by marriage and (2) those who lost citizenship for political or economic reasons may be repatriated. Tabasa v. CA, August 29,2006. Sees. 4-5 ART. IV - CITIZENSHIP 193 Q. How is repatriation accomplished? A. The current law on the subject is found in Republic Act No. 8171. Section 2 says: Repatriation shall be effected by taking the necessary oath of allegiance to the Republic of the Philippines and registration in the proper civil registry and in the Bureau of Immigration. The Bureau of Immigration shall thereupon cancel the pertinent alien certificate of registration and issue the certificate of identification as Filipino citizen to the repatriated citizen. Q. Is the registration of petitioner's repatriation with the proper civil registry and with the Bureau of Immigration a prerequisite in effecting repatriation? A. Yes. Altarejos v. Comelec, G.R. No. 163256, November 10,2004. Q. Cruz was a natural-born citizen of the Philippines. On November 5, 1985, however, he enlisted in the United States Marine Corps and, without the consent of the Republic of the Philippines, took an oath of allegiance to the United States. As a consequence, he lost his Filipino citizenship. On June 5, 1990, he was naturalized as an American. On March 17,1994, he reacquired his Philippine citizenship through repatriation under Republic Act No. 2630. He ran for and was elected as the Representative of the Second District of Pangasinan in the May 11,1998 elections. Was he a natural born Filipino citizen? A. As defined in the same Constitution, natural-born citizens "are those citizens of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship." On the other hand, naturalized citizens are those who have become Filipino citizens through naturalization, generally under Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law. Cruz was not naturalized but repatriated. Repatriation may be had under various statutes by those who lost their citizenship due to: (1) desertion of the armed forces; (2) service in the armed forces of the allied forces in World War II; (3) service in the Armed Forces of the United States at any other time; (4) marriage of a Filipino woman to an alien; and (5) political and economic necessity. As distinguished from the lengthy process of naturalization, repatriation simply consists of the taking of an oath of allegiance to the Republic of the Philippines and registering said oath in the Local Civil 194 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 4-5 Registry of the place where the person concerned resides or last resided. Repatriation, as the word connotes, results in the recovery of what had been lost. When what was lost is natural born citizenship, what is recovered is also natural born citizenship. Having thus taken the required oath of allegiance to the Republic and having registered the same in the Civil Registry of Magantarem, Pangasinan in accordance with the aforecited provision, respondent Cruz is deemed to have recovered his original status as a natural-born citizen, a status which he acquired at birth as the son of a Filipino father. There are only two kinds of citizenship: natural born and naturalized. Since Cruz did not undergo naturalization, he is natural born. Bengzon v. Cruz, G.R. No. 142840, May 7, 2001. Q. If a person who has reacquired Philippine citizenship wants to run for office, what must he do? A. Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been naturalized as citizens of a foreign country, but who reacquired or retained their Philippine citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No. 9225, and (2) for those seeking elective public offices in the Philippines, to additionally execute a personal and sworn renunciation of any and all foreign citizenship before an authorized public officer prior or simultaneous to the filing of their certificates of candida<y, to qualify as candidates in Philippine elections. Jacot v. Dal, G.R. No. 179848, November 26, 2008. Q. A natural born Filipino citizen who becomes a green card resident of the United States, or who becomes naturalized citizen of America loses his domicile of origin in the Philippines. Does reacquisition of Filipino citizenship under R.A. 9225 have the effect of restoring his Philippine domicile? A. No. To reacquire domicile he must provide proof of intent to stay in the Philippines. After he does that, his occasional absence from the recovered domicile does not have the effect of removing him from the domicile for as long as he manifests animus manendi et revertendi. Japzon v. Ty, G.R. No. 180088, January 19,2009. NOTE: Where a person is natural born Filipino because of a Filipino mother, and also a natural born American for Sees. 4-5 ART. IV - CITIZENSHIP 195 having been born in the United States, he has dual citizenship. The INS certification obtained for him by his father did not confer American citizenship on him because he was already one. His travels under a US passport did not strip him of Philippine citizenship. The fact that he had dual citizenship did not disqualify him from running for office. Nor did he have to renounce his American citizenship if he wanted to run for local office. The need for renunciation applies only to those who reacquired Philippine citizenship through R.A. 9225. Cordora v. Comelec, G.R. No. 176947, February 19,2009. Q. Rosalind Ybasco Lopez was born on May 16, 1934 in Napier Terrace, Broome, Western Australia, to the spouses, Telesforo Ybasco, a Filipino citizen and Theresa Marquez, an Australian. This was a year before the 1935 Constitution took into effect. Was Rosalinda a Filipino citizen? A. At that time, what served as the Constitution of the Philippines were the principal organic acts by which the United States governed the country. These were the Philippine Bill of July 1, 1902 and the Philippine Autonomy Act of August 29,1916, also known as the Jones Law. Under both organic acts, all inhabitants of the Philippines who were Spanish subjects on April 11, 1899 and resided therein including their children were deemed to be Philippine citizens. Private respondent's father, Telesforo Ybasco, was born on January 5,1879 in Daet, Camarines Norte, a fact duly evidenced by a certified true copy of an entry in the Registry of Births. Thus, under the Philippine Bill of 1902 and the Jones Law, Telesforo Ybasco was deemed to be a Philippine citizen. By virtue of the same laws, Telesforo's daughter, herein private respondent Rosalind Ybasco Lopez, is likewise a citizen of the Philippines. Valles v. Comelec,, G.R. No. 137000, August 9,2000. Q. In the above case, Valles claims that Ybasco Lopez had renounced her Filipino citizenship because she had applied for an Alien Certificate of Registration (ACR) and Immigrant Certificate of Residence (ICR), on September 19, 1988, and because she had been issued an Australian passport on March 3,1988. Decide. A. In order that citizenship may be lost by renunciation, such renunciation must be express. Petitioner's contention that the application of private respondent for an alien certificate 196 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 of registration, and her Australian passport, is bereft of merit. This issue was put to rest in the case of Aznar v. COMELEC, 185 SCRA 703, and in the more recent case of Mercado v. Manzano and COMELEC, G.R. No. 135083, May 26, 1999. In the case of Aznar, the Court ruled that the mere fact that respondent Osmena was a holder of a certificate stating that he is an American did not mean that he is no longer a Filipino, and that an application for an alien certificate of registration was not tantamount to renunciation of his Philippine citizenship. And, in Mercado v. Manzano and COMELEC, it was held that the fact that respondent Manzano was registered as an American citizen in the Bureau of Immigration and Deportation and was holding an American passport on April 22,1997, only a year before he filed a certificate of candidacy for vice-mayor of Makati, were just assertions of his American nationality before the termination of his American citizenship. Thus, the mere fact that private respondent Rosalind Ybasco Lopez was a holder of an Australian passport and had an alien certificate of registration are not acts constituting an effective renunciation of citizenship and do not militate against her claim of Filipino citizenship. For renunciation to effectively result in the loss of citizenship, the same must be express. Valles v. Comelec, G.R. No. 137000, August 9,2000. Q. Valles also maintains that even on the assumption that the private respondent had dual citizenship, still, she is disqualified to run for governor of Davao Oriental; citing Section 40 of Republic Act 7160 otherwise known as the Local Government Code of 1991, which states: "SEC. 40. Disqualifications. — The following persons are disqualified from running for any elective local position: (d) Those with dual citizenship; A. Again, petitioner's contention is untenable. In the aforecited case of Mercado v. Manzano, the Court clarified "dual citizenship" as used in the Local Government Code and reconciled the same with Article IV, Section 5 of the 1987 Constitution on dual allegiance. Recognizing situations in which a Filipino citizen may, without performing any act, and as an involuntary consequence of the conflicting laws of different countries, be also a citizen of another state, the Court explained that dual Sees. 4-5 ART. IV - CITIZENSHIP 197 citizenship as a disqualification must refer to citizens with dual allegiance. The Court succinctly pronounced: . . the phrase 'dual citizenship' in R.A. No. 7160,... (d) and in R.A. No. 7854,... must be understood as referring to 'dual allegiance.' Consequently, persons with mere dual citizenship do not fall under this disqualification." Furthermore, it was ruled that for candidates with dual citizenship, it is enough that they elect Philippine citizenship upon the filing of their certificate of candidacy, to terminate their status as persons with dual citizenship. The filing of a certificate of candidacy sufficed to renounce foreign citizenship, effectively removing any disqualification as a dual citizen. This is so because in the certificate of candidacy, one declares that he/she is a Filipino citizen and that he/she will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto. Such declaration, which is under oath, operates as an effective renunciation of foreign citizenship. Therefore, when the herein private respondent filed her certificate of candidacy in 1992, such fact alone terminated her Australian citizenship. Valles v. Comelec, G.R. No. 137000, August 9, 2000. Q. Valles maintains further that when citizenship is raised as an issue in judicial or administrative proceedings, the resolution or decision thereon is generally not considered res judicata in any subsequent proceeding challenging the same; citing the case of Moy Ya Lim Yao v. Commissioner of Immigration, 41 SCRA 292, he insists that the same issue of citizenship may be threshed out anew. A. Petitioner is correct insofar as the general rule is concerned, i.e., the principle of res judicata generally does not apply in cases hinging on the issue of citizenship. However, in the case oiBurca v. Republic, 51 SCRA 248, an exception to this general rule was recognized. The Court ruled in that case that in order that the doctrine of res judicata may be applied in cases of citizenship, the following must be present: 1) a person's citizenship be raised as a material issue in a controversy where said person is a party; 2) the Solicitor General or his authorized representative took active part in the resolution thereof; and 198 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 3) the finding on citizenship is affirmed by this Court. Although the general rule was set forth in the case of Moy Ya Lim Yao, the case did not foreclose the weight of prior rulings on citizenship. It elucidated that reliance may somehow be placed on these antecedent official findings, though not really binding, to make the effort easier or simpler. Indeed, there appears sufficient basis to rely on the prior rulings of the Commission on Elections in SPA.-N0. 95-066 and EPC 92-54 which resolved the issue of citizenship in favor of the herein private respondent. The evidence adduced by petitioner is substantially the same evidence presented in these two prior cases. Petitioner failed to show any new evidence or supervening event to warrant a reversal of such prior resolutions. However, the procedural issue notwithstanding, considered on the merits, the petition cannot prosper. Valles v. Comelec, G.R. No. 137000, August 9, 2000. Q. What is the effective date of the repatriation when approved. A. In the case of former natural born citizens, the effective date is the date of application for repatriation not the date when repatriation was approved. Lee v. Commission on Elections & Frivaldo, G.R. No. 120295, June 28,1996. (Plurality opinion.) Q. Petitioner claims that she was an illegitimate daughter of a Filipina mother; that she was erroneously registered as an alien; that she lost her citizenship upon marriage to an alien; that her alien husband has died. She petitioned the CFI for "judicial repatriation" and the court declared her ^judicially repatriated." Was the repatriation proper? A. No. There is no law authorizing "judicial repatriation." All that is needed is for the woman to take the necessary oath of allegiance and to register the oath in the proper civil registry. However, the petitioner's claim of Philippine citizenship prior to her marriage may not be established in an action where the mother or her heirs are not made parties. Philippine citizenship may not be declared in a non-adversary suit where affected persons are not made parties. Dugcoy Jao v. Republic, G.R. No. 29397, March 29,1983. (NOTE: Compare with People v. Avengonza, G.R!. No. 27976, December 7,1982.) Sees. 4-5 ART. IV - CITIZENSHIP 199 Q. Does the repatriation of a mother entitle her minor son to a declaration that he is entitled to Philippine citizenship? A. Yes . Republic v. Honorable Judge Tandayag, G.R. No. 32999, October 15,1982 (Reiterating Talaroc v. Uy, 92 Phil. 52 [19521). SEC. 4. CITIZENS OF THE PHILIPPINES WHO MARRY ALIENS SHALL RETAIN THEIR CITIZENSHIP, UNLESS BY THEIR ACT OR OMISSION THEY ARE DEEMED, UNDER THE LAW, TO HAVE RENOUNCED IT. Q. What was Philippine law on the citizenship of the Filipina married to an alien before the 1973 Constitution? A. Under Commonwealth Act No. 63, Section 1(7), a Filipino woman loses her Philippine citizenship "upon her marriage to a foreigner if, by virtue of the laws in force in her husband's country, she acquires his nationality." The 1973 Constitutional provision repeals this statutory rule and the 1987 Constitution made it applicable not just to female citizens. SEC. 5. DUAL ALLEGIANCE OF CITIZENS IS INIMICAL TO THE NATIONAL INTEREST AND SHALL BE DEALT WITH BY LAW. Q. Does the Constitution allow dual citizenship? A. Because Philippine law has no control over citizenship laws of other countries, dual citizenship can be unavoidable under the present Constitution. A child of a Filipina mother is a Filipino [Section 1(2)] and might also have his alien father's citizenship. A Filipina married to an alien remains a Philippine citizen (Section 2) but might also require her alien husband's citizenship. Q. Does not Section 5 in effect prohibit dual citizenship? A. The specific target of this new provision is not dual citizenship but dual allegiance arising from e.g., mixed marriages or birth in foreign soil. This was seen as more insidious than dual citizenship. To the extent, however, that dual citizenship also imports dual allegiance, then it must also be "dealt with by law." In other words, the Constitution leaves the disposition of the problem of dual citizenship and dual allegiance to ordinary legislation. 200 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 4-5 Q. Explain how R.A. 9225 operates. A. What R.A. 9225, the Dual Citizenship Law, has done is to liberalize the reacquisition and retention of natural born Philippine citizenship. The law deals with two classes of persons: (1) Filipinos who lost their citizenship prior to the enactment of RA 9225 and (2) Filipinos who become citizens of another country after the effectivity of R.A. 9225. Regarding those who lost Philippine citizenship prior to R.A. 9225, the law says: Section 2. Declaration of Policy — It is hereby declared the policy of the State that all Philippine citizens of another countiy shall be deemed not to have lost their Philippine citizenship under the conditions of this Act. Section 3. Retention of Philippine Citizenship — Any provision of law to the contrary notwithstanding, natural-born citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic: "I ______________________ solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion." What Section 3 is saying is that one who lost his citizenship prior to R.A. 9225 reacquires his citizenship upon taking the prescribed oath. For its part, Section 2 says that such person is deemed not to have lost or never to have lost his Philippine citizenship. (See In re Benjamin M. Dacanay, B.M. No. 1678, December 17,2007. Also Crisologo v. Tan, Comelec Resolution, May 4,2010.) For those who lose their citizenship after R.A. 9225, the applicable law is the last paragraph of Section 3: Natural born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign Sees. 4-5 ART. IV - CITIZENSHIP 201 country shall retain their Philippine citizenship upon taking the aforesaid oath. R.A. 9225 also provides for derivative citizenship as well as civil and political rights and liabilities. Section 4. Derivative Citizenship — The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizenship of the Philippines. Section 5. Civil and Political Rights and Liabilities — Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (1) Those intending to exercise their right of suffrage must Meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws; (2) Those seeking elective public in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath; (3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath; (4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and (5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: 202 4-5 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or (b) are in active service as commissioned or noncommissioned officers in the armed forces of the country which they are naturalized citizens. ARTICLE V SUFFRAGE SECTION 1. SUFFRAGE MAY BE EXERCISED BY ALL CITIZENS OF THE PHILIPPINES NOT OTHERWISE DISQUALIFIED BY LAW, WHO ARE AT LEAST EIGHTEEN YEARS OF AGE, AND WHO SHALL HAVE RESIDED IN THE PHILIPPINES FOR AT LEAST ONE YEAR AND IN THE PLACE WHEREIN THEY PROPOSE TO VOTE FOR AT LEAST SIX MONTHS IMMEDIATELY PRECEDING THE ELECTION. NO LITERACY, PROPERTY, OR OTHER SUBSTANTIVE REQUIREMENT SHALL BE IMPOSED ON THE EXERCISE OF SUFFRAGE. Q. What is suffrage? A. Suffrage traditionally has been understood as the right to vote in elections. Under the 1973 Constitution, Article V, Section 4, however, it was given the additional meaning of the obligation to vote. The 1973 provision has not been carried into the 1987 Constitution. Q. Who may exercise suffrage? A. "Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election." Q. Why has the voting age been lowered to eighteen years? A. In order to broaden the mass electoral base and in order to emphasize the role of the youth in public affairs. Q. What does "residence" mean? A. The term "residence" as used in the election law has two meanings. In the requirement of residence in the Philippines, resi 203 204 4-5 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER dence is synonymous with "domicile," which imports not only intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. In order to acquire a domicile by choice, there must concur: (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. In other words, there must be an animus non reuer- tendi and an animus manendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time. The acts of the person must conform with his purpose. The change of residence must be voluntary; the residence at the place chosen for the domicile must be actual; and to the fact of residence there must be added the animus manendi. Gallego v. Verra, 73 Phil. 453,455-6 (1941). With respect, however to the requirement of residence in the place where one is to vote, residence can mean either domicile, as described above, or temporary residence. Thus, one domiciled in a municipality in Camarines Sur but is assigned by his company to Quezon City has a choice of either voting in Camarines Sur or in Quezon City if he has been "residing" in Quezon City for at least six months. This certainly is the doctrine that can be dawn from Faypon. Faypon makes no suggestion at all that his registration away from his domicile was invalid. 96 Phil. 294,299-300 (1954). NOTE: In Romualdez v. Regional Trial Court, 226 SCRA 408, 415 (1993), Philip Romualdez returned from the United States where he had sought asylum after the EDSA Revolution. He was allowed to register as a voter in Tolosa, Leyte. His residence (and also domicile) in Tolosa, Leyte, established in the early 1980's, was recognized as never having been abandoned in the absence of evidence to the contrary. Q. May citizens residing abroad exercise their right of suffrage? A. R A. 9189 now allows citizens residing abroad to vote even if they are recognized as immigrants by the country of their residence. They may vote for President, Vice-President, Senators, and party-list representatives. But they are required to file an affidavit "prepared for the purpose by the Commission [on Elections] declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act." Sec. 1 ART. V - SUFFRAGE 205 The affidavit is meant to be a statement the he or she never intended to abandon his or her domicile in the Philippines. If no affidavit is filed, the person is deemed disqualified. But if after filing such affidavit the person does not reestablish physical residence within three years, the person is likewise disqualified. Q. Section 8, of R.A. 8189, which provides a system of continuing registration, says: "SECTION 8. System of Continuing Registration of Voters. — The Personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election." Likewise, Section 35 of R.A. 8189, which among others, speaks of a prohibitive period within which to file a sworn petition for the exclusion of voters from the permanent voter's list, provides: "SECTION 35. Petition for Exclusion of Voters from the List — Any registered voter, representative of a political party . .. may file . .. except one hundred (100) days prior to a regular election " These provisions notwithstanding, it is being sought that the Comelec be compelled to conduct registration during the prohibited days on the argument that suffrage is a very impotent right. Decide. A. The right of a citizen to vote is necessarily conditioned upon certain procedural requirements he must undergo: among others, the process of registration. Specifically, a citizen in order to be qualified to exercise his right to vote, in addition to the minimum requirements set by the fundamental charter, is obliged by law to register, at present, under the provisions of Republic Act No. 8189, otherwise known as the "Voter's Registration Act of 1996.'' The State, in the exercise of its inherent police power, may enact laws to safeguard and regulate the act of voter's registration for the ultimate purpose of conducting honest, orderly and peaceful election, 206 4-5 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER to the incidental yet generally important end, that even preelection activities could be performed by the duly constituted authorities in a realistic and orderly manner. Mandamus will not Ue. Kahayan, et al. v. Comelec, G.R. No. 147066, March 26, 2001. Q. Who prescribes disqualifications? A. The Congress has been given the discretion to create disqualifications. However, the Congress is prohibited from prescribing any literacy, property, or other substantive requirements. Q. Does a law prohibiting voters in a city from voting for elective provincial officials impose a substantial requirement for the exercise of suffrage thus violating Article V, Section 1? A. No. "The prohibition contemplated in the Constitution has reference to such requirements as the Virginia poll tax, invalidated in Harper v. Virginia Board of Elections, or the New York requirement that to be eligible to vote in a school district, one must be a parent of a child enrolled in a local public school, nullified in Kramer v. Union Free School District, 395 U.S. 621, which impose burdens on the right of suffrage without achieving permissible state objectives. In this particular case, no such burdens are imposed upon the voters of the cities of Cebu and Mandau. They are free to exercise their rights without any other requirement, save that of being registered voters in the cities where they reside and the sanctity of their ballot is maintained." Celia v. COMELEC, L-52304, January 28,1980. Q. Who are not qualified to vote under the Election Code? A. The following persons shall not be qualified to vote: (a) Any person who has been sentenced by final judgment to suffer an imprisonment of not less than one year, such disability not having been removed by plenary pardon: Provided, however, That any person disqualified to vote under this paragraph shall automatically reacquire the right to vote upon expiration of five years after service of sentence. (b) Any person who has been adjudged by final judgment by competent court of having violated his allegiance to the Republic of the Philippines. (c) Insane or feeble-minded persons. Sec. 1 ART. V - SUFFRAGE 207 Q. Have the above disqualifications been in any way affected by the provision which prohibits the legislature from prescribing any literacy, property or substantive requirements? A. It will be noted that the disqualifications found in the Election Code are "substantive," in that they touch on the "quality" of the voter, as distinct from the procedural requirement of, e.g., registration. However, unlike literacy or property qualifications, they are not "neutral" by themselves but have a direct bearing on the "moral" or "mental" worth of the individual. It is submitted therefore that these disqualifications are compatible with the constitutional prohibition. The substantive requirements prohibited by the Constitution are those which equivalently impose a penalty for faultless disadvantage such as illiteracy or poverty. Q. If eighteen is the minimum voting age, how could fifteen year olds be allowed to vote, e.g., in the referendum of February 27, 1975? A. Since the referendum held on February 27, 1975, was purely consultative, there was no need to apply the voting age qualifications found in the Constitution. Moreover, the decree calling for the referendum prescribed separate ballot boxes for those who were below eighteen. See Gonzales v. Commission on Elections, L-40117, and February 22,1975. SEC. 2. THE CONGRESS SHALL PROVIDE A SYSTEM FOR SECURING THE SECRECY AND SANCTITY OF THE BALLOT AS WELL AS A SYSTEM FOR ABSENTEE VOTING BY QUALIFIED FILIPINOS ABROAD. THE CONGRESS SHALL ALSO DESIGN A PROCEDURE FOR THE DISABLED AND THE ILLITERATES TO VOTE WITHOUT THE ASSISTANCE OF OTHER PERSONS. UNTIL THEN, THEY SHALL BE ALLOWED TO VOTE UNDER EXISTING LAWS AND SUCH RULES AS THE COMMISSION ON ELECTIONS MAY PROMULGATE TO PROTECT THE SECRECY OF THE BALLOT. Q. Is absentee voting allowed? A. Yes, under R A. 9189. Q. What is the rule? A. Sec. 4 says: "Sec. 4. Coverage. — All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may 208 4-5 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER vote for president, vice-president, senators and party-list representatives." Q. Does this rule dispense with the residence requirement? A. No. Section 4 applies to those who have not lost their domicile in the Philippines. Q. What is the rule on immigrants? A. Sec. 5 says: aAn immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be the cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia Q. But does not being an immigrant abroad mean that one has lust Philippine domicile? A. Not necessarily. Loss of domicile is evidentiary matter. The presumption is that being an immigrant according to the laws of another country may not necessarily mean loss of domicile. The required declaration of intent to return is meant to be an assertion that one has not abandoned Philippine domicile. However, proof of loss of domicile may be shown in a exclusion proceeding under the Election Law. Q. Will those who have reacquired their citizenship through R.A. 9225 and have dual citizenship have to reacquire Philippine domicile in order to vote? A. Section 1 of Article V prescribes residency requirement as a general eligibility factor for the right to vote. On the other hand, Section 2 authorizes Congress to devise a system wherein an absentee may vote, implying, the Court surprisingly said, that a nonresident may, as an exception to the residency prescription in the Section 1, be allowed to vote. The Court noted there is no provision in the dual citizenship law — R.A. 9225 — requiring Sec. 1 ART. V - SUFFRAGE 209 "duals" to actually establish residence and physically stay in the Philippines first before they can exercise their right to vote. On the contrary, R.A. 9225, in implicit acknowledgment that "duals" are most likely non-residents, grants under its Section 5(1) the same right of suffrage as that granted an absentee voter under RA. 9189. The Court added that it cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as much as possible all overseas Filipinos who, save for the residency requirements exacted of an ordinary voter under ordinary conditions, are qualified to vote. Nicolas-Lewis v. Comelec, G.R. No. 162759, August 4,2006. The Court seems to have recognized a novel way of amending the Constitution, that is, by silence! Because the new citizens under R.A. 9225 are not specifically required to establish residence in the Philippines, the conclusion is drawn that residence is not required. To bolster the conclusion the Court assimilates the new citizens to absentee voters under R.A. 9189 who, incidentally, are required to file an affidavit as indication that they had not abandoned their Philippine domicile. ARTICLE VI THE LEGISLATIVE DEPARTMENT SECTION 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 PROVISION ON INITIATIVE AND REFERENDUM. Q. What is legislative power? A. It is the authority to make laws and to alter or repeal them. Q. Where does the Constitution vest legislative power? A. Legislative power is 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 provision on initiative and referendum" in Section 32. The 1987 Constitution has thus restored bicameralism. Q. What are the advantages of bicameralism? A. Bicameralism (1) allows for a body with a national perspective to check the parochial tendency of representatives elected by district; (2) allows for more careful study of legislation; (3) makes the legislature less susceptible to control by the Executive; (4) serves as training ground for national leaders. Q. What are the advantages of unicameralism? A. The advantages of unicameralism are simplicity of organization resultingin economy and efficiency, facility in pinpointing responsibility for legislation, and avoidance of duplication. Q. How many kinds of legislative power are there? A. In republican systems, there are generally two, original and derivative. Original legislative power is possessed by the sovereign 210 Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 211 people. Derivative legislative power is that which has been delegated by the sovereign people to legislative bodies and is subordinate to the original power of the people. This is the kind of power that is vested in Congress. Legislative power may also be classified into constituent, which is the power to amend or revise the Constitution, and ordinary, which is the power to pass ordinary laws. The people, through the amendatory process, exercise constituent power, and, through initiative and referendum, ordinary legislative power. Q. What are the kinds of limits on legislative power? A. There are two kinds, substantive and procedural. Substantive limits curtail the contents of a law. For example, no law may be passed which impairs freedom of speech. Procedural limits curtail the manner of passing laws. For example, a bill must generally be approved by the President before it becomes law. Q. On what subject matter may Congress legislate? A. Provided that the substantive and procedural limitations found in the Constitution are observed, the Congress may legislate on any subject matter. In other words, the legislative power of Congress is plenary. (This is different from the legislative power of the United States Congress which consists only of the legislative powers enumerated in the Federal Constitution.) Q. May Congress pass irrepealable laws? A. No. The power of present and future legislatures must remain plenary. When one legislature attempts to pass an irrepealable law, to that extent it attempts to limit the power of future legislatures. The power of any legislature can be limited only by the Constitution. Q. May Congress delegate its legislative power? A. No. Legislative power must remain where the people have lodged it. However, there are two exceptions to this rule: (1) by immemorial practice legislative power may be delegated to local governments, Rubi v. Provincial Board, 39 Phil. 660 (1919); (2) the Constitution itself might in specific instances allow delegation of legislative power, e.g., Article VI, Sections 23(2) and 28(2). 212 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Q. When legislative power is delegated, what is the scope of the delegated power? A. The scope is only as far as Congress allows it. Thus, delegated legislation may not violate a statute. Solicitor General v. Metropolitan Manila Authority, G.R. No. 102782, December 11,1991. Q. Is not legislative power as a matter of practice delegated to administrative agencies? A. No. What is delegated to administrative agencies is not legislative or law-making power but rule-making power or law execution. Administrative agencies may be allowed either to "fill up the details" of an already complete statute or to ascertain the facts necessary to bring a "contingent" law into actual operation. Q. In order to ensure that the power delegated by the legislature is not law-making but merely law execution, what qualities must the delegating law possess? A. The delegating law must "(a) be complete in itself — it must set forth therein the policy to be carried out or implemented by the delegate . . . and (b) fix a standard — the limits of which are sufficiently determinate or determinable — to which the delegate must conform in the performance of his functions ... Indeed without a statutory declaration of policy, the delegate would, in effect, make or formulate such policy, which is the essence of every law; and, without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. Hence, he could thereby arrogate upon himself the power, not only to make law, but also — and this is worse — to unmake it, by adopting measures inconsistent with the end sought to be attained by the Act of Congress." Pelaez v. Auditor General, 15 SCRA 569 (1965). Contingent Legislation / rule making - complete, must state the policy - sufficient, determinate at least determinable Can be implied - in the title - in the policy - in the totality of the body - contingent : made dependent on condition Q. Must the standard be formulated in precise declaratory language? A. No. It can be drawn from the declared policy of the law and from the totality of the delegating statute. In Osmefia v. Orbos, 220 SCRA 703, 711-713 (1993), the authority of the Energy Regulatory Board to fix the domestic prices of petroleum products was found to be sufficiently specified "by the general policy of the law to protect local consumers by stabilizing and Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 213 subsidizing domestic pump rates," by the authority given to impose additional amounts "to augment the resources of the [Oil Price Stabilization] Fund." More liberally still, the standard may be embodied in other statutes on the same subject as that of the challenged law. Chiongbian v. Orbos, G.R. No. 96754, June 22,1995. Q. A tax law is passed saying: SEC. 4. Sec. 106 of the same Code, as amended, is hereby further amended to read as follows: SEC. 106. Value-Added Tax on Sale of Goods or Properties. (A) Rate and Base of Tax. - There shall be levied, assessed and collected on every sale, barter or exchange of goods or properties, a value-added tax equivalent to ten percent (10%) of the gross selling price or gross value in money of the goods or properties sold, bartered or exchanged, such tax to be paid by the seller or transferor: provided, that the President, upon the recommendation of the Secretary of Finance, shall, effective January 1, 2006, raise the rate of value-added tax to twelve percent (12%), after any of the following conditions has been satisfied. (i) value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous year exceeds two and four-fifth percent (2 4/5%) or (ii) national government deficit as a percentage of GDP of the previous year exceeds one and one-half percent (11/2%). Is this an invalid delegation of legislative power? A. No. It is a valid delegation of law execution. It is an example of contingent legislation. Where the effectivity of the law is made dependent on the verification by the executive of the existence of certain conditions. The verification is delegated to the executive. Abakada Guru Party List Officers v. Executive Secretary, G.R. No. 168056, September 1, 2005. Reconsidered October 18, 2005. 214 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Q. Act No. 2307 says in part: Section 16. The Board shall have power, after hearing, upon notice, by order in writing, to require every public utility as herein defined: (3) To furnish annually a detailed report of finances and operations, in such form and containing such matters as the Board may from time to time prescribe. Is the delegation valid? A. No. The delegation is so general that it is no more precise than if it had just said "the Board may require every public utility to furnish quire to report on whatever he wants : void annually a detailed report." Compahia General de Tabacos v. Board, 34 Phil. 136 (1916). When he feels theres an extarordinary rise in prices can make whatever temp rules he wants : void Q. A law is passed saying: "If for any cause conditions arise resulting in an extraordinary rise in the price of palay, rice or corn, the Governor General is authorized to issue and promulgate temporary rules and emergency measures fixing the price of such cereals." Is the delegation valid? A. No. The law contains no standard that will guide the Governor General in determining whether the rise is extraordinary and for determining what the price should be. United States v. Ang Tang Ho, 43 Phil. 1 (1922). Law says -Impose restrictions to protect fish : imposes a valid restriction : valid But Added a restriction from a complete list of restrictions : invalid Q. A law authorized the Secretary of Agriculture and Natural Resources to impose restrictions "on the use of any fishing net or fishing device for the protection of fish fry or fish eggs." Pursuant to this a regulation is passed prohibiting the use of trawls. Is the regulation valid? A. Yes. The regulation merely supplies the details for implementing the law which is already clear and complete in itself and contains a standard to guide the administrative officer. Araneta v. Gatmaitan, 101 Phil. 328 (1957). Q. The Secretary of Agriculture passed a regulation penalizing electro fishing. Electro fishing is not one of the forms of fishing punished in the Fisheries Act. In fact, a later P.D. added electro-fishing to the list of punishable forms of fishing, a recognition that it was not punishable under prior existing law. Can one be prosecuted under the regulation? A. No. The regulation was beyond the scope of the Secretary's authority. People v. Maceren, L-32166, 18 October 1977 (76 SCRA 450). (NOTE: Compare this with the Araneta case.) Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT215 Q. A Letter of Instruction issued by the President requiring the use of "early warning devices" (EWD) and also the implementing regulations are challenged as undue delegation of legislative power. Decide. A. As to the claim of undue delegation, it is enough to say that the standard of "safe transit upon the roads" is sufficient. Moreover, the Vienna Convention on Road Signs and Signals, which endorses the use of EWD, is impressed with the character of a "generally accepted principle of international law" which our Constitution makes part of the law of the land. Agustin v. Edu, 88 SCRA 195 (L-49112, February 2,1979). Q. The collective bargaining agreement stipulates that in case of any wage adjustment decreed by law higher than the increase given in the agreement, the company shall pay the difference. R.A. 6640 decreed a wage increase higher than the CBA increase. DOLE, however, issued a regulation saying that salary increase granted pursuant to a CBA will not be considered in determining compliance with the new law. Proper? A. No. "Administrative regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and should be for the sole purpose of carrying into effect its general provisions. The law itself cannot be expanded by such regulations. An administrative agency cannot amend an act of Congress." Cebu Oxygen & Acetylene v. Secretary Drilon, G.R. No. 82849, August 2,1989. Q. The law authorizing the Medical Board of Examinations to devise tests for entrance to medical schools is assailed as undue delegation of legislative power because of lack of sufficient standards. What are the standards, if any? A. The standard is sufficiently found in the law's desire for the e and regulate medical education : valid standard "standardization and regulation of medical education" and in various other parts of the statute which make the guidelines adequately clear. Tablarin v. Gutierrez, 152 SCRA 730 (1987). Q. Memorandum Circular No. 2 of POEA is challenged as unallowable delegation. POEA bases its authority to issue the regulation on Section 4(a) of Executive Order No. 97 which authorizes it to "promulgate the necessary rules and regulations to govern the exercise of the adjudicatory functions of the Administration." It is alleged that there is no sufficient standard. Decide. A. The standard is to be found in the Executive Order creating the Administration mandating it to protect the rights of overseas Filipino nd equitable employment practices : valid workers to "fair and equitable employment practices." Eastern Shipping Lines v. Philippine Overseas Employment Administration, 166 SCRA 533 (1988). 216 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Q. May the power to fix wages be delegated to an executive body? A. Yes, provided there are adequate standards. Employers Confederation v. National Wages and Productivity Commission, G.R. No. 9619, September 24,1991. e given a set of factors to consider before you Q. R.A. No. 8180 (Oil Deregulation Law) enumerated two factors e contingent power -- DONT rely on a different factor! to be considered by the Department of Energy and the Office of the President in effecting the full deregulation of the oil industry, viz.: (1) the time when the price of crude oil and petroleum products in the world market are declining, and (2) the time when the exchange rate of the peso in relation to the US dollar is stable. E.O. No. 392 considered the depletion of the OPSF fund as a factor in ordering the early implementation of full oil deregulation. Petitioners contend that E.O. No. 392 misapplied R.A. No. 8180. Decide. A. "We therefore hold that the Executive department failed to follow faithfully the standards set by R.A No. 8180 when it considered the extraneous factor of depletion of the OPSF fund." Such consideration amounts to a rewriting of the standards set forth in R. A No. 8180. "On the basis of the text of E.O. No. 392, it is impossible to determine the weight given by the Executive department to the depletion of the OPSF fund. ...In light of this uncertainty, we rule that the early deregulation under E.O. No. 392 constitutes a misapplication of R.A No. 8180." Tatad v. Secretary of the Department of Energy, G.R. Nos. 124360 and 127867, November 5,1997,281 SCRA 330,35354. Q. What is the rationale of the grant of quasi-legislative and quasi-judicial powers to administrative bodies? A. "[A]s a result of the growing complexity of the modern society, it has become necessary to create more and more administrative bodies to help in the regulation of its ramified activities. Specialized in the particular field assigned to them, they can deal with the problems thereof with more expertise and dispatch than can be expected from the legislature or the courts of justice." Philippine International Trading Corporation v. Angeles, G.R. No. 108461, October 21, 1996, 263 SCRA 421,444-45 (citing Solid Homes Inc. v Payawal, 177 SCRA 72 [1989]). NOTES: The Supreme Court has continued to apply the same principles that have been developed in the past. Thus the standby authority given to the President to increase the value added tax rate in the Vat Law, R.A. 9337, was upheld as an example of contingent legislation where the effectivity of the law is made to depend on the verification by the executive of the existence of certain conditions. Abakada Guru Party List Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 217 Officers v. Executive Secretary, G.R. No. 168056, September 1, 2005. Reconsidered October 18,2005. In Gerochi v. DENR, G.R. No. 159796, July 17, 2007, the power delegated to the Energy Regulator Board to fix and impose a universal charge on electricity end-users was challenged as an undue delegation of the power to tax. The Court, however, said that, since the purpose of the law was not revenue generation but energy regulation, the power involved was more police power than the power to tax. Moreover the Court added that the power to tax could be used for regulation. As to the validity of the delegation to an executive agency, the Court was satisfied that the delegating law was complete in itself and the amount to be charged was made certain by the parameters set by the law itself. R.A 9335, the Attrition Act of 1995, authorizes the BIR and BOC to give awards to those who surpass the BIR targets and to impose sanctions on those who fall short. The awards are taken from the excess over target as set up by a Board. The Rules for implementation are subject to review by an Oversight Committee of Congress. The validity of the law was challenged on the ground that the delegation to the President of the power to set targets was invalid. However, the law is complete and has standards for the President to follow. Revenue targets are based on the original estimated revenue collection expected respectively of the BIR and the BOC for a given fiscal year as approved by the DBCC and stated in the BESF submitted by the President to Congress. Thus, the determination of revenue targets does not rest solely on the President. Penal sanctions - yes - if law allows - punishment is given by law ( absolute range cannot be delegated ) - published Rules and regulations promulgated by administrative agencies have the force of law. May they have the force of penal law? Yes, provided that the following conditions concur: (1) The delegating statute itself must specifically authorize the promulgation of penal regulations, U.S. v. Grimmaud, 220 U.S. 506 (1911); (2) The penalty must not be left to the administrative agency but must be provided by the statute itself, U.S. v. Barrios, 11 Phil. 327 (1908); (3) The regulation must be published in the Official Gazette or a newspaper of general circulation, People v. Que Po Lay, 94 Phil. 640 (1954). Q. Section 32 of R.A. 4670 prescribes a penalty of "imprisonment, in the discretion of the court." No period is specified. Valid? A No. "It is not for the courts to fix the term of imprisonment where no points of reference have been provided by the legislature. What valid delegation presupposes and sanctions is an exercise of THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER 218 Sees. 2-5 discretion to fix the length of service which must be served within specific or designated limits provided by law, the absence of which designated limits will constitute such exercise as undue delegation, if not an outright intrusion or assumption, of legislative power." People v. Dacuycuy, G.R. No. 45127, May 5,1989. 24 voted at large - natural born - read and write - resident 2 years - registered voted - 35 - cannot add or subtract - 6 year term - term start : June 30 - max : two consecutive - voluntary renunciation : not interrupt SEC. 2. THE SENATE SHALL BE COMPOSED OF TWENTY-FOUR SENATORS WHO SHALL BE ELECTED AT LARGE BY THE QUALIFIED VOTERS OF THE PHILIPPINES, AS MAY BE PROVIDED BY LAW. Q. What is the composition of the Senate? A. Twenty-four Senators elected at large. SEC. 3. No PERSON SHALL BE A SENATOR UNLESS HE IS A NATURAL- BORN CITIZEN OF THE PHILIPPINES, AND, ON THE DAY OF THE ELECTION, IS AT LEAST THIRTY-FIVE YEARS OF AGE, ABLE TO READ AND WRITE, A REGISTERED VOTER, AND A RESIDENT OF THE PHILIPPINES FOR NOT LESS THAN TWO YEARS IMMEDIATELY PRECEDING THE DAY OF THE ELECTION. Q. What are the qualifications of a Senator? A. Section 3. These may neither be added to nor subtracted from by Congress. Q. What does "on the day of the election" mean? A. It means on the day the votes are cast. 6 SEC. 4. THE TERM OF OFFICE OF THE SENATORS SHALL BE SIX YEARS Noon, june 30 Election date: Unless otherwise provided by law AND SHALL COMMENCE, UNLESS OTHERWISE PROVIDED BY LAW, AT NOON ON THE THIRTIETH DAY OF JUNE NEXT FOLLOWING THEIR ELECTION. No SENATOR SHALL SERVE FOR MORE THAN TWO CONSECUTIVE TERMS. VOLUNTARY RENUNCIATION OF THE OFFICE FOR ANY LENGTH OF TIME SHALL NOT BE CONSIDERED AS AN INTERRUPTION IN THE CONTINUITY OF HIS SERVICE FOR THE FULL TERM FOR WHICH HE WAS ELECTED. Q. What is the term of office of a Senator? A. Section 4. Q. May a Senator serve for more than two terms? A. Yes, provided that the terms are not consecutive. SEC. 5. (1) THE HOUSE OF REPRESENTATIVES SHALL BE COMPOSED OF NOT MORE THAN TWO HUNDRED AND FIFTY MEMBERS, UNLESS OTHERWISE Number of reps: unless otherwise provided by law Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 219 FIXED BY LAW, WHO SHALL BE ELECTED FROM LEGISLATIVE DISTRICTS APPORTIONED AMONG THE PROVINCES, CITIES, AND THE METROPOLITAN MANILA AREA IN ACCORDANCE WITH THE NUMBER OF THEIR RESPECTIVE INHABITANTS, AND ON THE BASIS OF A UNIFORM AND PROGRESSIVE RATIO, AND THOSE WHO, AS PROVIDED BY LAW, SHALL BE ELECTED THROUGH A PARTY-LIST SYSTEM OF REGISTERED NATIONAL, REGIONAL, AND SECTORAL PARTIES OR ORGANIZATIONS. (2) THE PARTY-LIST REPRESENTATIVES SHALL CONSTITUTE TWENTY PER CENTUM OF THE TOTAL NUMBER OF REPRESENTATIVES INCLUDING THOSE UNDER THE PARTY LIST. FOR THREE CONSECUTIVE TERMS AFTER THE RATIFICATION OF THIS CONSTITUTION, ONE-HALF OF THE SEATS ALLOCATED TO PARTY LIST REPRESENTATIVES SHALL BE FILLED, AS PROVIDED BY LAW, BY SELECTION OR ELECTION FROM THE LABOR, PEASANT, URBAN POOR, INDIGENOUS CULTURAL COMMUNITIES, WOMEN, YOUTH, AND SUCH OTHER SECTORS AS MAY BE PROVIDED BY LAW, EXCEPT THE RELIGIOUS SECTOR. (3) EACH LEGISLATIVE DISTRICT SHALL COMPRISE, AS FAR AS PRACTICABLE, CONTIGUOUS, COMPACT AND ADJACENT TERRITORY. EACH CITY WITH A POPULATION OF AT LEAST TWO HUNDRED FIFTY THOUSAND, OR EACH PROVINCE, SHALL HAVE AT LEAST ONE REPRESENTATIVE. (4) WITHIN THREE YEARS FOLLOWING THE RETURN OF EVERY CENSUS, THE CONGRESS SHALL MAKE A REAPPORTIONMENT OF LEGISLATIVE DISTRICTS BASED ON THE STANDARDS PROVIDED IN THIS SECTION. Q. What is the total composition of the House of Representatives? A. Not more than 250 members, unless otherwise provided by law. Q. How do representative districts come into existence? A. They are created by law. The ARMM Regional Assembly may not create a representative district. Nor may it creates province because a province automatically gets one representative district. Sema v. Comelec, G.R. No. 177597, July 16, 2008. The creation of legislative districts does not need confirmation by plebiscite if it does not involve the creation of a local government unit. Bagabuyo v. Comelec, G.R. No. 176970, December 8,2008. house classified - district - pary list Q. How are members of the House classified? A. (1) district representatives, each representing one congressional district; 220 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 2-5 (2) party-list representatives, elected through the "party-list system." [(3) sectoral representatives, but these existed only until 1998.] Party-list system Q. How does the "party-list system" work? A. Under the system, "registered national, regional, and sectoral parties or organizations" submit a list of candidates arranged in the order of priority. During congressional elections, such parties or organizations are voted for at large, and the number of seats a party or organization will get, out of the twenty percent allocated for party-list representatives, will depend on the number of votes garnered nationwide. The details for the operation of the party list system will be provided by law. Q. What is the reason for the introduction of the party list system? A. It is hoped that the system will democratize political power by encouraging the growth of a multi-party system while at the same time giving power NOT neccesarily the marginalized to those who traditionally do not win in elections. and under priviledged Q. What organizations may participate in the party list system? A. According to the Supreme Court, the intent of the Constitutional Commission and the implementing statute, R A. 7941, was not to allow all associations to participate indiscriminately in the system but to limit participation to parties or organizations representing the "marginalized and underprivileged." For this purpose, the Court laid down the following guidelines for the Comelec to apply: 1. The parties or organizations must represent the marginalized and underrepresented in Section 5 of RA.7941; 2. this policy; Political parties who wish to participate must comply with 3. The religious sector may not be represented; 4. The party or organization must not be disqualified under Section 6 of R.A. 7941; 5. The party or organization must not be an adjunct of or a project organized or an entity funded or assisted by the government; Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 6. 221 Its nominees must likewise comply with the requirements of the law; 7. The nominee must likewise be able to contribute to the formulation and enactment of legislation that will benefit the nation. Ang Bagong Bayani, et al. v. Comelec, G.R. No. 147589, June 26,2001. Q. Which parties or organizations are disqualified? A. Section 6 says: — The COMELEC may motu proprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds: It is a religious sect or denomination, organization or association organized for religious purposes; It advocates violence or unlawful means to seek its goal; It is a foreign party or organization; It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes; It violates or fails to comply with laws, rules or regulations relating to elections; It declares untruthful statements in its petition; It has ceased to exist for at least one (1) year; or It fails to participate in the last two (2) preceding elections or fails to obtain at least two percentum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered. Q. Who determines whether a party is qualified to participate in the party list system? A. The Comelec. Qualification is a question of fact and therefore is not subject to review by certiorari. VC Cadangen, et al. v. Comelec, G.R. No. 177179, June 5, 2009. Q. What are the qualifications of a party-list nominee? A. As found in Section 9 of R.A. 7941, they are: SECTION 9. Qualifications ofParty-List Nominees. — No person shall be nominated as party-list representative 222 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 4-5 unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election, able to read and write, a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election. In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his term. Ang Bagong Bayani, etal. v. Comelec, G.R. No. 147589, June 26,2001. Q. Congress enacted R.A. 7941 and declared therein a policy to promote "proportional representation" in the election of party- list representatives in order to enable Filipinos belonging to the marginalized and underrepresented sectors to contribute legislation that would benefit them. It, however, deemed it necessary to require parties, organizations and coalitions participating in the system to obtain at least two percent of the total votes cast for the party-list system in order to be entitled to a party-list seat. Those garnering more Party comp than this percentage could have "additional seats in proportion to their total number of votes." Furthermore, no winning party, organization or - 20% mandatory filled by party list coalition can have more than three seats in the House of - 2% minimum unconsti Representatives. Are the two percent threshold requirement and the - not more than 3 seats - extra seats : proportional representation three-seat limit provided in Section 11 (b) of RA 7941 constitutional? A. Veterans Federation Party, et al. v. Comelec, G.R. No. 136781, October 6, 2000 held that the filling of the 20% was not mandatory but the 2% requirement was. Banat v. Comelec, G.R. No. 179295, April 21, 2009 ruled that the 20% was mandatory and since the 2% requirement was an obstacle to filling the 20%, the 2% requirement was declared unconstitutional. Q. How are the party-list seats distributed among the parties? A. Partido v. Comelec. G.R. No. 164702, March 15, 2006, reiterated the formula for the computation of additional seats for The provision Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 223 party-list winners as originally stated in the landmark case of Veterans. They are: First, the twenty percent allocation — the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list; Second, the two percent threshold — only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are "qualified" to have a seat in the House of Representatives; Third, the three-seat limit — each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one "qualifying" and two additional seats; Fourth, proportional representation— the additional seats which a qualified party is entitled to shall be computed "in proportion to their total number of votes." However, the interpretation of "in proportion to their total number of votes" made in Veterans would make it impossible for the party-list seats to be fully filled because of the requirement that only those who obtained at least 2% may get addition seats. But the 20% share can never be filled if the 2% threshold is maintained. Hence, since the 20% share is mandatory, the 2% threshold was declared unconstitutional in Banat v. Comelec, G.R. No. 179271, July 8,2009. NOTE: The Comelec may not issue implementing rules and regulations (IRRS) that provide a ground for the substitution of a party-list nominee not written in Republic Act (R.A.) No. 7941, otherwise known as the Party-List System Act. Lokin, Jr. v. Comelec, G.R. Nos. 179431-32, June 22,2010. Q. May religious leaders be elected or selected as sectoral representatives? A. Yes. The prohibition is against representation of religious sectors but not against religious leaders becoming representatives. legislative districts - contiguous - compact - adjacent - within 3 years following census Reapportion the districts - city with 250k gets one - provinces get one - when you reach the 250k you can get your own legis district even without a census. And such is germane to the title which says " creating x as a highly urbanized city ". - comelec cannot move around municipalities 224 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 2-5 Q. How are the representative districts apportioned? A. "Each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.'' "Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section." Q. Why are representative districts apportioned among provinces, cities, and municipalities "in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio?" A. The underlying principle behind this rule for apportionment is the concept of equality of representation which is a basic principle of republicanism. One man's vote should carry as much weight as the vote of every other man. Q. What is the rule on the representation of provinces and cities? A. Each province, irrespective of population, is entitled to one representative; each city with a population of at least 250,000 is entitled to at least one representative. Q. May the ARMM Regional Assembly create a legislative district? A. No. New legislative districts may be created only by law. Section 19, Article VI of R.A. 9054, insofar as it granted to the ARMM Regional Assembly the power to create provinces and cities which could in effect result in the creation of legislative districts is invalid. "Only Congress can create provinces and cities because the creation of provinces and cities necessarily includes the creation of legislative districts, a power only Congress can exercise under Section 5, Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. The ARMM Regional Assembly cannot create a province without a legislative district because the Constitution mandates that every province shall have a legislative district." Sema v. Comelec, G.R. No. 177597, July 16, 2008. NOTE: When one of the municipalities of a congressional district is converted into a city large enough to entitle it to one legislative district, the incidental effect is Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 225 the splitting of the district into two. The incidental arising of a new district in this manner need not be preceded by a census. Moreover, this incidental effect is deemed implicitly contained in the title announcing the creation of the new city thus satisfying the requirement that the content of the bill be announced in the title. Tobias v. Abalos, 239 SCRA 106 (1994); Mariano, Jr. v. Commission on Elections, G.R. No. 118627, March 7,1995. If, however, as a result of the increase of the number of legislative districts, either because of the creation of a new province or of a new city, an imbalance results in the remaining legislative districts of the mother province, the Commission on Elections has no authority to correct the imbalance by the transfer of municipalities from one district to another. Correction of the imbalance must await the enactment of a reapportionment law. Montejo v. Commission on Elections, G.R. No. 118702, March 16, 1995. Q. Does the creation of a legislative district need confirmation by plebiscite? A. The creation of legislative districts does not need confirmation by plebiscite if it does not involve the creation of a local government unit. Bagabuyo v. Comelec, G.R. No. 176970, December 8, 2008. Q. Must a representative district have a population of 250,000. A. For a city to qualify as a legislative district it must have a population of at least 250,000. The 250,000 minimum applies only to cities seeking to become a representative district. On this basis the Court allowed creation of representative districts of disproportionate sizes in Aquino III v. Comelec, G.R. No. 189793, April 7, 2010. [The Court completely ignored the requirement of proportional representation.] Q. Why was the creation of Malolos City into a representative district invalidated? A. Because it did not satisfy the 250,000 population requirement. The certification made by Regional Director Miranda of the NSO has no legal basis. Aldaba v. Comelec, G.R No. 188078, January 25,2010. Affirmed on reconsideration March 15,2010. 226 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Q. What is "gerrymandering?" Is it allowed? A. "Gerrymandering," which is the formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party, is not allowed. The Constitution says that each district shall "comprise, as far as practicable, contiguous, compact and adjacent territory." Q. If a candidate who received the highest number of votes is disqualified, does the candidate who received the second highest number of votes Winner only by a plurality of votes assume the office? House rep - natural born - 25 - read write - registered voter in district ( except party list ) - resident : 1 year A. No. It is of no moment that there is only a margin of 768 votes between protestant and protestee. Whether the margin is ten or ten thousand, it still remains that protestant did not receive the mandate of the majority during the elections. Thus, to proclaim him as the duly elected representative in the stead of protestee would be anathema to the most basic precepts of republicanism and democracy as enshrined within our Constitution. In effect, we would be advocating a massive disenfranchisement of the majority of the voters of the sixth district of Manila. Ocampo v. HRET, G.R. No. 158466, June 15,2004. SEC. 6. No PERSON SHALL BE A MEMBER OF THE HOUSE OF REPRESENTATIVES UNLESS HE IS A NATURAL-BORN CITIZEN OF THE PHILIPPINES AND, ON THE DAY OF THE ELECTION, IS AT LEAST TWENTY- FIVE YEARS OF AGE, ABLE TO READ AND WRITE, AND, EXCEPT THE PARTY- LIST REPRESENTATIVES, A REGISTERED VOTER IN THE DISTRICT IN WHICH HE SHALL BE ELECTED, AND A RESIDENT THEREOF FOR A PERIOD OF NOT LESS THAN ONE YEAR IMMEDIATELY PRECEDING THE DAY OF THE ELECTION. Q. What are the qualifications of a member of the House of Representatives? A. Section 6. Note, however, that a party-list representative need not be "a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election." Note, moreover, that Congress may not diminish nor increase these qualifications. Q. What is the meaning of residence as a qualification for membership in the House of Representatives? A. The currently accepted meaning of the residence qualification may be drawn from Romualdez-Marcos v. Commission on Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 227 Residence = domicile Elections, G.R. No. 119976, September 18, 1995, and Aquino v. Commission on Elections, G.R. No. 120265, September 18, 1995. What is required is not just temporary residence but "domicile" as this has been defined in jurisprudence. Normally, a person's domicile is his domicile of origin. If a person never loses his or her domicile, the one year requirement of Section 6 is not of relevance because he or she is deemed never to have left the place. If, however, a person loses his or her domicile either by voluntary abandonment for a new one or by marriage to a husband who under the Civil Code dictates the wife's domicile, one must be domiciled in the new place for at least one year preceding the election if one wants to represent the place d affidavits from neighbors that he resides immediately there insufficient in Congress. Similarly, if a person, having once lost his or her domicile, should decide to re-establish herself or himself in his former domicile, the one year requirement would also apply. 1. Intent to leave and abandon -a bona fide intention of abandoning the former place of residence and 2. intent to establish new one 3. definite acts which correspond with the purpose Q. Records show that petitioner's domicile of origin was Candon, Ilocos Sur and that sometime in 1991, he acquired a new domicile of choice at 24 Bonifacio St. Ayala Heights, Old Balara, Quezon City, as shown by his certificate of candidacy for the position of representative of the 3rd District of Quezon City in the May 1995 election. Petitioner is now claiming that he had effectively abandoned his "residence" in Quezon City and has established a new "domicile" of choice at the Province of Sarangani. Decide. A. A person's "domicile" once established is considered to continue and will not be deemed lost until a new one is established. To successfully effect a change of domicile one must demonstrate an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one and definite acts which correspond with the purpose. In other words, there must basically be animus manendi coupled with animus nan revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change-of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. It is the contention of petitioner that his actual physical presence in Alabel, Sarangani since December 1996 was sufficiently established by the lease of a house and lot located therein in January 1997 and by the affidavits and certifications under oath of the residents of that place that they have seen petitioner and his family residing in then- locality. While this may be so, actual and physical is not in itself sufficient to show that from said date he had transferred his residence in that place. To establish a new domicile of choice, personal presence in the place must be coupled with conduct indicative of that intention. 228 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER extra requirements - not allowed - large bond : so large amounts to property requirement - drug testing : no allowed Term - starts : june 30 - noon Noon June 30 Sees. 4-5 While "residence" simply requires bodily presence in a given place, "domicile" requires not only such bodily presence in that place but also a declared and probable intent to make it one's fixed and permanent place of abode, one's home. The lease contract entered into sometime in January 1997, does not adequately support a change of domicile. The lease contract may be indicative of DOMINO's intention to reside in Sarangani but it does not engender the kind of permanency required to prove abandonment of one's original domicile. Further, Domino's lack of intention to abandon his residence in Quezon City is further strengthened by his act of registering as voter in one of the precincts in Quezon City. While voting is not conclusive of residence, it does give rise to a strong presumption of residence especially in this case where DOMINO registered in his former barangay. Domino v. Comelec, G.R. No. 134015, July 19,1999. Q. The Congress passes a law requiring that candidates for the House must post a bond equivalent to one year's salary of a Congressman. Is the law valid? A. The sum required as bond is so big that it amounts to a property qualification. Property qualifications are contrary to the social justice provision of the Constitution, Maquera v. Borra, 15 SCRA 7 (1965). Moreover, this is an attempt to add to the qualifications found in Section 6. NOTE: Republic Act No. (RA.) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain offenses, among other personalities. As applied to candidates for national office, the requirement is unconstitutional because it adds to the exclusive qualifications for such offices prescribed by the Constitution. Social Justice Society v. Dangerous Drugs Board, G.R. No. 157870, November 3,2008. SEC. 7. THE MEMBERS OF THE HOUSE OF REPRESENTATIVES SHALL BE ELECTED FOR A TERM OF THREE YEARS WHICH SHALL BEGIN, UNLESS OTHERWISE PROVIDED BY LAW, AT NOON ON THE THIRTIETH DAY OF JUNE NEXT FOLLOWING THEIR ELECTION. No MEMBER OF THE HOUSE OF REPRESENTATIVES SHALL SERVE - 3 consecutive max FOR MORE THAN THREE CONSECUTIVE TERMS. VOLUNTARY RENUNCIATION OF THE OFFICE FOR - rule on voluntary renunciation ANY LENGTH OF TIME SHALL NOT BE CONSIDERED AS AN INTERRUPTION IN THE CONTINUITY OF HIS SERVICE FOR THE FULL TERM FOR WHICH HE WAS ELECTED. Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT Q. What is the term of a member of the House? A. Section 7. 229 Q. May a member of the House serve for more than three terms? A. Regular election - second monday of may Yes, provided the terms are not successive. Q. Section 67, Article IX, of the Omnibus Election Code, BP Big. 881, says that any "elective official whether national or local running for any office other than the one he is holding in a permanent capacity except for the President and Vice-President shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy." Is this still in effect? A. This is no longer in effect having been repealed by the Fair Election Law. Farinas, et al. v. Executive Secretary, G.R. No. 147387, December 10,2003; Quinto v. Comelec, G.R. No. 189698, December 1, 2009. Q. What is the difference between term and tenure? A. Term is the period during which an official I entitled to hold office. Tenure is the period during which the official actually holds the office. Tenure can be shortened, e.g., by death or removal. But term is changed only by amendment. Dimaporo v. Mitra, Jr., G.R. No. 96859, October 15,1991. SEC. 8. UNLESS OTHERWISE PROVIDED BY LAW, THE REGULAR ELECTION OF THE SENATORS AND THE MEMBERS OF THE HOUSE OF Second REPRESENTATIVES SHALL BE HELD ON THE SECOND MONDAY OF MAY.monday of may NOTE: A person holding office in the House must yield his or her seat to the person declared by the Comelec to be the winner. The Speaker shall administer the oath on the winner. Codilla v. de Venecia, G.R. No. 150605, December 10, 2002. Special election - MAY be held to vill vacancy - by law - unexpired term SEC. 9. IN CASE OF VACANCY IN THE SENATE OR IN THE HOUSE OF REPRESENTATIVES, A SPECIAL ELECTION MAY BE CALLED TO FILL SUCH VACANCY IN THE MANNER PRESCRIBED BY LAW, BUT THE SENATOR OR MEMBER OF THE HOUSE OF REPRESENTATIVES THUS ELECTED SHALL SERVE ONLY FOR THE UNEXPIRED TERM. Q. In case there is a vacancy in the Senate or House of Representatives, is a special election to fill the vacancy mandatory? A. No. The matter is left to the discretion of Congress — "in the manner prescribed by law." But if there should be a special election, the person elected shall serve only for the unexpired term. 230 Increased salary - not take effect until expiration of full TERM - replacement does not benefit - extra emmolluments seems to be allowed THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 10 Q. Following confirmation of Senator Guingona as Vice- President, the Senate called on COMELEC to fill the vacancy through a special election to be held simultaneously with the regular elections on 14 May 2001. Twelve Senators, with a 6-year term each, were due to be elected in that election. Comelec issued a resolution providing that the "Senatorial candidate garnering the 13th highest number of votes shall serve only for the unexpired term of former Senator Teofisto T. Guingona, Jr." Petitioner challenged the resolution because: (1) it failed to notify the electorate of the position to be filled in the special election as required under Section 2 of Republic Act No. 6645 ("R.A. No. 6645"); (2) it failed to require senatorial candidates to indicate in their certificates of candidacy whether they seek election under the special or regular elections as allegedly required under Section 73 of Batas Pambansa Big. 881; and, consequently, (3) it failed to specify in the Voters Information Sheet the candidates seeking election under the special or regular senatorial elections as purportedly required under Section 4, paragraph 4 of Republic Act No. 6646 (TLA. No. 6646"). Decide. A. In a special election to fill a vacancy, the rule is that a statute that expressly provides that an election to fill a vacancy shall be held at the next general elections fixes the date at which the special election is to be held and operates as the call for that election. Consequently, an election held at the time thus prescribed is not invalidated by the fact that the body charged by law with the duty of calling the election failed to do so. This is because the right and duty to hold the election emanate from the statute and not from any call for the election by some authority and the law thus charges voters with knowledge of the time and place of the election. Tolentino v. Comelec, G.R. No. 148334, January 21,2004. SEC. 10. THE SALARIES OF SENATORS AND MEMBERS OF THE HOUSE OF REPRESENTATIVES SHALL BE DETERMINED BY LAW. No INCREASE IN SAID COMPENSATION SHALL TAKE EFFECT UNTIL AFTER THE EXPIRATION OF THE FULL TERM OF ALL THE MEMBERS OF THE SENATE AND THE HOUSE OF REPRESENTATIVES APPROVING SUCH INCREASE. Q. Upon the organization of the first Congress under this Constitution, what will be the salary of the members? A. Two hundred four thousand pesos per annum. Article XVIII, Section 17. Q. The Congress, during the second year of its term, approves an increase in salary effective during the next budget year. Can the law be made effective the next budget year? A. No. The increased salary cannot take effect until the following term. Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 231 Q. After Congress passes a law increasing the salary of its members, special elections are held to fill a vacancy in three congressional districts. Will the newly elected members receive the increased salary? A. No because they would be serving within the term of the members who approved the increase. Q. What is the reason for the delayed effect of the increased salary? A. Its purpose is to place a "legal bar to the legislators' yielding to the natural temptation to increase their salaries." Philconsa v. Mathay, 18 SCRA 300,307 (1966). Q. While the salary of the members of the Congress may not be increased during their tenure, may other "emoluments" not forming part of the fixed salary be tacked on during the term? A. The letter of the prohibition seems to allow such indirect increase of salary because the prohibition is not as all encompassing as the prohibition found in the 1935 Constitution (which prohibited 'per diems and other emoluments or allowances'). What the letter of the present law prohibits is immediate increase of "said compensation," that is, salaries. It is submitted, however, that one may legitimately appeal to the spirit of the prohibition, expressed in Philconsa v. Mathay, supra, and read the prohibition as an absolute ban on any form of direct or indirect increase of salary. Q. May a member of the Congress receive office and necessary travel allowances? If so, what is the limit on such allowances? A. Yes. Since such allowances do not form part of the salary or compensation, allowances take effect immediately. Nor is there a legal limit on the amount that may be appropriated. The only limit is moral, because, according to Section 20, the books of Congress are audited by the Commission on Audit "which shall publish annually an itemized list of amounts paid and expenses incurred for each Member." SEC. 11. A SENATOR OR MEMBER OF THE HOUSE OF REPRESENTATIVES SHALL, IN ALL OFFENSES PUNISHABLE BY NOT MORE THAN SIX - not more than 6 years YEARS IMPRISONMENT, BE PRIVILEGED FROM ARREST WHILE THE CONGRESS - while in session: recess not inclis IN SESSION. No MEMBER SHALL BE QUESTIONED NOR BE HELD LIABLE - even if hes not there IN ANY OTHER PLACE FOR ANY SPEECH OR DEBATE IN THE CONGRESS OR IN ANY COMMITTEE THEREOF. Arrest immunity 232 4-5 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER Q. How does the 1987 privilege from arrest differ from the privilege under the 1935 Constitution? A. The 1987 privilege differs from the privilege under the 1935 Constitution, and for that matter from the privilege under the American Constitution, in that under the 1935 Constitution the privilege was only from civil arrest. In no way did the 1935 Constitution protect a legislator from arrest for a criminal offense. Martinez v. Morfe, 44 SCRA 22 (1972). Under the new Constitution, however, as under the 1973 Constitution, a legislator is privileged from arrest even for a criminal offense provided that the offense was not punishable by a penalty of more, than six years imprisonment Q. When is the privilege available? A. It is available "while the Congress is in session," whether regular or special and whether or not the legislator is actually attending a session. Hence, it is not available while Congress is in recess. Q. Why has it not been made available during recess? A. Since the purpose of the privilege is to protect the legislator against harassment which will keep him away from legislative sessions, there is no point in extending the privilege to the period when the Congress is not in session. Q. Representative Jaloslos, convicted for rape and detained in prison, asks that he be allowed to attend the sessions of the House. He argues on the basis of popular sovereignty and the need for his constituents to be represented. Decide. A. Members of Congress are not exempt from detention for crime. They may be arrested, even when the house is in session, for crimes punishable by a penalty of more than six months. This is the case of Jalosjos. There is no basis whatsoever for treating him differently from other convicts. People u, Jalosjos, G.R. Nos. 132875-76. February 3,2000, Q. What is the parliamentary privilege of speech? A. "No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof." Privileged speech - no need to be in session - MUST be in pursuit oflegislative action - not protect against congress itself Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 233 Q. What is the scope of the privilege? A. In the first place, the privilege is a protection only against forums other than the Congress itself. It does not protect the assemblyman against the disciplinary authority of the Congress but it is an absolute protection against suits for libel. Osmena v. Pendatun, 109 Phil. 863 (1960). In the second place, "speech or debate" includes utterances made in the performance of official functions, such as speeches delivered, statements made, votes cast, as well as bills introduced and other acts done in the performance of official duties. Jimenez v. Cabangbang, 17 SCRA 876 (1966). To come under the privilege, it is not essential that the Congress be in session when the utterance is made. What is essential is that the utterance must constitute "legislative action," that is, it must be part of the deliberative and communicative process by which legislators participate in committee or congressional proceedings in the consideration of proposed legislation or of other matters which the Constitution has placed within the jurisdiction of the Congress. Gravel v. U.S. 90 LW 5053 (1972). See also Antonino v. Valencia, 57 SCRA 70 (May 27,1974). Q. What is the purpose of the privilege? A. Like the privilege from arrest, the privilege of speech is intended to leave the legislator unimpeded in the performance of his duties and free from fear of harassment from outside. NOTE: In a Senate privilege speech Senator Santiago said the following: x x x I am not angry. I am irate. I am foaming in the mouth. I am homicidal. I am suicidal. I am humiliated, debased, degraded. And I am not only that, I feel like throwing up to be living my middle years in a country of this nature. I am nauseated. I spit on the face of Chief Justice Artemio Panganiban and his cohorts in the Supreme Court, I am no longer interested in the position [of Chief Justice] if I was to be surrounded by idiots. I would rather be in another environment but not in the Supreme Court of idiots x x x. Senator Santiago explained that "those statements were covered by the constitutional provision on parliamentary immunity, being part of a speech she delivered in the discharge of her duty as member of Congress or its committee. The purpose of her speech, according to her, was to bring out in the open controversial anomalies in governance with a view to future remedial legislation. She averred that she wanted to expose what she believed 'to be an unjust act 234 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 12-13 of the Judicial Bar Council [JBC],' which, after sending out public invitations for nomination to the soon to be vacated position of Chief Justice, would eventually inform applicants that only incumbent justices of the Supreme Court would qualify for nomination." The Court upheld her defense on the ground of parliamentary immunity but added that "the lady senator has undoubtedly crossed the limits of decency and good professional conduct. It is at once apparent that her statements in question were intemperate and highly improper ii} substance. To reiterate, she was quoted as stating that she wanted "to spit on the face of Chief Justice Artemio Panganiban and his cohorts in the Supreme Court," and calling the Court a "Supreme Court of idiots." Pobre v. Defensor Santiago, AC. No. 7399, August 25,2009. Q. Does the privilege extend to agents of assemblymen? A. Yes, provided that the "agency" consists precisely in assisting the legislator in the performance of "legislative action." Gravel v. U.S., supra. SEC. 12. ALL MEMBERS OF THE SENATE AND THE HOUSE OF REPRESENTATIVES SHALL, UPON ASSUMPTION OF OFFICE, MAKE A FULL DISCLOSURE OF THEIR FINANCIAL AND BUSINESS INTERESTS. THEY SHALL NOTIFY THE HOUSE CONCERNED OF A POTENTIAL CONFLICT OF INTEREST THAT MAY ARISE FROM THE FILING OF A PROPOSED LEGISLATION OF WHICH THEY ARE AUTHORS. Q. About what matters is a member of Congress obliged to make public disclosure? A. Section 12. basic prohibitions SEC. 13. No SENATOR OR MEMBER OF THE HOUSE OF REPRESENTATIVES MAY HOLD ANY OTHER OFFICE OR EMPLOYMENT IN THE GOVERNMENT, OR ANY SUBDIVISION, AGENCY, OR INSTRUMENTALITY THEREOF, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS OR THEIR SUBSIDIARIES, DURING HIS TERM WITHOUT FORFEITING HIS SEAT. NEITHER SHALL HE BE APPOINTED TO ANY OFFICE WHICH MAY HAVE BEEN CREATED OR THE EMOLUMENTS THEREOF INCREASED DURING THE TERM FOR WHICH HE WAS ELECTED. - no other government office : deemed resigned Q« What are the prohibitions imposed on a members of the - BUT still cant take offices he created Congress? Or which he increased in pay A. See Section 13. - cannot be counsel NOTE: Petitioner Liban, a private citizen, alleged that by - no financial interest remaining Chairman of the National Red Cross Senator Gordon has - not intervene : if he has pecuniary interest or were he may be called to act by the natue of his office Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 235 forfeited his seat in the Senate. Liban, however, has no standing to challenge Gordon's occupation of his senatorial seat and the National Red Cross is not a government owned corporation but a private corporation performing public function. Liban v. Gordon, G.R. No. 175352, July 15, 2009. See Nachura dissent. Q. May a member of Congress resign in order to accept an appointment in the government before the expiration of his term? A. Yes. See the first Sentence of Section 13. Q. But are there offices appointment to which is prohibited dining his term even if the member of Congress resigns his seat? A. Yes. He cannot accept appointment to an office which may have been created or the emolument of which may have been increased during his term, and this, even if he had already resigned when the office was created or the emolument increased. See the second sentence of Section 13. SEC. 14. No SENATOR OR MEMBER OF THE HOUSE OF REPRESENTATIVES MAY PERSONALLY APPEAR AS COUNSEL BEFORE ANY COURT OF JUSTICE OR BEFORE THE ELECTORAL TRIBUNALS, OR QUASI-JUDICIAL AND OTHER ADMINISTRATIVE BODIES. NEITHER SHALL HE, DIRECTLY OR INDIRECTLY, BE INTERESTED FINANCIALLY IN ANY CONTRACT WITH, OR IN ANY FRANCHISE OR SPECIAL PRIVILEGE GRANTED BY THE GOVERNMENT, OR ANY SUBDIVISION, AGENCY, OR INSTRUMENTALITY THEREOF, INCLUDING ANY GOVERNMENT-OWNED OR CONTROLLED CORPORATION, OR ITS SUBSIDIARY, DURING HIS TERM OF OFFICE. He SHALL NOT INTERVENE IN ANY MATTER BEFORE ANY OFFICE OF THE GOVERNMENT FOR HIS PECUNIARY BENEFIT OR WHERE HE MAY BE CALLED UPON TO ACT ON ACCOUNT OF HIS OFFICE. Q. What are the prohibitions on a member of Congress relative to the practice of his profession? A. See Section 14. Q. A Congressman buys a nominal amount of shares in a corporation which is party to a suit before the Securities and Exchange Commission and then appears in "intervention." Should the intervention be allowed? A. "A ruling upholding the 'intervention' would make the constitutional provision ineffective. All [a Congressman] need do, if he wants to influence an administrative body is to acquire a minimal participation in the 'interest' of a client and then 236 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 15-16 'intervene' in the proceedings. That which the Constitution directly prohibits may not be done by indirection or by a general legislative act which is intended to accomplish the objects specifically or impliedly prohibited." Puyat v. De Guzman, Jr., 113 SCRA 31, 37 (March 25,1982). Q. Does the prohibition applicable to lawyer-Congressmen apply to the law firm of which they may be members? A. No. The prohibition is personal. 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 4th monday of July 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. THE PRESIDENT MAY CALL A SPECIAL SESSION AT ANY TIME. Special session Elect - elect head - majority of ALL - other officers Q. What distinguishes a special session from a regular session? A. A special session is one called by the President while the legislature is in recess. Under the 1935 Constitution the distinction between regular and special session was significant because during a special session the legislature could consider only the subject matter designated by the President. It is submitted that under the present law, which leaves discretion to Congress as to the number of regular session days, the distinction is no longer significant for the purpose of determining what the legislature may consider. SEC. 16. (1) THE SENATE SHALL ELECT ITS PRESIDENT AND THE HOUSE OF REPRESENTATIVES ITS SPEAKER, BY A MAJORITY VOTE OF ALL ITS RESPECTIVE MEMBERS. EACH HOUSE SHALL CHOOSE SUCH OTHER OFFICERS AS IT MAY DEEM NECESSARY. (2) A MAJORITY OF EACH HOUSE SHALL CONSTITUTE A QUORUM TO DO BUSINESS, BUT A SMALLER NUMBER. MAY ADJOURN FROM DAY TO DAY AND MAY COMPEL THE ATTENDANCE OF ABSENT MEMBERS IN SUCH MANNER, AND UNDER SUCH PENALTIES, AS SUCH ajority HOUSE MAY PROVIDE. UT smaller amount may compel attendance (3) EACH HOUSE MAY DETERMINE THE RULES OF ITS PROCEEDINGS, PUNISH ITS MEMBERS FOR DISORDERLY BEHAVIOR, AND WITH THE CONCURRENCE OF TWO-THIRDS OF ALL ITS MEMBERS, SUSPEND OR EXPEL A Make its own rules Quorum - rules , proceedings - 2/3 to suspendmor expel Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT publish a journal - what transpired - must be shown to public - except - national security - provided by law ENROLLED BILL doctrine - signed by , sen pres, speaker - certified by secretary - official version of law - BEATS journal : except - signers repudiate sig 2 houses 237 MEMBER. A PENALTY OF SUSPENSION, WHEN IMPOSED, SHALL NOT EXCEED SIXTY DAYS. (4) EACH HOUSE SHALL KEEP A JOURNAL OF ITS PROCEEDINGS, AND FROM TIME TO TIME PUBLISH THE SAME, EXCEPTING SUCH PARTS AS MAY, IN ITS JUDGMENT, AFFECT NATIONAL SECURITY; AND THE YEAS AND NAYS ON ANY QUESTION SHALL, AT THE REQUEST OF ONE-FIFTH OF THE MEMBERS PRESENT, BE ENTERED IN THE JOURNAL. EACH HOUSE SHALL ALSO KEEP A RECORD OF ITS PROCEEDINGS. (5) NEITHER HOUSE DURING THE SESSIONS OF THE CONGRESS SHALL, WITHOUT THE CONSENT OF THE OTHER, ADJOURN FOR MORE THAN THREE DAYS, NOR TO ANY OTHER PLACE THAN THAT IN WHICH THE TWO HOUSES SHALL BE SITTING. Q. Who are the officers of Congress? A. The Senate President, the Speaker of the House of Representatives, and "such other officers as [each House] may deem necessary." eeds consent of other house to adjour Q. On the first regular session of the eleventh Congress, Senators Fernan and ame" place Tatad contested for the Senate Presidency. Fernan won by a vote of 20 to 2. With the agreement of Senator Santiago, Tatad manifested that he was assuming the position of minority leader explaining that those who had voted for Fernan comprised the majority, while those who had voted for him, the losing nominee, belonged to the minority. However, the seven Lakas-NUCD-UMDP senators had chosen Senator Guingona as the minority leader. Later, Fernan formally recognized Guingona as such. Santiago and Tatad filed before the Supreme Court a petition for quo warranto, alleging that Guingona "had been usurping, unlawfully holding and exercising the position of Senate minority leader," a position that rightfully belonged to Tatad. 1) Does the Court have jurisdiction over the petition? 2) Petitioners claim that Art. VI, §16(1) has not been observed in the selection of the minority leader. Decide. A. 1) Yes. "It is well within the power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation of the Constitution or gravely abused their discretion in the exercise of their functions and prerogatives." Santiago v. Guingona, G.R No. 134577, November 18,1998, p. 18. 238 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 15-16 2) This provision is explicit on the manner of electing a Senate President and a House Speaker, but silent on the manner of selecting the other officers in both chambers of Congress. The method of choosing who will be the other officers must be prescribed by the Senate itself. The Rules of the Senate neither provide for the positions of majority and minority leaders nor prescribe the manner of creating such offices or of choosing the holders thereof. Such offices exist by tradition and long practice. "But, in the absence of constitutional or statutory guidelines or specific rules, this Court is devoid of any basis upon which to determine the legality of the acts of the Senate relative thereto. On grounds of respect for the basic concept of separation of powers, courts may not intervene in the internal affairs of the legislature; it is not within the province of courts to direct Congress how to do its work." Id. at 23-24 (citing New York Public Interest Research Group, Inc. v. Steingut, 353 NE2d 558). Q. What is the existence of a quorum based on? A. On the proportion between those physically present and the total membership of the body. Q. Is disciplinary action taken by Congress against a member subject to judicial review? A. No, because each House is the sole judge of what disorderly behavior is. Osmena v. Pendatun, 109 Phil. 863 (1960). Q. May the Court intervene in the implementation of the rules of either House of Congress? A. On matters affecting only internal operation of the legislature, the legislature's formulation and implementation of its rules is beyond the reach of the courts. When, however, the legislative rule affects private rights, the courts cannot altogether be excluded. United States v. Smith, 286 U.S. 6 (1932). See also Vera v. Avelino, 77 Phil. 192, 206 (1946). Q. What is the purpose of the requirement that a Journal be kept? A. The duty to keep a Journal has a dual purpose: (1) "to insure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constituents," and (2) to provide proof of what actually trans Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 239 pired in the legislature. 1 STORY COMMENTARIES 840, quoted with approval in Field v. Clark, 143 U.S. 649, 670 (1892). Q. What matters may Congress keep out of the Journal? A. The Constitution exempts from publication only such matters "as may, in [the Congress'] judgment, affect national security." This new rule is an application of Section 7 of the Bill of Rights which says: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. Q. What is the value of the Journal as evidence of what actually transpired in Congress when the Journal conflicts with extraneous evidence such as the testimony of witnesses or newspaper reports, etc.? A- The Journal is conclusive upon the courts. United States v. Pons, 34 Phil. 729 (1916). Q. What is the enrolled bill doctrine? A. The signing of a bill by the Speaker of the House and the President of the Senate and the certification by the secretaries of both Houses of Congress that such bill was passed are conclusive of its due enactment. Arroyo v. De Venecia, G.R. No. 127255, August 14,1997,277 SCRA 268. Q. What is the value of the Journal as evidence of the contents of a law when what the Journal says conflicts with the "enrolled bill?" A. The "enrolled bill" is the official copy of approved legislation and bears the certification of the presiding officer of the legislative body. The respect due to a coequal department requires the courts to accept the certification of the presiding officer of the legislative body. The respect due to coequal department requires the courts to accept the certification of the presiding officer as conclusive assurance that the bill so certified is authentic. Casco Philippine Chemical Co. v. Gimenez, 7 SCRA 347 (1963). 240 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 Q. If the presiding officer should repudiate his signature in the "enrolled bill," will the enrolled bill still prevail over the Journal? A. The enrolled bill theory is based mainly on the respect due to a coequal department. When such coequal department itself repudiates the enrolled bill, then the journal must be accepted as conclusive. Astorga v. Villegas, 56 SCRA 714 (1974). Q. If the enrolled bill conflicts with the Journal on a matter required by the Constitution to be entered in the Journal, which should prevail? A. The Supreme Court has explicitly left this matter an open question in Morales v. Subido, 27 SCRA 131 (1969). ETs SEC. 17. THE SENATE AND THE HOUSE OF REPRESENTATIVES SHALL EACH HAVE AN ELECTORAL TRIBUNAL WHICH SHALL BE THE SOLE JUDGE OF ALL CONTESTS RELATING TO THE ELECTION, RETURNS, AND QUALIFICATIONS OF THEIR RESPECTIVE MEMBERS. EACH ELECTORAL TRIBUNAL SHALL BE COMPOSED OF NINE MEMBERS, THREE OF WHOM SHALL BE JUSTICES OF THE SUPREME COURT TO BE DESIGNATED BY THE CHIEF JUSTICE, AND THE REMAINING SIX SHALL BE MEMBERS OF THE SENATE OR THE HOUSE OF REPRESENTATIVES, AS THE CASE MAY BE, WHO SHALL BE CHOSEN ON THE BASIS OF PROPORTIONAL REPRESENTATION FROM THE POLITICAL PARTIES AND THE PARTIES OR ORGANIZATIONS REGISTERED UNDER THE PARTY-LIST SYSTEM REPRESENTED THEREIN. THE SENIOR JUSTICE IN THE ELECTORAL TRIBUNAL SHALL BE ITS CHAIRMAN. Q. Who is the sole judge of all contests relating to the election, returns, and qualifications of the members of Congress? A. When there is an election contest, that is, when a defeated candidate challenges the qualification and claims the seat of a proclaimed winner, the respective Electoral Tribunal of each House is the sole judge, and neither the Supreme Court nor each House of Congress nor the Commission on Elections can interfere. In the absence of an election contest, however, the Electoral Tribunals are without jurisdiction. Thus, the power of each House to defer the oath-taking of members until final determination of election contests filed against them has been retained by each House. Angara v. Electoral Commission, 63 Phil. 139 (1936). Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 241 Q. When does a case pass from the Comelec to the electoral Tribunal? A. Once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, COMELEC's jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRETs own jurisdiction begins. Aggabao v. Comelec, G.R. No. 163756, January 26, 2005; Limkaichong v. Comelec, G.R. Nos. 17883132, April 1, 2009. Q. Who decides whether a party list representative is qualified? A. The HRET. But the Comelec can decide whether a party-list organization is qualified to join the party-list system. Abayon u. Comelec, G.R. No. 189466, February 11, 2010. Q. Do not the powers of Congress and the Comelec to entertain pre-proclamation controversies conflict with the power of the Electoral Tribunals? A Congress and the COMELEC en banc do not encroach upon the jurisdiction of the PET and the SET. There is no conflict of jurisdiction since the powers of Congress and the COMELEC en banc, on one hand, and the PET and the SET, on the other, are exercised on different occasions and for different purposes. The PET is the sole judge of all contests relating to the election, returns and qualifications of the President or Vice President. The SET is the sole, judge of all contests relating to the election, returns, and qualifications of members of the Senate. The jurisdiction of the PET and the SET can only be invoked once the winning presidential, vice presidential or senatorial candidates have been proclaimed. On the other hand, under Section 37, Congress and the COMELEC en banc shall determine only the authenticity and due execution of the certificates of canvass. Congress and the COMELEC en banc shall exercise this power before the proclamation of the winning presidential, vice presidential, and senatorial candidates. Banat v. Comelec, G.R No. 177508, August 7, 2009. Q. What is the composition of each Electoral Tribunal? A. See Section 17. NOTE: The Constitution gives to the two Houses of Congress the primary jurisdiction over who should sit in the Commission on Appointments. This includes determination of party affiliation and number of party members for the purpose of determining proportional representation. Drilon, et al. v. Speaker, G.R. No. 180055, July 31,2009. 242 15-16 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER Q. May the Supreme Court intervene in the creation of the Electoral Tribunal? A. The case of Bondoc v. Pineda, 201 SCRA 792 (1991), involved a blatant attempt of a political party to manipulate the decision of the Tribunal by manipulating its membership. On the eve of the promulgation of a decision of the Tribunal against a member of the Laban ng Demokratikong Pilipino (LDP), the LDP expelled Camasura from the party, and therefore as LDP representative in the Tribunal, on the ground of disloyalty. Camasura, the LDP member of the Electoral Tribunal, had confided to the LDP that he was voting against the party's candidate. The Supreme Court invalidated the expulsion of Camasura from the Tribunal saying that it was a clear impairment of the Tribunal's prerogative to be the sole judge of election contests. Id. at 810-812. See dissent of Padilla and Sarmiento saying that the decision impairs the independence of the House. The jurisdiction of the Electoral Tribunal to be sole judge comes only after a valid proclamation of a winner. Under Article VIII, Section 1, judicial power includes the authority "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.'' Robles v. House Electoral Tribunal, 181 SCRA 780 (1990); Co v. House Electoral Tribunal, 199 SCRA 692 (1991). On this basis, the Supreme Court has invalidated a final vote tally made by the Electoral Tribunal without supporting evidence. Lerias v. House Electoral Tribunal, 202 SCRA 808 (1991); Arroyo v. House Electoral Tribunal, G.R. No. 118597, July 14,1995. Q. What major difference is there in the composition of the Electoral Tribunals under the 1935 Constitution and of those under the new Constitution? A. Under the 1935 Constitution, only the two major political parties had representation and they had it equally between them, Tanada v. Cuenco, G.R. No. 10520, February 28, 1957; under the new Constitution, all political parties are given proportional representation. Q. The right of Farinas to sit in the House of Representatives is challenged on the ground that his certificate of candidacy was invalid. The challenger claims that, although Farinas has already been proclaimed winner and is actually holding office, the case does Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 243 not come under the Electoral Tribunal because the jurisdiction of the HRET as defined under Article VI, Section 17 of the Constitution is limited only to the qualifications prescribed under Article VI, Section 6 of the Constitution. Consequently, he claims that any issue which does not involve these constitutional qualifications is beyond the realm of the HRET. The filing of a certificate of candidacy being a statutory qualification under the Omnibus Election Code is outside the pale of the HRET. Decide. A. Article VI, Section 17 of the Constitution cannot be circumscribed lexically. The word "qualifications" cannot be read as qualified by the term "constitutional." Ubi lex non distinguit noc nos distinguire debemos. Basic is the rule in statutory construction that where the law does not distinguish, the courts should not distinguish. 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, that issue is best addressed to the HRET. The reason for this ruling is self-evident, for it avoids duplicity of proceedings and a clash of jurisdiction between constitutional bodies, with due regard to the people's mandate. Moreover, whether Farinas validly substituted for someone else must likewise be addressed to the sound judgment of the Electoral Tribunal. Only thus can we demonstrate fealty to the Constitutional provision that the Electoral Tribunal of each House of Congress shall be the "sole judge of all contests relating to the election, returns, and qualifications of their respective members." Guerrero v. Comelec, G.R. No. 137004, July 26, 2000. NOTE: This is different from Powell v. McCormack, 395 U.S. 486 (1969) where the Federal Court said that Congress can pass judgment only on constitutional qualifications. The Tribunal's power, however, covers not just qualifications but also "election" and "returns." Q. May Congress regulate the actions of the Electoral Tribunals even only in procedural matters? A. No. The Tribunals are independent constitutional bodies. Angara v. Electoral Commission, 63 Phil. 139. Q. Petitioners, seeking to disqualify Harry Angping, failed to make the cash deposit required by the rules of the HRET. When the petition was dismissed, they claimed grave abuse of discretion. Decide. A. The petition for quo warranto attacks the ineligibility of Congressman Angping to hold office as a Member of the House of Representatives, not being a natural-born citizen of the Philippines. This is a serious charge, which, if true, renders Congressman Angping disqualified from such office. In view of the delicate nature and importance of this charge, the observance of the HRET Rules of 244 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 Procedure must be taken seriously if they are to attain their objective, i.e., the speedy and orderly determination of the true will of the electorate. Correlatively, party litigants appearing before the HRET or, to be more precise, their lawyers, are duty bound to know and are expected to properly comply with the procedural requirements laid down by the Tribunal without being formally ordered to do so. They cannot righteously impute abuse of discretion to the Tribunal if by reason of the non-observance of those requirements it decides to dismiss their petition. Imperative justice requires the proper observance of technicalities precisely designed to ensure its proper and swift dispensation. Therefore, we find that the HRET did not commit grave abuse of discretion in applying its Rules strictly and in dismissing the Garcia v. HRET, 6.R. No. 134792. August 12,1999. Q. What is the extent of the jurisdiction of the Supreme Court over the Electoral Tribunals? A. Judicial review of decisions or final resolutions of the Electoral Tribunals is possible only in the exercise of the Court's so-called extraordinary jurisdiction upon a determination that the tribunal's decision or resolution was rendered without or in excess of jurisdiction or with grave abuse of discretion constituting denial of due process. Robles v. House Electoral Tribunal, G.R. No. 86647, February 5,1990;Co v. Electoral Tribunal of the House of Representatives, G.R. No. 92191-92, July 30,1991; Lerias v. House Electoral Tribunal, G.R. No. 97105, October 15,1991. Q. On the eve of the promulgation of a decision against an LDP member, the LDP expelled Camasura from the party (and therefore as LDP member of the HET), one of its representatives in the Electoral Tribunal and the alleged ground of disloyalty for having shown his support for Cojuangco. Camasura had previously confided to LDP that he had voted against the LDP Congressman. As a consequence the decision could not be promulgated. Was the removal of Camasura valid? A. The action taken by LDP was a grave abuse of discretion which the Supreme Court can correct by virtue of its power under Article VIII, Section 1 to review "grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." Bondoc v. Pineda, G.R. No. 97710, September 26, 1991. Q. . The Senator-members of the Electoral Tribunal are sought to be disqualified on the ground that they, together with all the other Senators, are respondents in the contest filed by the opposition. May the Electoral Tribunal function as such when all of the Senator-members in it have been disqualified, either voluntarily or involuntarily? Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 245 A. No. "Where as here a situation is created which precludes the substitution of any Senator sitting in the Tribunal by any of his other colleagues in the Senate without inviting the same objections to the substitute's competence, the proposed mass disqualification if sanctioned and ordered would leave the Tribunal no alternative but to abandon a duty that no other court or body can perform but which it cannot lawfully discharge if shorn of the participation of its entire membership of Senators." They must therefore discharge their function. Abbas, et al. v. Senate Electoral Tribunal, 166 SCRA 651 (1988). Q. Petitioner contends that the protest before the Electoral Tribunal was filed out of time and therefore should be dismissed. True enough, the protest was filed within the period prescribed by the Tribunal rules, but out of time if computed on the basis of the Election Code for filing cases before the COMELEC. Decide. A. The applicable rule is not the Election Code rule, which is for cases filed before the COMELEC, but the Tribunal rule. In fact, Congress may not prescribe for the Electoral Tribunal a period for filing cases before it. The Tribunal is sole judge of election contests. This power necessarily includes the rule making power with which Congress may not interfere. Lazatin v. House Electoral Tribunal, G.R. No. 84297, December 8,1988. Comish on appointment SEC. 18. THERE SHALL BE A COMMISSION ON APPOINTMENTS CONSISTING OF THE PRESIDENT OF THE SENATE, AS EX-OFFICIO CHAIRMAN, TWELVE SENATORS AND TWELVE MEMBERS OF THE HOUSE OF REPRESENTATIVES, ELECTED BY EACH HOUSE ON THE BASIS OF PROPORTIONAL REPRESENTATION FROM THE POLITICAL PARTIES AND PARTIES OR ORGANIZATIONS REGISTERED UNDER THE PARTY-LIST SYSTEM REPRESENTED THEREIN. THE CHAIRMAN OF THE COMMISSION SHALL NOT VOTE, EXCEPT IN CASE OF A TIE. THE COMMISSION SHALL ACT ON ALL APPOINTMENTS SUBMITTED TO IT WITHIN THIRTY SESSION DAYS OF THE CONGRESS FROM THEIR SUBMISSION. THE COMMISSION SHALL RULE BY A MAJORITY VOTE OF ALL ITS MEMBERS. Q. What is the composition of the Commission on Appointments? A. It is composed of the Senate President as Chairman, twelve Senators and - senate pres as chairman twelve Members of the House of Representatives elected by each - 12/12 senate and house House according to proportional representation of the parties or - total 25 organizations registered under the party-list system represented therein. The total composition will thus be twenty five, but the - chair man votes to break tie only Chairman votes only to break a tie. Composition 246 15-16 Function - legislative check for appointive power of pres THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER Q. What is the function of the Commission on Appointments? A. The Commission on Appointments acts as a legislative check on the appointing authority of the President. For the effectivity of the appointment of certain key officials enumerated in the Constitution, the consent of the Commission on Appointments is needed. Q. Petitioner was a member of the Commission on Appointments representing the Liberal Party. With the organization of the LDP (Laban ng Demokratikong Pilipino), some congressional members belonging to Congress can change the the Liberal Party resigned from said party to join the LDP. When the composition as the need arises Commission on Appointments was reorganized, petitioner was to maintain proportional rep replaced by an LDP representative. portional represenation 1. Does the situation present a "political question?" Petitioner contends that the organization of the LDP cannot affect the composition of the Commission on Appointments because LDP is not a registered party and has not yet shown the stability of a party. Decide. 2. A. 1. The question is justiciable. The issue is one of legality not of wisdom. The ascertainment of the manner of forming the Commission on Appointments is distinct from the discretion of the parties to designate their representatives. And even if the question were political in nature, it would still come under the expanded power of review in Article VIII, Section 1. 2. The Constitution requires proportional representation of the parties in both houses of Congress. Nowhere, however, does the Constitution require that the party must be a registered party. (Moreover, in the course of the litigation, the Commission on Elections affirmed the registration of the LDP as a political party.) The sense of the Constitution is that the membership in the Commission on Appointments must always reflect political alignments in Congress and must therefore adjust to changes. It is understood that such changes in party affiliation must be permanent and not merely temporary alliances. Daza v. Singson, G.R. No. 86344, December 21,1989. Q. Coseteng was the only candidate elected under the banner of KAIBA. After the reorganization of party alignment when many joined the LDP and with the endorsement of nine other Congressmen she sought appointment to the Commission on Minimum to get a seat - 8.4% house membership - ( but baka subject to change ? ) - basta a SOLE member which reps only .4% not entitled - endorsment doesnt count - the two houses have jurisdiction to decide how to achieve " proportional representation " Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 247 Appointments as a minority representative. Is she entitled to a seat under the rule of proportional representation? No. This is a justiciable question since it involves the legality of the distribution of seats. Even if KAIBA were to be considered as an opposition party, its lone member represents only 0.4% of the House membership and thus not entitled to one of the twelve seats. Under the total membership of the House, to be entitled to a seat the party should comprise 8.4% of the House membership. Nor can the endorsement of the nine members be counted in Coseteng's favor because they are not members of her party. Coseteng v. Mitra, Jr., G.R. No. 86649, July 12, 1990. NOTE: The arithmetic involved in the formation of the Commission on Appointments has occasioned a number of controversies and was once again the subject of controversy in Guingona, Jr. v. Gonzales, 214 SCRA 789 (1992). The case involved the Senate contingent in the Commission. The senatorial elections of 1992 yielded 15 LDP senators, 5 NPC, 3 Lakas-NUCD, and 1 LP-PDP-LABAN. On the basis of proportional representation, therefore, the Commission on Appointments could contain 7.5 LDP, 2.5 NPC, 1.5 Lakas, and .5 LP-PDP-LABAN. The Senate, however, put in 8 LDP by rounding out 7.5, 2 NPC by ignoring .5, 1 LAKAS also by ignoring .5, and 1 LP-PDP by rounding out .5 to 1. Was this constitutional? The Court ruled that rounding out 7.5 to 8 and .5 to 1 was unconstitutional because it deprived Lakas and NPC of .5 each. Nor could the holders of .5 each, while belonging to distinct parties, form a unity for purposes of obtaining a seat in the Commission. Thus, under the Court's arithmetic, the result would be a total of only 11 members. The Court ruled that a full complement of 12 was not mandatory. The case of Lorenzo Tanada being given a seat in the Commission on Appointments in the old Senate in spite of his being the only member of the Citizens Party was cited as justification for reconsidering the decision. The Court did not consider the case of the older Tanada as precedent because the action of the Senate then was never challenged in court. Guingona, Jr. v. Gonzales, 219 SCRA 326 (1993). NOTE: The Constitution gives to the two Houses of Congress the primary jurisdiction over who should sit in the Commission on Appointments. This includes determination of party affiliation and number of party members for the purpose of determining proportional representation. Drilon, et al v. Speaker, G.R. No. 180055, July 31, 2009. ET and COAp Meetings - start 30 days after sen pres and speaker chosen - meet only when congress in session - at the call of chairman or majority - must decide within 30 day. ( or esle what?) 248 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 12-13 SEC. 19. THE ELECTORAL TRIBUNALS AND THE COMMISSION ON APPOINTMENTS SHALL BE CONSTITUTED WITHIN THIRTY DAYS AFTER THE SENATE AND THE HOUSE OF REPRESENTATIVES SHALL HAVE BEEN ORGANIZED WITH THE ELECTION OF THE PRESIDENT AND THE SPEAKER. THE COMMISSION ON APPOINTMENTS SHALL MEET ONLY WHILE THE CONGRESS IS IN SESSION, AT THE CALL OF ITS CHAIRMAN OR A MAJORITY OF ALL ITS MEMBERS, TO DISCHARGE SUCH POWERS AND FUNCTIONS AS ABE HEREIN CONFERRED UPON IT. Q. How should the Commission arrive at its decisions? A. First, the Commission must act on all appointments submitted to it within thirty session days from submission. This rule is intended to prevent the Commission from freezing appointments. Second, the Commission shall decide by majority vote. Thus, the dissent of one member should not block action by the Commission. Finally, the Commission can meet and act only when Congress is in session. Publish records and books of accounts legislative hearings - 21: inquiries in aid of legislation - 22 : oversight function Aid of legislation - can summon dep heads - only pres and SC justices cant be summoned - to exercise these there must BE PUBLICATION everytime there are new members. in 1.Official Gazette or 2.in a newspaper of general circulation Oversight function - determine if laws passed are being carried out faithfully - can show up on their own initiative or request of congress BUT needs permission of PRES SEC. 20. THE RECORDS AND BOOKS OF ACCOUNTS OF THE CONGRESS SHALL BE PRESERVED AND BE OPEN TO THE PUBLIC IN ACCORDANCE WITH LAW, AND SUCH BOOKS SHALL BE AUDITED BY THE COMMISSION ON AUDIT WHICH SHALL PUBLISH ANNUALLY AN ITEMIZED LIST OF AMOUNTS PAID TO AND EXPENSES INCURRED FOR EACH MEMBER. SEC. 21. THE SENATE OR THE HOUSE OF REPRESENTATIVES OR ANY OF ITS RESPECTIVE COMMITTEES MAY CONDUCT INQUIRIES IN AID OF LEGISLATION IN ACCORDANCE WITH ITS DULY PUBLISHED RULES OF PROCEDURE. THE RIGHTS OF PERSONS APPEARING IN OR AFFECTED BY SUCH INQUIRIES SHALL BE RESPECTED. NOTE: Legislative hearings. There are two provisions on legislative hearing, Sections 21 and 22. Section 21 is about legislative investigations in aid of legislation. Its scope and limitation has been the subject of earlier rulings but Senate v. Ermita, G.R. No. 169777, April 20,2006, specified who may and who may not be summoned to Section 21 hearings. Thus, under this rule, even a Department Head who is an alter ego of the President may be summoned. Thus, too, the Chairman and members of the Presidential Commission on Good Government (PCGG) are not except from summons in spite of the exemption given to them by President Cory Aquino during her executive rule. Sabio v. Gordon, G.R. determined by the sum total of the information to be gathered as a result of the investigation, and not by a fraction of such information elicited from a single question. Contempt power - part of power to investigate - can compel appearance - only reason because kasi its : " in aid of legislation " - to determine WON a crime was commited IS NOT in aid of legislation ( bengzon ) - BUT filing of complaints in other courts does not auto = use bengzon. In ( standard chartered ) " compel attendance to help prevent this from happening again " - LGUs dont have this inherent power Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 249 No. 174318, October 17, 2006. The Court ruled that anyone, except the President and Justices of the Supreme Court, may be summoned. Nor may a court prevent a witness from appearing in such hearing. Senate Blue Ribbon Committee v. Judge Majadueon, G.R. No. 136760, July 29, 2003. Section 22, for its part, establishes the rule for the exercise of what is called the "oversight function" of Congress. Such function is intended to enable Congress to determine how laws it has passed are being implemented. In deference to separation of powers, however, and because Department Heads are alter egos of the President, they may not appear without the permission of the President. This was explicitly mentioned in the deliberations of the 1935 Constitutional Convention where some Delegates had doubts about the propriety or constitutionality of Department Heads appearing in Congress. Such deference is not found, by the Court's interpretation, in Section 21. It should be noted, however, that the exemption from summons applies only to Department Heads and not to everyone who has Cabinet rank. Q. Must the rules for investigation be published? A. Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he Senate or the House of Representatives, or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure." The requisite of publication of the rules is intended to satisfy the basic requirements of due process. Publication is indeed imperative, for it will be the height of injustice to punish or otherwise burden a citizen for the transgression of a law or rule of which he had no notice whatsoever, not even a constructive one. What constitutes publication is set forth in Article 2 of the Civil Code, which provides that "[l]aws shall take effect after 15 days following the completion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines." The absence of any amendment to the rules published some years ago cannot justify the Senate's defiance of the clear and unambiguous language of Section 21, Article VI of the Constitution. The organic law instructs, without more, that the Senate or its committees may conduct inquiries in aid of legislation only in accordance with duly published rules of procedure, and does not make 250 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 15-16 any distinction whether or not these rules have undergone amendments or revision. The constitutional mandate to publish the said rules prevails over any custom, practice or tradition followed by the Senate. Garcillano v. House of Representatives, G.R. No. 170338, December 23, 2008 In De la Paz v. Senate, G.R. No. 184849, February 13, 2009 petitioners argue that respondent Committee is devoid of any jurisdiction because it violated the same Senate Rules when it issued the warrant of arrest without the required signatures of the majority of the members of respondent Committee and because they were not published as required by the Constitution, and thus, cannot be used as the basis of any investigation involving them relative to the Moscow incident. But Section 16(3), Article VI of the Philippine Constitution states: "Each House shall determine the rules of its proceedings." This provision has been traditionally construed as a grant of full discretionary authority to the Houses of Congress in the formulation, adoption and promulgation of its own rules. As such, the exercise of this power is generally exempt from judicial supervision and interference, except on a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due process. But the Senate is still subject to the imperatives of quorum, voting, and publication. (The Senates rules had in fact been published and were followed by the Senate.) Q. What is the purpose of legislative investigation? A. The power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information — which is not infrequently true — recourse must be had to others who do possess it. Arnault v. Nazareno, 87 Phil. 29, 45 (1950). Q. How is the power of legislative investigation enforced? A. Experience has shown that mere requests for information are frequently unavailing and that information that is volunteered is not always accurate or complete. Hence, the power of investigation necessarily includes the power to punish a contumacious witness for contempt. Arnault v. Nazareno, supra. Hello Garci Digest : http://www.thelawchic.com/ garcillano-vs-committees/ Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 251 Q. May a court enjoin the appearance of a witness? A. No. A court has no authority to prohibit the Committee from requiring respondent to appear and testify before it. Senate Blue Ribbon Committee v. Judge Majaducon, G.R. No. 136760, July 29,2003. Q. When may a witness in an investigation be punished for contempt? A. No person can be punished for contumacy as a witness unless his testimony is required in a matter into which the legislature or any of its committees has jurisdiction to inquire. The requirement that the investigation be "in aid of legislation" is an essential element for establishing the jurisdiction of the legislative body. It is, however, a requirement which is not difficult to satisfy because, unlike in the United States, where legislative power is shared by the United States Congress and the state legislatures, the totality of legislative power is possessed by Congress and its legislative field is well-nigh unlimited. "It would be difficult to define any limits by which the subject matter of its inquiry can be bounded." Moreover, it is not necessary that every question propounded to a witness must be material to a proposed legislation. "In other words, the materiality of the question must be determined by its direct relation to the subject of the inquiry and not by its indirect relation to any proposed or possible legislation. The reason is that the necessity or lack of necessity for legislative action and the form and character of the action itself are determined by the sum total of the information to be gathered as a result of the investigation, and not by a fraction of such information elicited from a single question." Arnault v. Nazareno, supra. Q. Upon the instigation of Senator Enrile who said in a privileged speech that there was need to determine the existence of violation of law in the alleged transfer of some properties of "Kokoy" Romualdez to the Lopa Group of companies, the Senate Blue Ribbon Committee decided, purportedly in aid of legislation, to investigate the transaction. Meanwhile, too, the petitioners in this case had been charged before the Sandiganbayan in connection with the same transaction. Meanwhile, too, the petitioners in this case had been charged criminally before the Sandiganbayan in connection with the same transaction. A. The Court ruled that the investigation was not in aid of legislation because "the speech of Senator Enrile contained no 252 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 19-21 suggestion of contemplated legislation" but merely pointed to the need to determine whether "the relatives of President Aquino, particularly Mr. Ricardo Lopa, had violated the law." To allow the investigation to continue would violate separation of powers. (The Court did not find it necessary to discuss the due process allegation.) Bengzon, Jr. v. Senate Blue Ribbon Committee, G.R. No. 89914, November 20,1991. See dissents. But when bank officers who had been summoned used the Bengzon argument in Standard Charter v. Senate, G.R. No. 167173, December 27,2007, the Court said that the factual milieu in Bengzon did not obtain in the case. Resolution No. 166 calling for the hearing was explicit about the subject and nature of the inquiry to be conducted by the respondent Committee. Q. What does the Constitution mean when it says that "The rights of persons appearing in or affected by such inquiries shall be respected?" A. This is just another way of saying that legislative investigations must be "subject to the limitations placed by the Constitution on governmental action." And since all governmental action must be exercised subject to constitutional limitations, principally found in the Bill of Rights, this limitation really creates no new constitutional right. Q. For how long may Congress keep a contumacious witness in detention? A. In addition to the above express limitations on the power of Congress is the implicit limitation that the legislature's power to commit a witness for contempt terminates when the legislative body ceases to exist upon its final adjournment. "This must be so, inasmuch as the basis of the power to impose such a penalty is the right which the legislature has to self-preservation, and which right is enforceable during the existence of the legislative body." Avancena, C.J. concurring in Lopez v. de los Reyes, 55 Phil. 170,186 (1930). Q. May the inherent power of Congress to punish for contempt be applied, mutatis mutandis, to local legislative bodies? A. No. The power is recognized as inherent in Congress as a matter of self-preservation of one of the three independent and coordinate branches of government. It is sui generis and may not be claimed by local legislative bodies. Negros Oriental II Electric Cooperative v. Sangguniang Panglunsod, G.R. No. 72492, November 5,1987. Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 253 SEC. 22. THE HEADS OF DEPARTMENTS MAY UPON THEIR OWN INITIATIVE, WITH THE CONSENT OF THE PRESIDENT, OR UPON THE REQUEST OF EITHER HOUSE, AS THE RULES OF EACH HOUSE SHALL PROVIDE, APPEAR BEFORE AND BE HEARD BY SUCH HOUSE ON ANY MATTER PERTAINING TO THEIR DEPARTMENTS. WRITTEN QUESTIONS SHALL BE SUBMITTED TO THE PRESIDENT OF THE SENATE OR THE SPEAKER OF THE HOUSE OF REPRESENTATIVES AT LEAST THREE DAYS BEFORE THEIR SCHEDULED APPEARANCE. INTERPELLATIONS SHALL NOT BE LIMITED TO WRITTEN QUESTIONS, BUT MAY COVER MATTERS RELATED THERETO. WHEN THE SECURITY OF THE STATE OR THE PUBLIC INTEREST SO REQUIRES AND THE PRESIDENT SO STATES IN WRITING, THE APPEARANCE SHALL BE CONDUCTED IN EXECUTIVE SESSION. Q. What is the purpose of Section 22? A. The provision formalizes the "oversight function" of Congress. The special mention of heads of departments was put in, even under the Administrative Code before the 1935 Constitution, was intended to forestall any objection to a department head's appearance in Congress. Q. Does Section 22 provide for a "question hour?" A. No. The "question hour" is proper to a parliamentary system where there is no separation between the legislative and executive department. Section 22, unlike in the "question hour" under the 1973 Constitution, has made the appearance of department heads voluntary. They can appear on their own initiative, with the consent of the President, or at the request of Congress. Because of the separation of powers, however, department secretaries may not impose their appearance upon either House. SEC. 23. (1) THE CONGRESS, BY A VOTE OF TWO-THIRDS OF BOTH HOUSES IN JOINT SESSION ASSEMBLED, VOTING SEPARATELY, SHALL HAVE THE SOLE POWER TO DECLARE THE EXISTENCE OF A STATE OF WAR. (2) IN TIMES OF WAR OR OTHER NATIONAL EMERGENCY, THE CONGRESS MAY BY LAW AUTHORIZE THE PRESIDENT, FOR A LIMITED PERIOD AND SUBJECT TO SUCH RESTRICTIONS AS IT MAY PRESCRIBE, TO EXERCISE POWERS NECESSARY AND PROPER TO CARRY OUT A DECLARED NATIONAL POLICY. UNLESS SOONER WITHDRAWN BY RESOLUTION OF THE CONGRESS, SUCH POWER SHALL CEASE UPON THE NEXT ADJOURNMENT -2/3 voting separately THEREOF. - declare state of war : congress - make war : president WAR! - can make war even without declaration Side things that happen upon declaration of war - guarantee safe passage to ambassadors and diplomatic staff - can pierce corp veil to see if its a foreign corp - cannot insure public enemy Emergency powers When given - war - national emergency - for a limited period, may be withdrawn, ceases on adjournment - congress limits extent. - Standard as to what kind : necessary to carry out national policy VS residual powers - state of rebellion - guards in all malls - these are different from emergency powers! 254 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 15-16 Q. What is the difference, if any, between the war power of Congress under the 1935 Constitution and the war power of Congress now? A. The 1935 Constitution, Article VI, Section 25, gave to Congress "the sole power to declare war;" the present provision, as also the 1973 provision, gives to Congress "the sole power to declare the existence of a state of war." The difference between the two phraseologies is not substantial but merely in emphasis. The two phrases are interchangeable, even under the 1935 Constitution; but the second phrase emphasizes more the fact that the Philippines, according to Article II, Section 2, renounces aggressive war as an instrument of national policy. Q. May the country engage in war in the absence of a declaration of war? A. While the Constitution gives to the legislature the power to declare the existence of a state of war and to enact all measures to support the war, the actual power to make war is lodged elsewhere, that is, in the executive power which holds the sword of the nation. The executive power, when necessary, may make war even in the absence of a declaration of war. In the words of the American Supreme Court, war being a question of actualities, "the President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact." See Prize Cases, 2 Bl. 635 (U.S. 1863). Q. Under what conditions may emergency powers be delegated to the President? A. See Section 23(2). Q. What emergency powers may be delegated? A. Under the present provision, Congress may authorize the President "to exercise powers necessary and proper to carry out a declared national policy." Note that the nature of the delegable power is not specified. It is submitted that, on the basis of this provision, the President may be given emergency legislative powers if Congress so desires. This is confirmed by the explanation made on the floor of the 1971 Convention, which is the source of this provision, that emergency powers can include the power to rule by "executive fiat." Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 255 Q. Does a resolution of Congress withdrawing the emergency powers need presidential approval? A. No. Origination clause - money bills ORIGINATE from the house - appropriation - revenue - tariff - public debt - local application - private bills just the BILL not the law - but once it is passed to the senate they can COMPLETELY alter its contents - they dont even need to maintain the essence - they can even have a baon ng bill ready that is diff even before such passage SEC. 24. ALL APPROPRIATION, REVENUE OR TARIFF BILLS, BILLS AUTHORIZING INCREASE OF THE PUBLIC DEBT, BILLS OF LOCAL APPLICATION, AND PRIVATE BILLS SHALL ORIGINATE EXCLUSIVELY IN THE HOUSE OF REPRESENTATIVES, BUT THE SENATE MAY PROPOSE OR CONCUR WITH AMENDMENTS. Q. What is the meaning of the requirement that money bills must originate in the House of Representatives? A. The meaning of origination from the House and the scope of the Senate's power to introduce amendments were thoroughly discussed in Tolentino v. Secretary of Finance, 235 SCRA 630 (1994), affirmed on reconsideration October 30, 1995, involving R.A. 7716, the Value Added Tax (VAT) law. The Court said that the exclusivity of the prerogative of the House of Representatives means simply that the House alone can initiate the passage of a revenue bill, such that, if the House does not initiate one, no revenue law will be passed. But once the House has approved a revenue bill and passed it on to the Senate, the Senate can completely overhaul it, by amendment of parts or by amendment by substitution, and come out with one completely different from what the House approved. It does not matter whether the Senate already anticipated a bill from the House and formulated one to take the place of whatever the House might send. The Court rejected the idea that the Senate is bound to retain the essence of what the other House approved. Textually, it is the "bill" which must exclusively originate from the House; but the "law" itself which is the product of the total bicameral legislative process originates not just from the House but from both Senate and House. NOTE: A bill of local application, such as one asking for the conversion of a municipality into a city, is deemed to have originated from the House provided that the bill of the House was filed prior to the filing of the bill in the Senate even if, in the end, the Sernate approved its own version. Reiterates the VAT case. Alvarez v. Guingona, G.R. No. 118303, January 31,1996. NOTE: Guingona, Jr. v. Carague, 196 SCRA 221 (1991), dealt with the controversy surrounding automatic appropriation 256 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 for foreign debt servicing. Petitioners sought to declare the various Presidential Decrees authorizing automatic appropriation of amounts to be used for servicing foreign debts. The principal contention of petitioners was that (1) appropriation "bills" under Section 24 must originate in the House of Representatives and (2) there must be definiteness, certainty and exactness in an appropriation. Answering the first argument the Court said that the existing presidential decrees were laws and not bills still to be enacted into law. As to the second argument, the Court resolved it by applying the principles on delegation: The decrees are complete by themselves and the exact amount due can be arrived at by arithmetical computation on the basis of existing records. Appropriation RIDER - no policy stuff in general appropriations bill - except : directly relates Special approp - specific purpose - supported by funds available or revenue proposal power to Augment Below Discretionary funds - particular officials - for public purpose SEC. 25. (1) THE CONGRESS MAY NOT INCREASE THE APPROPRIATIONS RECOMMENDED BY THE PRESIDENT FOR THE OPERATION OF THE GOVERNMENT AS SPECIFIED IN THE BUDGET. THE FORM, CONTENT, AND MANNER OF PREPARATION OF THE BUDGET SHALL BE PRESCRIBED BY LAW. (2) NO PROVISION OR ENACTMENT SHALL BE EMBRACED IN THE GENERAL APPROPRIATIONS BILL UNLESS IT RELATES SPECIFICALLY TO SOME PARTICULAR APPROPRIATION THEREIN. ANY SUCH PROVISION OR ENACTMENT SHALL BE LIMITED IN ITS OPERATION TO THE APPROPRIATION TO WHICH IT RELATES. (3) THE PROCEDURE IN APPROVING APPROPRIATIONS FOR THE CONGRESS SHALL STRICTLY FOLLOW THE PROCEDURE FOR APPROVING APPROPRIATIONS FOR OTHER DEPARTMENTS AND AGENCIES. (4) A SPECIAL APPROPRIATIONS BELL SHALL SPECIFY THE PURPOSE FOR WHICH IT IS INTENDED, AND SHALL BE SUPPORTED BY FUNDS ACTUALLY AVAILABLE AS CERTIFIED BY THE NATIONAL TREASURER, OR TO BE RAISED BY A CORRESPONDING REVENUE PROPOSAL THEREIN. (5) NO LAW SHALL BE PASSED AUTHORIZING ANY TRANSFER OF APPROPRIATIONS; HOWEVER, THE PRESIDENT, THE PRESIDENT OF THE SENATE, THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, THE CHIEF JUSTICE OF THE SUPREME COURT, AND THE HEADS OF CONSTITUTIONAL COMMISSIONS MAY, BY LAW, BE AUTHORIZED TO AUGMENT ANY ITEM IN THE GENERAL APPROPRIATIONS LAW FOR THEIR RESPECTIVE OFFICES FROM SAVINGS IN OTHER ITEMS OF THEIR RESPECTIVE APPROPRIATIONS. (6) DISCRETIONARY FUNDS APPROPRIATED FOR PARTICULAR OFFICIALS SHALL BE DISBURSED ONLY FOR PUBLIC PURPOSES TO BE SUPPORTED BY APPROPRIATE VOUCHERS AND SUBJECT TO SUCH GUIDELINES AS MAY BE PRESCRIBED BY LAW. procedure - congress, dept and agencies - same procedure Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 257 Reenactment (7) IF, BY THE END OF ANY FISCAL YEAR, THE CONGRESS SHALL HAVE FAILED TO PASS THE GENERAL APPROPRIATIONS BILL FOR THE ENSUING FISCAL YEAR, THE GENERAL APPROPRIATIONS LAW FOR THE PRECEDING FISCAL YEAR SHALL BE DEEMED REENACTED AND SHALL REMAIN IN FORCE AND EFFECT UNTIL THE GENERAL APPROPRIATIONS BILL IS PASSED BY THE - reuse previous years appropriations CONGRES8. Q. How is the general appropriations bill prepared? A. See Section 24 and Section 25(1). Q. What is the rule on "riders" in the general appropriations bill? A. See Section 25(2). Q. The Appropriation Act for FY 1956-57 contained the following provision: "after the approval of this Act, and when there is no emergency, no reserve officer of the Armed Forces of the Philippines may be called to a tour of active duty for more than two years during any period of five consecutive years." Is the provision valid? A. No. The provision violates the rule on "riders." Garcia v. Mata, 65 SCRA 517 (July 30,1975). Q. May Congress treat appropriations for Congress itself differently from those for others? A. See Section 25(3). Q. What are the rules on special appropriations? A. See Section 25(4). Q. To what extent may Congress allow transfer of funds? A. See Section 25(5); Q. Paragraph 1 of Section 44 ofP.D. 1177 says: "The President shall have the authority to transfer any fund, appropriated for the different departments, bureaus, offices and agencies of the executive department, which are included in the General Appropriations Act, to any program, project or activity of any department, bureau, or office included in the General Appropriations Act or approved after its enactment." Valid? A. No. Commenting on the constitutional text, the Court said that the provision is intended "to afford the heads of the diffe Augment power - GEN :no transfering apropriations - ex - pres, sen pres, speaker, CJ, heads of consti comish - can ONLY augment savings from an item - only to same branch of government Reenactment 258 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 rent branches of the government and those of the Constitutional Commissions considerable flexibility in the use of public funds and resources" but that the leeway granted was limited. "The purpose of augmenting an item and such transfer may be made only if there are savings from another item in the appropriation of the government branch or constitutional body." Pointing out that P.D. 1177 empowered the President "to indiscriminately transfer funds . . . without regard as to whether or not the funds to be transferred are actually savings in the item from which the same are to be taken," the Court declared the law unconstitutional. Demetria v. Alba, 148 SCRA 208 (1987). NOTE: The list of those who may be authorized to transfer funds under this provision is exclusive. Hence, the Chief of Staff of the Armed Forces may not be given such authority. Likewise, individual members of Congress may not be given such authority and must seek approval from the Speaker or the Senate President if these latter have been authorized by law. Philippine Constitutional Association v. Enriquez, 235 SCRA 506,544 (1994). Q. What is the rule on discretionary funds? A. See Section 25(6). Q. On what budget does the government operate when Congress fails to approve a general appropriation bill? A. See Section 25(7). SEC. 26. (1) EVERY BILL PASSED BY THE CONGRESS SHALL EMBRACE ONLY ONE SUBJECT WHICH SHALL BE EXPRESSED IN THE TITLE THEREOF. 3 readings - separate days - no amendment on last day (2) NO BILL PASSED BY EITHER HOUSE SHALL BECOME A LAW UNLESS IT HAS PASSED THREE READINGS ON SEPARATE DAYS, AND PRINTED COPIES THEREOF IN ITS FINAL FORM HAVE BEEN DISTRIBUTED TO ITS MEMBERS THREE DAYS BEFORE ITS PASSAGE, EXCEPT WHEN THE PRESIDENT CERTIFIES TO THE NECESSITY OF ITS IMMEDIATE ENACTMENT TO MEET A PUBLIC CALAMITY OR EMERGENCY. UPON THE LAST READING OF A BILL, NO AMENDMENT THERETO SHALL BE ALLOWED, AND THE VOTE THEREON SHALL BE TAKEN IMMEDIATELY THEREAFTER, AND THE YEAS AND NAYS ENTERED IN THE JOURNAL. Q. What is the nature and purpose of the rule on title and subject of bills? A. The requirement that "Every bill embrace only one subject which shall be expressed in the title thereof' is mandatory and not directory and compliance with it is essential to the validity One Subject expressed in Title " ordinary rider " - all bills only one subject - expressed in title - else VOID Purpose Construe : liberally - transparency - prevent fraud - prevent log rolling Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 259 of legislation. An early decision explained the purpose of this limitation on legislative power thus: The object sought to be accomplished and the mischief proposed to be remedied by this provision are well known. Legislative assemblies, for the dispatch of business, often pass bills by their titles only without requiring them to be read. A specious title sometimes covers legislation which, if its real character had been disclosed, would not have commanded assent. To prevent surprise and fraud on the legislature is one of the purposes this provision was intended to accomplish. Before the adoption of this provision the title of a statute was often no indication of its subject or contents. An evil this constitutional requirement was intended to correct was the blending in one and the same statute of such things as were diverse in their nature, and were connected only to combine in favor of the statute all the advocates of each, thus often securing the passage of several measures no one of which could have succeeded on its own merits. Mr. Cooley thus sums up in his review of the authorities defining the objects of this provision: 'It may therefore be assumed as settled that the purpose of this provision was: First, to prevent hodge-podge or log-rolling legislation, second, to prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles gave no information, and which might therefore be overlooked and carelessly and unintentionally adopted; and, third, to fairly appraise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon by petition or otherwise if they shall so desire.' Central Capiz v. Ramirez, 40 Phil. 883, 891 (1920). Q. How must the rule be interpreted, liberally or strictly? A. Liberally. The rule "should be given a practical rather than technical construction. It should be sufficient compliance with such requirement if the title expresses the general subject and all the provisions of the statute are germane to that general subject." Sumulong v. Commission on Elections, 73 Phil. 288, 291 (1941). Q. A bill is passed entitled "An Act Amending Certain Sections of Republic Act Numbered One Thousand One Hundred Ninety-Nine, otherwise known as the Agricultural Tenancy Act of the Philippines." The bill contained a provision authorizing the Secretary of Justice to mediate tenancy disputes through a tenancy mediation division. Valid? 260 Does the title cover the provision? increase highway fund - exemptions valid Creating a municipality from a province - creates barrios : INVALID THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 A. Yes. Cordero v. Cabatuando, 6 SCRA 418 (1962). Q. The title of R.A. 1435 is "An Act to Provide Means of Increasing the Highway Special Fund." It is contended that, since the purpose of the bill is to increase the highway fund, the provision in Section 5 which creates an exemption and thus does not contribute to an increase is alien to the subject of the law and is therefore unconstitutional. Decide. A. The purpose of the constitutional provision requiring unity of content and expression of the content in the title is to prevent duplicity of subject and surprise upon the legislators and the public. Clearly, the provision for exemption comes under the general subject expressed in the title. Insular Lumber Co. v. Court of Tax Appeals, 104 SCRA 710, 716-7 (L-31137, May 29,1981). Q. A bill is passed entitled "An Act Creating the Municipality of Dianaton in the Province of Lanao del Norte." The proposed municipality, however, included some barrios outside Lanao del Norte. Valid? A. A divided Supreme Court declared the law invalid for insufficiency of title. Lidasan v. COMELEC, 21 SCRA 496 (1967). Creating videogram regulatory board - 30% tax on videograms : VALID Creating Philippine Postal, regulation and other purposes - removing free postage : VALID Converting into highly urbanized - converting to congresional district : VALID Q. P.D. No. 1987 is entitled "An Act Creating the Videogram Regulatory Board." Section 10 thereof imposes a 30% tax on gross receipts on video transactions. Is this a "rider?" A. The requirement that eveiy bill must only have one subject expressed in the title is satisfied if the title is comprehensive enough to include subjects related to the general purpose which the statute seeks to achieve. Such is the case here. Taxation is sufficiently related to the regulation of the video industry. Tio v. Videogram Regulatory Board, 151 SCRA 208 (1987). NOTE: The title "An Act Creating the Philippine Postal Corporation, Defining Its Powers, Functions and Responsibilities, Providing for the Regulation of the Industry and for Other Purposes Connected Therewith" was found to be sufficiently broad to cover the removal of the franking privileges of the judiciary. Philippine Judges Association v. Prado, 227 SCRA 703 (1993). [But the provision on the franking privileges of the judiciary was declared unconstitutional on equal protection grounds.] Similarly, the title "An Act Converting the Municipality of Mandaluyong Into a Highly Urbanized City of Mandaluyong" was deemed to include the resulting conversion of such city into a congressional district in compliance with Article VI, Section 5(3) of the Constitution. Tobias v. Abalos, 239 SCRA 106,110111 (1994). Also Mariano, Jr. v. Commission on Elections, G.R. No. 118702, March 16,1995. Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 261 NOTE: RA 9369 is challenged misleading because it speaks of poll automation but contains substantial provisions dealing with the manual canvassing of election returns. But the constitutional requirement that "every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof has always been given a practical rather than a technical construction. The requirement is satisfied if the title is comprehensive enough to include subjects related to the general purpose which the statute seeks to achieve. RA 9369 is an amendatory act entitled "An Act Amending Republic Act No. 8436, Entitled 'An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National or Local Elections and in Subsequent National and Local Electoral Exercises, to Encourage Transparency, Credibility, Fairness and Accuracy of Elections, Amending for the Purpose Batas Pambansa Big. 881, as Amended, Republic Act No. 7166 and Other Related Election Laws, Providing Funds Therefore and For Other Purposes."* This is wide-covering enough. Banat v. Comelec, G.R. No. 177508, August 7,2009. Q. How many times must a bill be brought before Congress before it becomes a law? A. See Section 26(2). Presidential Veto - veto - return to house of origin - can be overturned by 2/3 vote of both houses - has to act within 30 days SEC. 27. (1) EVERY BILL PASSED BY THE CONGRESS SHALL, BEFORE IT BECOMES A LAW, BE PRESENTED TO THE PRESIDENT. IF HE APPROVES THE SAME, HE SHALL SIGN IT; OTHERWISE, HE SHALL VETO IT AND RETURN THE SAME WITH HIS OBJECTIONS TO THE HOUSE WHERE IT ORIGINATED, WHICH SHALL ENTER THE OBJECTIONS AT LARGE IN ITS JOURNAL AND PROCEED TO RECONSIDER IT. IF, AFTER SUCH RECONSIDERATION, TWO- THIRDS OF ALL THE MEMBERS OF SUCH HOUSE SHALL AGREE TO PASS THE BILL, IT SHALL BE SENT, TOGETHER WITH THE OBJECTIONS, TO THE OTHER HOUSE BY WHICH IT SHALL LIKEWISE BE RECONSIDERED, AND IF APPROVED BY TWO-THIRDS OF ALL THE MEMBERS OF THAT HOUSE, IT SHALL BECOME A LAW. IN ALL SUCH CASES, THE VOTES OF EACH HOUSE SHALL BE DETERMINED BY YEAS OR NAYS, AND THE NAMES OF THE MEMBERS VOTING FOR OR AGAINST SHALL BE ENTERED IN ITS JOURNAL. THE PRESIDENT SHALL COMMUNICATE HIS VETO OF ANY BILL TO THE HOUSE WHERE IT ORIGINATED WITHIN THIRTY DAYS AFTER THE DATE OF RECEIPT THEREOF; OTHERWISE, IT SHALL BECOME A LAW AS IF HE HAD SIGNED IT. ITEM veto (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 NQT AFFECT THE ITEM OR ITEMS TO WHICH HE DOES NOT OBJECT. NOTE : for APPROPRIATIONS bills - cannot veto LESS than the entire item. Ex. (Approriating 10M for construction of a Bridge) = 1 item! - cannot veto ONLY the 10m or ONLY the construction of the bridge - veto the entire ITEM. Presidential veto 262 15-16 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Q. What steps are needed before a bill finally becomes a law? A. Two steps are required before a bill finally becomes a law. First, it must be approved by Congress. The legislative action required of Congress is a positive act; there is no enactment of law by legislative inaction. Miller v. Mardo, 2 SCRA 398,908-9 (1961). Second, it must be approved by the President. Approval by the President may be by positive act or by inaction. "The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had signed it." Q. When does the Constitution require that the yeas and nays of the Members be taken every time a House has to vote? Conference commitee - senate bill differs from lower - commitee to reconcile - can be completely diffrent BUT amendments must be germane to the PURPOSE A. (1) upon the last and third readings of a bill [Art. VI, §26(2)]; (2) at the request of one-fifth of the Members present [Art. VI, §16(4)]; and (3) in repassing a bill over the veto of the President [Art. VI, §27(1)]. Arroyo v. De Venecia, G.R. No. 127255, August 14,1997, 277 SCRA 268. Q. If the version approved by the Senate is different from that approved by the House of Representatives, how are the differences reconciled? A. In a bicameral system bills are independently processed by both Houses of Congress. It is not unusual that the final version approved by one House differs from what has been approved by the other. The "conference committee," consisting of members nominated from both Houses, is an extra-constitutional creation of Congress whose function is to propose to Congress ways of reconciling conflicting provisions found in the Senate version and in the House version of a bill. Q. What is the extent of the powers of a conference committee? A. In Tolentino v. Secretary of Finance, 235 SCRA at 666-672, [affirmed on reconsideration October 30, 1995], the Court held. Following US practice, that amendments germane to the purpose of the bill could be introduced even if these were not in either original bill. Moreover, the Court said: "Nor is there anything unusual or extraordinary about the fact that the conference committee met in executive sessions. Often the only way to reach agreement on conflicting provisions is to meet behind closed doors, Sees. Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 263 with only the conferees present. Otherwise, no compromise is likely to be made." Q. If a bill is vetoed by the President, may it still become a law? A. Yes. "If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal." Q. May the President approve some part or parts of a bill and veto the rest? A. As a general rule, if the President disapproves a bill approved by Congress, he should veto the entire bill. He is not allowed to veto separate items of a bill. It is only in the case of appropriation, revenue, and tariff bills that he is authorized to exercise item-veto. Q. What is the effect of an invalid veto? A. It is without effect, i.e., it is as if the President did not act on the bill at all. Hence, the bill becomes a law by executive inaction. Bolinao Electronics v. Valencia, 11 SCRA 486 (1964). Q. Section 42 of H.B. 17839 which became R.A. 6110 imposed a caterer's tax on various operators of restaurants. President Marcos, however, vetoed the portion of Section 42 which imposed a 20% caterers tax on restaurants operated by hotels, motels, and rest houses. It is contended that the veto was invalid since item veto refers to a veto of an entire section and not portions of a section. Decide. Item A. The veto was valid. "An Htem' in a revenue bill does not refer to an entire section imposing a particular kind of tax, but rather to the subject of the tax and the tax rate. Commissioner of Internal Revenue v. Court of Tax Appeals, G.R. No. 47421, May 14,1990. Gonzalez v. Macaraig ( pres veto, general and item ) Q. The General Appropriations Act of 1989 contained the following provision: Section 55. Prohibition Against the Restoration or Increase of Recommended Appropriations Disapproved and/or Reduced by Congress: No item of appropriation recommended by the President . . . which has been disapproved or reduced in this Act shall be 264 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 restored or increased by the use of appropriations authorized for other purposes by augmentation. An item of appropriation for any purpose recommended by the President in the Budget shall be deemed to have been disapproved by Congress if no corresponding appropriation for the specific purpose is provided in this act. The General appropriations Act for 1990 contained the following provision: Sec. 16. Use of Savings. — . . . Provided, that no item of appropriation recommended by the President in the Budget... which has been disapproved or reduced by Congress shall be restored or increased by the use of appropriations authorized for other purposes in this Act by augmentation. An item of appropriation for any purpose shall be deemed to have been disapproved by Congress if no corresponding appropriation for the specific purpose is provided in this Act. Exercising the power of "item veto" the President vetoed the similar provisions for the reason that they violate "Section 25(5) of Article VI of the Constitution. If allowed, this Section would nullify" the "constitutional and statutory authority" of the President to augment items from savings. The President added that "this provision is inconsistent with Section 12 and other similar provisions of this General Appropriations Act." The Solicitor General further argues that the matter is a political question and that at any rate Section 55 is a "rider." The petitioners on the contrary argue that (1) the provision in issue is not an "item" subject to separate veto but a "provision" which she cannot veto without vetoing the entire bill; (2) power of "item veto" does not include the power to veto a condition without vetoing the entire provision; (3) the power of augmentation has to be provided by Congress and may therefore be restricted by Congress. Decide. A. 1. This is a justiciable question. In involves interpretation of the Constitution. 2; The power to augment lies dormant until authorized by law. And since the grant of the power of augmentation is not an act of appropriation, it has no. place in an appropriation act. But since there is already a separate law authorizing augmentation, the new provision to that extent restricts the authority of other departments already granted. [Implicit in this argument is that therefore, if the power of augmentation is to be taken back or restricted, it should be in a separate law.] 3. A condition in an appropriation bill may not vetoed without vetoing the item to which it is attached. Bolinao Electronics v.Valencia, 11 SCRA 486 (1964). An ITEM - indivisible sum of money - dedicated to a specific purpose - not some general provision Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT Inappropriate provisions Doctrine 265 4. "Provision" and "item" in budgetary legislation are different. An "item" is "an indivisible some of money dedicated to a stated purpose" and not "some general provision of law which happens to be put into an appropriation bill." Neither Section 55 nor Section 16 fits the definition of an "Item." In fact the disapproved items do not appear on the face of the bill. 5. Neither is it, however, an allowable "provision" because it does not relate to any particular appropriation in the bill. It refers to items which do not appear on the bill. TQ that extent therefore it is a rider. 6. Neither is it a condition in the budgetary sense because it does riot refer to any specific item. It is more in the nature of a general provision which should be contained in a separate law. Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19,1990. Q. What is the doctrine of "inappropriate provisions?" - pres can Veto riders in approp bill - can veto unconsti provisions even if it isnt a revenue or appropriations "item" A. Gonzales v. Macaraig, Jr., 191 SCRA 452 (1990), marks the Court's acceptance of what eventually would be referred to as the "doctrine of inappropriate provisions." What the doctrine says is that a provision that is constitutionally inappropriate for an appropriation bill may be singled out for veto even if it is not an appropriation or revenue "item." In essence what this means is that the President may veto "riders" in an appropriation bill. Q. What is the meaning of "executive impoundment?" A- Another way of exercising executive veto is through what is called "impoundment." Impoundment simply means refusal of the President to spend funds already allocated by Congress for a specific purpose. Executive impoundment There is no provision in the Constitution on the subject. Impoundment - not ruled to be strictly came up also in Philippine Constitution Association v. Enriquez. To the unconstitutional amount appropriated by Congress for the compensation and separation - pres refuses to spend funds benefits of members of CAFGU was attached a provision that "it shall be allocated for specific purpose used for the compensation of CAFGlFs including the payment of their separation benefit not exceeding one (1) year subsistence allowance for the 11,000 members who will be deactivated in 1994." 235 SCRA at 544. The President did not veto the provision but said instead in his veto message that the implementation of the provision would be subject to his prior approval taking into consideration the peace and order situation in the affected localities. 266 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 Those who challenged the veto contended that the provision already effectively required the deactivation of the CAFGLTs and that the President had no choice but to implement the law. The President on the other hand justified his impoundment of the provision on the basis of his Commander-in-Chief powers and on the dangerous argument that the duty to implement the law includes the duty to desist from implementing it when implementation would prejudice public interest. As Justice Roberto Concepcion pointed out in an earlier case, "after all we still live under a rule of law." Gonzalez v. Hechanova, G.R. No. 21897 (October 26,1963). The Supreme Court, however, has heretofore refrained from passing judgment on the constitutionality of "impoundment" The Court, however, found in the doctrine on "inappropriate provision" a way out of having to decide whether impoundment was legal. It said that a provision for the disband- ment of the CAFGU should be in a separate bill. Tax system shall be: Uniform - geographic uniformity equitable - linked to " progressive " system of taxation Real property Tax exemption Q. May the publication of laws prior to their effectivity be dispensed with? A. No. Publication in every case is indispensable. Total omission of publication would be a denial of due process in that the people would not know what laws to obey. Tanada v. Tuvera, 146 SCRA 446 (1986). SEC. 28. (1) THE RULE OF TAXATION SHALL BE UNIFORM AND EQUITABLE. THE CONGRESS SHALL EVOLVE A PROGRESSIVE SYSTEM OF TAXATION. (2) THE CONGRESS MAY, BY LAW, AUTHORIZE THE PRESIDENT TO FIX WITHIN SPECIFIED LIMITS, AND SUBJECT TO SUCH LIMITATIONS AND RESTRICTIONS AS IT MAY IMPOSE, TARIFF RATES, IMPORT AND EXPORT QUOTAS, TONNAGE AND WHARFAGE DUES, AND OTHER DUTIES OR IMPOSTS WITHIN THE FRAMEWORK OF THE NATIONAL DEVELOPMENT PROGRAM OF THE GOVERNMENT. (3) CHARITABLE INSTITUTIONS, CHURCHES AND PARSONAGES OR CONVENTS APPURTENANT THERETO, MOSQUES, NON-PROFIT CEMETERIES, AND ALL LANDS, BUILDINGS, AND IMPROVEMENTS ACTUALLY, DIRECTLY, AND EXCLUSIVELY USED FOR RELIGIOUS, ADE / RCE CHARITABLE, OR EDUCATIONAL PURPOSES SHALL BE EXEMPT FROM TAXATION. ( Real Property Tax ) (4) NO LAW GRANTING ANY TAX EXEMPTION SHALL BE PASSED WITHOUT THE CONCURRENCE OF A MAJORITY OF ALL THE MEMBERS OF THE CONGRESS. - charitable institutions - churches - non-profit cemetaries And all lands - Actually, directly, exclusively - for charitable or educational purposes No tax exemption - unless majority of all members of congress Fixing Power of president - valid delegation of legis power - within specified by congress May fix: - tarrif rates - import export quotas - tonnage and wharfage dues - other duties or imposits - standard : within framework of national development Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 267 Q. What is the purpose of the power to tax? A. The obvious, primary, and specific purpose of the power to tax is to raise revenue. However, from the earliest days of the history of the power of taxation, the power to tax has been recognized as an instrument of national economic and social policy. It has, for instance, been used as an instrument for the extermination of undesirable activities and enterprises. In the celebrated words of Justice Marshall, the power to tax involves the power to destroy. McCulloch v. Maryland, 4 Wheat, 316, 431 (U.S. 1819). The power to tax has also been used as a tool for regulation. For the purpose of regulating property, the State can choose to exercise its police power or its power to tax. "It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed . . . The principle applies even though the revenue obtained is obviously negligible, ... or the revenue purpose of the tax may be secondary . . United States v. Sanchez, 340 U.S. 42,44 (1950). Another aspect of the power to tax is what the United States Supreme Court has characterized as "the power to keep alive." This is the foundation for the imposition of tariffs designed for the encouragement and protection of locally produced goods against competition from imports. "The enactment and enforcement of a number of customs revenue laws drawn with a motive of maintaining a system of protection, since the revenue law of 1789, are matters of history . . . whatever we may think of the wisdom of a protection policy." Hampton and Co. v. United States, 276 U.S. 394,412 (1928). General Limit - for public purpose - consti limits, due process, so arbitrary amounts to confiscation Q. What is the general limit on the power to tax? A. The power to tax exists for the general welfare. Hence implicit in the power is the limitation that it should be exercised only for a public purpose. In the words of Loan Association v. Topeka, 20 Wall, 655, 664 (U.S. 1875), "To lay, with one hand, the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation." 268 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 "The power to tax 'is an attribute of sovereignty.' In fact, it is the strongest of all the powers of government. But for all its plenitude, the power to tax is not unconfined as there are restrictions. Adversely affecting as it does property rights, both due process and equal protection clauses of the Constitution may properly be invoked to invalidate in appropriate cases a revenue measure. If it were otherwise, there would be truth to the 1903 dictum of Chief Justice Marshall that 'the power to tax involves the power to destroy.' The web of unreality spun from Marshall's famous dictum was brushed away by one stroke of Mr. Justice Holmes' pen, thus: The power to tax is not the power to destroy while this Court sits.' 'So it is in the Philippines.' Sison, Jr. v. Ancheta, 130 SCRA 655 (1984); Obillos, Jr. v. Commissioner of Internal Revenue, 139 SCRA 439 (1985). "In the same vein, the due process clause may be invoked where a taxing statute is so arbitrary that it finds no support in the Constitution. An obvious example is where it cam be shown to amount to confiscation of property. That would be a clear abuse of power (Sison v. Ancheta, supra)." Reyes v. Almanzor, 196 SCRA 322 (1989). Q. What are the specific limits on the power to tax? A. See Section 28. Q. When is taxation "uniform and equitable?" A. The concept of uniformity of taxation is derived from Article I, Section 8, of the United States Constitution which prescribes that "all duties, imposts, and excises shall be uniform throughout the Unites States." It will thus be seen that whereas the American provision whence the Philippine rule derived has reference to "duties, imposts, and excises," that is, to indirect taxes, the Philippine requirement of uniformity applies to taxation in general. Philippine jurisprudence, however, from its earliest days has interpreted "uniformity" in the Philippine Constitution in the same way as "uniformity" in the American Constitution. In the words of Churchill v. Conception, 34 Phil. 969, 976-7 (1916), "uniformity" in the Constitution does "not signify an intrinsic, but simply a geographical uniformity . . . A tax is uniform, within the Constitutional requirement, when it operates with the same force and effect in every place where the subject of it is found." Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 269 Moreover, the requirement of "uniformity" has been interpreted by Philippine jurisprudence as equivalent to the requirement of valid classification under the equal protection clause. Pepsi Cola Bottling Co. v. City ofButuan, 24 SCRA 789, 795-96 (1968). The word "equitable" seems to add nothing except by way of emphasis. NOTE: The obvious primary and specific purpose of the power to tax is to raise revenue. However, it may also be used to regulate. But Philippine jurisprudence frowns on the notion of the power to tax as the power to destroy because taxation must not be oppressive. See e.g., Obillos, Jr. v. Commissioner of Internal Revenue, 139 SCRA 436, 439 (1985). Indeed the notion of equitable taxation excludes oppressiveness. As Tan v. del Rosario, Jr., 237 SCRA 324, 332 (1994), says, "Of course, where a tax measure becomes so unconscionable and unjust as to amount to confiscation of property, courts will not hesitate to strike it down, for, despite all its plenitude, the power to tax cannot override constitutional prescriptions." Regarding uniformity of taxation, Tan v. del Rosario, 237 SCRA 324 (1994), put it thus: it means that 1) the standards that are used therefore are substantial and not arbitrary, (2) the categorization is germane to achieve the legislative purpose, (3) the law applies, all things being equal, to both present and future conditions, and (4) the classification applies equally well to all those belonging to the same class. Q. Respondents presented an exhaustive study on the tax rates levied on the jewelry industry by different Asian countries in order to convince the court that, relative to its neighbors, the tax rates imposed on jewelry in the Philippines was oppressive and confiscatory. Decide. A. The Court "cannot subscribe to the theory that the tax rates of other countries should be used as a yardstick in determining what may be the proper subjects of taxation in our own country. It should be pointed out that the aforementioned taxes and duties, the State, acting through the legislative and executive branches, is exercising its sovereign prerogative. It is inherent in the power to tax that the State be free to select the subjects of taxation, and it has been repeatedly held that 'inequalities which result from a singling out of one particular class for taxation, or exemption, infringe no constitutional limitation.'" Commissioner of Internal Revenue v. Santos, G.R. No. 119252, 270 15-16 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER August 18,1997,277 SCRA 617,631-32 (citing Lutz v. Araneta, 98 Phil. 148 [1955]; Sison, Jr. v. Ancheta, 130 SCRA 654, 663 [1984]; Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 371 [1988]; Tolentino v. Secretary of Finance, 249 SCRA 628 [1995]). Q. What is a "progressive system of taxation?" A. A tax system is progressive when the rate increases as the tax base increases. The explicit mention of progressive taxation in the Constitution reflects the wish of the Commission that the legislature should use the power of taxation as an instrument for a more equitable distribution of wealth. Q. May the power to tax be delegated? A. Yes, under the conditions laid down in Section 28(2). This delegation of the taxation power by the legislative to the executive is authorized by the Constitution itself. At the same time, the Constitution also grants the delegating authority (Congress) the right to impose restrictions and limitations on the taxation power delegated to the President. The restrictions and limitations imposed by Congress take on the mantle of a constitutional command, which the executive branch is obliged to observe. Southern Cross v. Philippine Cement, G.R. No. 158540, July 8,2004. Q. May tax exemptions be created by statute? A. Yes, under the condition laid down in Section 28(4). Q. Are there constitutionally created tax exemptions? A. Yes, in Section 28(3), and Article XIV, Section 4(3 & 4). Q. What kind of tax exemption is created in Section 28(3)? A. The exemption is only for taxes assessed as property taxes, as contradistinguished from excise taxes. Lladoc v. Commissioner of Internal Revenue, 14 SCRA 292, 295 (1965). Q. Compare the exemption for "lands, buildings, and improvements" under the 1935 Constitution with that under the new Constitution. A. "Under the 1935 Constitution: 'Cemeteries, churches, and parsonages or convents appurtenant thereto, and all lands, build Sees. 15-16 Determining inclusion - beneficial use : not covered - only , actual, direct exclusive - president cant just grant tax exemption by "analogy" - look at the character of the place to determine - more than 60% charitable but has paid patients : paid patients parts are not exempt. - entities for profit not included ART. VI - THE LEGISLATIVE DEPARTMENT 271 ings, and improvements used exclusively for religious, charitable, or educational purposes shall be exempt from taxation.' The present Constitution has added: 'charitable institutions, mosques, and non-profit cemeteries' and required that for the exemption of'lands, buildings, and improvements,' they should not only be 'exclusively' but also 'actually' and 'directly used for religious, charitable, or educational purposes . . . There must be proof therefore of the actual and direct use of the lands, buildings, and improvements for religious or charitable [or educational] purposes to be exempt from taxation... Province of Abra v. Hernando and Roman Catholic Bishop, 107 SCRA 104, 108-9 (L-49336, August 31,1981). Q. The Young Men's Christian Association of the Philippines, Inc. ("YMCA") — established as "a welfare, educational and charitable non-profit corporation" — derived income from rentals of its real property. Claiming tax exemption, it argues that: 1) Article VI, §8(3) exempts "charitable institutions" from payment not only of property taxes but also of income tax from any source; 2) Article XIV, §4(3) applies because YMCA is "a non-stock, non-profit educational institution whose revenues and assets are used actually, directly and exclusively for educational purposes so it is exempt from taxes on its properties and income." Decide. A. 1) This provision covers property taxes only. YMCA is "exempt from the payment of property tax, but not income tax on the rentals from its property." 2) YMCA is not an educational institution within the purview of Article XIV. Neither did it submit proof of the amount of the income that was actually, directly and exclusively used for educational purposes. Commission of Internal Revenue v. Court of Appeals, G.R. No. 124043, October 14,1998, pp. 17-18,20. Q. Because the beneficial use of a piece of property was donated to SYSTEMS PLUS COMPUTER COLLEGE, tax exemption was sought. Proper? A, No. There is no showing that the same are "actually, directly and exclusively" used either for religious, charitable, or educational purposes. Hence, tax exemption cannot be claimed. Systems Plus Computer College v. Caloocan City, G.R. No. 146382, August 7, 2003 Q. The former camp John Hay was declared a special economic zone. On that basis it claimed tax exemption. Proper? 272 15-16 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER A. While the grant of economic incentives may be essential to the creation and success of SEZs, free trade zones and the like, the grant of tax exemption to the John Hay SEZ cannot be sustained. The tax exemption under R.A. No. 7227 are exclusive only to the Subic SEZ, hence, the extension of the same by the President to the John Hay SEZ finds no support therein. John Hay Peoples Alternative Coalition v. Lim, G.R. No. 119775, October 24,2003. Q. The Lung Center alleges that a minimum of 60% of its hospital beds are exclusively used for charity patients and that the major thrust of its hospital operation is to serve charity patients. The petitioner contends that it is a charitable institution and, as such, is exempt from real property taxes. A. We hold that the petitioner is a charitable institution within the context of the 1973 and 1987 Constitutions. To determine whether an enterprise is a charitable institution/entity or not, the elements which should be considered include the statute creating the enterprise, its corporate purposes, its constitution and by-laws, the methods of administration, the nature of the actual work performed, the character of the services rendered, the indefiniteness of the beneficiaries, and the use and occupation of the properties. However, those portions of its real property that are leased to private entities are not exempt from real property taxes as these are not actually, directly and exclusively used for charitable purposes. Lung Center v. Quezon City, G.R. No. 144104, June 29, 2004. NOTE: In Planters Products, Inc. (PPI) v. Fertiphil Corp, G.R. No. 166006, March 14, 2008, the Court had occasion to review the validity of LOI1465, a martial rule product, which imposed a ten peso capital contribution for the sale of each bag of fertilizer "until adequate capital is raised to make PPI viable." PPI was a private corporation. Clearly, therefore, the imposition was for private benefit and not for a public purpose and therefore invalid. The Court also found that, even if seen as an exercise of police power, the imposition would still be invalid for not being for a public purpose. money paid out unless SEC. 29. (1) No MONEY SHALL BE PAID OUT OF THE TREASURY EXCEPT IN PURSUANCE rsuant to appropriations law OF AN APPROPRIATION MADE BY LAW. Note --- money or PROPERTY (2) NO PUBLIC MONEY OR PROPERTY SHALL BE APPROPRIATED, APPLIED, PAID, OR EMPLOYED, DIRECTLY OR INDIRECTLY, FOR THE USE, BENEFIT, OR SUPPORT OF ANY SECT, - amount must be specified CHURCH, DENOMINATION, SECTARIAN INSTITUTION, OR SYSTEM OF RELIGION, OR OF ANY - UNLESS : amount determinable PRIEST, PREACHER, MINISTER, OR OTHER RELIGIOUS TEACHER OR DIGNITARY AS SUCH, EXCEPT ( but shady doctrine daw ) WHEN SUCH PRIEST, PREACHER, MINISTER, OR DIGNITARY IS ASSIGNED TO THE ARMED FORCES, OR TO ANY PENAL INSTITUTION, OR GOVERNMENT ORPHANAGE OR LEPROSARIUM. No money OR property Appropriated - direct or indirect - use, use benefit, support - church, sect, denomination, system of religion, priest minister, teacher dignitary etc - except : employed in armed forces, penal institution, gov leprosarium ormorpahange General appropriations act - based on budget propsed by president - 30 days after state of nation address - finance agencies get together internally to come up with the budget - gives proposal to BDM - proposes to congress Special appropriations - paid for purpose creating it - accomplished or abandoned : reserve goes back to general funds Limit - express : no money paid to church or priest etc.. - implied public purpose : because these come from taxes which also reqs publicurpose Pork Barrel - senators, reps and VP can " recommend" projects which would be approved by president - so this is not an encroachment into concept that spending power is executive Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 273 (3) ALL MONEY COLLECTED ON ANY TAX LEVIED FOR A SPECIAL PURPOSE SHALL BE TREATED AS A SPECIAL FUND AND PAID OUT FOR SUCH PURPOSE ONLY. IF THE PURPOSE FOR WHICH A SPECIAL FUND WAS CREATED HAS BEEN FULFILLED OR ABANDONED, THE BALANCE, IF ANY, SHALL BE TRANSFERRED TO THE GENERAL FUNDS OF THE GOVERNMENT. Q. Who has control of the expenditure of public funds? A. Congress. "No money shall be paid out of the treasury except in pursuance of an appropriation made by law." Q. It is argued that the automatic reappropriation law for servicing foreign debts is invalid because it does not appropriate a fixed amount and is therefore an undue delegation of legislative power. Decide. A The amount is fixed by the parameters of the law itself which requires the simple act of looking into the books of the Treasure. Guingona, Jr. v. Carague, G.R. No. 9457, April 22,1991. Q. What are the limits on this power of Congress? A. The specific limits are those found in Section 29(2). Aside from the explicit limitations, there is also the all important implicit limitation that public money can be appropriated only for a public purpose. This limitation arises from the relation between the power to spend and the power to tax. "The right of the legislature to appropriate public funds is correlative with its right to tax, and, under the constitutional provisions against taxation except for public purposes... no appropriation of state funds can be made for other than a public purpose." 81 CJS p. 1147. Q. The sum of 85,000 pesos is appropriated by Congress for a feeder road running through a private subdivision and over property owned by a private individual. Subsequently, the feeder road is donated to the government. Is the appropriation valid? A No, because it is not for a public purpose. The subsequent donation of the road did not validate the law because the validity of a statute depends upon the powers of Congress at the time of its approval, and not upon events occurring or acts performed subsequently. Pascual v. Secretary of Public Works, 110 Phil. 331-346 (1960). Q. Are not "pork barrel" provisions in the annual budget a violation of separation of powers in that it allows members of Congress to perform the executive function of spending money appropriated? 274 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 A. The controversy over the Countrywide Development Fund of 1994, which is the deodorized appellation of the traditional "pork barrel," was resolved by the Court in a manner which might be described as tongue-in-cheek. The General Appropriation Act set aside an amount to be used for "infrastructure, purchase of ambulances and computers and other priority projects and activities, and credit facilities to qualified beneficiaries as proposed and identified by officials concerned." The "officials concerned" were all Representatives, Senators and the Vice-President who were each allocated an amount. The law was challenged on the ground that the authority given to the enumerated officials to propose and identify projects and activities was an encroachment into legislative power. In upholding the validity of the law, the Court said that Congress itself had specified the uses of the fund and that the power given to the enumerated officials was merely recommendatory to the President who could approve or disapprove the recommendation. The Court praised the scheme as "imaginative" and "innovative!" Philippine Constitution Association v. Enriquez, 235 SCRA 506, 521-523 (1994). NOTE: The origin of the name may be traced to a degrading ritual to which slaves were subjected. At a fixed day and hour, a barrel stuffed with pork would be rolled out and a multitude of black slaves, herded together in a strategic corner of the ranch or plantation, would cast their famished bodies into the porcine feast to assuage their hunger with morsels coming from the generosity of their well- fed master. Bernas, "From Pork Barrel to Bronze Caskets," Today, January 30,1994. NOTE: Oil Price Stabilization Fund. - In Osmefia v. Orbos, 220 SCRA 703 (1993), part of the controversy was whether the money that went into the Oil Price Stabilization Fund [OPSF] was tax money levied for a special purpose. As set up by law, it was a "trust fund" which derived funding from four sources: (1) from increase in the tax collection from ad valorem taxes on oil products; (2) from any increase in the tax collection as a result of the lifting of tax exemptions of government corporations; (3) from additional amounts imposed by the Board of Energy on petroleum products; (4) from peso savings resulting from the fluctuation of the peso against currencies used for the importation of crude oil and petroleum products. The question centered on whether the additional amounts imposed by the Board of Energy was a tax. The Court answered: "What is here involved is not so much the power of taxation as police power. Although the provision authorizing the ERB to impose additional amounts could be construed to refer to the power of taxation, it cannot be overlooked that the overriding consideration is [not to raise revenue but] to enable the delegate to act with expediency in carrying out the objectives of the law [to protect consumers from constant fluctuation of oil prices] which are embraced by the police power of the State." Cant increase SC appelate jurisdiction - needs its advice and concurrence Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 275 SEC. 30. No LAW SHALL BE PASSED INCREASING THE APPELLATE JURISDICTION OF THE SUPREME COURT AS PROVIDED IN THIS CONSTITUTION WITHOUT ITS ADVICE AND CONCURRENCE. Q. My Congress increase the appellate jurisdiction of the Supreme Court? A. Yes, but only with the advice and concurrence of the Supreme Court itself. The purpose of this new rule is to prevent the overburdening of the Supreme Court. Q. Section 27 of R.A. No. 6770 (Ombudsman Act of 1989) provides that all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to the Supreme Court in accordance with Rule 45 of the Rules of Court. Valid? A. No, it expands the appellate jurisdiction of the Supreme Court without its advice and consent. Consequently, "and in line with the regulatory philosophy adopted in appeals from quasi- judicial agencies in the 1997 Revised Rule of Civil Procedure, appeals from decisions of the Office of the Ombudsman in administrative cases should be taken to the Court of Appeals under the provision of Rule 43." Fabian v. Desierto, G.R. No. 129742, September 16,1998. Title of Royalty or Nobility - cannot be granted SEC. 31. No LAW GRANTING A TITLE OF ROYALTY OR NOBILITY SHALL BE ENACTED. Q. What is the reason for prohibiting the State from granting titles of royalty or nobility? A. The Federalist (No. 84), speaking of the importance of the prohibition against titles of nobility in the Federal Constitution, says: "This may truly be denominated the cornerstone of republican government; for so long as they are excluded there can never be serious danger that the government will be any other than that of the people." This provision was in the Bill of Rights of both the 1935 and 1973 Constitutions. SEC. 32. THE CONGRESS SHALL, AS EARLY AS POSSIBLE, PROVIDE FOR A SYSTEM OF INITIATIVE AND REFERENDUM, AND THE EXCEPTIONS THEREFROM, WHEREBY THE PEOPLE CAN DIRECTLY PROPOSE AND ENACT initiative and referendum - directly propose - enact - approve or reject - of congress or any legis body - needs signature of at least 10% of total reg voters ( of area ) - for national : every district must be repped by 3% of its reg voters 276 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 12-13 LAWS OR APPROVE OR REJECT ANY ACT OR LAW OR PART THEREOF PASSED BY THE CONGRESS OR LOCAL LEGISLATIVE BODY AFTER THE REGISTRATION OF A PETITION THEREFOR SIGNED BY AT LEAST TEN PER CENTUM OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PER CENTUM OF THE REGISTERED VOTERS THEREOF. Q. Does Congress have the exclusive right to pass national legislation? A. No. Section 32 has introduced the concept of "initiative and referendum" whereby the people themselves can legislate. The enabling law is R.A. 6735, the Initiative and Referendum Law. The first case to come under this implementing law involved local "initiative and referendum." Garcia v. Commission on Elections, 237 SCRA 279 (1994), upheld the validity of the procedure prescribed by the Local Government Code for local initiative and referendum. ARTICLE VII THE EXECUTIVE DEPARTMENT SECTION 1. THE EXECUTIVE POWER SHALL BE VESTED IN THE PRESIDENT OF THE PHILIPPINES. Consti Reqs: - natural born - registered voter - read and write - 40 - resident for 10 SEC 2. No PERSON MAY BE ELECTED PRESIDENT UNLESS HE IS A NATURAL-BORN CITIZEN OF THE PHILIPPINES, A REGISTERED VOTER, ABLE TO READ AND WRITE, AT LEAST FORTY YEARS OF AGE ON THE DAY OF THE ELECTION, AND A RESIDENT OF THE PHILIPPINES FOR AT LEAST TEN YEARS IMMEDIATELY PRECEDING SUCH ELECTION. Q. Assuming that Fernando Poe, Jr. was an illegitimate child of an American mother and a Filipino father, would he be a natural born Filipino citizen? A. Yes. Provided paternity is clearly proved, an illegitimate child of a Filipino father is a natural born Filipino citizen. Tecson v. Comelec, G.R. No. 161434, March 3, 2004. Q. In whom is executive power vested? A. In the President, who is both "Head of State" and "Chief Executive." Q. What is the significance of being "Head of state?" A. What Clinton Rossiter said about the American President in The American Presidency can be said about the Philippine President: He remains today, as he has always been, the ceremonial head of the government of the United States, and he must take part with real or apparent enthusiasm in a range of activities that would keep him running and posing from sunrise to bedtime if he were not protected by a cold-blooded staff. Some of these activities are solemn or even priestly in nature; others, 277 278 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 12-13 through no fault of his own, are flirtations with vulgarity. The long catalogue of public duties that the Queen discharges in England, the President of the Republic in France, and the Governor-General in Canada, is the President's responsibility in this country, and the catalogue is even longer because he is not a king, or even the agent of one, and is therefore expected to go through some rather undignified paces by a people who think of him as a combination of scoutmaster, Delphic oracle, hero of the silver screen, and father of the multitudes. Q. What is the significance of being "Chief Executive?" Residual unstated powers A. This means that he is the executive and no one else is. In the language of Villena v. Secretary of Interior, 67 Phil. 451, 464 (1939), the President is "the Executive of the Government of the Philippines, and no other. The heads of the executive departments occupy political positions and hold office in an advisory capacity, and, in the language of Thomas Jefferson 'should be of the President's bosom confidence,' and, in the language of Attorney General Cushing, 'are subject to the direction of the President.'" Q. Absent a statute authorizing the President to ban the return of Mr. Marcos, does he have the power to impose the ban? A. The Constitution says that executive power shall be vested in the President. - can exile : but this case was It also enumerates certain specific powers. The enumeration, however, sui generis does not exhaust the totality of executive powers. Tradition recognizes - marcos v manglapus that the powers of the President are more than the sum of enumerated executive powers. The duty of government "to serve and protect the - Pres powers NOT limited to Art. 7 and others scattered people" as well as to see to the "maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the - what was limited was the general welfare" argue towards the existence of "residual unstated exercise of specific powers : powers." Marcos v. Manglapus, et al., G.R. No. 88211, September commander in chief clause 15,1989. (The decision was 8-7. "This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into exile - also under DUTY to ensure after causing twenty years of political, economic and social havoc in the laws are followed country and who within the short space of three years seeks to return, is in a class by itself)." NOTE: On reconsideration the Court added: "The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 279 of the Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific powers of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the general grant of executive power." October 27,1989. Besides, what the Court calls residual powers also come under the duty of the President to ensure that laws are faithfiilly executed. See Article VII, Section 17. Q. May the President dispose of state property? A. The President may not convey valuable real property of the government on his or her own sole will. Conveyance must be authorized by a law enacted by Congress. Laurel v. Garcia, 187 SCRA 797 (1990). Q. What is executive privilege? Executive Privilege A. In simplest terms, it is the power of the President to withhold certain types of information from the courts, the Congress, and ultimately the public. - power to withold info The teaching on executive privilege may be culled from Senate v. Ermita, - from, courts, congress, public G.R. No. 169777, April 20, 2006. and Neri v. Senate, G.R. No. 180643, COVERED March 25, 2008; September 4,2008. - would subvert military or diplomatic relations - reveal identity of informants - internal deliberations comprisiing the process by which government decisions are reached Specifically : - correspondence bet pres and public official - military, diplomatic and other national security - info between inter-gov agencies before conclusion of treaties a d exec agreements - national security and public order Q. What types of information are covered by executive privilege? 3 A. The types of information include those which are of a nature that disclosure would subvert military or diplomatic objectives, or information about the identity of persons who furnish information of violations of law, or information about internal deliberations comprising the process by which government decisions are reached. Section 2(a) of E.O. 464, upheld as valid by the Supreme Court in Ermita, enumerated the following as privileged. These are taken from earlier decisions: 1. Conversations and correspondence between the President and the public official covered by this executive order; 2. Military, diplomatic and other national security matters which in the interest of national security should not be divulged; 280 Congress Compulsary Process THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER 3. 4. Sees. 1-2 Information between inter-government agencies prior to the conclusion of treaties and executive agreements; Discussion in close-door Cabinet meetings; 5. Matters affecting national security and public order. Ermita said, "Executive privilege, as already discussed, is recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive branch, or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. The doctrine of executive privilege is thus premised on the fact that certain information must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case." Put differently, the Court said that a claim of privilege may be valid or not "depending on the ground invoked to justify it and the context in which it is claimed. For in determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting." From this the Court concluded that it is not for one claiming executive privilege "to unilaterally determine that respondents' duly- issued Subpoena should be totally disregarded." Q. How does executive privilege relate with the power of compulsory process of Congress? nly PRESIDENT may be exempted from this A. "While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. . .. Only one executive official may be exempted from this power — the President." Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 281 nt Just say BASTA Privileged ya Q. !How must the claim of executive privilege be stated? A. Another point which the Court emphasized in Ermita was that a claim of privilege must be stated with sufficient particularity to enable -state with sufficient particularity Congress or the court to determine its legitimacy. "Absent then a - so court or congress can determine if covered statement of the specific basis of a claim of executive privilege, - but not overly specific naman as to defeat the there is no way of determining whether it falls under one of the purpose traditional privileges, or whether, given the circumstances in which it is made, it should be respected." The lack of specificity renders an assessment of the potential harm resulting from disclosure impossible. However, Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. Q. What can be learned from Neri v. Senate? A. Senate v. Ermita was followed by Neri v. Senate. In a Senate hearing involving a contract with a Chinese firm, Neri in his capacity as Chairman of NEZ was asked three questions: (a) Whether the President followed up the (NBN) project; (b) Whether the President directed him to prioritize the ZTE? (c) Whether the President said to go ahead and approve the project after being told about the alleged bribe? Neri claimed executive privilege. The type of executive privilege claimed here was communication privilege." Presidential communication is presumptively privileged; but the presumption is subject to rebuttal. Thus, whoever challenges it, must show munications with president ( only ) good and valid reasons related to the public welfare. The Court " operationally proximate advisers " ruled that the Senate failed to controvert the presumption.1 Neri en of proving thats such is NOT falls on one claiming it 2 v. Senate held that that communications between the President at it if for a valid reason for public and "operationally proximate" advisers are presumed to be elfare privileged and one challenging it must show cause why it should not be considered so. But these musts be limited to communications with the President. Moreover, the decision itself, In Camera session once reached, unless it is about confidential military or diplomatic matters, can become a matter of public e presumption of being Privileged "presidential ok to do this so courts can determine if covered and what is not para klaro ... 'G.R. No. 180643, March 25,2008. Reconsidered September 2 5,2008. G.R. No. 180643, March 25, 2008; September 4, 2008. 282 15-16 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER concern. Certainly, for instance, if a decision reached is criminal, it cannot be privileged. Q. Could the Court have asked for an in camera session for Neri to explain his claim within the hearing of the Court alone. A. Such a procedure, followed by American practice, could have enabled the Court to sift what was privileged and what was not and then to allow the revelation of what was not privileged. But the Court did not use the procedure, and relied instead on presumption. Thus the Chief Justice commented that executive privilege was established by guesswork. The decision, if applied to criminal cases, has the dangerous effect of blocking discovery of wrongdoing by the mere claim of presumptive privilege. NOTE: A lesser anomaly in the decision is its rejection of the manner in which the Senate approved its show cause order to Secretary Neri. The Senate approved the order through the collection of a sufficient number of signatures and not in a meeting. The Court found this to be an invalid procedure. But is it for the Court to tell the Senate what its voting procedure should be? As our own Court said in 1960, "Courts have declared that 'the rules adopted by deliberative bodies are subject to revocation, modification or waiver at the pleasure of the body adopting them.' And it has been said that 'Parliamentary rules are merely procedural, and with their observance, the courts have no concern. They may be waived or disregarded by the legislative body.™ Provided, of course, private rights are not violated. The Court too does modify or even dispense with its own rules. What is good for the goose should be good for the gander. Presidential immunity from suit Q. Is the President immune from suit? - active during tenure ONLY - not limit him to file suit - not applicable for acts not done because of office before term ! A. Although the new Constitution has not reproduced the explicit guarantee of presidential immunity from suit under the 1973 Constitution, presidential immunity during tenure remains as part of the law. What has been rejected by the new Constitution is the expansive notion of immunity in the Marcos Constitution. Once out of office, how Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT ever, even before the end of the six year term, immunity for non-official acts is lost. Such was the case of Joseph Estrada. The cases filed against him were criminal in character. They involved plunder, bribery and graft and corruption. By no stretch of the imagination could these crimes, especially plunder which carried the death penalty, be covered by a mantle of immunity for a non-sitting president. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser. Estrada v. Desierto, G.R. Nos. 14671015, March 2,2001. Q. Petitioner Beltran argues that "the reasons which necessitate Presidential immunity from suit impose a correlative disability to file suit." He contends that if criminal proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may be bringing herself tinder the trial court's jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of immunity from suit. As to testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury. Does the incumbent President's immunity from suit prevent her from suing? A. The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office-holder's time, also demands undivided attention. But this privilege of immunity from suit pertains to the President by virtue of the office and may bfc invoked only by the holder of the office, not by any other person in the President's behalf. Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused. Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded, the President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is hers. 283 284 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 12-13 Soliven v. Judge Makasiar, Beltran v. Makasiar, G.R. No. 8287, November 14,1988. NOTE: In Clinton v. Jones, the U.S. Supreme Court held Applicable here ? Neri that a sitting President does not enjoy immunity from suit seems to imply so for unofficial acts committed before his term. VP SEC. 3. THERE SHALL BE A VICE-PRESIDENT WHO SHALL HAVE THE SAME QUALIFICATIONS AND TERM OF OFFICE AND BE ELECTED WITH AND IN THE SAME - qualifications, term, elected, MANNER AS THE PRESIDENT . HE MAY BE REMOVED FROM OFFICE IN THE SAME MANNER AS THE removed same as pres PRESIDENT. - may be cabinet member WITHOUT confirmation THE VICE-PRESIDENT MAY BE APPOINTED AS A MEMBER OF THE CABINET. SUCH - not more than 2 sucsessive APPOINTMENT REQUIRES NO CONFIRMATION. terms JOB: - standby lang - may be cabinet sec TERM - 6 years - pres no reelect - succeeded for more than 4 yrs counted as pres for full ka na Q. What is the function of the Vice-President? A. His only constitutional function is to be on hand to act as President when needed or to succeed to the presidency in case of a permanent vacancy in the office. The President may also appoint him as a Member of the Cabinet. Such appointment does not need the consent of the Commission on Appointments. SEC. 4. THE PRESIDENT AND THE VICE PRESIDENT SHALL BE ELECTED BY DIRECT VOTE OF THE PEOPLE FOR A TERM OF SIX YEARS WHICH SHALL BEGIN AT NOON ON THE THIRTIETH DAY OF JUNE NEXT FOLLOWING THE DAY OF THE ELECTION AND SHALL END AT NOON OF THE SAME DATE SIX YEARS THEREAFTER. THE PRESIDENT SHALL NOT BE ELIGIBLE FOR ANY REELECTION. No PERSON WHO HAS SUCCEEDED AS PRESIDENT AND HAS SERVED AS SUCH FOR MORE THAN FOUR YEARS SHALL BE QUALIFIED FOR ELECTION TO THE SAME OFFICE AT ANY TIME. No VICE-PRESIDENT SHALL SERVE FOR MORE THAN TWO SUCCESSIVE TERMS. VOLUNTARY RENUNCIATION OF THE OFFICE FOR ANY LENGTH OF TIME SHALL NOT BE CONSIDERED AS AN INTERRUPTION IN THE CONTINUITY OF THE SERVICE FOR THE FULL TERM FOR WHICH HE WAS ELECTED. UNLESS OTHERWISE PROVIDED BY LAW, THE REGULAR ELECTIONS FOR PRESIDENT AND VICE-PRESIDENT SHALL BE HELD ON THE SECOND MONDAY OF MAY. THE RETURNS OF EVERY ELECTION FOR PRESIDENT AND VICEPRESIDENT DULY CERTIFIED BY THE BOARD OF CANVASSERS OF EACH PROVINCE OR CITY, SHALL BE TRANSMITTED TO THE CONGRESS, DIRECTED TO THE PRESIDENT OF THE SENATE. UPON RECEIPT OF THE CERTIFICATES OF CANVASS, THE PRESIDENT OF THE SENATE SHALL, NOT LATER THAN THIR Sees. 15-16 TIE - chosen by majority of all PET - SC en banc - sole judge of all contests relating to election returns and qualifications - VP and P ART. VII - THE EXECUTIVE DEPARTMENT 285 TY DAYS AFTER THE DAY OF THE ELECTION, OPEN ALL THE CERTIFICATES IN THE PRESENCE OF THE SENATE AND THE HOUSE OF REPRESENTATIVES IN JOINT PUBLIC SESSION, AND THE CONGRESS, UPON DETERMINATION OF THE AUTHENTICITY AND DUE EXECUTION THEREOF IN THE MANNER PROVIDED BY LAW, CANVASS THE VOTES. THE PERSON HAVING THE HIGHEST NUMBER OF VOTES SHALL BE PROCLAIMED ELECTED, BUT IN CASE TWO OR MORE SHALL HAVE AN EQUAL AND HIGHEST NUMBER OF VOTES, ONE OF THEM SHALL FORTHWITH BE CHOSEN BY THE VOTE OF A MAJORITY OF ALL THE MEMBERS OF BOTH HOUSES OF THE CONGRESS, VOTING SEPARATELY. THE CONGRESS SHALL PROMULGATE ITS RULES FOR THE CANVASSING OF THE CERTIFICATES. THE SUPREME COURT, SITTING EN BANC, SHALL BE THE SOLE JUDGE OF ALL CONTESTS RELATING TO THE ELECTION, RETURNS, AND QUALIFICATIONS OF THE PRESIDENT OR VICE-PRESIDENT, AND MAY PROMULGATE ITS RULES FOR THE PURPOSE. Q. How are the President and Vice-President elected? A. By direct vote of the people as specified in Section 4. canvass and proclaim Q. Who has the authority to canvass the votes and proclaim the winner? congress has authority atm there is a comittee but must ubmit to congress for approval keep canvassing even after official adjournment A. Congress. The proclamation of presidential and vice-presidential winners is a function of Congress and not of the Comelec. Macalintal v. Comelec, G.R. No. 157013, July 10,2003. Q. May Congress delegate the preliminary count of votes in a presidential election to a Joint Committee. A. Yes, provided that the Committee report be submitted for approval by the Congress as a body. Lopez v. Senate and House, G.R. No. 163556, June 8,2004. Q. May Congress continue the canvass even after the final adjournment of is sessions? A. Yes. The final adjournment of Congress does not terminate an unfinished presidential canvass. Adjournment terminates legislation but not the non-legislative functions of Congress such as canvassing of votes. Pimentel v. Joint Canvassing Committee, June 22, 2004. 286 15-16 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER Q. In canvassing the votes, can Congress look into the authenticity and due execution of the certificates of canvass, or is its function merely ministerial? A. The function of Congress is not merely ministerial. It has authority to examine the certificates of canvass for authenticity and due execution. For this purpose, Congress must pass a law governing their canvassing functions. Q. In the event of a contest "relating to the election, returns, and qualifications of the President or Vice-President," who shall be judge? A. The Supreme Court. Sitting en banc Q. Macalintal challenges the creation of the Presidential Electoral Tribunal as unconstitutional. A. The Presidential Electoral Tribunalis no other than the Supreme Court itself. The new provision in the 1987 Constitution simply constitutionalizes the decision of the Supreme Court in Lopez v. Roxas, 17 SCRA at 761. Macalintal v. PET, G.R. No. 191618, November 23,2010. Q. Can Susan Roces, widow of Fernando Poe, Jr. intervene and/or substitute for him, assuming arguendo that the protest could survive his death. A. No. The fundamental rule applicable in a presidential election protest is Rule 14 of the PET Rules. It provides, Who can protest? Rule 14. Election Protest. - Only the registered candidate for President or for Vice-President of the Philippines who received the - second or third highest votes second or third highest number of votes may contest the election of the - but if you run and assume another President or the Vice-President, as the case may be, by filing a verified position petition deemed abandoned petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the proclamation of the winner. Pursuant to this rule, only two persons, the 2nd and 3rd placers, may contest the election. By this express enumeration, the rule makers have in effect determined the real parties in interest concerning an on-going election contest. Fernando Poe, Jr. v. Arroyo, P.E.T. CASE No. 002, March 29, 2005. Q. Protestee de Castro contends that the Tribunal cannot correct the manifest errors on the statements of votes (SOV) and certificates of canvass (COC). Decide. Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 287 A. The validity, authenticity and correctness of the SOVs and COCs are under the Tribunal's jurisdiction. The constitutional function as well as the power and the duty to be the sole judge of all contests relating to the election, returns and qualification of the President and Vice-President is expressly vested in the PET, in Section 4, Article VII of the Constitution. Included therein is the duty to correct manifest errors in the SOVs and COCs. Legarda v. De Castro, P.E.T. CASE No. 003, March 31, 2005. Q. After Fidel Ramos was declared elected President, defeated candidate Miriam Defensor Santiago filed an election protest with the Supreme Court. Subsequently, however, while the case was pending, she ran for the office of Senator and, having been declared elected, assumed office as Senator. What happens to her election protest? A. With her election and assumption of office as Senator she is deemed to have abandoned her protest. A Senator's term is six years. It is a public trust. She has made a pact with the people that she would serve for six years. Defensor-Santiago v. Fidel Ramos, P.E.T. Case No. 001, February 13,1996. See dissent. Q. What are the terms of the President and Vice-President? May they be re-elected? A. Both the President and the Vice-President are elected for a term of six years which begins at noon on the thirtieth day of June next following the day of the election. "The President shall not be eligible for any reelection." "No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected." Q. If a Vice-President succeeds to the presidency, may he run for President at the end of the term to which he succeeded as President? A. "No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time." 288 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 12-13 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: "I DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL FAITHFULLY AND CONSCIENTIOUSLY FULFILL MY DUTIES AS PRESIDENT (OR VICE-PRESIDENT OR ACTING PRESIDENT) OF THE PHILIPPINES, PRESERVE AND DEFEND ITS CONSTITUTION, EXECUTE ITS LAWS, DO JUSTICE TO EVERY MAN, AND CONSECRATE MYSELF TO THE SERVICE OF THE NATION. SO HELP ME GOD." (IN CASE OF AFFIRMATION, LAST SENTENCE WILL BE OMITTED) P and VP Salary SEC. 6. THE PRESIDENT SHALL HAVE AN OFFICIAL RESIDENCE. THE SALARIES OF THE PRESIDENT AND VICE-PRESIDENT SHALL BE DETERMINED BY LAW AND SHALL NOT BE DECREASED - determined by law DURING THEIR TENURE. No INCREASE IN SAID COMPENSATION SHALL TAKE EFFECT UNTIL AFTER - not increased during term THE EXPIRATION OF THE TERM OF THE INCUMBENT DURING WHICH SUCH INCREASE WAS approved - no other emolluments allowed APPROVED. THEY SHALL NOT RECEIVE DURING THEIR TENURE ANY OTHER EMOLUMENT FROM THE GOVERNMENT OR ANY OTHER SOURCE. Q. What will be the initial salary of the President and of the Vice- President under this Constitution? A. See Article XVIII, Section 17. O need to study this daw Act Act BECOME SEC. 7. THE PRESIDENT-ELECT AND THE VICE-PRESIDENT-ELECT SHALL ASSUME OFFICE AT THE BEGINNING OF THEIR TERMS. IF THE PRESIDENT-ELECT FAILS TO QUALIFY, THE VICE-PRESIDENTELECT SHALL ACT AS PRESIDENT UNTIL THE PRESIDENT-ELECT SHALL HAVE QUALIFIED. IF A PRESIDENT SHALL NOT HAVE BEEN CHOSEN, THE VICEPRESIDENT-ELECT SHALL ACT AS PRESIDENT UNTIL A PRESIDENT SHALL HAVE BEEN CHOSEN AND QUALIFIED. IF AT THE BEGINNING OF THE TERM OF THE PRESIDENT, THE PRESIDENT-ELECT SHALL HAVE DIED OR SHALL HAVE BECOME PERMANENTLY DISABLED, THE VLCE-PRESIDENT-ELECT SHALL BECOME PRESIDENT. WHERE NO PRESIDENT AND VICE-PRESIDENT SHALL HAVE BEEN CHOSEN OR SHALL HAVE QUALIFIED, OR WHERE BOTH SHALL HAVE DIED OR BECOME PERMANENTLY DISABLED, THE PRESIDENT OF THE SENATE OR, IN CASE OF HIS INABILITY, THE SPEAKER OF THE HOUSE OF REPRESENTATIVES SHALL ACT AS PRESIDENT UNTIL A PRESIDENT OR A ViCE-PRESIDENT SHALL HAVE BEEN CHOSEN AND QUALIFIED. Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 289 THE CONGRESS SHALL, BY LAW, PROVIDE FOR THE MANNER IN WHICH ONE WHO IS TO ACT AS PRESIDENT SHALL BE SELECTED UNTIL A PRESIDENT OR A VICE PRESIDENT SHALL HAVE QUALIFIED, IN CASE OF DEATH, PERMANENT DISABILITY, OR INABILITY OF THE OFFICLIILS MENTIONED IN THE NEXT PRECEDING PARAGRAPH. Q. What different vacancy situations are contemplated in Section 7? A. In general, Section 7 deals with vacancy situations which exist at the beginning of the term of the presidency. President The first two situations are (1) when a President has been chosen Chosen but he fails to qualify at the beginning of his term, and (2) when no None chosen President has yet been chosen at the time he is supposed to assume office. In both cases the Vice-President becomes acting-President until a President qualifies. The third situation is (3) when the President-elect dies or is Dies b4 start permanently incapacitated before the beginning of his term. In this case, the Vice-President-elect becomes President. BOTH The fourth and fifth situations are (4) when both the President and Vice-President have not yet been chosen or have failed to qualify, and Not chosen / failed to qualified (5) when both shall have died or become permanently incapacitated at the start of their ter m. In such situation, the Senate President or the Died/ incapacitated Speaker •- in that order — acts as President until a President or Vice -President qualifies. The sixth situation is (6) when the officials mentioned in situation Sen pres / (4) and (5) shall have died, or shall have become permanently speaker incapacitated, or are unable to assume office. In such situation, Congress will decide by law who wiill act as President until a President or Died/ icap/ Vice-President shall haive been elected and qualified. unable SEC. 8. IN CASE OF DEATH, PERMANENT DISABILITY, REMOVAL FROM OFFICE, OR RESIGNATION OF THE PRESIDENT, THE VICE-PRESIDENX SHALL BECOME THE PRESIDENT TO SERVE THE UNEXPIRED TERM. IN CASE OF DEATH, PERMANENT DISABILITY, REMOVAL FROM OFFICE, OR RESIGNATION OF BOTH THE PRESIDENT AND VICE-PRESIDENT, THE PRESIDENT 0<F THE SENATE OR, IN CASE OF HIS INABILITY, THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, SHALL THEN ACT AS PRESIDENT UNTIL THE PRESIDENT OR VICE-PRESIDENT SHALL HAVE BEEN ELECTED AND QUALIFIED. 290 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 THE CONGRESS SHALL, BY LAW, PROVIDE WHO SHALL SERVE AS PRESIDENT IN CASE OF DEATH, PERMANENT DISABILITY, OR RESIGNATION OF THE ACTING PRESIDENT. HE SHALL SERVE UNTIL THE PRESIDENT OR THE VICE-PRESIDENT SHALL HAVE BEEN ELECTED AND QUALIFIED, AND BE How become vacant? - dies - permanently disabled - removed - resign SUBJECT TO THE SAME RESTRICTIONS OF POWERS AND DISQUALIFICATIONS AS THE ACTING PF RESIDENT. Q. What vacancy situations are contemplated in Section 8? A. The vacancy situations described here occur after the office has been initially filled. Order - pres - VP - sen pres - speaker - they dont lose their orig post tho The first situation is (1) when the incumbent President dies, or is permanently disabled, is removed, or resigns. The vacancy created is thus permanent. In this situation the Vice- President becomes President. The second situation is (2) when both the President and the Vice President die, or are permanently disabled, are removed, or resign. In such case, the Senate President or the Speaker — in that order — shall act as President until a President or Vice-President shall have been elected and qualified. - when the acting dies , determined by law until qualified ERAP resigned? The third situation is (3) when the Acting President dies, or is permanently incapacitated, is removed, or resigns. For such situation, Congress will determine by law who will act as President until a new President or Vice-President shall have qualified. Q. How can the assumption of the presidency by Vice President Gloria - based on statements before leaving Macapagal Arroyo in the middle of Joseph Estrada's term be justified. - published diary ? A. In a divided opinion the Supreme Court held that Joseph Estrada had resigned thereby leaving the office vacant. The judgment that Estrada had resigned was based on two statements of Estrada just before he left Malacanang and on the diary of Angara published in the Inquirer. Estrada v. Arroyo, G.R. No. 146738, March 2, 2001; G.R. No. 146738, April 3, 2001. Q. Four related petitions were filed (1) asking that Estrada stop "exercising the powers and authority of the President under the Constitution" and "to yield the Presidency to his constitutional successor, Gloria Macapagal-Arroyo." (2) that "the occupation of the Office of [the President] of the Philippines by Vice Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT President Gloria Macapagal-Arroyo is constitutional and legal with the full support of the Filipino people and other foreign countries.," (3) asking for a "definitive mling on whether or not Joseph Estrada is still the President" and, hence, "exempt from all criminal suits," and (4) praying "th at the proclamation and oath-taking of Madame Arroyo ... be declared null and void . . . " or that she be "declared acting President and President Joseph Ejercito Estrada, President-on-leave ..." Decide. A. 1. Petitions are essentially for declaratory relief over which the Supreme Court has no original jurisdiction; 2. as petitions for prohibition and mandamus they fail to allege, much less show, lack or excess of jurisdiction, or grave abuse of jurisdiction on the part of "any tribunal, corporation, board, officer or person whether exercising judicial, quasi-judicial or ministerial functions," which Rule 65 of the Rules of Court requires to be alleged and proven before the extra-ordinary writ of prohibition may be issued; 3. petitioners have no legal standing; 4. they may not be treated as quo warranto because a plea for quo warranto must be commenced (a) by the solicitor general, (b) by a public prosecutor, and (c) by "a person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another." None of the petitioners qualify in law to commence the action. Lozano, et al. v. Macapagal-Arroyo, G.R. No. 146579, February 6, 2001. Q. When the Senate President or Speaker becomes Acting President, does he lose the Senate presidency or the speakership? A. No. VP vacancy - president nomintes - congress votes - majority of all voting seperately SEC. 9. WHENEVER THERE IS A VACANCY IN THE OFFICE OF THE VICE-PRESIDENT DURING THE TERM FOR WHICH HE WAS ELECTED, THE PRESIDENT SHALL NOMINATE A VICE-PRESIDENT FROM AMONG THE MEMBERS OF THE SENATE AND THE HOUSE OF REPRESENTATIVES WHO SHALL ASSUME OFFICE UPON CONFIRMATION BY A MAJORITY VOTE OF ALL THE MEMBERS OF BOTH HOUSES OF CONGRESS, VOTING SEPARATELY. Q. How is a vacancy in the vice- presidency filled? A. See Section 9. (Note that previous constitutions did not have a rule for filling such vacancy. Note also that, by not limiting the choice to the Senate, the President is given a wider range of choices.) 291 292 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 12-13 SEC. 10. THE CONGRESS SHALL, AT TEN O'CLOCK IN THE MORNING OF THE THIRD DAY AFTER THE VACANCY IN THE OFFICES OF THE PRESIDENT AND VICE-PRESIDENT OCCURS, CONVENE IN ACCORDANCE WITH ITS RULES WITHOUT NEED OF A CALL AND WITHIN SEVEN DAYS ENACT A LAW CALLING FOR A SPECIAL ELECTION TO ELECT A PRESIDENT AND A VICE-PRESIDENT TO BE HELD NOT EARLIER THAN FORTY-FIVE DAYS NOR LATER THAN SIXTY DAYS FROM THE TIME OF SUCH CALL. THE BILL CALLING SUCH SPECIAL ELECTION SHALL BE DEEMED CERTIFIED UNDER PARAGRAPH 2, SECTION 26, ARTICLE VI OF THIS CONSTITUTION AND SHALL BECOME LAW UPON ITS APPROVAL ON THIRD READING BY THE CONGRESS. APPROPRIATIONS FOR THE SPECIAL ELECTION SHALL BE CHARGED AGAINST ANY CURRENT APPROPRIATIONS AND SHALL BE EXEMPT FROM THE REQUIREMENTS OF PARAGRAPH 4, SECTION 25, ARTICLE VI OF THIS CONSTITUTION. THE CONVENING OF THE CONGRESS CANNOT BE SUSPENDED NOR THE SPECIAL ELECTION POSTPONED. NO SPECIAL ELECTION SHALL BE CALLED IF THE VACANCY OCCURS WITHIN EIGHTEEN MONTHS BEFORE THE DATE OF THE NEXT PRESIDENTIAL ELECTION. Q. What must Congress do in case a vacancy occurs in the offices of President and Vice-President? A. See Section 10. eclares HIMSELF unable discharge duties SEC. 11. WHENEVER THE PRESIDENT TRANSMITS TO THE PRESIDENT OF THE SENATE AND THE SPEAEXR OF THE HOUSE OF REPRESENTATIVES HIS WRITTEN DECLARATION THAT HE IS UNABLE TO DISCHARGE THE POWERS AND DUTIES OF HIS OFFICE, AND 1UNTIL HE TRANSMITS TO THEM - president transmits to sen pres A WRITTEN DECLARATION TO THE CONTRARY, SUCH POWERS AND DUTIES and speaker SHALL BE DISCHARGED BY THE ViCE-PRESIDENT AS ACTING PRESIDENT. - written declration WHENEVER A MAJORITY OF ALL THE MEMBERS OF THE CABINET - temp discharge of powers by VP - until he can na ulit TRANSMIT TO THE PRESIDENT OF THE SENATE AND TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES THEIR WRITTEN DECLARATION THAT THE PRESIDENT IS UNABLE TO DISCHARGE THE POWERS AND DUTIES OF HIS OFFICE, THE VICE-PRESIDENT SHALL IMMEDIATELY ASSUME THE POWERS t declares unable to discharge AND DUTIES OF THE OFFICE AS ACTING PRESIDENT. - majority - transmit to sen pres and speaker - written declaration - VP assumes Cabinet v Pres THEREAFTER, WHEN THE PRESIDENT TRANSMITS TO THE PRESIDENT OF THE SENATE AND TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES HIS WRITTEN DECLARATION THAT NO INABILITY EXISTS, HE SHALL REASSUME THE POWERS AND DUTIES OF HIS OFFICE. MEANWHILE, SHOULD A MAJORITY OF ALL THE MEMBERS OF THE CABINET TRANSMIT WITHIN FIVE DAYS TO THE PRESIDENT OF THE SENATE AND TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES THEIR WRITTEN DECLARATION THAT THE PRESIDENT - pres can write that no inability exsists : assumes again - but if majority within 5 days write hindi talaga still : CONGRESS DECIDES - 2/3 vote, both seperately Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 293 IS UNABLE TO DISCHARGE THE POWERS AND DUTIES OF HIS OFFICE, THE CONGRESS SHALL DECIDE THE ISSUE. FOR THAT PURPOSE, THE CONGRESS SHALL CONVENE, IF IT IS NOT IN SESSION, WITHIN FORTY-EIGHT HOURS, IN ACCORDANCE WITH ITS RULES AND WITHOUT NEED OF CALL. IF THE CONGRESS, WITHIN TEN DAYS AFTER RECEIPT OF THE LAST WRITTEN DECLARATION, OR, IF NOT IN SESSION, WITHIN TWELVE DAYS AFTER IT IS REQUIRED TO ASSEMBLE, DETERMINES BY A TWO-THIRDS VOTE OF BOTH HOUSES, VOTING SEPARATELY, THAT THE PRESIDENT IS UNABLE TO DISCHARGE THE POWERS AND DUTIES OF HIS OFFICE, THE VICE-PRESIDENT SHALL ACT AS PRESIDENT; OTHERWISE, THE PRESIDENT SHALL CONTINUE EXERCISING THE POWERS AND DUTIES OF HIS OFFICE. Q. The matter of deciding whether the President is so unable to discharge the functions of his office that someone else must take over from him can create a government crisis, especially if the President is unwilling to concede his inability. How is a question of inability resolved? A. See Section 11. NOTE: IN Estrada v. Arroyo, G.R. No. 146738, March 2, 2001; G.R. No. 146738, April 3, 2001, the Court said that Estrada did not merely temporarily hand over the exercise of presidential powers to Gloria Macapagal Arroyo but resigned from the presidency. Serious Illness - inform the public! Dont deny Access to - national security guy - foreign relations guy - chief of staff of AFP - ANY ilness which can be a matter of public concern SEC. 12. IN CASE OF SERIOUS ILLNESS OF THE PRESIDENT, THE PUBLIC SHALL BE INFORMED OF THE STATE OF HIS HEALTH. THE MEMBERS OF THE CABINET IN CHARGE OF NATIONAL SECURITY AND FOREIGN RELATIONS AND THE CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, SHALL NOT BE DENIED ACCESS TO THE PRESIDENT DURING SUCH ILLNESS. Q. What kind of illness is envisioned by Section 12? A. Section 12 envisions not just illness which incapacitates but also any serious illness which can be a matter of national concern. (Incidentally, Section 12 grew out of a lesson learned from Soviet Russia. Nothing to do with local history!) Q. Who has the duty of releasing the information? A. The section does not specify the officer on whom the duty devolves. It is understood that the Office of the President would be responsible for making the disclosure. 294 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 13 rohibitions on official Family SEC. 13. THE PRESIDENT, VICE-PRESIDENT, THE MEMBERS OF THE CABINET, AND THEIR DEPUTIES OR ASSISTANTS SHALL NOT, UNLESS OTHERWISE PROVIDED IN THIS CONSTITUTION, HOLD ANY OTHER OFFICE OR EMPLOYMENT her office DURING SAID TENURE. THEY SHALL NOT, DURING THEIR TENURE, DIRECTLY OR INDIRECTLY ce profession PRACTICE ANY OTHER PROFESSION, PARTICIPATE IN ANY BUSINESS, OR BE FINANCIALLY usiness INTERESTED IN ANY CONTRACT WITH, OR IN ANY FRANCHISE, OR SPECIAL PRIVILEGE GRANTED ial interest in gov contracts or franchice BY THE GOVERNMENT OR ANY SUBDIVISION, AGENCY, OR INSTRUMENTALITY conflict of interest THEREOF, INCLUDING ANY GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS OR THEIR SUBSIDIARIES. THEY SHALL STRICTLY AVOID CONFLICT OF INTEREST IN THE CONDUCT OF THEIR Includes OFFICE. - VP THE SPOUSE AND RELATIVES BY CONSANGUINITY OR AFFINITY - Cabinet WITHIN THE FOURTH CIVIL DEGREE OF THE PRESIDENT SHALL NOT DURING HIS TENURE BE - their deputies APPOINTED AS MEMBERS OF THE CONSTITUTIONAL COMMISSIONS, OR THE OFFICE OF THE OMBUDSMAN, OR AS SECRETARIES, UNDER EXCEPT SECRETARIES, CHAIRMEN OR HEADS OF BUREAUS OR OFFICES, - consti allows INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS AND THEIR SUBSIDIARIES. bitions on ACTUAL family - spouse - relatives up to 4th civil degree Cannot be appointed to - consti comish - ombudsman - secretaries , USEC - heads of bureaus Q. What are the prohibitions imposed on the President and his official family? on his relatives? A. See Section 13. Q. If an Undersecretary sits in the PEZA Board meetings for the Secretary, does he also have the disqualification of the Secretary? A. Yes. As the Undersecretary himself admitted, he no separate or special appointment for such position. Since the Secretary of Labor is prohibited from receiving compensation for his additional office or employment, such prohibition likewise applies to the petitioner who sat in the Board only in behalf of the Secretary of Labor. Bitonio v. COA, G.R. No. 147392, March 12,2004. Q. May the Presidential Legal Counsel be made PCGG Chairman? A. Since the Chief Presidential Legal Counsel has the duty of giving independent and impartial legal advice on the actions of the heads of various executive departments and agencies and to review investigations involving other presidential appointees, he may not occupy a position in any of the offices whose performance he must review. Such would involve occupying incompatible positions. Thus he cannot be PCGG Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 295 Chairman and Chief Presidential Legal Counsel at the same time of time since the PCGG answers to the President. Public Interest Group v Elma, G. R. No. 138965, June 30, 2006. Q. President Aquino issued E.O. No 284 which read in part: Sec. 1. Even if allowed by law or by ordinary functions of his position, a member of the Cabinet, undersecretary or assistant secretary or other appointive officials of the Executive Department may, in addition to his primary position, hold not more than two positions in the government and government corporations x x x Valid? A. Invalid. This in effect gives to the President and the rest of her official family the broad exceptions found in Section 7, Par. 2, of Article IX-B which is the general rule for public officials. Section 13, Art. VII, however, is the exception. a[W]hile all other appointive officials in the civil service are allowed to hold other office and employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself." Civil Liberties Union v. The Executive Secretary, G.R. No. 83896, 22 February 1991. Q. What is the meaning of "directly" or "indirectly?" Does the fact that the accused, a PCGG Commissioner, has not signed any document submitting to DECS a bid of the family corporation of which he is member justify quashing the information? A. Quashal is not justified. The constitutional ban is similar to the prohibition in the Civil Service Law (PD No. 807, Sec. 36, subpar. 24) that "pursuit of private business . . . without the permission required by Civil Service Rules and Regulations" shall be a ground for disciplinary action against any officer or employee in the civil service. Doromal v. Sandiganbayan, G.R. No. 85468, September 7,1989. SEC. 14. APPOINTMENTS EXTENDED BY AN ACTING PRESIDENT ppointments by acting PresSHALL REMAIN EFFECTIVE, UNLESS REVOKED BY THE ELECTED PRESIDENT WITHIN NINETY DAYS FROM HIS ASSUMPTION OR REASSUMPTION OF OFFICE. valid until revoked by president elect within 90 days Q. Does an Acting President possess powers to appoint? A. Yes, but his appointments may be revoked by the elected President within ninety days from his assumption or reassumption of office. 296 Midnight appointments - 2 months before election - NO appointments - only PRESIDENTIAL appointments EX : - temporary appointments - which vacancy prejudic public safety or public service - AND to executive dep. APPLIES : judiciary BUT NOT : to SC THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 12-13 SEC. 15. Two MONTHS IMMEDIATELY BEFORE THE NEXT PRESIDENTIAL ELECTIONS AND UP TO THE END OF HIS TERM, A PRESIDENT OR ACTING PRESIDENT SHALL NOT MAKE APPOINTMENTS, EXCEPT TEMPORARY APPOINTMENTS TO EXECUTIVE POSITIONS WHEN CONTINUED VACANCIES THEREIN WILL PREJUDICE PUBLIC SERVICE OR ENDANGER PUBLIC SAFETY. Q. Are there time periods when appointments may not be made? A. Yes. See Section 15. Note that if it is necessary to make appointments during this period, only temporary appointments can be extended and only to the executive department. Q. Does this rule apply to appointments to the judiciary? A. According to In re: Appointment of Valenzuela, AM 98-0501 SC, November 9, 1998 the provision applies to the judiciary. However, according to De Castro v. Judicial and Bar Council, G.R. No. 191002, April 20, 2010 and May 1, 2010. it does not apply to appointments to the Supreme Court. See dissent. Q. Petitioners seek the recall of the appointments of the fourteen (14) private respondents before the CSC on the ground that these were "midnight appointments" by the Mayor forbidden under Article VII, Section 15 of the Constitution. Decide. A. The prohibition applies only to presidential appointments. There is no law that prohibits local elective officials from making appointments during the last days of his or her tenure. De la Rama v. Court of Appeals, G.R. No. 131136, February 28, 2001. SEC. 16. THE PRESIDENT SHALL NOMINATE AND, WITH THE CONSENT OF THE pointment that Need confirmation COMMISSION ON APPOINTMENTS, APPOINT THE HEADS OF THE EXECUTIVE DEPARTMENTS, - heads of dept - ambassadors - public ministers - consuls - armed forces colonel or naval captail - other consti appointments AMBASSADORS, OTHER PUBLIC MINISTERS AND CONSULS, OR OFFICERS OF THE ARMED FORCES FROM THE RANK OF COLONEL OR NAVAL CAPTAIN, AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION. HE SHALL ALSO APPOINT ALL OTHER OFFICERS OF THE GOVERNMENT WHOSE APPOINTMENTS ARE NOT OTHERWISE PROVIDED FOR BY LAW, AND THOSE WHOM HE MAY BE AUTHORIZED BY LAW TO APPOINT. THE CONGRESS MAY, BY LAW, VEST THE APPOINTMENT OF OTHER OFFICERS LOWER IN RANK IN THE PRESIDENT ALONE, IN THE COURTS, OR IN THE HEADS OF DEPARTMENTS, AGENCIES, COMMISSIONS, OR BOARDS. THE PRESIDENT SHALL HAVE THE POWER TO MAKE APPOINTMENTS DURING THE RECESS OF THE CONGRESS, WHETHER VOLUNTARY OR - SC judges - lower courts - JBC REGULAR members - consti comish - ombudsman, his deputies - only PRESIDENT can appoint these - but congress can give appointing power to lower rank guys - but when law does not say who will appoint : default is president - congress CANNOT expand this list! Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT ting power is executive 297 COMPULSORY, BUT SUCH APPOINTMENTS SHALL BE EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE COMMISSION ON APPOINTMENTS OR UNTIL THE NEXT inADJOURNMENT nature OF THE CONGRESS. Q. What is the nature of the appointing power? - legis can crete office and A. It is executive in nature, Government v. Springer, 50 Phil. 259, 283 (1927). prescribe qualifications Q. What follows from the fact that the appointing power is executive in ONLY nature? - no need for subordinate approval, only "ask advise" A. Since appointment to office is an executive function, the clear implication is that the legislature may not usurp such function. The legislature may create an office and prescribe the qualifications of the person who may hold the office, but it may neither specify who shall be appointed to such office nor actually appoint him. The "appointing power is the exclusive prerogative of the [President], upon which, no limitations may be imposed by Congress, except those resulting . . . from the limited exercise of power to prescribe the qualifications to a given appointive office." Manalang v. Quitoriano, 94 Phil. 903, 911(1954). NOTE: The appointing authority of the President, however, should not be confused with the authority of the legislature to impose additional duties on existing offices. Thus, under the 1935 Constitution, while it was clearly the prerogative of the President to appoint the members of the Supreme Court, Roxas v. Lopez, 17 SCRA 756 (1966) upheld the authority of Congress to create a Presidential Electoral Tribunal consisting of the Chief Justice and the Justices of the Supreme Court. The Supreme Court held that the act did not create a new office nor specify who should hold the office but merely imposed additional duties . and powers upon the Supreme Court and consequently upon whoever may be the incumbent Chief Justice and Associate Justices. Id. at 770. Q. Does the power to appoint include the power to decide who among various choices is the best qualified? A. Yes, provided that the person chosen has the qualifications provided by law. Q. Is the absence of recommendation of the Secretary of justice to the President fatal to the appointment of respondent Conrado Quiaoit for prosecutor? 298 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 12-13 A. The answer pivots on the proper understanding of the provision of the Revised Administrative Code of 1987 (Book IV, Title III, Chapter II, Section 9) to the effect that — "All provincial and city prosecutors and their assistants shall be appointed by the President upon the recommendation of the Secretary." Appointment calls for discretion on the part of the appointing authority. The power to appoint prosecutors is given to the President. The Secretary of Justice is under the control of the President. Hence the law must be read simply as allowing the Secretary of Justice to advice the President. The doctrine in San Juan v. CSC, 196 SCRA 69 is not applicable because the stress there was on the constitutional mandate on local autonomy. Bermudez, et al. v. Secretary, G.R. No. 131429, August 4,1999. Q. What is the scope of the President's appointing power? A. Section 16 enumerates the officers who are appointed by the President: "The President shall . . . appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint." In addition to the above, he also appoints Members of the Supreme Court and judges of lower courts (Article Vni, Section 9), the regular members of the Judicial and Bar Council, the Chairmen and Members of the Constitutional Commissions [Article IX, B, Section 1(2); C, Section 1(2); D, Section 1(2)], the Ombudsman and his Deputies (Article XI, Section 9). Q. What is the significance of the above enumeration? A. The enumeration means that Congress may not give to any other officer the power to appoint the above enumerated officers. Q. May the appointing authority be given to others? A. Appointing authority may also be given to other officials than the President. Thus Section 16 says: "The Congress may, by Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 299 law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards." Rufino v Endriga, G.R. No. 139554, July 21, 2006 interpreted this to mean that, when the authority is given to head of collegial bodies, it is to the chairman that the authority is given and not to the body. But he can appoint only officers "lower in rank," and not officers equal in rank to him. Thus a Chairman may not appoint a fellow member of a Board. Q. What appointments need confirmation by the Commission on Appointments? A. Only those enumerated in Section 16. This is different from the law under the 1935 Constitution where the general rule was that all appointments made by the President needed confirmation by the Commission on Appointments unless exempted by Congress from the need for confirmation Moreover, "ad interim appointments" under the second paragraph of the Section 16 are immediately effective. Q. Did the appointment of a sectoral representative require confirmation by the Commission on Appointments? A. Yes. The sectoral representative fell under the clause "other officers whose appointments are vested in him in this Constitution." Quintos-Deles, et al. v. Commission on Appointments, G.R. No. 83216, September 4,1989. Q. Does the appointment of the Commissioner of Customs need confirmation by the Commission on Appointments? A. No, since the office is not one of those mentioned in the first sentence of Article VII, Section 16, nor is it specified elsewhere that such appointment needs consent of the Commission. Sarmiento v. Mison, 156 SCRA 549 (December 17,1987). Q. Does the appointment of the Chairman of the Commission on Human Rights require the consent of the Commission on Appointments? A. No, since the office is not one of those mentioned in the first sentence of Article VII, Section 16, nor is it specified elsewhere that such appointment needs consent of the Commission. Bautista v. Salonga, G.R. No. 86439, April 13,1989. Q. Do appointments and promotions in the Philippine Coast Guard need confirmation? 300 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 15-16 A. No. The Coast Guard is a civilian unit. Soriano v. Lista, 447 Phil. 566 (2003). Q. May Congress expand the list of those whose appointment needs confirmation by the Commission on Appointments? A. No. Calderon v. Carale, 208 SCRA 254 (1992), although still with some dissents, definitively ruled that Congress may not expand the list of appointments needing confirmation. The case involved R.A. 6715 which required that the Chairman and Commissioners of the National Labor Relations Commission be appointed by the President with the confirmation of the Commission on Appointments. The Court reiterated its ruling in Mison and Bautista saying that the list in the first sentence of Section 16 of those whose appointment require confirmation by the Commission on Appointments is exclusive, adding that the list may no be expanded by statutory legislation. The same doctrine was followed in Tarrosa v. Singson, 232 SCRA 553 (1994), with reference to the appointment of the Central Bank Governor and also in Manalo v. Sistoza, et al., G.R. No. 107369, August 11, 1999, with reference to the appointment of the head of the Philippine National Police. Q. Is the promotion of senior officers of the PNP subject to confirmation by the Commission on Appointment as required by the PNP law? A. No. Congress may not expand the list of those needing CA confirmation. Besides, PNP officers are not members of the Armed Forces but are civilians. Manalo v. Sistoza, et al., G.R. No. 107369, August 11,1999. Q. When a law creating an office is silent as to who should appoint the corresponding officer, who should? D interim appointments - made during recess of congress - thus no need for confirmation - BUT valid only til revoked comish on appointments - these are PERMANENT in nature A. The President. Q. What are "ad-interim appointments?" A. They are appointments made by the President during the recess of Congress (during which the Commission on Appointments does not meet). Q. Is an ad-interim appointment temporary? A. No. Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President at her pleasure, and can even be disapproved or simply by-passed by the Commission on Appointments. For this reason, petitioner claims that an ad interim - congress cannot force press appointment is temporary in charac to make an ad interim appointment Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 301 ter and consequently prohibited by the last sentence of Section 1 (2), Article IX-C of the Constitution. An ad interim appointment is permanent. Matibag v. Benipayo, G.R. No. 149036, April 2, 2002. Q. What is the effectivity and duration of ad-interim appointments? A. They are effective immediately, without need for confirmation by the Commission on Appointments, but the effectivity lasts "only until disapproval by the Commission on Appointments or until the next adjournment of the Congress." Q. What is the difference between an ad-interim appointment and an appointment in an acting capacity? A. (1) The former refers only to positions which need confirmation by the Committee on Appointment while the latter is also given to those which do not need confirmation. (2) The former may be given only when Congress is not in session whereas the latter may be given even when Congress is in session. Q. The President made appointments of Acting Department Secretaries while Congress was in session. The appointments were challenged on the grounds that: (1) the administrative Code says that, in the absence of a Secretary, the Undersecretary performs his functions; (2) appointments of acting secretaries need confirmation; (3) For its part, respondent says that since the petitioner-senators are not members of the Commission on Appointment, they have no standing to challenge the act of the President. A. (1) Congress, through a law, cannot impose on the President the obligation to appoint automatically the undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds a position of great trust and confidence. Congress, in the guise of prescribing qualifications to an office, cannot impose on the President who her alter ego should be. (2) The office of a department secretary may become vacant while Congress is in session. Since a department secretary is the alter ego of the President, the acting appointee to the office must necessarily have the President's confidence. Thus, by the very nature of the office of a department secretary, the President must appoint in an acting capacity a person 302 Sec. 17 of her choice even while Congress is in session. That person may or may not be the permanent appointee, but practical reasons may make it expedient that the acting appointee will also be the permanent appointee. Moreover, the law expressly allows the President to make such acting appointment. Section 17, Chapter 5, Title I, Book III of EO 292 states that "[t]he President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch." (3) As to standing, yes, since the Commission on appointments is independent of the Senate, senators who are not members of the CA may not act in their behalf. Pimentel, Jr. v. Ermita, G.R. No. 164978, October 13,2005. xecutive power of control - modify - set aside - includes power to remove - power to reorganize offices THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER SEC. 17. THE PRESIDENT SHALL HAVE CONTROL OF ALL THE EXECUTIVE DEPARTMENTS, BUREAUS, AND OFFICES. HE SHALL ENSURE THAT THE LAWS BE FAITHFULLY EXECUTED. Q. What is the power of control? A. The power of control has been defined as "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the Qualified political agency former for that of the latter." Mondano v. Silvosa, 97 Phil. 143,148 (1955). It is such power which has been given to the President over all - except when consti says he has executive officers, from Cabinet members to the lowliest clerk. This is to do it in person, or situation an element of the presidential system where the President is "the demands it Executive of the Government of the Philippines, and no other. The - ACTS of dep secretaries in heads of the executive departments occupy political positions and hold regular course of business are office in an advisory capacity, and, in the language of Thomas Jefferson valid until reprobated 'should be of the President's bosom confidence,' and, in the language - includes power of dep secs of Attorney General Cushing, 'are subject to the direction of the modify subordinates acts as well President."' Villena v. Secretary of Interior, 67 Phil. 451, 464 (1939). Also, Lacson- Magallanes Co. Inc. v. Pano, 21 SCRA 895 (1967). Q. Section 31 of E.O. No. 292 (Administrative Code of 1987) provided an incentive award system for government employees. On 21 February 1992, President Aquino issued A.O. No. 268 enjoining the grant of productivity incentive benefits without prior approval of the President. On 19 January 1993, President Ramos issued A.O. No. 29, which limited the amount of incentive sure laws faithfully executed - do whatever - ensure laws are followed - similar to power of supervision Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 303 benefits for 1992, enjoined head of government agencies from granting incentive benefits without prior approval from him, and directed the refund of the excess over the prescribed amount. Petitioners are officials and employees of several government departments and agencies who were paid incentive benefits for 1992. They assail the constitutionality of A.O. Nos. 29 and 268 on the ground that: 1) they violate the provisions of E.O. No. 292 and, since the latter is a law, it prevails over executive issuances; and 2) they encroach upon the constitutional authority of the Civil Service Commission to adopt measures to strengthen the merit and rewards system and to promulgate rules, regulations and standards governing the incentive awards system of the civil service. Decide. A. 1) Both A.O. Nos. 29 and 268 were issued in the valid exercise of presidential control over the executive departments. "The President issued subject Administrative Orders to regulate the grant of productivity incentive benefits and to prevent discontentment, dissatisfaction and demoralization among government personnel by committing limited resources of government for the equal payment of incentives and awards. The President was only exercising his power of control by modifying the acts of the respondents who granted incentive benefits to their employees without appropriate clearance from the Office of the President, thereby resulting in the uneven distribution of government resources." Blaquera v. Alcala, G.R. Nos. 109406,110642,111494, 112056 and 119597, September 11,1998, pp. 59-60. 2) The President did not encroach upon the authority of the CSC to grant benefits to government personnel. A.O. Nos. 29 and 268 did not revoke the privilege of employees to receive incentive benefits, but merely regulated the grant and amount thereof. Fixing the amount of the incentives is not the duty of the CSC. Such function belongs to the President or his duly empowered alter ego. Id. at 60-61. Q. What is the doctrine of "qualified political agency?" A. The doctrine, recognizing that the Constitution has established a single and not a plural executive, postulates that "all executive and administrative organizations are adjuncts of the Executive 304 3-4 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive." Villena v. Secretary of Interior, 67 Phil. 451 and 463. Thus, a decision of a department secretary, when not reprobated by the Executive, is the last step in the process of "exhausting administrative remedies." E.g., Demaisip v. Court of Tax Appeals, 106 Phil 237 (1959). But see Calo v. Fuentes, 5 SCRA 397 (1962) and Ganob v. Ramos, 27 SCRA 1174 (1969). Thus, too, the Executive Secretary when acting "by authority of the President," may reverse the decision of another department secretary. Lacson-Magallanes v. Pano, 21 SCRA 895 (1967). By authority of the President, he also has the power to modify, alter or reverse a construction of a statute given by the Secretary of Justice. Maceda v. Macaraig, Jr., 197 SCRA 771 (1991) Similarly, the action of the Secretary of the DENR, exercising the President's power to reorganize, is presumed to be the action of the President. DENR v. DENR Employees, G.R. No. 149724. August 19,2003. Q. Does the power of control include the power to reorganize executive offices? A. It has been held, moreover, that the express grant of the power of control to the President justifies an executive action to carry out the reorganization of an executive office under a broad authority of law. Anak Mindanao v. Executive Sec., G.R. No. 166052 , August 29, 2007; Tondo Medical Center Employees v. CA. G.R. No. 167324, July 17,2007; Reorganization can involve the reduction of personnel, consolidation of offices, or even abolition of positions by reason of economy or redundancy of functions. While the power to abolish an office is generally lodged with the legislature, the Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 305 authority of the President to reorganize the executive branch, which may include such abolition, is permissible under present laws. Malaria Employees v. Executive Secretary, G.R. No. 160093, July 31, 2007. NOTE: The President's power of control means his power to reverse the judgment of an inferior officer. It may also be exercised in his behalf by Department Heads. Thus the Secretary of Justice may reverse the judgment of a prosecutor and direct him to withdraw an information already filed. Such action is not directly reviewable by a court. One who disagrees, however, should appeal to the Office of the President in order to exhaust administrative remedies prior to bringing it to court. Orosa v. Roa, G.R. No. 14047, July 14, 2006; DENR v. DENR Employees, G.R. No. 149724, August 19, 2003. It has been held, moreover, that the express grant of the power of control to the President justifies an executive action to carry out the reorganization of an executive office under a broad authority of law. Reorganization can involve the reduction of personnel, consolidation of offices, or even abolition of positions by reason of economy or redundancy of functions. While the power to abolish an office is generally lodged with the legislature, the authority of the President to reorganize the executive branch, which may include such abolition, is permissible under present laws. Anak Mindanao v. Executive Sec., G.R. No. 166052 , August 29, 2007; Tondo Medical Center Employees v. CA, G.R. No. 167324, July 17, 2007; Malaria Employees v. Executive Secretary, G.R. No. 160093, July 31,2007. NOTE: Petitioner further contends that from the decision of respondent BOI, appeal to the Office of the President should be allowed; otherwise, the constitutional power of the President to review acts of department secretaries will be rendered illusory by mere rules of procedure. However, such "executive control" is not absolute. The definition of the structure of the executive branch of government, and the corresponding degrees of administrative control and supervision is not the exclusive preserve of the executive. It may be effectively limited by the Constitution, by law, or by judicial decisions. All the more in the matter of appellate procedure as in the instant case. Appeals are remedial in nature; hence, constitutionally subject to this Court's rule-making power. The Rules of Procedure we reissued by the Court pursuant to Section 5, Article VIII of the Constitution, which expressly empowers the Supreme Court to promulgate rules concerning the procedure in all courts. Phillips Seafood v. BOI, G.R. No. 175787, February 4,2009. 306 3-4 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER Q. May an Assistant Executive Secretary, acting for the President, reverse a decision of the Secretary of Agriculture and Resources? A. Yes, under the well established doctrine of "qualified political agency." Roque v. Director of Lands, L-25373, July 1,1976. Q. May the Director of the NBI ignore or defy the order of the Secretary of Justice? A. The acts of the Secretary of Justice in the ordinary course of the performance of his duties are acts of the President which are controlling over all executive officers. Hence, the NBI Director must obey. De Leon v. Carpio, October 12,1989. Q. Compare the power of control with the disciplinary power of the President. A. From cases decided so far, the following synthesis of the power of control may be made. As defined in Mondano v. Silvosa, supra, it is "the power of an officer to alter or modify or nullify or set aside what a subordinate had done in the performance of his duties and to substitute the judgment of the former for that of the latter." This power, however, "merely applies to the exercise of control over the acts of the subordinate in the performance of his duties. It only means that the President may set aside the judgment or action taken by a subordinate in the performance of his duties." Ang-Angco v. Castillo, 9 SCRA 619, 629 (1963). The power of control, therefore, is not the source of the Executive's disciplinary power over the person of his subordinates. Rather, his disciplinary power flows from his power to appoint: "The power to remove is inherent in the power to appoint." Id. at 630. Moreover, this inherent disciplinary power has been made subject to limitation by the legislature through the tatter's power to provide for a civil service system one of whose main features is security of tenure: "No officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law." Article IX, B, Section 2(3). Hence, it can be said that while the Executive has control over the "judgment" or "discretion" of his subordinates, it is the legislature which has control over their "person." Q. Does the President have control over officers of government- owned corporations? A. Yes. However, it is submitted that such power over government-owned corporations comes not from the Constitution Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 307 but from statute. Hence, it may also be taken away by statute. See NAMARCO v. Area, 29 SCRA 648 (1969). Bernas, CONSTITUTIONAL STRUCTURE AND POWERS OF GOVERNMENT 131-132. (Would it make any difference now that the Constitution makes a distinction between government owned corporations with original charter and those with derivative charter?) Q. What is the significance of the second sentence of Section 17 which says "HE SHALL ENSURE THAT THE LAWS BE FAITHFULLY EXECUTED?" A. This means that the President can do whatever is needed to ensure that laws, general or special, are followed. For this reason, the majority of the Court in Biraogo v. Truth Commission, G.R. No. 192935, December 7, 2010, upheld the power of the President to create a Truth Commission although the Commission was invalidated for violation of the equal protection clause. Q. What is the power of supervision? A. It is the power of a superior officer to "ensure that the laws are faithfully executed" by inferiors. The power of supervision does not include the power of control; but the power of control necessarily includes the power of supervision. (The power of the President over local governments is only one of general supervision. See Article X, Sections 4 and 16.) Calling out power - call AFP - necessary to prevent - lawless violence - invasion - rebellion - does not grant additional powers - emergency powers is different and is granted by congress Suspend / M law - invasion - rebellion - public saftey requires - 60 days max - congress can extend SEC. 18. THE PRESIDENT SHALL BE THE COMMANDER-IN-CHIEF OF ALL THE ARMED FORCES OF THE PHILIPPINES AND WHENEVER IT BECOMES NECESSARY, HE MAY CALL OUT SUCH ARMED FORCES TO PREVENT OR SUPPRESS LAWLESS VIOLENCE, INVASION OR REBELLION. IN CASE OF INVASION OR REBELLION, WHEN THE PUBLIC SAFETY REQUIRES IT, HE MAY, FOR A PERIOD NOT EXCEEDING SIXTY DAYS, SUSPEND THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS OR PLACE THE PHILIPPINES OR ANY PART THEREOF UNDER MARTIAL LAW. WLTHIN FORTY-EIGHT HOURS FROM THE PROCLAMATION OF MARTIAL LAW OR THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS, THE PRESIDENT SHALL SUBMIT A REPORT IN PERSON OR IN WRITING TO THE CONGRESS. THE CONGRESS, VOTING JOINTLY, BY A VOTE OF AT LEAST A MAJORITY OF ALL ITS MEMBERS IN REGULAR OR SPECIAL SESSION, MAY REVOKE SUCH PROCLAMATION OR SUSPENSION, WHICH REVOCATION SHALL NOT BE SET ASIDE BY THE PRESIDENT. UPON THE INITIATIVE OF THE PRESIDENT, THE CONGRESS Congress may revoke - joint - majority of all SC can revoke - cause for proclamation or suspension DOES NOT EXSIST 308 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 MAY, IN THE SAME MANNER, EXTEND SUCH PROCLAMATION OR SUSPENSION FOR A PERIOD TO BE DETERMINED BY THE CONGRESS, IF THE INVASION OR REBELLION SHALL PERSIST AND PUBLIC SAFETY REQUIRES IT. THE CONGRESS, IF NOT IN SESSION, SHALL, WITHIN TWENTY-FOUR HOURS FOLLOWING SUCH PROCLAMATION OR SUSPENSION, CONVENE IN ACCORDANCE WITH ITS RULES WITHOUT NEED OF A CALL. 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 THEREON WITHIN THIRTY DAYS FROM ITS FILING. A STATE OF MARTIAL LAW DOES NOT SUSPEND THE OPERATION OF THE CONSTITUTION, NOR SUPPLANT THE FUNCTIONING OF THE CIVIL COURTS OR LEGISLATIVE ASSEMBLIES, NOR AUTHORIZE THE CONFERMENT OF JURISDICTION ON MILITARY COURTS AND AGENCIES OVER CIVILIANS WHERE CIVIL COURTS ARE ABLE TO FUNCTION, NOR AUTOMATICALLY SUSPEND THE PRIVILEGE OF THE WRIT. Suspension of writ applies - judicially charged - rebellion - connected to invasion - charged within 3 days - else released 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. DURING THE SUSPENSION OF THE PRIVILEGE OF THE WRIT, ANY PERSON THUS ARRESTED OR DETAINED SHALL BE JUDICIALLY CHARGED WITHIN THREE DAYS, OTHERWISE HE SHALL BE RELEASED. Q. What is the significance of the Commander-in-Chiefship of the President? A. The net effect of Article II, Section 3, when read with Article VII, Section 18, is that a civilian President holds supreme military authority and is the ceremonial, legal, and administrative head of the armed forces. The Constitution does not require that the President must be possessed of military training and talents, but as Commander-in-Chief, he has the power to direct military operations and to determine military strategy. Normally, he would be expected to delegate the actual command of the armed forces to military experts; but the ultimate power is his. "As Commander-in-Chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy." Fleming v. Page, 9 How 603, 615 U.S. (1850). Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 309 Q. What specific military powers are given to the President by the Constitution? A. The President, as Commander-in-Chief, is authorized by Section 18 under specified conditions, (1) to call out such armed forces to prevent or suppress lawless violence, invasion, or rebellion, (2) to suspend the privilege of the writ of habeas corpus, and (3) to place the Philippines or any part thereof under martial law. Q. Under what conditions may the President call out the armed forces to prevent or suppress lawless violence, etc.? A. "[W]henever it becomes necessary." Q. When the President calls out the armed forces, is his action subject to judicial review? A- It may be gathered from the broad grant of power that the actual use to which the President puts the armed forces is, unlike the suspension of the privilege of the writ of habeas corpus, not subject to judicial review. He is authorized "whenever it becomes necessary, [to] call out [the] armed forces to prevent or suppress lawless violence." What was said by the American Supreme Court in Martin v. Mott, 12 Wheat 19 U.S. (1827) which Lansang v. Garcia, 42 SCRA 448 (1971) said was not applicable to the suspension of the privilege of the writ of habeas corpus, must be considered applicable to the broad power to make use of the armed forces "to prevent or suppress lawless violence, invasion, [insurrection,] or rebellion." "The authority to decide whether the exigency has arisen," declared the American Court, "belongs exclusively to the President, and . . . his decision is conclusive upon all other persons." Martin v. Mott, 12 Wheat at 30. Q. What is a writ of habeas corpus? the privilege of the writ of habeas corpus? What is suspended by the President, the writ or the privilege? A. The answer to these questions are discussed under Article III, Section 15. Q. To whom does the suspension of the privilege apply? A. "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." 310 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 Q. What is the duty of the State after arrests and detention on the basis of the suspension of the privilege? A. "During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released." Q. What is "martial law?" A. Martial law is essentially police power. This is borne out by the constitutional text which sets down "public safety" as the object of the exercise of martial law. Public safety is the concern of police power. What is peculiar, however, about martial law as police power is that, whereas police power is normally a function of the legislature executed by the civilian executive arm, under martial law, police power is exercised by the executive with the aid of the military and in place of "certain governmental agencies which for the time being are unable to cope with existing conditions in a locality which remains subject to the sovereignty." In the language of Justice Black, it authorizes "the military to act vigorously for the maintenance of an orderly civil government." Duncan v. Kahanamoku, 327 U.S. 304,323 (1946). Or in the language of Justice Stone, it is: the exercise of the power which resides in the executive branch of the government to preserve order and insure the public safety in times of emergency, when other branches of the government are unable to function, or their functioning would itself threaten the public safety ... It is the law of necessity to be prescribed and administered by the executive power. Its object, the preservation of the public safety and good order, defines the scope, which will vary with the circumstances and necessities of the case. The exercise of the power may not extend beyond what is required by the exigency which calls it forth .. .Id. at 335-6. Q. Is the scope of "martial law" powers a fixed concept? A. What emerges from the above observations on martial law as police power as well as from the text of the Constitution is that martial law is a flexible concept. Martial law depends on two factual bases: (1) the existence of actual invasion or rebellion, and (2) the requirements of public safety. Necessity creates the conditions for martial law and at the same time limits the scope of martial law. Certainly, the necessities created by a state of invasion would be different from those Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 311 created by rebellion. Necessarily, therefore, the degree and kind of vigorous executive action needed to meet the varying kinds and degrees of emergency could not be identical under all conditions. NOTE: Because of this amorphous shape of martial law power, the Marcos Supreme Court arrived at the following conclusions: 1. That the proclamation of martial law automatically suspends the privilege of the writ of habeas corpus; 2. That the President of the Philippines, "as Commanderin-Chief and as enforcer or administrator of martial law . . . can promulgate proclamations, orders and decrees during the period of martial law essential to the security and preservation of the Republic, to the defense of the political and social liberties of the people, and to the institution of reforms to prevent the resurgence of rebellion or insurrection or secession or the threat thereof as well as to meet the impact of a world recession, inflation or economic crisis which presently threatens all nations including highly developed countries ..." 3. That the President of the Philippines, as legislator during the period of martial law, can legally create military commissions or courts martial to try not only members of the armed forces but also civilian offenders for specified offenses. This summary is taken from Gumaua v. Espino, 96 SCRA 403,403-7 (February 29,1980). The new Constitution, however, rejects the above Marcos Court pronouncements and now says categorically: "A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to {miction, nor automatically suspend the privilege of the writ." Q. What limitations on the power to suspend the privilege and the power to impose martial law have been formulated in the new Constitution? A. In general, the limits that have been imposed are: (1) a time limit of sixty days; (2) review and possible revocation by Congress; (3) review and possible nullification by the Supreme Court. 312 3-4 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER Q. Specifically, what are these limits? A. "In case of invasion or rebellion, when the public safely requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. 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 thereon within thirty days from its filing." Q. How does Congress vote when deciding whether to revoke or extend the suspension of the privilege or the imposition of martial law? A. The Senate and the House of Representatives vote "jointly." This is a departure from the general rule that the two Houses vote separately when deciding an issue. The purpose of the departure from the general rule is to facilitate the override of the suspension or the imposition. Q. Is the imposition of martial law or the suspension of the privilege a political question? A. No. Whatever doubt there may have been under the former Constitutions, the new Constitution now categorically states that the "Supreme Court may review, in an appropriate pro Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 313 ceeding 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 thereon within thirty days from its filing." Q. Petitioners argue that the declaration of a "state of rebellion" by President Arroyo is violative of the doctrine of separation of powers, being an encroachment on the domain of the judiciary which has the constitutional prerogative to "determine or interpret" what took place in EDSA III on May 1,2001, and that the declaration of a state of rebellion cannot be an exception to the general rule on the allocation of the governmental powers. Decide. A. Section 18, Article VII of the Constitution expressly provides that "[tlhe President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion ..." It was held in Integrated Bar of the Philippines v. Hon. Zamora, (G.R. No. 141284, August 15, 2000) that the factual necessity of calling out the armed forces is something that is for the President to decide. He has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. Although the Court, in a proper case, may look into the sufficiency of the factual basis of the exercise of this power, on the basis of its power to determine grave abuse of discretion, this is no longer feasible when the proclamation has already been lifted. Lacson v. Secretary Perez, G.R. No. 147780, May 10, 2001; Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004. Q. When the President exercises the option to call on the armed forces does he thereby acquire new powers including emergency powers? A. No. It simply means that he is calling on the Armed Forces to assist the police. But this does not give her additional powers. Lacson v. Secretary Perez, G.R. No. 147780, May 10, 2001; Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004. Certainly, for instance, it does not authorize warrantless 314 3-4 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER arrests. David v. Erfnita, G.R. No. 171409, May 3, 2006. And a President can claim emergency powers only when these are granted to her by Congress under Article VI, Section 23. Q . A. What power does he have over the military? Since the President is commander-in-chief of the Armed Forces she can demand obedience from military officers. Military officers who disobey or ignore her command can be subjected to court martial proceeding. Thus, for instance, the President as Commander in Chief may prevent a member of the armed forces from testifying before a legislative inquiry. A military officer who disobeys the President's directive may be made to answer before a court martial. Since, however, Congress has the power to conduct legislative hearings, Congress may make use of remedies under the law to compel attendance. Any military official whom Congress summons to testify before it may be compelled to do so by the President. If the President is not so inclined, the President may be commanded by judicial order to compel the attendance of the military officer. Final judicial orders have the force of the law of the land which the President has the duty to faithfully execute. Gudani v. Senga, G.R. No. 170165, April 15. 2006. NOTE: Since the effectivity of the 1987 Constitution, the power to declare martial law and suspend the privilege has been used only once. President Arroyo declared martial law in Maguindanao on the occasion of the Ampatuan massacre but she lifted it within weeks. What Presidents have done instead has been merely to make use of the third Section 18 power, that is, to call on the Armed Forces to help the police maintain order. But this does not give her additional powers. Lacson v. Secretary Perez, G.R. No. 147780, May 10, 2001; Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004. Certainly, for instance, it does not authorize warrantless arrests. David v. Ermita, G.R. No. 171409, May 3,2006. Moreover, the President can claim emergency powers only when these are granted to her by Congress under Article VI, Section 23. SEC. 19. EXCEPT IN CASES OF IMPEACHMENT, OR AS OTHERWISE PROVIDED IN THIS CONSTITUTION, THE PRESIDENT MAY GRANT REPRIEVES, COMMUTATIONS, AND PARDONS, AND REMIT FINES AND FORFEITURES, AFTER CONVICTION BY FINAL JUDGMENT. HE SHALL ALSO HAVE THE POWER TO GRANT AMNESTY WITH THE CONCURRENCE OF A MAJORITY OF ALL THE MEMBERS OF THE CONGRESS. Constitutional limits - impeachments - election offenses without favorable recommendation of the COMELEC - amnesty needs majority of all Presidential Clemency - reprieves : postponment of of penalty - commutations : lesser penalty - pardons : act of grace - must be FINAL conviction - needs acceptance when conditional - cannot give back what was taken na - not entitle to reinstatement - ex : pardon because he did not comit the crim - remit fines and forfeitures : - amnesty : general pardon for rebels other high offenses - majority al all members - pres needs congress for TAX AMNESTY Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 315 Q. What is the purpose of the grant of the power of executive clemency? A. That Section 19 gives to the President the power of executive clemency is a tacit admission that human institutions are imperfect and that there are infirmities in the administration of justice. The power therefore exists as an instrument for correcting these infirmities and for mitigating whatever harshness might be generated by a too strict application of the law. Q. What are the forms of executive clemency? A. They are: reprieves, commutations, pardons, remission of fines and forfeitures, amnesty. Q. May the president extend executive clemency for administrative penalties? A. Yes. The Constitution makes no distinction with regard to the extent of the NoteLlamas here : pag pardoning power except with respect to impeachment. v. administrative case NO NEED FOR FINAL Orbos, G.R. No. 99031, October 15, 1991. Q. What are reprieves, commutations, and remission of fines and forfeitures? A. A reprieve "postpones the execution of an offense to a day certain." People v. Vera, 65 Phil. 56, 110 (1937), and a commutation "is a remission of a part of the punishment; a substitution of a less penalty for the one originally imposed." Id. at 111. Remission of fines and forfeitures is a self-explanatory term. However, it should be noted that remission of fines and forfeitures merely prevents the collection of fines or the confiscation of forfeited property; it cannot have the effect of returning property which has been vested in third parties or money in the public treasury. Q. After serving sentence for six years, accused was released and placed under house arrest. Was his sentence effectively commuted to six years? A Yes. Commutation does not have to be in any specific form. The fact that he was released after six years and the fact that house arrest is not a penalty leads to the conclusion that the penalty had been shortened. Drilon v. Court of Appeals, G.R. No. 91626, October 3,1991. 316 3-4 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER Q. Define pardon. A. United States v. Wilson, 7 Pet. 150 (U.S. 1833), defines it thus: A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended and not communicated officially to the Court... A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him. Q. Are the above definition and characteristics of pardon applicable to the Philippine concept? A. It is submitted that a distinction must be made between absolute and conditional pardon. Absolute pardon is complete even without acceptance; whereas "a conditional pardon has no force until accepted by the condemned. The reason is obvious. The condition may be less acceptable to him than the original punishment, and may in fact be more onerous." See Cabantag v. Wolfe, 6 Phil. 273,278 (1906). Q. Petitioner was a teacher with the rank of Principal I. Convicted of a criminal offense, he was sentenced to one year imprisonment and disqualification to hold public office. Subsequently he was given absolute pardon and restored to "full civil and political rights." He applied for reinstatement and was given the position merely of classroom teacher. Is he entitled to his old rank of Principal I? A. It is true that one who is given absolute pardon has no demandable right to reinstatement. Monsanto v. Factoran, Jr., G.R. 78239, February 9,1989. However, since the petitioner in this instance was actually reinstated and there are no circumstances that would warrant the diminution of his rank, justice and equity dictates that he be given his former rank of Principal I. Sabello v. Department of Education, G.R. No. 87687, December 26,1989. Q. Petitioner, an assistant treasurer, was convicted of estafa through falsification of public documents and received Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 317 a penalty which included temporary absolute disqualification to last during the period of her sentence. The conviction was upheld by the Supreme Court but she filed a motion for reconsideration. Pending reconsideration she was granted absolute pardon. Is she entitled to reinstatement to her former position even without a new appointment? A. No. Pardon removes all penalties and legal disabilities. But it does not restore legal office already forfeited. Since, however, her disqualification has been removed, it qualifies her to apply for a new appointment. Monsanto v. Factoran, Jr., G.R. No. 78239, February 9,1989. See dissents. Q. What happens, however, if a pardon is given because he was acquitted on the ground that he did not commit the crime? A. Such a case would be different from Monsanto. Reinstatement and backwages would be due. Garcia v. Commission on Audit, 226 SCRA 356 (1993). Q. Where conditional pardon has been granted, who determines whether the condition has been violated? A. The President, and the President alone. The convict's acceptance of the conditional pardon carries with it acceptance of the President's authority. Torres v. Gonzales, 152 SCRA 272 (1987). See dissent of Cruz, J. Q. What is the effect of pardon when extended to one who has a pending appeal? A. Since pardon can be extended only to one whose conviction is final, pardon has no effect until the person withdraws his appeal and thereby allows his conviction to be final. People v. Salle, Jr., G.R. No. 103567, December 4, 1995. (This corrects People v. Crisola, 128 SCRA 1 (March 2,1984), which said that clemency terminates the appeal. Q. May the president extend executive clemency for administrative penalties? A. Yes. The Constitution makes no distinction with regard to the extend of the pardoning power except with respect to impeachment. Llamas v. Orbos, G.R. No. 99031, October 15,1991. 318 3-4 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER Q. What is amnesty? A. Amnesty "commonly denotes the 'general pardon to rebels for their treason and other high political offenses,' or the forgiveness which one sovereign grants to the subjects of another, who have offended by some breach of the law of nations." Villa v. Allen, 2 Phil. 436,439 (1903). Q. A convicted prisoner claims to be covered by a general amnesty. May a court order his release in a habeas corpus petition? A. No. His proper remedy is to submit his case to the proper amnesty board, in this case, the COMELEC. De Vera v. Animas, L-48176,14 August 1978. Q. What are the differences between pardon and amnesty? A. Barrioquinto v. Fernandez, 85 Phil. 642 (1949) enumerates them thus: Graph this out Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the person pardoned, because the courts take no notice thereof; while amnesty by Proclamation of the Chief Executive with the concurrence of Congress, is a public act of which the courts should take judicial notice. Pardon is granted to one after conviction; while amnesty is granted to classes of persons or communities who may be guilty of political offense, generally before or after the institution of the criminal prosecution and sometimes after conviction. Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted, that is, it abolishes or forgives the punishment, and for that reason it does "not work restoration of the rights to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon," and it "in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence" (Article 36, Revised Penal Code). While amnesty looks backward and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the offense with which is charged that the person released by amnesty stands before the law precisely as though he had committed no offense. Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 319 NOTE: The distinctions made here should be understood in the light of the later cases of Monsanto and Garcia above which hold that pardon can have the effect of restoring rights such as the right to hold public office or the right of suffrage. Q. What is the legal nature of a tax amnesty? A. It is a "general pardon or intentional overlooking of its authority to impose penalties on persons otherwise guilty of evasion or violation of revenue or tax law, [and as such] partakes of an absolute forgiveness or waiver by the Government of its right to collect what otherwise would be due it..Republic v. Intermediate Appellate Court, G.R. No. 69344, April 26, 1991, quoting Commission of Internal Revenue v. Botelho Corp., 20 SCRA 487. (QUERY: May the President grant tax amnesty without legislative intervention? See next case.) Q. By P.D. 1840 the President granted tax amnesty. To be valid does this amnesty require the concurrence of the Batasan? A. Under the 1973 Constitution, the Court answered this in the negative. What the President did by issuing P.D. 1840 is exercise his legislative power under Amendment 6 which does not require concurrence of the Batasan but is concurrent with the legislative power of the Batasan. Legaspi v. Minister of Finance, G.R. 58289, July 24,1982. Q. May the President now grant tax amnesty? A. It is submitted that the President cannot grant tax amnesty without the concurrence of Congress. The President now does not have the legislative power of President Marcos under the 1973 Constitution. Q. May "reprieves, commutations, pardons, and remission of fines and forfeitures" be given before conviction? A. No. These can be only granted "after conviction by final judgment." This a return to the rule under the 1935 and 1973 Constitutions and a rejection of the 1981 amendment which did away with the need for prior conviction. This is to prevent the President from preempting the action of the judge. Q. What are the constitutional limits on executive clemency? A. Section 19 sets down three limitations on the power of executive clemency: (1) it cannot be exercised over cases of impeach 320 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 ment; (2) a grant of amnesty must be with the concurrence of a majority of all the members of Congress. (3) In addition, Article IX, C, Section 5 says: "No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission [on Elections]." Q. May political offenders be given executive clemency without the concurrence of Congress? A. Yes. They may be given individual pardon after conviction. Q. Must an accused confess guilt of the crime charged in order to avail of amnesty as a defense? A. Yes. Vera v. People, 7 SCRA 152 (1963); People v. Pasilan, 14 SCRA 694 (1965). Pres can contract foreign loans 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. THE MONETARY BOARD SHALL, WITHIN THIRTY DAYS FROM THE END OF EVERY QUARTER OF THE CALENDAR YEAR, SUBMIT TO THE CONGRESS A COMPLETE REPORT OF ITS DECISIONS ON APPLICATIONS FOR LOANS TO BE CONTRACTED OR GUARANTEED BY THE GOVERNMENT OR GOVERNMENT-OWNED AND CONTROLLED CORPORATIONS WHICH WOULD HAVE THE EFFECT OF INCREASING THE FOREIGN DEBT, AND CONTAINING OTHER MATTERS AS MAY BE PROVIDED BY LAW. Q. May the President contract or guarantee foreign loans? A. Yes, but only with the "prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law." Q. What is the responsibility for approving foreign loans and for guaranteeing loans given to the Monetary Board? A. Because it has expertise and consistency to perform the mandate and since such expertise or consistency may be absent among the Members of Congress. Q. Why is the Monetary Board required to give a report of action taken on loans and guarantees? A. In order to allow Congress to act on whatever legislation may be needed to protect public interest. Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 321 Q. The Financing Program for foreign loans instituted by the President extinguished portions of the country's pre-existing loans through either debt buyback or bond-conversion. The buyback approach essentially pre-terminated portions of public debts while the bond-conversion scheme extinguished public debts through the obtention of a new loan by virtue of a sovereign bond issuance, the proceeds of which in turn were used for terminating the original loan. Petitioners contend that buyback or bond conversion are not authorized by Article VII, Section 20. A. The language of the Constitution is simple and clear as it is broad. It allows the President to contract and guarantee foreign loans. It makes no prohibition on the issuance of certain kinds of loans or distinctions as to which kinds of debt instruments are more onerous than others. This Court may not ascribe to the Constitution meanings and restrictions that would unduly burden the powers of the President. The plain, clear and unambiguous language of the Constitution should be construed in a sense that will allow the full exercise of the power provided therein. It would be the worst kind of judicial legislation if the courts were to misconstrue and change the meaning of the organic act. Spouses Constantino v. Cuisia, G.R. No. 106064, October 13,2005. Of the SENATE not congress SEC. 21. No TREATY OR INTERNATIONAL AGREEMENT SHALL BE VALID AND EFFECTIVE UNLESS CONCURRED IN BY AT LEAST TWO-THIRDS OF ALL THE MEMBERS OF THE SENATE. Q. What are some of the foreign relations powers of the President? A. They are: (1) the power to negotiate treaties and international agreements; (2) the power to appoint ambassadors and other public ministers, and consuls; (3) the power to receive ambassadors and other public ministers accredited to the Philippines; (4) the power to contract and guarantee foreign loans on behalf of the Republic; (5) the power to deport aliens. Q. What is the President's role in entering into international agreement? A. The President negotiates treaties and international agreements. In the negotiation phase of treaty-making, the executive may completely excludes Congress. However, the fruit of the 322 3-4 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER executive's negotiation does not become binding treaty without the concurrence of "at least two-thirds of all the Members of the Senate." Q. What international agreements require ratification by the Senate? A. "While treaties are required to be ratified by the Senate under the Constitution, less formal types of international agreements may be entered into by the Chief Executive and become binding without the concurrence of the legislative body. [Usaffe Veterans Association, Inc. v. Treasurer of the Philippines, 105 Phil. 1030] The Host Agreement comes within the latter category; it is a valid and binding international agreement even without the concurrence of the Philippine Senate. The privileges and immunities granted to the WHO under the Host Agreement have been recognized by this Court as legally binding on Philippine authorities. [World Health Organization v. Hon. Benjamin Aquino, 48 SCRA 242]" Commissioner of Internal Revenue v. John Gotamco and Sons, 148 SCRA 36,3940 (1987. (How is this affected by the new provision of the 1987 Constitution?) Q. What norm may be followed for determining whether an agreement needs concurrence of the Senate or not? A. In general it can be said that agreements that are permanent and original should be embodied in a treaty and need Senate concurrence. Agreements, however, which are temporary or are merely implementations of treaties or statutes do not need concurrence. Q. What law governs the Visiting Forces Agreement: Article VII, Section 21 or Article XVHI, Section 25? A. Both. As to the manner of ratifying the treaty, Article VII, Section 21 applies. As to whether the agreement needs Senate ratification, Article XVHI, Section 25 applies. Bayan v. Executive Secretary, G.R. No. 138570, October 10,2000. Q. Does it need ratification by the Senate? A. Yes, Because Section 25 of Article XVII covers not just bases but also troops. Bayan v. Executive Secretary, G.R. No. 138570, October 10,2000. Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 323 Q. How about the needed ratification by the U.S.? A. We are bound to accept an official declaration by the U.S. that what is needed to make their consent a treaty has been satisfied. Bayan v. Executive Secretary, G.R. No. 138570, October 10, 2000. Q. Pursuant to the extradition treaty with the United States, a request was made by the U.S. for the extradition of Mark Jimenez. While the petition for extradition was being evaluated by the Department of Justice and before the filing of an extradition case in the proper court, a request was made by Jimenez that documents coming from the US related to the extradition request be made available to him. The request was granted by Judge Lantion. Whereupon the Secretary of Justice asked the Court to reverse the lower courts order. Decide. A. During the evaluation stage in the office of the Department of Justice the subject of the extradition request does not have the right to notice and hearing. P.D. No. 1069 which implements the RP-US Extradition Treaty provides the time when an extraditee shall be furnished a copy of the petition for extradition as well as its supporting papers, i.e., after the filing of the petition for extradition in the extradition court, "An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany a criminal trial in this country do not shield an accused from extradition pursuant to a valid treaty." 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 do not necessarily apply to the former. Secretary of Justice v. Judge Lantion, G.R. No. 139465, October 17, 2000. Q. May the President be compelled to submit a treaty to the Senate for concurrence? A. Prior to his ouster from the presidency President Estrada had signed the Treaty on the International Criminal Court but he did not submit it to the Senate for concurrence. Neither did President Arroyo. Efforts to compel the Executive Department by mandamus to submit the document to the Senate was rebuffed by the Court. The Court said that the decision to enter or not to enter into a treaty is a prerogative solely of the 324 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 President. Thus unless the President submits a treaty to the Senate there is nothing for the Senate to concur in. Pimentel v. Ermita, G.R. No. 158088, July 6, 2005. NOTE: The question whether the Philippine government should espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the political branches. In this case, the Executive Department has already decided that it is to the best interest of the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question. Vinuya, et al. v. Executive Secretary, G.R. No. 162230, April 28, 2010. Q. Who has the power to deport aliens? A. Tan Tong v. Deportation Board, 96 Phil. 934, 936 (1955) answers the question thus: The power to deport aliens is lodged in the President of the Republic of the Philippines. As an act of state, it is vested in the Executive by virtue of his office, subject only to the regulations prescribed in Section 69 of the Revised Administrative Code or to such future legislation as may be promulgated on the subject (In re McCulloch Dick, 38 Phil. 41) There is no provision in the Constitution nor act of the legislature defining the power, as it is evident that it is the intention of the law to grant to the Chief Executive full discretion to determine whether an alien's residence in the country is so undesirable as to effect or iiyure the security, welfare or interest of the state. The adjudication of facts upon which the deportation is predicated also devolves on the Chief Executive whose decision is final and executory. SEC. 22. THE PRESIDENT SHALL SUBMIT TO THE CONGRESS WITHIN basis for general appropriations bill THIRTY DAYS FROM THE OPENING OF EVERY REGULAR SESSION, AS THE BASIS OF THE GENERAL APPROPRIATIONS BILL, A BUDGET OF RECEIPTS AND EXPENDITURES AND SOURCES OF FINANCING, INCLUDING RECEIPTS FROM EXISTING AND PROPOSED REVENUE MEASURES. Q. What is the basis for the general appropriations bill passed by Congress? A. The budget of receipts and expenditures prepared by the President. Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 325 Q. What is the significance of the phrase "sources of financing?" A. The phrase implies that financing can come from sources other than revenue measures. SONA at opening of regular session SEC. 23. THE PRESIDENT SHALL ADDRESS THE CONGRESS AT THE OPENING OF ITS REGULAR SESSION. HE MAY ALSO APPEAR BEFORE IT AT ANY OTHER TIME. ARTICLE VIII THE JUDICIAL DEPARTMENT Vested - sc : consti - lower courts : by law 2 powers - settle justicable controversies - grave abuse SECTION 1. THE JUDICIAL POWER SHALL BE VESTED IN ONE SUPREME COURT AND IN SUCH LOWER COURTS AS MAY BE ESTABLISHED BY LAW. JUDICIAL POWER INCLUDES THE DUTY OF THE COURTS OF JUSTICE TO SETTLE ACTUAL CONTROVERSIES INVOLVING RIGHTS WHICH ARE LEGALLY DEMANDABLE AND ENFORCEABLE, AND TO DETERMINE WHETHER OR NOT THERE HAS BEEN A GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION ON THE PART OF ANY BRANCH OR INSTRUMENTALITY OF THE GOVERNMENT. Q. What is judicial power? A. Judicial power is "the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper - determine actual controversies jurisdiction." Muskrat v. United States, 219 U.S. 346 (1911). It is "the - settle justicable controversies authority to settle justiciable controversies or disputes involving rights - enforceable that are enforceable and demandable before the courts of justice or - demandable the redress of wrongs for violation of such rights." Lopez v. Roxas, 17 - grave abuse SCRA 756, 761 (1966). JUDICIAL power Q. How does the Constitution define judicial power? A. Section 1 says: "Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." Q. Does the judiciary resolve moot cases? A. "A moot case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration 326 When to decide MOOT Sees. 3-4 1. grave consti violation 2. exceptional case of paramount public need 3. Consti issue which reqs controlling principle 4. Can happen again yet eveading review ART. VIII - THE JUDICIAL DEPARTMENT 327 thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness. However, Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review ..Mattel, Inc. v. Francisco, G.R. No. 166886, July 30,2008. Grave abuse Q. What is the "abuse of discretion" referred to in Section 1? A. Not every abuse of, discretion, can be the occasion for the Court to come - its grave in by virtue of the second sentence of Section 1. It must be "grave - amounting to refusal to do job abuse of discretion amounting to lack or excess of jurisdiction." As - arbitrary, whimsical, bad faith Sinon v. Civil Service Commission, 215 SCRA 410,416-17 (1992), put it: Sometimes yield to - separation of powers - political questions - enrolled bill By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. On this basis the Court can even check acts of Congress and of the President, but with great hesitation. The principle must sometimes yield to separation of powers or the doctrine on "political questions" or to the "enrolled bill" rule. See e.g. Tolentino v. Secretary of Finance, 235 SCRA 630 (1994). In fact, it is difficult to see a clear pattern of the times when the Court will check a co-equal department or not. Q. Does the fact that the HRET has made a final decision divest the Supreme Court of power to review the decision? A. No. The Court can still determine whether the HRET committed grave abuse of discretion. Villarosa v. HRET, G.R. No. 144129, September 14,2000. NOTE: The question whether the Philippine government should espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the political 328 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 branches. In this case, the Executive Department has already decided that it is to the best interest of the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question. Vinuya, et al. v. Executive Secretary, G.R. No. 162230, April 28,2010. ill have political question doctrine Q. Does the definition of judicial power do away with the "political questions doctrine?" - merely limited it A. No, it does not. At most it is a reproof of the practice of the Marcos Supreme Court of shying away from reviewing abuse of discretion by the Chief Executive and using the political questions doctrine as an excuse. (More will be said about political questions under Section 5.) Q. The Luzon Petrochemical Corporation, a foreign corporation, was attracted to situate its petrochemical plant in Bataan by "initial inducements and other circumstances." Subsequently, however, it asked the Board of Investments to be allowed to move to Batangas on Allowing foreign investors free reign the ground that it has the right of final choice of plant site. On that basis, the BOI yielded. The capitulation of the BOI is challenged as abuse of discretion. Decide. A. There was abuse of discretion. "In the light of all the clear advantages manifest in the plant's remaining in Bataan, practically nothing is shown to justify the transfer to Batangas except a nearabsolute discretion given by the BOI to investors not only to freely choose the site but to transfer it from their own first choice for reasons which remain murky to say the least." The BOI capitulation is adverse to Philippine interest contrary to the thrust of the Constitution. Garcia v. Board of Investments, G.R. No. 92024, November 9,1990. Q. For the automation of the counting and canvassing of the ballots in the 2004 elections, Comelec awarded the Contract to "Mega Pacific Consortium," an entity that had not participated in the bidding. Awarding goverment contracts in violation of rules Despite this grant, the poll body signed the actual automation Contract with "Mega Pacific eSolutions, Inc.," a company that joined the bidding but had not met the eligibility requirements. Was there grave abuse of discretion? A. Yes. There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the law or jurisprudence; or (2) when it is executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias. In the present case, the Commission on Elections awarded the subject contract not only in clear violation of law and jurisprudence, but also in reckless disregard of its own bidding rules and procedure. Infotech Foundation, et al. v. Comelec, G.R. No. 159139, January 13,2004. Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 329 the Curious case of Echegaray Q. On 4 January 1999, the Supreme Court issued a TRO staying the execution of Leo Echegaray scheduled on that same day. The Justice Secretary assailed the issuance of the TRO arguing, inter alia, - courts have power to that the action of the Court not only violated the rule on finality of control the execution of its judgment but also encroached on the power of the executive to grant decisions reprieve. Decide. - supervening events may compel courts to intervene A. 1. The power to control the execution of its [i.e., the SC] decision is an essential aspect of jurisdiction. It cannot be the subject of - so it CAN TRO an death substantial subtraction for our Constitution vests the entirety of judicial power in one Supreme Court and in such lower courts as may be sentence established by law. To be sure, the most important part of litigation, whether civil or criminal, is the process of evaluation of decisions where - seems like a supervening events may change the circumstance of the parties and enchroachment on compel courts to intervene and adjust the rights of the litigants to presidential power to prevent unfairness. It is because of these unforeseen, supervening grant reprieve contingencies that courts have been conceded the inherent and necessary power of control of its processes and orders to make them conformable to law and justice. §19, Art. VII "cannot be interpreted as denying the power of the courts to control the enforcement of their decisions after their finality. In truth, an accused who has been convicted by final judgment still possesses collateral rights and these rights can be claimed in the appropriate courts [e.g., a death convict who becomes insane after his final conviction cannot be executed while in a state of insanity]. ...The suspension of such a death sentence is undisputably an exercise of judicial power. It is not a usurpation of the presidential power of reprieve though its effect is the same — the temporary suspension of the execution of the death convict." 3) The same logic applies to Congress when, exercising its legislative power, it amends the Death Penalty Law by reducing the penalty of death to life imprisonment. "The powers of the Executive, the Legislative and the Judiciary to save the life of a death convict do not exclude each other for the simple reason that there is no higher right than the right to life." To contend that "only the Executive can protect the right of life of an accused after his final conviction is to violate the principle of co-equal and coordinate powers of the three branches of our government." Echegaray v. The Secretary of Justice, G.R. No. 132601, January 19,1999. Q. On the first regular session of the eleventh Congress, Tatad Wants to be minority leader Senators Fernan and Tatad contested for the Senate Presidency. Fernan won by a vote of 20 to 2. With the agreement of Senator Santiago, Tatad manifested that he was assuming the position of - courts can see if there was grave abuse minority leader explaining that those who had voted for Fernan - but in this case court cant epal in congress rules comprised the majority, while those who had voted for him, the losing nominee, belonged to the minority. However, the seven 330 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 Lakas-NUCD-UMDP senators had chosen Senator Guingona as the minority leader. Later, Fenian formally recognized Guingona as such. Santiago and Tatad filed before the Supreme Court a petition for quo warranto, alleging that Guingona "had been usurping, unlawfully holding and exercising the position of Senate minority leader," a position that rightfully belonged to Tatad. 1) Does the Court have jurisdiction over the petition? 2) Petitioners claim that Art. VI, §16(1) has not been observed in the selection of the minority leaden Decide. A. 1) Yes. "It is well within the power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation of the Constitution or gravely abused their discretion in the exercise of their functions and prerogatives." Santiago v. Guingona, G.R. No. 134577, November 18,1998, p. 18. 2) This provision is explicit on the manner of electing a Senate President and a House Speaker, but silent on the manner of selecting the other officers in both chambers of Congress. The method of choosing who will be the other officers must be prescribed by the Senate itself. The Rules of the Senate neither provide for the positions of majority and minority leaders nor prescribe the manner of creating such offices or of choosing the holders thereof. Such offices exist by tradition and long practice. "But, in the absence of constitutional or statutory guidelines or specific rules, this Court is devoid of any basis upon which to determine the legality of the acts of the Senate relative thereto. On grounds of respect for the basic concept of separation of powers, courts may not intervene in the internal affairs of the legislature; it is not within the province of courts to direct Congress how to do its work." Id. at 23-24 (citing New York Public Interest Research Group, Inc. v. Steingut, 353 NE2d 558). Only judicial power Q. What power is given to courts? A. Courts are given "judicial power," nothing more. Hence, by the principle of ot do non-judicial functions separation of powers, courts may neither attempt to assume nor be pt reasonably incidental ( administrative functs ) compelled to perform non-judicial functions. Thus, a court may not be required to act as a board of arbitrators. Manila Electric Co. v. Pasay Transportation Co., 57 Phil. 600 (1932). Nor may it be charged with administrative functions except when reasonably incidental to the fulfillment of judicial duties. Noblejas v. Teehankee,2S SCRA 405 (1968). Neither is it the function of the judiciary to give advisory opinions. Director of Prisons v. Ang Cho Kio, 33 SCRA 494, 509 (1970). Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT advisory 331 Q. What is the difference between a declaratory judgment and an advisory opinion? A. What distinguishes a declaratory judgment from an advisory opinion is that the former involves parties with real conflicting legal interests whereas an advisory opinion is a response to a legal declatory judgement issue posed in the abstract in advance of any actual case in which it may be presented. As a consequence of this distinction, an advisory - real controversies / legal interests opinion binds no one whereas a declaratory judgment is a final one and is forever binding on the parties. The former is thus not a judicial - final and binding act but the latter is. - in advance ( abstract ) - no actual controversy yet - binds no one Needs Prior Legis Action - defines enforcable rights - prescribes remedies - confers jurisdiction Q. What is the role of the legislature in the judicial process? A. Although judicial power is vested in the judiciary, the proper exercise of such power requires prior legislative action: (1) defining such enforceable and demandable rights and prescribing remedies for violations of such rights; and (2) determining the court with jurisdiction to hear and decide controversies or disputes arising from legal rights. Q. Can the courts exercise judicial power when there is no applicable law? A. No. Thus in Channie Tan v. Republic, 107 Phil. 632,634 (1960), the Court ruled that it had no authority to entertain an action for judicial declaration of citizenship because there was no law authorizing such proceeding. Similarly, an award of honors to a student by a board of teachers may not be reversed by a court where the awards are governed by no applicable law. Santiago, Jr. v. Bautista, 32 SCRA 188, 199 (1970). Nor may courts reverse the award of a board of judges in an oratorical contest. Felipe v. Leuterio, 91 Phil. 482 (1952). SECTION. 2. THE CONGRESS SHALL HAVE THE POWER TO DEFINE, PRESCRIBE, AND APPORTION THE JURISDICTION OF THE VARIOUS COURTS BUT MAY NOT DEPRIVE THE SUPREME COURT OF ITS JURISDICTION OVER CASES ENUMERATED IN SECTION 5 HEREOF. Congress power over judiciary - apportion jurisdiction - ex sec 5 jurisdiction - cannot reorganize when it undermines security of tenure NO LAW SHALL BE PASSED REORGANIZING THE JUDICIARY WHEN IT UNDERMINES THE SECURITY OF TENURE OF ITS MEMBERS. Q. What power does Congress have over the judicial system? A. Congress has the power to create new courts and to apportion jurisdiction among various courts. However, in the exercise of this power Congress may not impair the independence of the 332 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 12-13 judiciary. For this purpose, the Constitution has given to the Supreme Court, in Section 5, certain powers which Congress may not take away. Moreover, any reorganization of the judicial system should be done in a manner which does not impair security of tenure. (More will be said about security of tenure under Section 11.) Q. May any other body than Congress create courts or increase or decrease the jurisdiction of courts? A. No. Implicit in the conferment of power on Congress to create courts and to determine their jurisdiction is the denial of the same power to other departments. Q. A law is passed prohibiting courts from issuing injunctions in cases involving infrastructure projects of the government. Does such law violate judicial independence? A. Such prohibition can only refer to administrative acts in controversies involving facts or the exercise of discretion in technical cases. Outside of this dimension and on issues involving questions of law, the courts cannot be prevented from exercising their power. Malaga v. Penackos, Jr., G.R. No. 86695, September 3,1992. NOTE: Whether or not courts of general jurisdiction have authority over administrative agencies depend on the statutes governing the subject. Where the statute designates the court having jurisdiction other than courts of general jurisdiction, then courts of general jurisdiction do not have authority. But where there is silence, the general rule applies. Lupangco v. Court of Appeals, 160 SCRA 848 (1988). Fiscal Autonomy SEC. 3. THE JUDICIARY SHALL ENJOY FISCAL AUTONOMY. APPROPRIATIONS FOR THE JUDICIARY MAY NOT BE REDUCED BY THE LEGISLATURE BELOW THE AMOUNT APPROPRIATED APPROPRIATIONS cant be lower FOR THE PREVIOUS YEAR AND, AFTER APPROVAL, SHALL BE AUTOMATICALLY AND REGULARLY han last year RELEASED. automatically and regularly released Q. What is the meaning of fiscal autonomy and why has it been granted to the Judiciary? A. The second sentence of Section 3 states the meaning of 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." Fiscal autonomy is granted to the Supreme Court in order to strengthen its independence. SEC. 4. (1) THE SUPREME COURT SHALL BE COMPOSED OF A CHIEF JUSTICE AND FOURTEEN ASSOCIATE JUSTICES. IT MAY SIT EN BANC OR IN Composition of SC - 14 ass. Justices - CJ Sits in - 3, 5 7 - en banc Vacancy - filled 90 days En banc onstitutionality of reaty / int agreements executive agrement aw pres degrees, resolutions, proclamations ordinances, other regulations Sees. 3-4 hers provided by rules of court division lack numbers hanges doctrine discipline/ dismis judges election contests of VP / P ecided By : MAJORITY - participated - voted UORUM : 8 majority ? Division - decided by majority - participated - voted MINIMUM concurrence : -3! Less than 3 / lacks number - decided EN BANC Change doctrine: - EN BANC Not an inferior court ART. VIII - THE JUDICIAL DEPARTMENT 333 ITS DISCRETION, IN DIVISIONS OF THREE, FIVE, OR SEVEN MEMBERS. ANY VACANCY SHALL BE FILLED WITHIN NINETY DAYS FROM THE OCCURRENCE THEREOF. (2) ALL CASES INVOLVING THE CONSTITUTIONALITY OF A TREATY, INTERNATIONAL OR EXECUTIVE AGREEMENT, OR LAW, WHICH SHALL BE HEARD BY THE SUPREME COURT EN BANC, AND ALL OTHER CASES WHICH UNDER THE RULES OF COURT ARE REQUIRED TO BE HEARD EN BANC, INCLUDING THOSE INVOLVING THE CONSTITUTIONALITY, APPLICATION, OR OPERATION OF PRESIDENTIAL DECREES, PROCLAMATIONS, ORDERS, INSTRUCTIONS, ORDINANCES, AND OTHER REGULATIONS, SHALL BE DECIDED WITH THE CONCURRENCE OF A MAJORITY OF THE MEMBERS WHO ACTUALLY TOOK PART IN THE DELIBERATIONS ON THE ISSUES IN THE CASE AND VOTED THEREON. (3) CASES OR MATTERS HEARD BY A DIVISION SHALL BE DECIDED OR RESOLVED WITH THE CONCURRENCE OF A MAJORITY OF THE MEMBERS WHO ACTUALLY TOOK PART IN THE DELIBERATIONS ON THE ISSUES IN THE CASE AND VOTED THEREON, AND IN NO CASE, WITHOUT THE CONCURRENCE OF AT LEAST THREE OF SUCH MEMBERS. WHEN THE REQUIRED NUMBER IS NOT OBTAINED, THE CASE SHALL BE DECIDED EN BANC! PROVIDED, THAT NO DOCTRINE OR PRINCIPLE OF LAW LAID DOWN BY THE COURT IN A DECISION RENDERED EN BANC OR IN DIVISION MAY BE MODIFIED OR REVERSED EXCEPT BY THE COURT SITTING EN BANC. Q. May Congress increase or decrease the composition of the Supreme Court? A. No. Q. How many members constitute a division? A. The Court is free to create divisions of three, five, or seven. The purpose of allowing up to five divisions within one Court is to enable the Court to dispose of cases more speedily. Q. Are divisions separate and distinct courts? A. No. Actions considered in any of these divisions and decisions rendered therein are, in effect, by the same Tribunal. Decisions or resolutions of a division of the court are not inferior to an en banc decision. People v. Dy, G.R. Nos. 115236-37, January 16, 2003. Q. How many justices are needed to constitute a quorum when the Court sits en banc and there are only fourteen justices in office? 334 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 3-4 A. In People v. Ebio, G.R. No. 147750, September 29, 2004, since it was a capital criminal case, the Court said that there should be eight. Q. What cases must be heard en banc? A. By command of the Constitution, the following cases must be heard en banc: (1) all cases involving the constitutionality of a treaty, international or executive agreement, or law; (2) all cases which under the Rules of Court may be required to be heard en banc; (3) all cases involving the constitutionality, application or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations; (4) cases heard by a division when the required majority in the division is not obtained; (5) cases where the Supreme Court modifies or reverses a doctrine or principle of law previously laid down either en banc or in division;(6) administrative cases involving the discipline or dismissal of judges of lower courts (Section 11); (c) election contests for President or Vice-President. Q. How many votes are required to decide a case heard en banc? in division? A. When the Supreme Court sits en banc cases are decided by the concurrence of "of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon." Thus, since a quorum of the Supreme Court is eight, the votes of at least five are needed and are enough, even if it is a question of constitutionality. This is a liberalization of the old rule which required a qualified majority of a definite number. Moreover, those who did not take part in the deliberation do not have the right to vote. Q. How many votes are needed to decide a case in division? A. "Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc" Q. Are decisions of a division of the Supreme Court appealable to the en banc'? A- No. Decisions or resolutions of a division of the court, when concurred in by a majority of its members who actually took Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 335 part in the deliberations on the issues in a case and voted thereon is a decision or resolution of the Supreme Court itself. The Supreme Court sitting en banc is not an appellate court vis-a-vis its Divisions, and it exercises no appellate jurisdiction over the latter. Each division of the Court is considered not a body inferior to the Court en banc, and sits veritably as the Court en banc itself. The only constraint is that any doctrine or principle of law laid down by the Court, either rendered en banc or in division, may be overturned or reversed only by the Court sitting en banc" Firestone Ceramics v. Court of Appeals, G.R. No. 127245, June 28, 2000. Q. When the required number cannot be obtained in a division of three, who decides the case? Depends Cases V Matters A. "A careful reading of the above constitutional provision reveals the intention of the framers to draw a distinction between cases, on the Cases : one hand, and matters, on the other hand, such that cases are 'decided' - brought to decide for first time while matters, which include motions, are 'resolved.' Otherwise put, - if lack required votes --> en banc the word 'decided' must refer to 'cases;' while the word 'resolved' must refer to 'matters," applying the rule of reddendo singula singulis. This is MR true not only in the interpretation of the above-quoted Article VIII, - lacks req votes / tie --> affirmed Section 4(3), but also of the other provisions of the Constitution where these words appear. [See Article VIII, Section 15; Article XVIII, Section 12 to 14.] "Cases" are controversies brought to the Court for the first time. Where the required number of votes is not obtained, there is no decision. The only way to dispose of the case then is to refer it to the Court en banc. On the other hand, if a case has already been decided by the division and the losing party files a motion for reconsideration, the failure of the division to resolve the motion because of a tie in the voting does not leave the case undecided. Quite plainly, if the voting results in a tie, the motion for reconsideration is lost. The assailed decision is not reconsidered and must therefore be deemed affirmed. Such was the ruling of this Court in the Resolution of November 17, 1998. Fortich v. Corona, G.R. No. 131457, August 19,1999. SEC. 5. THE SUPREME COURT SHALL HAVE THE FOLLOWING POWERS: (1) EXERCISE ORIGINAL JURISDICTION OVER CASES AFFECTING AMBASSADORS, OTHER PUBLIC MINISTERS AND CONSULS, AND OVER PETITIONS FOR CERTIORARI PROHIBITION, MANDAMUS, QUO WARRANTO, AND HABEAS CORPUS. Original jurisdiction over : Appelate jurisdiction : - ambassadors - constitutionalit of : treaty, international/ executive agreement, law , presidential decree... Ordinance, regulation - public ministers and consuls - legality of tax and penalty thereto - issue were jurisdiction of lower court is at issue PETITIONS - crim cases reclusion perpetua or higher - certiorari - pure questions of law - prohibition - mandamus - quo warranto - habeas corpus 336 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 (2) REVIEW, REVISE, REVERSE, MODIFY, OR AFFIRM ON APPEAL OR CERTIORARI, AS THE LAW OR THE RULES OF COURT MAY PROVIDE, FINAL JUDGMENTS AND ORDERS OF LOWER COURTS IN: (a) ALL CASES IN WHICH THE CONSTITUTIONALITY OR VALIDITY OF ANY TREATY, INTERNATIONAL OR EXECUTIVE AGREEMENT, LAW, PRESIDENTIAL DECREE, PROCLAMATION, ORDER, INSTRUCTION, ORDINANCE, OR REGULATION IS IN QUESTION. (b) ALL CASES INVOLVING THE LEGALITY OF ANY TAX, IMPOST, ASSESSMENT, OR TOLL, OR ANY PENALTY IMPOSED IN RELATION THERETO. (c) ALL CASES IN WHICH THE JURISDICTION OF ANY LOWER COURT IS IN ISSUE. (d) ALL CRIMINAL CASES IN WHICH THE PENALTY IMPOSED IS SECLUSION PERPETUA OR HIGHER. (e) ALL CASES IN WHICH ONLY AN ERROR OR QUESTION OF LAW IS INVOLVED. Admin functions (3) ASSIGN TEMPORARILY JUDGES OF LOWER COURTS TO OTHER STATIONS AS PUBLIC INTEREST MAY REQUIRE. SUCH TEMPORARY ASSIGNMENT SHALL NOT EXCEED SIX MONTHS WITHOUT THE CONSENT OF THE JUDGE CONCERNED. (4) ORDER A CHANGE OF VENUE OR PLACE OF TRIAL TO AVOID A MISCARRIAGE OF JUSTICE. (5) PROMULGATE RULES CONCERNING THE PROTECTION AND ENFORCEMENT OF CONSTITUTIONAL RIGHTS, PLEADING, PRACTICE, AND PROCEDURE IN ALL COURTS, THE ADMISSION TO THE PRACTICE OF LAW, THE INTEGRATED BAR, AND LEGAL ASSISTANCE TO THE UNDERPRIVILEGED. SUCH RULES SHALL PROVIDE A SIMPLIFIED AND INEXPENSIVE PROCEDURE FOR THE SPEEDY DISPOSITION OF CASES, SHALL BE UNIFORM FOR ALL COURTS OF THE SAME GRADE, AND SHALL NOT DIMINISH, INCREASE, OR MODIFY SUBSTANTIVE RIGHTS. RULES OF PROCEDURE OF SPECIAL COURTS AND QUASI-JUDICIAL BODIES SHALL REMAIN EFFECTIVE UNLESS DISAPPROVED BY THE SUPREME COURT. (6) APPOINT ALL OFFICIALS AND EMPLOYEES OF THE JUDICIARY IN ACCORDANCE WITH THE CLVIL SERVICE LAW. SEC. 6. THE SUPREME COURT SHALL HAVE ADMINISTRATIVE SUPERVISION OVER ALL COURTS AND THE PERSONNEL THEREOF. Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 337 Specific powers of the court Q. How would you classify the powers of the Supreme Court under Section 5? A. Section 5(1) and (2) are the judicial powers, and Section 5(3) to (6) are auxiliary administrative powers. Q. May Congress diminish the jurisdiction of the Supreme Court? A. Congress may diminish the merely statutory jurisdiction of the Supreme Court but it may not diminish the jurisdiction granted by the Constitution itself. Judicial review Q. What is the power of judicial review? A. It is the Supreme Court's power to declare a law, treaty, international or executive agreement, presidential decree, proclamation, order, instruction, ordinance, or regulation unconstitutional. This power is explicitly granted by Section 5(2), (a) and (b). Q. Does this make the Court superior to Congress and the President? A. No. It shows the superiority of the Constitution over all. Essential requisites Of judicial review - actual case - ripe for adjudication - standing Q. What are the essential requisites for the exercise of the power of judicial review? A. It is now firmly established that the power of judicial review is merely an aspect of judicial power. Hence, the first requisite for the exercise of judicial review is that there must be before the court an actual case calling for the exercise of judicial power. The question before it must be ripe for adjudication, that is, the governmental act being challenged must have had an adverse effect on the person challenging it. PACU v. Secretary of Education, 97 Phil. 806, 810 (1955); Tan v. Macapagal, 43 SCRA 678 (1972). Second, the person challenging the act must have "standing" to challenge, that is, he must have "a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement." People v. Vera, 65 Phil. 58, 89 (1937). The above are the essential requisites for judicial review. In addition to these essential requisites, jurisprudence has also 338 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 evolved other auxiliary rules. Thus, it was pointed out in People v. Vera, 65 Phil. 56 (1937) that "as a general rule, the question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised at the trial, and if not raised in the trial court, it will not be considered on appeal. . . But we must state that the general rule admits of exceptions. Courts, in the exercise of sound discretion, may determine the time when a question affecting constitutionality of a statute should be presented." Id. at 88. Another rule is that the court will not touch the issue of unconstitutionality unless it really is unavoidable or is the very lis mota. Sotto v. Commission on Elections, 76 Phil. 516, 522 (1946). Actual case - challenge cant be premature - case cant be hypothetical - except if trancendental importance Q. The validity of the creation of the City of Makati is challenged on the ground that it will allow the incumbent Mayor to extend his term beyond he three terms allowed by the Constitution. Decide. A. The challenge is premature considering that elections would not be until three years later. Mariano, Jr. v. Commission on Elections, G.R. Nos. 118577 & 118627, March 7,1995. Q. Dumlao challenges the constitutionality of Section 4 of B.P. Big. 52 disqualifying certain types of retired public officials from candidacy. No one, however, has challenged the qualification of Dumlao. Igot challenges the validity of the provision which disqualifies those against whom charges for subversion or similar crimes have been filed. No such charge, however, has been filed against Igot, although he claims that this is a taxpayer's suit. Decide. A. Clearly, Dumlao's petition presents merely a hypothetical case, not a case or controversy. Hence, this is not a proper subject for judicial review. Nor is Igot's. Moreover, Igot's claim that this is a taxpayer's suit is not proper because his challenge is not against the holding of elections with consequent expenditure of funds. Dumlao v. COMELEC, 95 SCRA 392, 401, 403 (L-52245, January 22, 1980.) [Because of "paramount public interest," however, the Court ruled on the substantive issues.] Q. Is the rule that the Court will not decide a question of law when there is no actual case or controversy an absolute rule? A. No. Like all procedural rules exceptions to it may be dictated when, for instance, lack of clarity may be creating a great of confusion detrimental to public order, as in this case, the case of the confiscation of license plates and drivers licenses for traffic violations. Solicitor General v. Metropolitan Manila Authority, G.R. No. 102782, December 11,1991. Sees. 3-4 Standing GEN rule - personal and - substantial interest - sustained - will sustain injury Citizen suit - personally suffered from illegal conduct of gov - injury is tracable to the challenged action - likely to be redressed May be relaxed - transcendental interest to public ART. VIII - THE JUDICIAL DEPARTMENT 339 Standing Q. Explain the concept of standing? A. A person has "standing" to challenge the validity of governmental act only if he has "a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement." People v. Vera, 65 Phil. 56, 89 (1937); Macasiano v. National Housing Authority, 224 SCRA 236 (1993). Thus in Joya v. PCGG, 225 SCRA 568 (1993), art lovers seeking to enjoin the auction sale of European artworks and silverware, part of the objects recovered by the government after the ouster of President Marcos, on the ground that these formed part of the Filipino cultural heritage were deemed without standing to sue because they neither owned the properties involved nor had they been purchased with public funds. What appears in the jurisprudence on "standing" is that it is not only a rule that assures concrete adverseness which can sharpen the presentation of issues but it also involves considerations of policy related to judicial self-restraint. Kilosbayan v. Morato, G.R. No. 118910, July 17,1995. Q. Put differently, when will a citizen be allowed to raise a constitutional question? A. Only when he can show the following: (1) "that he has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of government;" (2) "the injury is fairly traceable to the challenged action;" and (3) "the injury is likely to be redressed by a favorable action." Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on Elections, G.R. No. 132922, April 21,1998. Q. Is the rule inflexible? A. No. Jurisprudence allows what it calls a "liberal approach" to standing. When the subject in issue is of transcendental interest to the public, the Court entertains the suit even if those suing do not have a personal and direct interest such that they are stand to suffer harm. Thus, for instance, Kilosbayan v. Guingona, Jr., 232 SCRA 110, 137-138 (1993), Kilosbayan was allowed to challenge the validity of the lotto contract of the Philippine Charity Sweepstakes on the argument that 340 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 the case was of transcendental importance. Likewise, when President Estrada ordered the deployment of the Philippine Marines (the Marines) to join the Philippine National Police (the "PNP") in visibility patrols around the metropolis, the Court made constitutional pronouncements even though those who brought the suit did not stand to suffer specific injury to themselves. IBP v. Zamora et al, G.R. No. 141284, August 15, 2000. "In language too lucid to be misunderstood, this Court has brightlined its liberal stance on a petitioner's locus standi where the petitioner is able to craft an issue of transcendental significance to the people." Tatad v. Secretary of the Department of Energy, G.R. Nos. 124360 and 127867, November 5,1997. Q. The President negotiated and the Senate ratified the Visiting Forces Agreement with the United States. The constitutionality of the agreement is challenged by groups which included private individuals and organizations, some Senators and members of the house of Representatives. Do they have standing? A. Petitioners failed to show, to the satisfaction of this Court, that they have sustained, or were in danger of sustaining any direct injury as a result of the enforcement of the VFA. As taxpayers, petitioners did not establish that the VFA involved the exercise by Congress of its taxing or spending powers. Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushed aside the procedural barrier and took cognizance of the petitions. Bayan v. Executive Secretary, G.R. No. 138570, October 10, 2000. Q. Petitioners challenge the validity of Executive Order 185 placing the NLRC under the supervision of the Secretary of Labor as being in derogation of separation of powers. Decide. A. Petitioners have no standing. The EO simply establishes a relation between two offices both under the control of the President. The rights of petitioner workers are unaffected. Automotive Industry Workers v. Executive Secretary, G.R. No. 157509, January 18,2005. NOTE: The general rules on standing admit of several exceptions such as the over breadth doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of transcendental importance. In White Light Corp v. City of Manila, G.R. No. 122846, January 20, 2009, the Court Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 341 3rd party standing recognized "third party standing," a concept explained in Powers v. Ohio thus "We have recognized the right of litigants to bring actions on behalf of third parties, provided three important - injury in fact criteria are satisfied: the litigant must have suffered an 'injury- close relation to third party in-fact,' thus giving him or her a "sufficiently concrete interest" in - must be some hinderance why he cant file himself the outcome of the issue in dispute; the litigant must have a close relation to the third party, and there must exist some hindrance to the third party's ability to protect his or her own interests." In White Light the Court said that it was clear that the business interests of the motel operators were likewise injured by the Ordinance prohibiting "short term." They rely on the patronage of their customers for their continued viability which appears to be threatened by the enforcement of the Ordinance. The relative silence in constitutional litigation of such special interest groups in our nation such as the American Civil Liberties Union in the United States may also be construed as a hindrance for customers to bring suit. American jurisprudence is replete with examples where parties-in-interest were allowed standing to advocate or invoke the fundamental due process or equal protection claims of other persons or classes of persons injured by state action. Taxpayer suit Q. Can a taxpayer have standing to sue? A. Yes, in cases involving expenditure of public funds, if it can be shown (1) "that he has a sufficient interest in preventing the illegal expenditure of money raised by taxation;" and (2) "that he will sustain a direct injury as a result of the enforcement of the questioned statute." Pascual v. Secretary of Public Works, 110 Phil. 331 (1960);Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on Elections, G.R. No. 132922, April 21,1998, 289 SCRA 337,343. ONLY to Challenge - CONGRESS - in its spending OR - taxing power Appropriations by PRESIDENT - NOT included Q. The PCCR was created by the President by virtue of E.O. No. 43, as amended by E.O. No. 70. Under section 7 of E.O. No. 43, the amount of P3 million is "appropriated" for its operational expenses "to be sourced from the funds of the Office of the President." Can a taxpayer challenge the validity of the President's action? A. No. A taxpayer is deemed to have the standing to raise a constitutional issue when it is established that public funds have been disbursed in alleged contravention of the law or the Constitution. Thus, a taxpayer's action is properly brought only when there is an exercise by Congress of its taxing or spending power. The appropriations for the PCCR were authorized by the President, not by Congress. "In a BUT sir says - it seems ANY spending of public funds is covered - further SC has been very lax on " personal injury " requirements 342 Unconsti Act : effect CAN BE - source of right or duty - PRIOR to beingdeclared THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 strict sense, appropriation has been defined 'as nothing more than the legislative authorization prescribed by the Constitution that money may be paid out of the treasury,' while appropriation made by law refers to the act of the legislature setting apart or assigning to a particular use a certain sum to be used in the payment of debt or dues from the State to its creditors.'" The funds used for the PCCR were taken from funds intended for the Office of the President, in the exercise of the Chief Executive's power to transfer funds pursuant to Section 25 (5) of article VI of the Constitution. Gonzalez v. Narvasa, G.R. No. 140835, August 14,2000. Q. The authority of Pagcor to run jai alai or to subcontract it is challenged by a group of members of Congress on the ground that Pagcor has no franchise. Pagcor assails the locus standi of the petitioner members of Congress on the ground that the integrity of Congress is not involved nor will public money be used. Decide. A. True, locus standi of petitioners cannot be anchored on their position taxpayers. However, in line with the liberal polity of this Court on locus standi when a case involves an issue of overarching significance to our society, as members of the House of Representatives, petitioners have legal standing to file the petitions at bar. In the instant cases, petitioners complain that the operation of jai-alai constitutes an infringement by PAGCOR of the legislature's exclusive power to grant franchise. To the extent that the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution, so petitioners contend. The contention commands our concurrence for it is now settled that a member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office. Moreover, the instant petition is of transcendental importance to the public. Relying on the first Kilosbayan case the Court said that the issues it raised are of paramount public interest and of a category even higher than those involved in many of the aforecited cases. The ramifications of such issues immeasurably affect the social, economic, and moral well-being of the people. Sandoval v. PAGCOR, G.R. No. 138982, November 29, 2000. Q. What is the effect of the declaration of unconstitutionality of a statute? A. The Supreme Court has rejected the view that an unconstitutional act confers no rights, imposes no duties, and affords no protection whatsoever. Instead, the Court has adopted the view that before an act is declared unconstitutional it is an "operative fact" which can be the source of rights and duties. Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 343 This recognition of an unconstitutional statute as an "operative fact" before it is declared unconstitutional was recently applied in de Agbayani v. Philippine National Bank, 38 SCRA 429 (1971), where the period before a moratorium law was declared unconstitutional was not allowed to toll the prescriptive period of the right to foreclose a mortgage. Q. May inferior courts exercise the power of judicial review? A. Since the power of judicial review flows from judicial power and since inferior courts are possessed of judicial power, it may fairly be inferred that the power of judicial review is not a power exclusive to the Supreme Court. This same conclusion may be inferred from Article X, Section 5(2) which confers on the Supreme Court appellate jurisdiction over judgments and decrees of inferior courts in all cases in which the constitutionality or validity of any treaty, international agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. As the Court said in J.M. Tuason and Co. v. Court of Appeals, 3 SCRA 696, 703-704 (1961): "Plainly the Constitution contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where such constitutionality happens to be in issue." Considering, however, the majority vote which is required for the Supreme Court to declare a law unconstitutional, lower courts must keep in mind "that a becoming modesty of inferior courts demands conscious realization of the position they occupy in the interrelation and operation of the integrated judicial system of the nation." People v. Vera, 65 Phil. 56 (1937), cited in Vera v. Area, 28 SCRA 351, 361-2 (1969). Moreover, while a declaration of unconstitutionality made by the Supreme Court constitutes a precedent binding on all, a similar decision of an inferior court binds only the parties in the case. Political questions Q. It is an established rule that courts have no jurisdiction to pass upon "political questions." What are "political questions?" A. It is easy enough to define political questions in the abstract. As Justice Concepcion said in Taiiada v. Cuenco, L-10520, February 28, 1965, political questions are "those questions 344 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government." But the difficult question which the Court is frequently called upon to answer is whether a question is one "in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government." Lengthily argued majority opinions, concurrences, and dissents characterize the cases where the political questions doctrine has been invoked. Baker v. Corr, 369 U.S. 186 (1962) has attempted to formulate some guidelines for determining whether a question is political or not: Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Id. at 217. Q. Is everything in the above quotation from Baker v. Carr applicable to Philippine jurisprudence? A. No. It is submitted that, because of the duty of the court to determine the existence of grave abuse of discretion, the question is not political even when there is "an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question." Q. The new Constitution defines judicial power as including "the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." Has this in effect nullified the long standing doctrine on political questions as being beyond the pale of judicial power? there absolute bar from taking gnizance of political questions? - no, they been given grave abuse power Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 345 No. This partial definition of judicial power made by the new Constitution has for its purpose to emphasize that when "grave abuse of discretion" is committed even by the highest executive authority, the judiciary should not hide behind the political questions doctrine. Q. Was the validity of the President's ban on the return of Mr. Marcos a political question? A. No. The Supreme Court has the power "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.'' Marcos v. Manglapus, et al., G.R. No. 88211, September 15,1989. Q. Was there abuse of discretion in the ban on Mr. Marcos? A. No. From the pleadings, oral arguments, and briefings in chambers we find that there was factual basis for the decision such that the decision was not made arbitrarily. Marcos v. Manglapus, et al., G.R. No. 88211, September 15,1989. (The decision was 8-7.) However, the Court added: "This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into exile after causing twenty years of political, economic and social havoc in the country and who within the short space of three years seeks to return, is in a class by itself." Besides, the ban can be justified also under the "faithful execution clause" of Article VII, Section 17. Q. Petitioner was a member of the Commission on Appointments representing the Liberal Party. With the organization of the LDP (Laban ng Demokratikong Pilipino), some congressional members belonging to the Liberal Party resigned from said party to join the LDP. When the Commission on Appointments was reorganized, petitioner was replaced by an LDP representative. Petitioner contends that the organization of the LDP cannot affect the composition of the Commission on Appointments because LDP is not a registered party and has not yet shown the stability of a party. Does the situation present a "political question?" A. The question is justiciable. The issue is one of legality not of wisdom. The ascertainment of the manner of forming the Commission on Appointments is distinct from the discretion of the parties to designate their representatives. And even if the question were political in nature, it would still come under the expanded power of review in Article VIII, Section 1. Daza v. Singson, G.R. No. 86344, December 21,1989. 346 CA review of death row THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 Court review of capital sentences Q. In mandating mandatory review of the Supreme Court of death and other sentences, does the Constitution thereby proscribe intermediate review by the Court of Appeals? nstitutional A. No. While the Fundamental nsti requires SC review mention of ban to delegate initial step to CASupreme Court of cases Law requires a mandatory review by the where the penalty imposed is reclusion perpetua, life imprisonment, or death, nowhere, however, has it proscribed an intermediate review. If only to ensure utmost circumspection before the penalty of death, reclusion perpetua or life imprisonment is imposed, the Court now deems it wise and compelling to provide in these cases a review by the Court of Appeals before the case is elevated to the Supreme Court. Where life and liberty are at stake, all possible avenues to determine his guilt or innocence must be accorded an accused, and no care in the evaluation of the facts can ever be overdone. A prior determination by the Court of Appeals on, particularly, the factual issues, would minimize the possibility of an error of judgment. If the Court of Appeals should affirm the penalty of death, reclusion perpetua or life imprisonment, it could then render judgment imposing the corresponding penalty as the circumstances so warrant, refrain from entering judgment and elevate the entire records of the case to the Supreme Court for its final disposition. People v. Mateo, G.R. No. 147678-87, July 7, 2004 Q. Is there an automatic review of a trial court's decision convicting an accused of a capital offense and sentencing him to reclusion perpetual A. No. It is only in cases where the penalty actually imposed is death that the trial court must forward the records of the case to the Supreme Court [now Court of Appeals] for automatic review of the conviction. Where the petitioner does not file a notice of appeal or otherwise indicate a desire to appeal from the decision convicting him of murder and sentencing him to reclusion perpetua, the decision became final and unappealable. Garcia v. People, G.R. No. 106531, November 18,1999. Auxiliary powers Q. What are the auxiliary administrative powers of the Supreme Court? Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 347 A. See Section 5(3) to (6), and Sections 6 and 11. Rule making Q. How has the 1987 Constitution affected the rule-making power of the Court? A. The 1987 Constitution enhanced the rule making power of this Court [under] Section 5(5), Article VIII. This Court for the first time was given the power to promulgate rules concerning the protection and enforcement of constitutional rights. [Hence the rule on amparo.] The Court was also granted for the first time the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer shared by this Court with Congress, more so with the Executive. Thus, for instance, the payment of legal fees is a vital component of the rules promulgated by this Court concerning pleading, practice and procedure, it cannot be validly annulled, changed or modified by Congress. Baguio Market Vendors v. Judge, G.R. No. 165922, February 26,2010. Q. By what authority did the Court create the remedy of amparo? A. Through its authority to promulgate rules for the protection of human rights. Q. What is the writ of amparo? A. It is a is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof Q. What is the writ of habeas data? A. It is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. The coverage of both writs is limited to the protection of rights to life, liberty 348 3-4 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER and security. And the writs cover not only actual but also threats of unlawful acts or omissions. Q. What is the writ of kalikasari? A. It is a "remedy available to a natural or juridical person, entity authorized by law, people's organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces." Q. Rules of Court require deposit of 15% of the value of the property before an expropriator can enter. Can Congress amend this? A. R.A. 8974, however, creates an exception in expropriation cases involving public works and requires full payment before entry in public works projects. In answering the question whether Congress may amend Rules of Court, the Court said that since expropriation involves both procedural and substantive matters, the substantive aspect is always subject to legislation. Republic v. Gingoyon, G.R. No. 166429, February 1, 2006. Q. May the Court suspend its Rules of Court? A. The rule making power includes inherent power to suspend its own rules in particular cases in order to do justice. Lim, et al. v. CA, G.R. No. 149748, November 16,2006. Q. What is the rule on the review of death penalty imposed? A. Section 5 authorizes the Supreme Court of cases where the penalty imposed is reclusion perpetua, life imprisonment, or death. However, the Constitution has not proscribed an intermediate review. But to ensure utmost circumspection before the penally of death, reclusion perpetua or life imprisonment is imposed, the Rule now is that such cases must be reviewed by the Court of Appeals before they are elevated to the Supreme Court. People v. Mateo, G.R. No. 147678-87, July 7,2004; People v. Lagua, G.R. No. 170565, January 31,2006. Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 349 Q. What are the limits on the power of the Supreme Court to promulgate rules concerning pleading, practice, and procedure and admission to the practice of law? A. The Constitution imposes the following limitations and guidelines: (1) they "shall provide a simplified and inexpensive procedure for the speedy disposition of cases;" (2) they "shall be uniform for all courts of the same grade;" (3) and they "shall not diminish, increase, or modify substantive rights." Q. What is the test to determine whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower courts, abridges, enlarges, or modifies any substantive right? A. "[Tlhe test is whether the rule really regulates procedure, that is the judicial process for enforcing rights and duties recognized by substantive law Procedural v Substantive rights and for justly administering remedy and redress for a disregard or infraction of them. If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to appeal, it may - if it takes away vested rights it be classified as a substantive matter; but if it operates as a means of NOT procedural implementing an existing right then the rule deals merely with - creates a right : substantive procedure." Fabian v. Desierto, G.R. No. 129742, September 16,1998, p. - deals merely with implementing an existing right merely procedural 22 (citing 32 Am. Jur. 2d, Federal Practice and Procedure, §505, p. 936; People v. Smith, 205 P. 2d 444). Q. Applying the foregoing test, is the Supreme Court's transfer of pending cases involving a review of decisions of the Office of the Ombudsman in administrative actions to the Court of Appeals substantive or procedural? A. Procedural, "because it is not the right to appeal of an aggrieved party which is affected by the law. The right has been preserved. Only the procedure by which the appeal is to be made or decided has been changed. The rationale for this is that no litigant has a vested right in a particular remedy, which may be changed by substitution without impairing vested rights, hence he can have non in rules of procedure which relate to the remedy." Fabian v. Desierto, G.R. No. 129742, September 16, 1998, p. 22-23 (citing Elm Park Iowa, Inc. v. Denniston, et al., 280 NW 2d 262). Q. The rule that, unless a reservation to file a separate civil action is reserved, the civil case is deemed filed with the criminal case 350 3-4 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER is challenged on the ground that the rule is about substantive rights. A. Whether or not the two actions must be tried in a single proceeding is a matter of procedure. Maniago v. Court of Appeals, G.R. No. 104392, February 20,1996. Q. Why does the new Constitution have a new provision empowering the Court to promulgate rules concerning the protection and enforcement of constitutional rights? A. The provision is intended to emphasize that constitutional rights are not merely declaratory but also enforceable. Q. Section 90 of the Local Government Code of 1991 prohibits lawyers who are members of a local legislative body to practice law. Is this an infringement of the power of the Court to provide rules for pleading, practice, and procedure and the practice of law. A. No. The law must be seen not as a rule on the practice of law but as a rule on the conduct of officials intended to prevent conflict of interest. Javellana v. Department of Interior and Local Government, G.R. No. 102549, August 10,1992. Q. After the Supreme Court has declared candidates for the bar as having flunked the examinations, may Congress pass a law lowering the passing mark and declaring the same candidates as having passed? - lower passing A. No. This would amount to not just amending the rules but - anul an exam reversing the Court's application of an existing rule. In re Cunanan, 94 Phil. 534, 563 (1954). Q. May the Supreme Court nullify the results of the Bar Examination? Power to discipline A. In 2003 the Court nullified the results of the exams on - power to disipline lower court judges Commercial Law when it was discovered that the Bar questions had - ombudsman cannot encroach been leaked. Bar Matter No. 1222, February 4, 2004. Can control over BAR results Q. May the Ombudsman investigate irregularities in the performance of a judge independently of any administrative action taken by the Supreme Court? A. No. The power of administrative supervision of the Supreme Court includes, according to Section 11, "the power to discipline judges of lower courts, or order their dismissal by a vote Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 351 of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon." The exclusivity of this power is jealously guarded by the Court. In Maceda v. Vasquez, 221 SCRA 464 (1993), the Court ruled that the Ombudsman may not investigate a judge independently of any administrative action of the Supreme Court. Likewise, the Ombudsman cannot determine for itself and by itself whether a criminal complaint against a judge, or court employee, involves an administrative matter. The Ombudsman is duty bound to have all cases against judges and court personnel filed before it, referred to the Supreme Court for determination as to whether an administrative aspect is involved therein. Judge Caoibes, Jr. v. Ombudsman, G.R. No. 132177, July 19,2001. NOTE: Disciplinary authority over the Bar. The disciplinary authority of the court over members of the Bar is an aspect of its authority to admit to the Bar. The desistance of a complainant or witnesses does not strip the Court of jurisdiction because this is a matter of public interest and concern. Garrido v. Garrido, AC. No. 6593, February 4, 2010. NOTE: No affidavit of desistance can divest this Court of its jurisdiction under Section 6, Article VIII of the Constitution to investigate and decide complaints against erring officials and employees of the judiciary. The issue in an administrative case is not whether the complainant has a cause of action against the respondent, but whether the employee has breached the norms and standards of the courts. Neither can the disciplinary power of this Court be made to depend on a complainant's whims. To rule otherwise would undermine the discipline of court officials and personnel. Escdlona v. Padillo, AM. No. P-10-2785, September 21, 2010. Q. What is the effectivity of rules of procedure issued by special courts and quasi-judicial bodies? A. They are "effective unless disapproved by the Supreme Court." Q. What is "bar integration?" A. Integration of the Philippine Bar means the official unification of the entire lawyer population of the Philippines. This requires membership and financial support (in reasonable amount) of 352 3-4 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER every attorney as conditions sine qua non to the practice of law and the retention of his name in the Roll of Attorneys of the Supreme Court. In re Integration of the Bar of the Philippines, 49 SCRA 25-27, quoting Report of the Commission on Bar Integration, pp. 3-5, November 30,1972. Q. What are the purposes of an Integrated Bar? A. The purposes of an Integrated Bar, in general, are: (1) (2) Assist in the administration of justice; Foster and maintain, on the part of its members, high ideals of integrity, learning, professional competence, public service and conduct; (3) Safeguard the professional interests of its members; (4) Cultivate among its members a spirit of cordiality and brotherhood; (5) Provide a forum for the discussion of law, jurisprudence, law reform, pleading, practice, and procedure, and the relations of the Bar to the Bench and to the public, and public information relating thereto; (6) Encourage and foster legal education; (7) Promote a continuing program of legal research in substantive and adjective law, and make reports and recommendations thereon; and (8) Enable the Bar to discharge its public responsibility effectively. In re Integration of the Bar of the Philippines, quoting Report of the Commission on Bar Integration, pp. 3-5, November 30,1972. Q. A practicing attorney refuses to pay membership dues for the Integrated Bar and is recommended for removal by the Supreme Court from the list of attorneys. In reply the lawyer contends that the provisions of the Rules of Court and of the IBP By-Laws requiring membership in the Integrated Bar as a requisite for the practice of law violate his constitutional rights of association and property. Moreover, he contends that the Supreme Court has no power to remove him from the list of attorneys because such power is not judicial but administrative. Comment. A. (1) The practice of law is a privilege that is subject to reasonable regulation by the State. Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 353 (2) (3) Bar Integration is mandated by the Constitution. The lawyer is not being compelled to join the association. Passing the bar examination already made him a member of the bar. All that integration does is provide a national organization for a well-defined but unorganized and incohesive group of lawyers. The only compulsion to which he is subjected is the payment of annual dues, and this is justified by the need for elevating the quality of the legal profession. (4) The Constitution vests in the SC plenary powers regarding admission to the bar. In re Atty. Martial Edition, 84 SCRA 554 (3 August 1978). Q. The Court had previously not allowed the respondent to take his oath as a lawyer because of unbecoming conduct. After submission of evidence to the satisfaction of the Court that he had reformed, may he be admitted to the bar? A. Yes. "This power to admit attorneys to the Bar is not . . . an arbitrary and despotic one, to be exercised at the pleasure of the court, or from passion, prejudice or personal hostility, but it is the duty of the court to exercise and regulate it by a sound and judicial discretion." Andres v. Cabrera, 127 SCRA 802 (SBC- 585, February 29,1984). Qualifications ( consti reqs ) ALL - proven : integrity, probity, competence, independence Lower collegiate courts - natural born - phil bar - others by law SEC. 7. (1) No PERSON SHALL BE APPOINTED MEMBER OF THE SUPREME COURT OR ANY LOWER COLLEGIATE COURT UNLESS HE IS A NATURAL-BORN CITIZEN OF THE PHILIPPINES. A MEMBER OF THE SUPREME COURT MUST BE AT LEAST FORTY YEARS OF AGE, AND MUST HAVE BEEN FOR FIFTEEN YEARS OR MORE A JUDGE OF A LOWER COURT OR ENGAGED IN THE PRACTICE OF LAW IN THE PHILIPPINES. (2) THE CONGRESS SHALL PRESCRIBE THE QUALIFICATIONS OF JUDGES OF LOWER COURTS, BUT NO PERSON MAY BE APPOINTED JUDGE THEREOF UNLESS HE IS A CITIZEN OF THE PHILIPPINES AND A MEMBER OF THE PHILIPPINE BAR. Probity SC the quality of having strong moral (3) A MEMBER OF THE JUDICIARY MUST BE A PERSON OF PROVEN principles; honesty and decency: - natural born - 40yrs old COMPETENCE, INTEGRITY, PROBITY, AND INDEPENDENCE. financial probity. - 15 judge/ practice ( in phils ) Lower Courts - citizen - member of bar - other prescribed by law Q. What are the qualifications of a Member of the Supreme Court? A. He or she (1) must be a natural-born citizen of the Philippines, (2) must be at least forty years of age, (3) must have been for fifteen years or more a judge of a lower court or engaged in the practice of law in the Philippines, and (4) a person of proven competence, integrity, probity, and independence. 354 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 Q. What are the qualifications of a Member of a lower collegiate court? A. He or she must be (1) a natural-born citizen of the Philippines, (2) a member of the Philippine Bar, (3) possessing the other qualifications prescribed by Congress, and (4) must be a person of proven competence, integrity, probity, and independence. Q. What are the qualifications of judges of non-collegiate lower courts? A. They must be (1) citizens of the Philippines, (2) members of the Philippine Bar, (3) possessing the other qualifications prescribed by Congress, and (4) persons of proven competence, integrity, probity, and independence. Q. May Congress alter the qualifications of Members of the Judiciary? A. Congress may not alter the qualifications of Members of the Supreme Court and the constitutional qualifications of other members of the Judiciary. But Congress may alter the statutory qualifications of judges and justices of lower courts. NOTE: It behooves every prospective appointee to the judiciary to apprise the appointing authority of every matter bearing on his fitness for judicial office, including such circumstances as may reflect on his integrity and probity. Thus the fact that a prospective judge failed to disclose that he had been adIf your a prospective ministratively charged and dismissed from the service for grave judge you have to misconduct by a former President of the Philippines was used disclose all relevant data against him. It did not matter that he had resigned from office and that the administrative case against him had become moot and academic. In re JBC v. Judge Quitain, JBC No. 013, August 22,2007. Similarly, before one who is offered an appointment to the Supreme Court can accept it, he must correct the entry in his SC req says NATURAL born. If your birth certificate saying that he is an alien. Kilosbayan u. Ermita, birth cirtificate says otherwise you have G.R. No. 177721, July 3, 2007. This was the case of Justice to correct it through court proceeding.Gregory Ong of the Sandiganbayan who was being promoted to the Supreme Court. (Ong, however, remains in the Sandiganbayan.) Quo warranto Q. How may the right of a judge to hold his position be contested? A. A quo warranto proceeding is the proper legal remedy to determine the right or title to the contested public office and Sees. 3-4 JBC - created under supervision of SC - regular : recieve emolluments - provided by SC - submit annual budget FUNCTION - recommend apointees to judiciary - OTHER as given by SC Composed EX- officio - CJ : ex officio chair - sec justice - rep of congress Regular ( 4 years ) ( CA approval ) - rep integrated bar ( 4 ) - law prof ( 3 ) - retired justice ( 2 ) - private sector ( 1 ) Secretary - clerk of SC - ex officio capacity ART. VIII - THE JUDICIAL DEPARTMENT 355 to oust the holder from its enjoyment. It is brought against the person who is alleged to have usurped, intruded into, or unlawfully held or exercised the public office, and may be commenced by the Solicitor General or a public prosecutor, as the case may be, or by any person claiming to be entitled to the public office or position usurped or unlawfully held or exercised by another. A private person suing must show a clear right to the contested office. Topacio v. Ong, G.R. No. 179895, December 15,2008. SEC. 8. (1) A JUDICIAL AND BAR COUNCIL IS HEREBY CREATED UNDER THE SUPERVISION OF THE SUPREME COURT COMPOSED OF THE CHIEF JUSTICE AS EX-OFFICIO CHAIRMAN, THE SECRETARY OF JUSTICE, AND A REPRESENTATIVE OF THE CONGRESS AS EX-OFFICIO MEMBERS, A REPRESENTATIVE OF THE INTEGRATED BAR, A PROFESSOR OF LAW, A RETIRED MEMBER OF THE SUPREME COURT, AND A REPRESENTATIVE OF THE PRIVATE SECTOR. (2) THE REGULAR MEMBERS OF THE COUNCIL SHALL BE APPOINTED BY THE PRESIDENT FOR A TERM OF FOUR YEARS WITH THE CONSENT OF THE COMMISSION ON APPOINTMENTS. OF THE MEMBERS FIRST APPOINTED, THE REPRESENTATIVE OF THE INTEGRATED BAR SHALL SERVE FOR FOUR YEARS, THE PROFESSOR OF LAW FOR THREE YEARS, THE RETIRED JUSTICE FOR TWO YEARS, AND THE REPRESENTATIVE OF THE PRIVATE SECTOR FOR ONE YEAR. (3) THE CLERK OF THE SUPREME COURT SHALL BE THE SECRETARY EX-OFFICIO OF THE COUNCIL AND SHALL KEEP A RECORD OF ITS PROCEEDINGS. (4) THE REGULAR MEMBERS OF THE COUNCIL SHALL RECEIVE SUCH EMOLUMENTS AS MAY BE DETERMINED BY THE SUPREME COURT. THE SUPREME COURT SHALL PROVIDE IN ITS ANNUAL BUDGET THE APPROPRIATIONS FOR THE COUNCIL. (5) THE COUNCIL SHALL HAVE THE PRINCIPAL FUNCTION OF RECOMMENDING APPOINTEES TO THE JUDICIARY. IT MAY EXERCISE SUCH OTHER FUNCTIONS AND DUTIES AS THE SUPREME COURT MAY ASSIGN TO IT. Q. Does the representative of Congress come from the House or from the Senate? A. From either. This provision was formulated for a unicameral Congress and no change was made when the final decision was for a bicameral Congress. In practice, the two houses now work out a way of sharing representation. How Judges Appointed - JBC recommends nominees ( at least 3 ) - president PICKS - for lower courts : in 90 days - NO need for confirmation 356 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 12-13 SEC. 9. THE MEMBERS OF THE SUPREME COURT AND JUDGES OF LOWER COURTS SHALL BE APPOINTED BY THE PRESIDENT FROM A LIST OF AT LEAST THREE NOMINEES PREPARED BY THE JUDICIAL AND BAR COUNCIL FOR EVERY VACANCY. SUCH APPOINTMENTS NEED NO CONFIRMATION. FOR THE LOWER COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENTS WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST. Q. What is the principal function of the Judicial and Bar Council? A. "The Council shall have the principal function of recommending appointees to the Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it." Q. What is the composition of the Judicial and Bar Council? A. The Judicial and Bar Council shall be composed of ex officio members and regular members. The ex-offieio members are the Chief Justice as ex-offieio Chairman, the Secretary of Justice, and a representative of the Congress. The regular members are a representative of the Integrated Bar, a professor of law, a retired member of the Supreme Court, and a representative of the private sector. Q. How are the regular members appointed? A. They are appointed by the President with the consent of the Commission on Appointments. Q. What is the rationale behind the creation of the Judicial and Bar Council? A. The Council was principally designed to eliminate politics from the appointment of judges and justices. Thus, appointments to the Judiciary do not have to go through a political Commission on Appointments. Q. How are members of the judiciary appointed? A. See Section 9. SEC. 10. THE SALARY OF THE CHIEF JUSTICE AND OF THE ASSOCIATE JUSTICES OF THE SUPREME COURT, AND OF JUDGES OF LOWER COURTS SHALL BE FIXED BY LAW. DURING THEIR CONTINUANCE IN OFFICE, THEIR SALARY SHALL NOT BE DECREASED. SALARY - fixed by law - NOT decreaed during continuance - subject to income tax Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 357 Q. Is the salary of justices and judges subject to income tax? A. Although the new Constitution no longer contains the explicit provision in Article XVI, Section 6, of the 1973 Constitution which made the salary of all subject to income tax, it was the clear intention of the Constitutional Commission that the rule would be the same under the new Constitution, contrary to the ruling in Perfecto v. Meer, 85 Phil. 552 (1950) and Endencia v. David, 93 Phil. 696 (1953). When fired ( SC / lower ) - 70 - incapacitated to discharge duties - SC has power to ( lower judges ) - dismiss ( en banc ) - disclipine ( division ? ) NOTE: Although this is not clear from the text of the 1987 Constitution, the clear intent of the Constitutional Commission was to subject the salary of judges and justices to income tax. Nitafan v. Commission of Internal Revenue, 152 SCRA 284 (1987). SEC. 11. THE MEMBERS OF THE SUPREME COURT AND JUDGES OF LOWER COURTS SHALL HOLD OFFICE DURING GOOD BEHAVIOR UNTIL THEY REACH THE AGE OF SEVENTY YEARS OR BECOME INCAPACITATED TO DISCHARGE THE DUTIES OF THEIR OFFICE. THE SUPREME COURT EN BANC SHALL HAVE THE POWER TO DISCIPLINE JUDGES OF LOWER COURTS, OR ORDER THEIR DISMISSAL BY A VOTE OF A MAJORITY OF THE MEMBERS WHO ACTUALLY TOOK PART IN THE DELIBERATIONS ON THE ISSUES IN THE CASE AND VOTED THEREON. Q. Must disciplinary cases be heard by the Supreme Court en banc? A. The text of Section 11 yields the reading that decisions on disciplinary cases must all be arrived at en banc. However, People v. Gacott, Jr., G.R. No. 116049, July 13, 1995, ruled, contrary to the inclusive language of the text, that a decision en barn: is needed only when the penalty to be imposed is dismissal of a judge, disbarment of a lawyer, suspension of either for more than one year, or a fine exceeding 10,000 pesos. In justifying this ruling, Justice Regalado, with the approval of the Court en banc, relied on his recollection of a conversation with former Chief Justice Roberto Concepcion who was the Chairman of the Committee on the Judiciary of the 1986 Constitutional Commission of which Regalado was also a member. Regalado admitted that there were no records to support his recollection. He said, however, that to require more would contravene the desire of the Constitution for a speedy how to remove SC justice? disposition of cases, which is one of the purposes for allowing the Court - impeachment ONLY to rule in divisions. - en banc ONLY - dismissal - disbarment - 1 year suspension - 10k + fine Run for other offices? - nope. Misconduct 358 Abolition of office - ok if done in good faith - not equal removal THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Q. Does abolition of a judicial office violate security of tenure? A. The Supreme Court, in Zandueta v. de la Costa, 66 Phil. 615 (1938) and Ocampo v. Secretary of Justice, 50 O.G. 147 (1955), applied to abolition of courts the principle used relative to the abolition of civil service positions. Abolition of office is valid when done in good faith and not for political or personal reasons. In such a situation, properly and logically speaking there is no removal from office because a removal implies that the office exists after the ouster. Q. Batas Pambansa Big. 129, the Revised Judiciary Act, mandates that justices and judges of inferior courts from the Court of Appeals to municipal courts, except the Sandiganbayan and the Court of Tax Appeals, unless appointed to inferior courts established by such Act, would be considered separated - revised judiciary act from the judiciary upon the completion of the reorganization - reorganized municipal courts all the way to CA provided in the Act as declared by the President. The law is - except sandiganbayan and tax challenged as violative of security of tenure guaranteed in the appeals Constitution, as arbitrary, and as undue delegation of powers to the President. Petitioners, on the other hand, are challenged Challenged : as not possessing standing. Decide. reorganizinf judicial system violation of sec of tenure? - undue delegation to pres - security of tenure - arbitrary A. The Marcos Supreme Court decided this case thus: On the issue of standing, one of the petitioners is a judge and is therefore directly affected by the law; the rest have the standing of taxpayers. Arbitrary ? - no long debates of the Batasan violates sec of tenure? - when done in good faith ok Undue delegation? - complete upon itself - valid standards for president The claim of arbitrariness is belied by the prolonged study and the number of hearings as well as the length of the Batasan debates on the subject (which fill 590 pages of records). On the main issue of security of tenure, it must be said that what the act effects is the abolition of office, not removal of officers. Abolition of office, when done in good faith, does not violate security of tenure. The legislature's authority to abolish courts inferior to the Supreme Court is undeniable. The act is designed to remedy monumental problems in the Judiciary which clearly exist. It is for the legislature to decide what solutions to adopt. On the issue of undue delegation, the Court pointed out that the law was complete in itself and there were clear standards for implementation by the President. Sec. 17 Dissent Sees. 3-4 - EXPRESS grant of security of tenure - IMPLIED power to abolish ( from power to create ) - express should prevail - the spirit was not so much as to reorganize but an instrument for MASS PURGE ART. VIII - THE JUDICIAL DEPARTMENT 359 NOTE: Teehankee dissented on the following grounds: (1) The express guarantee of security of tenure should prevail over the power to abolish merely implied from the power to create courts; (2) The Act achieves something short of abolition and substantial change of the existing system; (3) The spirit that ruled the enactment of the law was not so much a desire for reorganization as such but to use reorganization as an instrument for a mass purge. Q. Does the above decision still hold in view of Section 2 which says: "No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members?" A. The new provision does not affect the principle accepted in the de la Liana case, namely that reorganization by itself need not affect security of tenure. Q. May justices or judges be removed by the President or by impeachment? A. Supreme Court Justices are removable only by impeachment. (Article XI, Section 2) Justices and judges of courts inferior to the Supreme Court are removable only by the Supreme Court sitting en banc. Q. May a judge, while still in the Bench, present himself as a congressional candidate? A. No. Such a behavior constitutes misconduct. Vistan v. Nicolas, A.M. MTJ-87-79, September 13,1991. Q. What is the compulsory retirement age of Members of the Judiciary? A. Seventy years. SEC. 12. THE MEMBERS OF THE SUPREME COURT AND OF OTHER COURTS ESTABLISHED BY LAW SHALL NOT BE DESIGNATED TO ANY AGENCY PERFORMING QUASI-JUDICIAL OR ADMINISTRATIVE FUNCTIONS. Q. Judge Manzano was designated member of the Ilocos Norte Provincial Committee on Justice by the Provincial Governor. The function of the Committee is to receive complaints and make recommendations towards the speedy disposition of cases of detainees, particularly those who are poor. May the Judge accept the designation? 360 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 A. No. The committee performs administrative functions, that is, functions which "involve the regulation and control over the conduct and affairs of individuals for their own welfare and the promulgation of rules and regulations to better carry out the policy of the legislature or such as are devolved upon the administrative agency by the organic law of its existence." In re Judge Manzano, 166 SCRA 246 (1988). SEC. 13. THE CONCLUSIONS OF THE SUPREME COURT IN ANY CASE SUBMITTED TO IT FOR DECISION EN BANC OR IN DIVISION SHALL BE REACHED IN CONSULTATION BEFORE THE CASE IS ASSIGNED TO A MEMBER FOR THE WRITING OF THE OPINION OF THE COURT. A CERTIFICATION TO THIS EFFECT SIGNED BY THE CHIEF JUSTICE SHALL BE ISSUED AND A COPY THEREOF ATTACHED TO THE RECORD OF THE CASE AND SERVED UPON THE PARTIES. ANY MEMBER WHO TOOK NO PART, OR DISSENTED, OR ABSTAINED FROM A DECISION OR RESOLUTION MUST STATE THE REASON THEREFOR. THE SAME REQUIREMENTS SHALL BE OBSERVED BY ALL LOWER COLLEGIATE COURTS. Q. Will not the certification by the Chief Justice that he has assigned the case to a Justice for writing the opinion expose such Justice to pressure? A. No because the certification will not identify the Justice. Q. What is the reason for the required explanation to be given by individual Justices for their non-participation or abstention? A. To encourage participation. Q. What is the purpose of the certification required by Section 13? A. "Its purpose is to ensure the implementation of the constitutional requirement that decisions of the Supreme Court and lower collegiate courts, such as the Court of Appeals, Sandiganbayan and Court of Tax Appeals, are reached after consultation with the members of the court sitting en banc or in division before the case is assigned to a member thereof for decision-writing." Consing v. Court of Appeals, G.R. No. 78272, August 29,1989. Q. What is the effect of absence of certification? A. "The absence, however, of the certification would not necessarily mean that the case submitted for decision had not been reached in consultation before being assigned to one member Sec. 14 ART. VIII - THE JUDICIAL DEPARTMENT 361 for the writing of the opinion of the Court since the regular performance of duty is presumed [Sec. 5(m) of Rule 131, Rules of Court.]. The lack of certification at the end of the decision would only serve as evidence of failure to observe certification requirement and may be basis for holding the official responsible for the omission to account therefor. [See I Record of the Constitutional Commission 460] Such absence of certification would not have the effect of invalidating the decision. Consing v. Court of Appeals, G.R. No. 78272, August 29,1989. SEC. 14. No DECISION SHALL BE RENDERED BY ANY COURT WITHOUT EXPRESSING THEREIN CLEARLY AND DISTINCTLY THE FACTS AND THE LAW ON WHICH IT IS BASED. NO PETITION FOR REVIEW OR MOTION FOR RECONSIDERATION OF A DECISION OF THE COURT SHALL BE REFUSED DUE COURSE OR DENIED WITHOUT STATING THE LEGAL BASIS THEREFOR. Q. What does the rule on "decisions" and "petitions" require? A. "In G.R. No. 76355, Macario Tayamura, et al. v. Intermediate Appellate Court, et al. (May 21, 1987), the Court clarified the constitutional requirement [first paragraph] that a decision must express clearly and distinctly the facts and law on which it is based as referring only to decisions. Resolutions disposing of petitions fall under the constitutional provision [second paragraph] which states that, TSTo petition for review ... shall be refused due course .... without stating the legal basis therefore.' When the Court, after deliberating on a petition and any subsequent pleadings, manifestations, comments, or motions decides to deny due course to the petition and states that the questions raised are factual or no reversible error in the respondent court's decision is shown or for some other legal basis stated in the resolution, there is sufficient compliance with the constitutional requirement. "Minute resolutions need not be signed by the members of the Court who took part in the deliberations of a case nor do they require the certification of the Chief Justice. For to require members of the Court to sign all resolutions issued would not only unduly delay the issuance of its resolutions but a great amount of their time would be spent on functions more properly performed by the Clerk of Court. .." Borromeo v. Court of Appeals, G.R. 82273, June 1,1990. 362 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 Q. The decision simply said: MEMORANDUM DECISION After a careful and thorough perusal, evaluation and study of the records of this case, this Court hereby adopts by reference the findings of fact and conclusions of law contained in the decision of the Metropolitan Trial Court of Makati,. Metro Manila, Branch 63 and finds that there is no cogent reason to disturb the same. WHEREFORE, judgment appealed from is hereby affirmed in toto. Is this sufficient compliance with Article VIII, Section 14? A. The purpose of this requirement is to inform the person reading the decision, and especially the parties, of how it was reached by the court after consideration of the pertinent facts and examination of the applicable laws. There are various reasons for this: (1) to assure the parties that the judge studied the case; (2) to give the losing party opportunity to analyze the decision and possibly appeal or, alternatively, convince the losing party to accept the decision in good grace; (3) to enrich the body of case law, especially if the decision is from the Supreme Court. On the other hand, memorandum decisions can also speed up the judicial process, a desirable thing and a concern of the Constitution itself. The Memorandum in this case was made pursuant to what is allowed by Section 40 of B.P Big. 129. Because of the above considerations the rule that should be followed is that, where a Memorandum decision is used, the decision adopted by reference must be attached to the Memorandum for easy reference. Nonetheless, the Memorandum decision should be sparingly used and used only where the facts as in the main are accepted by both parties and in simple litigations only. However, this ruling is not to be applied retroactively to this case at bar. Francisco v, Permskul, G.R. No. 81006, May 12,1989. Q. The proceedings in a military tribunal terminate with a simple guilty or not guilty verdict. Does this violate the provision that a decision of a court of record "shall clearly and distinctly state the facts and the law on which it is based?" A. No. A military commission is not a court of record within the meaning of this Article. Moreover, the procedure followed in Sec. 14 ART. VIII - THE JUDICIAL DEPARTMENT 363 the case, including the form the judgment takes, was given the seal of approval by the Transitory Provisions of the 1973 Constitution. Fernando, J. in Buscayno v. Enrile, 102 SCRA 7, 19-20 (January 15,1982). Q. If a judge in his decision adopts the report of a Hearing Examiner in a labor case, does he thereby violate Section 14 which requires that every decision of a court shall clearly and distinctly state the facts and the law on which it is based? A. No. Alba Patio de Makati v. Alba Patio de Makati Employees, 128 SCRA 253 (March 16,1984). SEC. 15. (1) ALL CASES OR MATTERS FILED AFTER THE EFFECITVITY OF THIS CONSTITUTION MUST BE DECIDED OR RESOLVED WITHIN TWENTYFOUR MONTHS FROM DATE OF SUBMISSION FOR THE SUPREME COURT, AND, UNLESS REDUCED BY THE SUPREME COURT, TWELVE MONTHS FOR ALL LOWER COLLEGIATE COURTS, AND THREE MONTHS FOR ALL OTHER LOWER COURTS. (2) A CASE OR MATTER SHALL BE DEEMED SUBMITTED FOR DECISION OR RESOLUTION UPON THE FILING OF THE LAST PLEADING, BRIEF, OR MEMORANDUM REQUIRED BY THE RULES OF COURT OR BY THE COURT ITSELF. (3) UPON THE EXPIRATION OF THE CORRESPONDING PERIOD, A CERTIFICATION TO TEDS EFFECT SIGNED BY THE CHIEF JUSTICE OR THE PRESIDING JUDGE SHALL FORTHWITH BE ISSUED AND A COPY THEREOF ATTACHED TO THE RECORD OF THE CASE OR MATTER, AND SERVED UPON THE PARTIES. THE CERTIFICATION SHALL STATE WHY A DECISION OR RESOLUTION HAS NOT BEEN RENDERED OR ISSUED WITHIN SAID PERIOD. (4) DESPITE THE EXPIRATION OF THE APPLICABLE MANDATORY PERIOD, THE COURT, WITHOUT PREJUDICE TO SUCH RESPONSIBILITY AS MAY HAVE BEEN INCURRED IN CONSEQUENCE THEREOF, SHALL DECIDE OR RESOLVE THE CASE OR MATTER SUBMITTED THERETO FOR DETERMINATION, WITHOUT FURTHER DELAY. Q. What rule applies to the Sandiganbayan? A. The three (3) month period for deciding cases, not the twelve (12) month period given to appellate courts, applies to the Sandiganbayan because the Sandiganbayan is a trial court. Re: Problem of Delays before the Sandiganbayan, A.M. No. 00- 8-05-SC, November 28,2001 364 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Q. What effect does the lapse of the reglamentary period have on cases filed after the effectivity of this Constitution? A. The case remains undecided, but the court is enjoined to decide the case or question without further delay. Q. What effect does it have on the Justices or judges concerned? A. It can be a ground for impeachment or other form of disciplinary action if it is found to constitute culpable violation of the Constitution. There is a growing number of cases where the Court has disciplined judges of lower courts for their failure to comply with the prescribed deadlines. The Code of Judicial Conduct requires judges to decide cases and matters pending before them within the period fixed by law...Their failure to do so constitutes gross inefficiency and warrants administrative sanctions... A heavy case load and a poor health may partially excuse such lapses, only if the judges concerned request reasonable extensions...In the present case, however, the respondent made no effort to inform this Court of his reasons for the delay, much less to request any extension... Worse, he signed certifications that all cases and motions pending before him had been attended to within the prescribed period. Court Administrator v. Quinanola, A.M. No. MTJ-991216, October 20, 1999; Edario v. Asdala, A.M. No. RTJ-062007, December 6, 2010. Q. What effect does the lapse of the reglamentary period have on cases filed before the effectivity of this Constitution? A. Answer to this is to be found in Sections 13 and 14 of Article XVIII. Even when there is delay and no decision or resolution is made within the prescribed period, there is no automatic affirmance of the appealed decision. This is different from the rule under Article X, Section 11(2) of the 1973 Constitution which said that, in case of delay, the decision appealed from was deemed affirmed. Sesbrefio v. CA, G.R. No. 161390, April 16,2008. SEC. 16. THE SUPREME COURT SHALL, WITHIN THIRTY DAYS FROM THE OPENING OF EACH REGULAR SESSION OF THE CONGRESS, SUBMIT TO THE PRESIDENT AND THE CONGRESS AN ANNUAL REPORT ON THE OPERATIONS AND ACTIVITIES OF THE JUDICIARY. Sec. 16 ARTICLE IX CONSTITUTIONAL COMMISSIONS A. COMMON PROVISIONS SECTION 1. THE CONSTITUTIONAL COMMISSIONS, WHICH SHALL BE INDEPENDENT, ARE THE CLVIL SERVICE COMMISSION, THE COMMISSION ON ELECTIONS, AND THE COMMISSION ON AUDIT. No other: SEC. 2. No MEMBER OF A CONSTITUTIONAL COMMISSION SHALL, DURING HIS TENURE, HOLD ANY OTHER OFFICE OR EMPLOYMENT. NEITHER SHALL HE ENGAGE IN - office THE PRACTICE OF ANY PROFESSION OR IN THE ACTIVE MANAGEMENT OR CONTROL OF ANY - employment BUSINESS WHICH IN ANY WAY MAY BE AFFECTED BY THE FUNCTIONS OF HIS OFFICE, NOR SHALL - profession - management that affects HE BE FINANCIALLY INTERESTED, DIRECTLY OR INDIRECTLY, IN ANY CONTRACT WITH, OR IN ANY functions FRANCHISE OR PRIVILEGE GRANTED BY THE GOVERNMENT, ANY OF ITS SUBDIVISIONS, AGENCIES, - financial interest with gov contract OR INSTRUMENTALITIES, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS OR THEIR SUBSIDIARIES. Salary SEC. 3. THE SALARY OF THE CHAIRMAN AND THE COMMISSIONERS - fixed by law SHALL BE FIXED BY LAW AND SHALL NOT BE DECREASED DURING THEIR TENURE. - not decreased during tenure SEC. 4. THE CONSTITUTIONAL COMMISSIONS SHALL APPOINT THEIR OFFICIALS AND EMPLOYEES IN ACCORDANCE WITH LAW. Officials Q. There are independent offices specifically authorized by the Constitution to appoint their officials. Does this imply that their appointment will not be subject to Civil Service Law and Rules? A. No. Since all matters pertaining to appointments are within the realm of So : they are subject expertise to the CSC, all laws, rules and regulations it issues on to CSC rules appointments must be complied with. Ombudsman v. Civil service Commission, G.R. No. 159940, February 16,2005. - APPOINT their own - via law 365 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER 366 Fiscal Autonomy RELEASED - automatically - regularly Sees. 5-6 SEC. 5. THE COMMISSION SHALL ENJOY FISCAL AUTONOMY. THEIR APPROVED ANNUAL APPROPRIATIONS SHALL BE AUTOMATICALLY AND REGULARLY RELEASED. Q. Why have these commissions been made constitutional commissions? A. The Civil Service Commission, Commission on Audit, and the Commission on Elections perform key functions in the government. In order to protect their integrity, they have been made constitutional bodies. Q. The Civil Service Commission (petitioner) via the present petition for mandamus seeks to compel the Department of Budget and Management (respondent) to release the balance of its budget for fiscal year 2002. CSC claims that the reason for the withholding was the ano report, no release" policy. Budget Department, however, claims that the failure to release the fund in full is because of shortage of funds. Decide. Cannot be subjectA. to conditions Internal Rules RE - pleadings - practice CANNOT - effect substantive rights - diminish - increase - modify The "no report, no release" policy may not be validly enforced against offices vested with fiscal autonomy. Being "automatic" connotes something mechanical, spontaneous and perfunctory. It means that no condition to fund releases to it may be imposed. Civil Service Commission v. Department of Budget, G.R. No. 158791, July 22,2005. SEC. 6. EACH COMMISSION EN BANC MAY PROMULGATE ITS OWN RULES CONCERNING PLEADINGS AND PRACTICE BEFORE IT OR BEFORE ANY OF ITS OFFICES. SUCH RULES HOWEVER SHALL NOT DIMINISH, INCREASE, OR MODIFY SUBSTANTIVE RIGHTS. Q. May the Supreme Court disapprove internal rules promulgated by the Commissions? SC : - cannot disapprove - except : judicial review A. The Constitutional Commissions are independent bodies. Hence, the power of the Supreme Court over rules issued by quasi-judicial bodies found in Article VIH, Section 5(5) does not apply to them. The Court, however, in appropriate cases, may exercise ^judicial review" over them. What set of rules apply? - use what court ur under Q. In case of conflict between a rule of procedure promulgated by a Commission and a Rule of Court, which prevails? Congress : - cannot review rules A. The rule of the Commission should prevail if the proceeding is before a Commission. But if the proceeding is before a court, Sec. 7 ART. IX - CONSTITUTIONAL COMMISSIONS A. Common Provisions 367 the Rule of Court prevails. Aruelo, Jr. v. Court of Appeals, October 20,1993. Decisions - Majority of ALL - 60 days from filing Appeal - CA - 15 days from reciept - admin code Certiorari Q. May Congress assume power to review rules promulgated by the Commission? A. No. By vesting itself with the powers to approve, review, amend, and revise the Implementing Rules for The Overseas Absentee Voting Act of 2003, Congress went beyond the scope of its constitutional authority. Congress trampled upon the constitutional mandate of independence of the COMELEC. Macalintal v. Comelec, G.R. No. 157013, July 10, 2003. SEC. 7. EACH COMMISSION SHALL DECIDE BY A MAJORITY VOTE OF ALL ITS MEMBERS ANY CASE OR MATTER BROUGHT BEFORE IT WITHIN SIXTY DAYS FROM THE DATE OF ITS SUBMISSION FOR DECISION OR RESOLUTION. A CASE OR MATTER IS DEEMED SUBMITTED FOR DECISION OR RESOLUTION UPON THE FILING OF THE LAST PLEADING, BRIEF, OR MEMORANDUM REQUIRED BY THE RULES OF THE COMMISSION OR BY THE COMMISSION ITSELF. UNLESS OTHERWISE PROVIDED BY THIS CONSTITUTION OR BY LAW, ANY DECISION, ORDER, OR RULING OF EACH COMMISSION MAY BE BROUGHT TO THE SUPREME COURT ON CERTIORARI BY THE AGGRIEVED PARTY WITHIN THIRTY DAYS FROM RECEIPT OF A COPY THEREOF. Q. How must the Commissions arrive at their decisions? - to SC - 30 days from reciept A. Since the Commissions are collegial bodies, the decisions are made by the - no other speedy remedy body and not by individual members of the body. No individual member - needs MR first may make a decision for the Commission. Much less may cases be - ex: imminency ex. decided by subordinates of the Commission. Not even the Commission's Elections coming up legal counsel may make a decision for the Commission. Orocio v. - only decisions of an enbanc Commission on Audit, G.R. No. 75959, August 31, 1992. Bustamante v. - only for grave abuse Commission on Audit, 216 SCRA 134 (1992). - in excercise of quasijudicial/ judicial powers Q. How many votes are needed for the Commission en banc to reach a decision? A. In Cua v. Commission on Elections, 156 SCRA 582 (1987), the Court had ruled that "the three members who voted to affirm the First Division constituted a majority of the five members who deliberated and voted thereon en banc and their decision is also valid under the aforecited constitutional provision." This obviously contradicts Section 7 which says: "Each Commission 368 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 shall decide by a majority vote of nH itft members any case or matter brought before it within sixty days from the date of its submission for decision or resolution." The provision of the Constitution is clear that it should be the majority vote of all its members and not only those who participated and took part in the deliberations. Estrella v. Comelec, G.R. No. 160465, May 27, 2004. Q. Commissioner Guiani, before his retirement from the Comelec, might have signed a draft ponencia in a case. He vacated his office without the final decision or resolution having been promulgated. Does the ponencia have any value? Acheiving effect - signed - promulgated - by SEATING member A. None. Before that resolution or decision is so signed and promulgated, there is no valid resolution or decision to speak of. A final decision or resolution becomes binding only after it is promulgated and not before. Accordingly, one who is no longer a member of the Commission at the time the final decision or resolution is promulgated cannot validly take part in that resolution or decision. Much less could he be the ponente of the resolution or decision. Ambil, Jr. v. Comelec, G.R. No. 143398, October 25,2000. Q. Two Commissioners who participated in the consideration of the case retired before the promulgation of the Comelec decision but after they cast their vote. Four Commissioners were left. (1) Should the votes of the retirees be counted? (2) Is the 3-1 vote of the remaining Commissioners a valid decision en banc. A. (1) No. Their vote should be automatically withdrawn. There is no decision until it is promulgated. (2) The remaining four Commissioners constituted the total membership and constituted a quorum. The vote of 3 is a majority vote of all. Dumayas, Jr. v. Comelec, G.R. Nos. 141952-53, April 20,2001. Q. How are decisions of Commissions reviewed? A. Prior to June 1,1995, decisions could be reviewed only by the Supreme Court by certiorari under Rule 65. Now, however, it is provided (1 June 1995) in Revised Administrative Circular No. 1-95, pursuant to R.A. 7902, that judgments or final orders of quasi-judicial agencies may be appealed to the Court of Appeals within fifteen days from notice thereof. The change is pursuant to Section 7 which says "Unless otherwise provided by this Constitution or by law ..." Mateo v. Court of Appeals, G.R. No. 113219, August 14,1995; Mathay, Jr. v. Commission on Civil Service, G.R. No. 130214, August 9,1999. Sec. 7 ART. IX - CONSTITUTIONAL COMMISSIONS A. Common Provisions 369 Q. When certiorari to the Supreme Court is chosen, what is required? A. Rule 65, §1 says that certiorari may be resorted to when there is no other plain, speedy and adequate remedy. But reconsideration is a speedy and adequate remedy. Hence, a case may be brought to the Supreme Court only after reconsideration. As a consequence, in the case of decisions of the Comelec, only decisions en banc may be brought to the Court by certiorari since Article IX, C, 3 says that motions for reconsideration of decisions shall be decided by the Commission en banc. Reyes v. Regional Trial Court, G.R. No. 108886, May 5,1995. NOTE: In ABS-CBN v. Comelec, 323 SCRA 611, the Supreme Court dispensed with the need for reconsideration since elections were already very close and there was no more time for another speedy remedy. The case was about "exit polls." Moreover, where a division of the Comelec decides a motion for reconsideration in violation of Article IX, C, 3, the division's ruling is a complete nullity and may be brought to the Court on certiorari. Aguilar v. Comelec, G.R. No. 185140, June 30, 2009. Q. What kind of decisions of Constitutional Commissions may be elevated to the Supreme Court through Rule 65? A. Only grave abuse of discretion amounting to lack of or excess of jurisdiction, Reyes v. COA, G.R. No. 125129, March 29, 1999. Moreover, "the "case* or 'matter' referred to by the Constitution that may be brought to the Supreme Court on certiorari under Sec. 7, Art. IX-C are those that relate to the .. . exercise of adjudicatory or quasi-judicial powers." In the case of the Comelec, these must be cases involving 'elective regional, provincial, and city officials.' Garces v. Court of Appeals, G.R. No. 114795, July 17, 1996, 259 SCRA 99, 107; Ambil, Jr. v. Comelec, G.R. No. 143398, October 25, 2000. Q. Does Section 2(2) of Article IX-C (stating that decisions of the Comelec in contests involving elective municipal and barangay officials are final, executory and non-appealable) preclude the right to go to the Supreme Court on certiorari granted by Section 7 of Article IX, A? A. No. Galido v. Comelec, G.R. No. 95346,18 January 1991. 370 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 SC Intervening - with supervisory functions - when elections imminent Other powers - provided by law Composed - 1 chairman -2 commissioners REQS Q. May the Supreme Court intervene in the supervisory function of the COMELEC? A. Yes, but only in those rare instances where the imminence of the elections calls for prompt determination lest the constitutional right of suffrage be rendered futile. Lazatin v. Lingad, 134 SCRA 1 (January 4,1985). SEC. 8. EACH COMMISSION SHALL PERFORM SUCH OTHER FUNCTIONS AS MAY BE PROVIDED BY LAW. B. THE CIVIL SERVICE COMMISSION SECTION 1. (1) THE CIVIL SERVICE SHALL BE ADMINISTERED BY THE CIVIL SERVICE COMMISSION COMPOSED OF A CHAIRMAN AND TWO COMMISSIONERS WHO SHALL BE NATURAL-BORN CITIZENS OF THE PHILIPPINES AND, AT THE TIME OF THEIR APPOINTMENT, AT LEAST THIRTY- FIVE YEARS OF AGE, WITH PROVEN CAPACITY FOR PUBLIC ADMINISTRATION, AND MUST NOT HAVE BEEN CANDIDATES FOR ANY ELECTIVE POSITION IN THE ELECTIONS - natural born - 35 yrs IMMEDIATELY PRECEDING THEIR APPOINTMENT. - capacity for pub admin (2) THE CHAIRMAN AND THE COMMISSIONERS SHALL BE - not candidates of prev election APPOINTED BY THE PRESIDENT WITH THE CONSENT OF THE COMMISSION ON APPOINTMENTS FOR A TERM OF SEVEN YEARS WITHOUT REAPPOINTMENT. OF Appointed THOSE FIRST APPOINTED, THE CHAIRMAN SHALL HOLD OFFICE FOR SEVEN YEARS, A COMMISSIONER FOR FIVE YEARS, AND ANOTHER COMMISSIONER FOR THREE YEARS, WITHOUT REAPPOINTMENT. APPOINTMENT TO ANY VACANCY SHALL BE Term ONLY FOR THE UNEXPIRED TERM OF THE PREDECESSOR. IN NO CASE SHALL ANY MEMBER BE APPOINTED OR DESIGNATED IN A TEMPORARY OR ACTING CAPACITY. Vacancy Q. What is the common starting point for appointees to the Commissions? A. February 2, 1987, the date the 1987 Constitution took effect. This true even if Article XVIII, Section 15 provided for an extension of the tenure of the incumbents when the Constitution took effect. The extension of the tenure did not affect the term. Thus, in reckoning the seven year term, the starting point is always a February 2 even if the appointee actually took office after February 2. Through this rotational system the staggering of the terms is preserved. Gaminde v. Commission on Audit, G.R. No. 140335, December 13, 2000. NOTE: This rule also applies to all three Commissions. Sec. 2 ART. IX - CONSTITUTIONAL COMMISSIONS B. The Civil Service Commission 371 Q. What is the nature of the powers of the Civil Service Commission? A. The Commission is an administrative agency, nothing more. As such, it can only perform powers proper to an administrative agency. It can perform executive powers, quasi-judicial powers, and quasi-legislative or rule-making powers. Q. PD 51 created certain offices and they were promptly filled. After martial law, Mayor Simon of QC also filled them by appointment. In 1990, however, PD 51 was declared never to have been published and therefore was not law. To save the workers therein, the sanggunian passed an ordinance declaring the "personnel" absorbed in the department of public order and safety. But since there were not enough positions, Simon made them contractual employees. When Mathay became Mayor, he also renewed the contracts once but refused to renew them thereafter. The Commission on Civil Service ordered Mathay to take them saying that their reappointment was automatic pursuant to the ordinance. Decide. A. The ordinance was invalid. Ordering the absorption of the personnel is an act of appointment. The city council has no power to appoint. Mathay, Jr. v. Court of Appeals, et al., G.R. No. 124374, December 15,1999. SEC. 2. (1) THE CIVIL SERVICE EMBRACES ALL BRANCHES, SUBDIVISIONS, INSTRUMENTALITIES, AND AGENCIES OF THE GOVERNMENT, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS WITH ORIGINAL CHARTERS. (2) APPOINTMENTS 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. (3) NO OFFICER OR EMPLOYEE OF THE CIVIL SERVICE SHALL BE REMOVED OR SUSPENDED EXCEPT FOR CAUSE PROVIDED BY LAW. (4) NO OFFICER OR EMPLOYEE IN THE CIVIL SERVICE SHALL ENGAGE, DIRECTLY OR INDIRECTLY, IN ANY ELECTIONEERING OR PARTISAN POLITICAL CAMPAIGN. (5) EMPLOYEES. THE RIGHT TO SELF-ORGANIZATION SHALL NOT BE DENIED TO GOVERNMENT 372 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 (6) TEMPORARY EMPLOYEES OF THE GOVERNMENT SHALL BE GIVEN SUCH PROTECTION AS MAY BE PROVIDED BY LAW. Scope of the system Q. What is the scope of the system? A. Section 2(1) says that "The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters." Q. Does the Civil service System cover employees of government owned corporations? A. The Civil Service system under the new Constitution covers only government owned and controlled corporations with original charter. Moreover, even if a case arose under the 1973 Constitution but is to be decided under the 1987 Constitution, the applicable rule is that of the 1987 Constitution. PNOC Energy Development Corporation v. NLRC, 201 SCRA 487 (1991). The moment, however, that a corporation ceases to be government controlled, for instance, if it is privatized, it ceases to fall under the Civil Service. Q. What is the test for determining whether a government owned or controlled corporation is subject to the Civil Service Law? A. The test is the manner of its creation. Corporations created by special charter are subject to the Civil Service, whereas corporations incorporated under the Corporation Law are not. Philippine-National Oil Company-Energy Development Corporation v. Leogardo, G.R. No. 58494, July 5, 1989. Thus too, Tanay Water District, created by P.D. 198, comes under the Civil Service. Tanay Water District v. Gabaton, G.R. No. 63742, April 17,1989. Q. Does the Department of Labor have a role over civil service members? A. Entities under the civil service system are not completely beyond the reach of the Department of Labor or labor laws. When a government entity that is under the Civil Service enters into a contract, e.g., with a security agency or a janitorial agency, it becomes an indirect employer of the security guards or the janitors. In such a situation, under the Labor Code, the Sec. 2 ART. IX - CONSTITUTIONAL COMMISSIONS B. The Civil Service Commission 373 liabilities for wages are joint and solidary with the contractor. The law on wages in the Labor Code specifically provides that "employer" includes any person acting directly or indirectly in the interest of an employer in relation to employees. Philippine Fisheries Development Authority v. NLRC & Odin Security Agency, G.R. No. 94825, September 4,1992. Q. Why have government-owned corporations been placed under the civil service system? A. During the 1971 Constitutional Convention debates, when this provision was first introduced, government-owned corporations came under attack as milking cows of a privileged few enjoying salaries far higher than their counterparts in the various branches of government. It was pointed out that the capital of these corporations belongs to the government and that government money is pumped into them whenever on the brink of disaster and they should therefor come under the strict surveillance of the civil service system. Q. Are Local Water Districts incorporated under P.D. 198 government owned corporations with original charter and therefore under the jurisdiction of the Civil Service? A. Yes, they are. The phrase "government owned or controlled corporations with original charter" means corporations created by special law and not under the Corporation Code of the Philippines. P.D. 198 is a special law. Davao City Water District, et al. v. civil Service Commission, G.R. No. 95237-8, September 13, 1991; Tanjay Water District v. Gabaton, 172 SCRA 253 (1989). Q. Is PAGCOR under the Civil Service? A. Yes, since it was created by P.D. 1869 on July 11, 1983. Philippine Amusement and Gaming Corporation v. Court of Appeals, G.R. No. 93396, September 30,1991. Appointments in the Civil Service Q. What is the significance of the distinction between competitive and non-competitive positions? A. Appointment to a competitive position must be made according to merit and fitness as determined, as far as practicable, by competitive examination. Merit and fitness in appointments to non-competitive positions are not determined by competitive examinations. But merit and fitness are required. 374 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 Q. Is the appointing authority bound by the restrictions of a statutory next-in-rank rule? A. No. One who is next in rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that he and no one else can be appointed. The rule neither guarantees a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. The power to appoint is a matter of discretion. Santiago, Jr. v. Civil Service Commission, G.R. No. 81467, October 27,1989. Q. May the Civil Service Commission disapprove an appointment and require the appointment of another person whom it believes is more qualified for the position? A. No. The appointing authority is given ample discretion in the selection and appointment of qualified persons to vacant positions among those who are qualified. Central Bank v. Civil Service Commission, G.R. No. 80455-56, April 10, 1989. It is well established that the Commission may not substitute its judgment for an executive's appointment of a qualified appointee. It is a different matter, however, when, after having extended an appointment that is immediately accepted, the appointing authority withdraws the same and extends it to someone else. In such a situation the Civil Service is within its authority when it orders the reinstatement of the first appointee. The withdrawal of an appointment already accepted would be tantamount to removal and would violate security of tenure. Aquino v. Civil Service Commission, G.R. No. 92403, April 22,1992. Q. Enumerate and define the classes of non-competitive positions. A. The non-competitive positions are those which by their nature are policy-determining, primarily confidential, or highly technical. Early jurisprudence on this subject established that it is the nature and not just the label of the position which makes it non-competitive. Thus "much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings or betrayals of personal trust on confidential matters of state." De los Santos v. Mallare, 87 Phil. 289, 298 (1950). A policy-determining position is one charged with the duty to "formulate a method of action for the government or any of its subdivisions." Id. A position is highly technical if the Sec. 2 ART. IX - CONSTITUTIONAL COMMISSIONS B. The Civil Service Commission 375 occupant is required "to possess a technical skill or training in the supreme or superior degree." Id. Q. When may a position be considered "primarily confidential?" A. In every case, the ultimate test is the nature of the responsibilities of the position, not the administrative or legislative description that is given to the position; that is, the nature of the office must be such as to require close intimacy between the appointee and appointing authority which insures freedom of intercourse without embarrassment, or freedom from misgiving of betrayal of personal trust on confidential matters of state. Executive pronouncements as to the nature of the office can be no more than initial determination of the nature of the office. Borres v. Court of Appeals, 153 SCRA 120 (1987).) Q. Both the 1935 and 1973 Constitutions textually support the Pifiero, et al. v. Hechanova, et al., 18 SCRA 417 (1966) doctrine that it is the nature of the position which finally determines whether a position is primarily confidential, policy-determining or highly technical. The 1987 Constitution deleted the phrase "in nature." Is the Pifiero doctrine still controlling? A. Yes. Civil Service Commission v. Salas, G.R. No. 123708, June 19,1997,274 SCRA 414. Q. What is the purpose of the 1986 CONCOM in providing for the declaration of a position as policy-determining, primarily confidential or highly technical? A. The primary purpose is "to exempt these categories from competitive examination as a means for determining merit and fitness." This is not meant to exclude them from security of tenure. Civil Service Commission v. Salas, G.R. No. 123708, June 19,1997,274 SCRA 414,426. Q. What is the "proximity rule?" A. "Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state." Civil Service Commission v. Salas, G.R. No. 123708, June 19, 1997, 274 SCRA 414, 427 (quoting De lo8 Santos v. Mallare, et al, 87 Phil. 289 [1950]). 376 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 Q. Is a determination by the President that a position is policy determining, primarily confidential, or highly technical conclusive? A. No. Whether a position is policy determining, primarily confidential, or highly technical is determined by the nature of the functions attached to it. Laurel v. Civil Service Commission, G.R. No. 71562, October 28,1991. Q. Is the position of a provincial attorney and those of his legal subordinates/assistants primarily confidential in nature so that their services can be terminated upon loss of confidence? A. The position of a provincial attorney is primarily confidential (Citing Cadiente v. Santos, 142 SCRA 280 [1986], where the position of city legal officer was held to be primarily confidential). However, the positions of the legal staff are not. Grino v. Civil Service Commission, G.R. No. 91602,26 February 1991. Q. How does the Civil Service Code (P.D. 807) classify positions in the Civil Service? A. The Code provides for two classes of positions: a. Career Servicecharacterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examinations, or based on highly technical qualifications; (2) security of tenure; and (3) opportunity for advancement to higher career positions. b. Non-career Service characterized by (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made. Q. Are the classification above and the classification in Section 2(2) mutually exclusive? A. No. Rather, they overlap and complement each other. The classification in the Code is for purposes of determining tenure. The classification in Section 2(2) is for purposes of determining the manner of testing merit and fitness. NOTE: It is true that there is no constitutional prohibition against the issuance of "mass appointments" by defeated local government officials priorto the expiration oftheir terms. Clearly, Sees. 4-6 ART. IX - CONSTITUTIONAL COMMISSIONS B. The Civil Service Commission 377 this is not the same as a "midnight appointment," proscribed by the Constitution, which refers to those appointments made within two months immediately prior to the next presidential election. But The Commission, as the central personnel agency of the government, has statutory authority to establish rules and regulations to promote efficiency and professionalism in the civil service. Presidential Decree No. 807, or the Civil Service Decree of the Philippines, provides for the powers of the Commission, including the power to issue rules and regulations and to review appointments. Nazareno, et al. v. City ofDumaguete, G.R. No. 181559, October 2, 2009. Security of tenure Q. What is the importance of security of tenure in the system? A. The efficiency of a civil service system depends largely on the morale of the officers and employees in the service. Morale, in turn, can be fatally undermined when the security of officers in the possession of their office is unprotected against the arbitrary action of superior officers. Hence, basic in any civil service is a guarantee of security of tenure, a guarantee against arbitrary impairment, whether total or partial, of the right to continue in the position held. Q. What is the meaning of "for cause provided by law?" A. This is a guarantee of both procedural and substantive due process. Hence, not only must removal or suspension be in accordance with the procedure prescribed by law, but also they can only be made on the basis of a valid cause provided by law. The phrase "for cause" has acquired a well-defined meaning in Philippine jurisprudence: It means for reasons which the law and sound public policy recognize as sufficient for removal, that is, legal cause, and not merely causes which the appointing power in the exercise of discretion may deem sufficient. It is implied that officers may not be removed at the mere will of those vested with the power of removal, or without cause. Moreover, the cause must relate to and effect the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public. De los Santos v. Mallare, 87 Phil, at 293 (1950). Q. Are persons permanently occupying non-competitive positions covered by the guarantee of security of tenure? 378 16 THE 1987 PHILIPPINE CONSTITUTION: Sec. A COMPREHENSIVE REVIEWER A. Yes. The distinction between competitive and non-competitive positions is significant only for purposes of appointment. However, "officials and employees holding primarily confidential positions continue only for so long as confidence in them endures. The termination of their official relation can be justified on the ground of loss of confidence because in that case their cessation from office involves no removal but the expiration of the term of office — two different causes for the termination of official relations recognized in the Law of Public Officers." Hernandez v. Villegas, 14 SCRA 544, 548 (1965). Q. What is the extent of the President's disciplinary authority over presidential appointees who belong to the career service? A. This power is limited. Specifically, Section 36 of P.D. No. 807, as amended, otherwise known as Civil Service Decree of the Philippines, is emphatic that career service officers and employees who enjoy security of tenure may be removed only for any of the causes enumerated in said law. In other words, the fact that petitioner is a presidential appointee does not give the appointing authority the license to remove him at will or at his pleasure for it is an admitted fact that he is likewise a career service officer who under the law is the recipient of tenurial protection, thus, may only be removed for cause and in accordance with procedural due process." Larin vs. Executive Secretary, 280 SCRA 713. Q. Does the transfer of a permanent employee to another permanent position without the consent of the employee violate security of tenure? A. Yes. Gloria v. Court of Appeals, G.R. No. 119903, August 15, 2000. Q. How about a temporary transfer? A. "While a temporary transfer or assignment of personnel is permissible even without the employee's prior consent, it cannot be done when the transfer is a preliminary step toward his removal, or is a scheme to lure him away from his permanent position, or designed to indirectly terminate his service, or force his resignation. Such a transfer would in effect circumvent the provision which safeguards the tenure of office of those who are in the Civil Service Gloria v. Court of Appeals, G.R. No. 119903, August 15,2000. .2 ART. IX - CONSTITUTIONAL COMMISSIONS B. The Civil Service Commission 379 NOTE: A career Civil Service Officer occupying the position of Local Assessment Operations Officer III in the Assessor's Office may not be assigned to serve as security guard. An assignment which involves reduction in rank is invalid ab initio. Hence, failure to report to the new assignment cannot a be a ground for dismissal. He must be reinstated. Yenko and Mayor Estrada v. Gungon, G.R. No. 165450, August 13, 2009. Q. Do appointees to the foreign service who do not belong to the Career Corps enjoy security of tenure like the Career Corp? A. No. Those who are non-career "enter on bases other then those of the usual test of merit and fitness utilized for the career service" and possess "tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited tot he duration of a particular project for which purposes employment was made." Political appointees in the foreign service possess "tenure . . . coterminous with that of the appointing authority or subject to his pleasure." Astraquillo, et al. v. Manglapus, October 3,1990. Q. Binamira was "designated" by the Secretary of Tourism as Manager of the Tourism Authority. The law, however, requires that the Manager be appointed by the President. Did Binamira acquire security of tenure? A. No, because he did not receive a valid appointment. Binamira v. Garrucho, Jr., G.R. No. 92008, July 23,1990. Q. Petitioner was dismissed as notoriously undesirable, pursuant to the summary procedure found in P.D. 6, because he had been convicted of libel by the CFI. Later acquitted by the Court of Appeals, he asked for reinstatement and back wages. He was instead offered reappointment but with no back wages. Decide. A. He is not entitled to back wages. Dismissal was done in good faith in compliance with P.D. 6. Octot v. Ybanez, G.R. No. 48643, January 18,1982. Q. P.D. 807 says: Section 40. Summary Proceedings. No formal investigation is necessary and the respondent may be immediately removed or dismissed if any of the following circumstances is present: a) When the charge is serious and the evidence of guilt is strong. Valid? A. The provision can be saved from invalidation only if it is read to require that (1) the employee is informed of the charges against 380 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 him by furnishing him with a copy of the charges against him; (2) the employee must have a reasonable opportunity to present his side of the matter. GSIS u. Court of Appeals, G.R. No. 86083, September 24, 1991. N.B. Section 40 is no longer found in the law. Q. Can one who does not have qualifications for a position acquire security of tenure therein? A. No, Security of tenure in an office is acquired only by one who has the qualifications for that office. Dimayuga v. Benedicto II, G.R. No. 144153, January 16,2002. Abolition of office Q. Can abolition of office violate security of tenure? A. While abolition of office does not imply removal of the incumbent officer, this is true only where the abolition of office is done in good faith and not merely as a cover for a removal otherwise not allowed by the Constitution. Briones v. Osmeria, 104 Phil. 588, 592 (1958). Thus, for abolition of office to escape the taint of unconstitutionality, it must be made (1) in good faith, (2) not for personal or political reasons, and (3) not in violation of the law. Roque v. Ericta, 53 SCRA 156,162-3 (1973) and cases cited. Q. Petitioners were members of the National Police Commission. They were separated from office by virtue of Republic Act No. 8551 (RA 8551), otherwise known as the "Philippine National Police Reform and Reorganization Act of 1998." They challenge the law as a violation of their security of tenure. Public respondents, however, insist that the express declaration in section 8 of RA 855 that the terms of petitioners' offices are deemed expired discloses the legislative intent to impliedly abolish the NAPOLCOM created under RA 6975 pursuant to a bona fide reorganization. In support of their theory, public respondents cite the various changes introduced by RA 855 in the functions, composition and character of the NAPOLCOM as proof of Congress' intention to abolish the body created under RA 6975 in order to replace it with a new NAPOLCOM which is more civilian in nature, in compliance with the constitutional mandate. Decide. A. It is exceedingly apparent to this Court that RA 8551 effected a reorganization of the PNP, not of the NAPOLCOM. They are two separate and distinct bodies, with one having supervision and control over the other. In fact, it is the NAPOLCOM that is given the duty of submitting a proposed reorganization plan of the PNP to Congress. The basic structure of the NAPOLCOM has been preserved by the amendatory law. There has been no revision in its Sec. 2 ART. IX - CONSTITUTIONAL COMMISSIONS B. The Civil Service Commission 381 lines of control, authority and responsibility, neither has there been a reduction in its membership, nor a consolidation or abolition of the offices constituting the same. Adding the Chief of the PNP as an exofficio member of the Commission does not result in a reorganization. No bona fide reorganization of the NAPOLCOM having been mandated by Congress, RA 8551, insofar as it declares the terms of office of the incumbent as expired must be struck down for being constitutionally infirm. Canonizado, et al. v. Aguirre, G.R. No. 133132, January 25, 2000. NOTE: Abolition of office, even if arising from reorganization mandated by law, must be justified by good faith and public need. Abrogar v. Garrucho, Jr., G.R. No. 95773, August 6,1991; Blaquera v. Civil Service Commission, September 10,1993. Moreover, abolition of an office created by law can only be done also by law. Eugenio v. Civil Service Commission, G.R. No. 115863, March 31,1995. Q. Sec 35 of RA 6715 declared all positions of the Commissioners, Executive Labor Arbiters and Labor Arbiters of the present National Labor Relations Commissions (NLRC) vacant. Petitioners question its constitutionality. Basically FIRED them A. Unconstitutional. "While abolition by law as a result of reorganization is a recognized cause for termination of a Government employee, it is not the same as a declaration that the office is vacant." RA 6715 has effected no express abolition of the positions, neither an implied abolition (i.e., an irreconcilable inconsistency between the nature, duties and functions of the petitioners' offices under the old rules and those of the new law, RA 6715). Mayor v. Hon. Catalino Macaraig, G.R. No. 87211, 5 March 1991. Q. Where a city general hospital is closed for valid reasons but is, a few months later, opened as a maternity and children's hospital in order not to violate the condition of the donation of the land that it be used for the hospital, was there an unlawful abolition of office. A. Good faith is presumed. In the absence of proof of bad faith and considering that the new hospital is not exactly the same as the first and considering likewise the desire to preserve the donated property, there is no unlawful abolition of office. Mama, Jr. v. Court of Appeals, G.R. No. 86517, April 30,1991. Q. The Board of Regents of U.P. effected a reorganization of the Philippine General Hospital transforming it into U.P.-P.G.H. Medical Center. As part of the reorganization, the position of Director of P.G.H. was transformed into Medical Director of U.P.-P.G.H. Medical Center. The incumbent Director of P.G.H. was replaced by a 382 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 Medical Director of U.P.-P.G.H. Medical Center. The functions of the two offices, however, were found to be substantially the same. Was the replacement valid? A. No. It was tantamount to removal without due cause. U.P Board of Regents v. Rasul, G.R. No. 91551, August 16,1991. Q. Does the President have the authority to reorganize the executive department? A. Yes. And this can include deactivation of offices. As far as bureaus, agencies or offices in the executive department are concerned, the President's power of control may justify him to inactivate the functions of a particular office, or certain laws may grant him the broad authority to carry out reorganization measures. Buklod ng Kawaning EIIB v. Executive Secretary, G.R. Nos. 142801-802, July 10,2001. Q. Is an officer who is simply given a "reprimand" exonerated? A. No. A reprimand is a "public and formal censure or severe reproof, administered to a person in fault by his superior officer or a body to which he belongs." Unlike a "warning" (a putting on guard) or an "admonition" (a friendly reproof), a reprimand is an administrative penalty. Tobias v. Veloso, 100 SCRA 177,184 (L-40224, September 23, 1980). Q. Are temporary appointees protected by the guarantee of security of tenure? A. No. They may be removed anytime even without cause. Mendiola v. Tancinco, 52 SCRA 66 (1973) and cases cited. NOTE: The new Constitution now says: "Temporary employees of the Government shall be given such protection as may be provided by law." Obviously the provision is not selfexecutory. Moreover, it was approved in lieu of a proposal to make temporary appointees permanent after the lapse of a certain period of time. Q. Tomas Achacoso, Administrator of POEA, tendered his courtesy resignation in compliance with the request of the President to government officials. His resignation was accepted and his replacement appointed. Achacoso refuses to vacate his office, invoking security of tenure as his position is one in the Career Executive Service. Is he correct? A. No. Achacoso failed to take the Career Service Examination. "The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications." Achacoso v. Macaraig, G.R. No. 93023, March 13,1991. Sec. 2 ART. IX - CONSTITUTIONAL COMMISSIONS B. The Civil Service Commission 383 Q. A permanent appointment is extended. The Civil Service Commission approves it as temporary in the belief that somebody else is better qualified. May the Commission do so? A. No. The sole function of the Commission is to attest to the qualification of the appointee. Luego v. Civil Service Commission, 143 SCRA 327 (August 5,1986). Partisan political activity Q. What is "partisan political campaign?" A. Partisan political activity, which is the phrase used in previous Constitutions, includes "every form of solicitation of the elector's vote in favor or a specific candidate. People v. de Venecia, 14 SCRA 864, 867 (1965). It includes contribution of money for election purposes and distribution of handbills. Id. at 866. However, the provision does not "prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of candidates for public office whom he supports." Section 29, R.A. 2260. This is also the sense under the new Constitution. The prohibition does not apply to department secretaries. A proposal in the 1935 Constitutional Convention to include department secretaries was disapproved. Santos v. Yatco, 106 Phil, xxi (1959). NOTE: As long as the acts embraced under Sec. 79 pertain to or are in connection with the nomination of a candidate by a party or organization, then such are treated as internal matters and cannot be considered as electioneering or partisan political activity. The twin acts of signing and filing a Certificate of Nomination are purely internal processes of the party or organization and are not designed to enable or ensure the victory of the candidate in the elections. The act of Robles of submitting the certificate nominating Velarde and others was merely in compliance with the COMELEC requirements for nomination of party-list representatives and, hence, cannot be treated as electioneering or partisan political activity proscribed under by Sec. 2(4) of Art. IX(B) of the Constitution for civil servants. Seneres v. Comelec, G.R. No. 178678, April 16, 2009. Right to organize Q. May members of the Civil Service unionize? A. There are three provisions which serve as bases for answering the question. The first is Article III, Section 8, which guaran 384 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 3 tees the right of all, "including those employed in the public and private sectors, to form unions . . . The second is the above Section 2(5). And the third is Article XIII, Section 3, which guarantees "the right of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law." From these it is clear that members of the Civil service can unionize. Their right to strike, however, may be limited by law. Q. Do employees of the Social Security System have the right to strike? A. Resort to the intent of the framers points to the understanding that the right to organize does not include the right to strike. Social Security System v. the Court of Appeals, G.R. No. 85279, July 28,1989. (NOTE: The Constitution, however, does not say that government employees may not be given the statutory right to strike. On this point, the SSS case is vague.) Q. Do public school teachers have the right to strike? A. No. Manila Public School Teachers Association v. Secretary ofEducation, G.R. No. 95445, August 6,1991. (The dissenting opinions, however, would anchor their defense of the public school teachers on their right to petition the government for redress of grievances.) (The dissenting opinions, however, would anchor their defense of the public school teachers on their right to petition the government for redress of grievances.) SEC. 3. THE CIVIL SERVICE COMMISSION, AS THE CENTRAL PERSONNEL AGENCY OF THE GOVERNMENT, SHALL ESTABLISH A CAREER SERVICE AND ADOPT MEASURES TO PROMOTE MORALE, EFFICIENCY, INTEGRITY, RESPONSIVENESS, PROGRESSIVENESS, AND COURTESY IN THE CIVIL SERVICE. IT SHALL STRENGTHEN THE MERIT AND REWARDS SYSTEM, INTEGRATE ALL HUMAN RESOURCES DEVELOPMENT PROGRAMS FOR ALL LEVELS AND RANKS, AND INSTITUTIONALIZE A MANAGEMENT CLIMATE CONDUCIVE TO PUBLIC ACCOUNTABILITY. IT SHALL SUBMIT TO THE PRESIDENT AND THE CONGRESS AN ANNUAL REPORT ON ITS PERSONNEL PROGRAMS. Q. What is the purpose of a civil service system? A. The general objective of a civil service system is to establish and promote professionalism and efficiency in public service. This too is the object of the Civil Service system under the Constitution. V Sees. 4-6 ART. IX - CONSTITUTIONAL COMMISSIONS B. The Civil Service Commission 385 Q. When there is more than one person qualified for a position, may the Civil Service Commission dictate to the appointing authority who among those qualified should be appointed? A. No. The power of the Commission is limited to attesting to the eligibility or ineligibility of the appointee. Secretary Orbos v. Civil Service Commission, G.R. No. 92561, September 12,1990; Chang v. Civil Service Commission, G.R. No. 86791, November 26,1990. Q. May the Commission revoke a certificate of eligibility? A. As central personnel agency of the government, the Civil Service Commission may revoke a certificate of eligibility motu propria. The power to issue a certificate of eligibility carries with it the power to revoke one that has been given. Whether or not hearing is required for revocation depends on the circumstances of a case. Thus, where the case "simply involves the rechecking of examination papers and nothing more than a re-evaluation of documents already in the records of the CSC according to a standard answer key previously set by it, notice and hearing is not required. Instead, what [would apply in such a case is] the rule of res ipsa loquiturLazo v. Civil Service Commission, 236 SCRA 469,472 (1994). Q. What jurisdiction does the Civil Service Commission have over personnel cases given by statute to the jurisdiction of the Merit Systems Board? A. It has only automatic review jurisdiction, not original jurisdiction. GSIS v. Civil Service Commission, G.R. No. 87146, December 11,1991. SEC. 4. ALL PUBLIC OFFICERS AND EMPLOYEES SHALL TAKE AN OATH OR AFFIRMATION TO UPHOLD AND DEFEND THIS CONSTITUTION. SEC. 5. THE CONGRESS SHALL PROVIDE FOR THE STANDARDIZATION OF COMPENSATION OF GOVERNMENT OFFICIALS AND EMPLOYEES, INCLUDING THOSE IN GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS WITH ORIGINAL CHARTERS, TAKING INTO ACCOUNT THE NATURE OF THE RESPONSIBILITIES PERTAINING TO, AND THE QUALIFICATIONS REQUIRED FOR THEIR POSITIONS. SEC. 6. No CANDIDATE WHO HAS LOST IN ANY ELECTION SHALL, WITHIN ONE YEAR AFTER SUCH ELECTION, BE APPOINTED TO ANY OFFICE IN THE GOVERNMENT OR ANY GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS OR IN ANY OF ITS SUBSIDIARIES. 386 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 Q. What is the purpose the prohibition of appointment of "lame- ducks" in Section 6. A. Its purpose is the extirpation of the "spoils system." One who is under the one year prohibition imposed on losing candidates is disqualified from being appointed during that one year period even if he or she has the other qualifications. Legal disqualification in Article 244 of the Revised Penal Code simply means disqualification under the law. Clearly, Section 6, Article IX of the 1987 Constitution and Section 94(b) of the Local Government Code of 1991 prohibits losing candidates within one year after such election to be appointed to any office in the government or any government-owned or controlled corporations or in any of their subsidiaries. People v. Sandiganbayan, G.R. No. 164185, July 23, 2008. SEC. 7. No ELECTIVE OFFICIAL SHALL BE ELIGIBLE FOR APPOINTMENT OR DESIGNATION IN ANY CAPACITY TO ANY PUBLIC OFFICE OR POSITION DURING HIS TENURE. EX- officio UNLESS OTHERWISE ALLOWED BY LAW OR BY THE PRIMARY FUNCTIONS OF HIS POSITION, NO APPOINTIVE OFFICIAL SHALL HOLD ANY OTHER OFFICE OR EMPLOYMENT IN THE GOVERNMENT OR ANY SUBDIVISION, AGENCY OR INSTRUMENTALITY THEREOF, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS OR THEIR SUBSIDIARIES. Q. Are there exceptions to the rule against appointment of elective officials? A. Yes. The Vice-President may be appointed member of the Cabinet. A Member of Congress is designated to sit in the Judicial and Bar Council. Q. May Congress by law authorize the appointment of elective officials? A. No. The first paragraph of Section 7 governs elective officials. Unlike the provision for members of Congress in Article VI, Section 13, which does not prohibit acceptance of an appointment but merely causes the forfeiture of the congressional seat if the holder accepts an appointment, the present provision prohibits elective officials other than members of Congress from accepting appointment during their tenure. If the elective official accepts an appointment without first resigning his Sees. 4-6 ART. IX - CONSTITUTIONAL COMMISSIONS B. The Civil Service Commission 387 elective position, the appointment is invalid. Neither, however, does he thereby forfeit his elective seat. This was the Court's ruling in Flores, et al. v. Drilon and Gordon, G.R. No. 104732, June 22, 1993. Moreover, unlike in the case of appointive officers in the following paragraph, Congress may not create an exception to this rule. Q. Is the above rule on appointive officials applicable to members of the Cabinet? A. No. For them, the applicable rule is the stricter prohibition in Article VII, Section 13. SEC. 8. No ELECTIVE OR APPOINTIVE PUBLIC OFFICER OR EMPLOYEE SHALL RECEIVE ADDITIONAL, DOUBLE, OR INDIRECT COMPENSATION, UNLESS SPECIFICALLY AUTHORIZED BY LAW, NOR ACCEPT WITHOUT THE CONSENT OF THE CONGRESS, ANY PRESENT, EMOLUMENT, OFFICE, OR TITLE OF ANY KIND FROM ANY FOREIGN GOVERNMENT. PENSIONS OR GRATUITIES SHALL NOT BE CONSIDERED AS ADDITIONAL, DOUBLE, OR INDIRECT COMPENSATION. Q. What is the purpose of the prohibition of additional or double compensation? A. Peralta v. Mathay, 38 SCRA 256,258 (1967), expressed it thus: This is to manifest a commitment to the fundamental principle that a public office is a public trust. It is expected of a government official or employee that he keeps uppermost in mind the demands of public welfare. He is there to render public service. He is of course entitled to be rewarded for the performance of the functions entrusted to him, but that should not be the overriding consideration. Q. What is "additional or double compensation?" A. While the terms "additional" and "double" compensation are used interchangeably, it is, perhaps, best to draw a distinction between the two. There is additional compensation when for one and the same office for which a compensation has been fixed there is added to such fixed compensation an extra reward in the form, for instance, of a bonus. This is not allowed in the absence of a law specifically authorizing such extra reward. Thus, where an officer's pay provided by law was a fixed per diem, the Supreme Court disallowed additional compensation 388 16 THE 1987 PHILIPPINE CONSTITUTION: Sec. A COMPREHENSIVE REVIEWER in the form of cost of living allowances as well as incentive and Christmas bonuses. Peralta v. Mat hay, 38 SCRA 256, 258 (1967). The Court, however, was careful to point out that when a per diem or an allowance is given as reimbursement for expenses incident to the discharge of an officer's duties, it is not an additional compensation prohibited by the Constitution. Id. at 260-262. Double compensation more properly refers to two sets ofBecause usually these are ex-officio compensation for two different offices held concurrently by one officer.capacity offices. And the salary for In the instances when holding a second office is allowed, when anthe position is already caluculated officer accepts a second office, he can draw the salary attached to suchto compensate him for the MAIN second office only when he is specifically authorized by law to receiveoffice including all ex officio offices.. double compensation. See Quimson v. Ozaeta, 98 Phil. 705 (1956). Q. What is the meaning of the phrase "specifically authorized by law?" A. Sadueste v. Municipality of Surigao, 72 Phil. 485 (1941), explained it thus: The authority required by the Constitution to receive double or additional compensation is a specific authority given to a particular employee or officer of the Government because of peculiar or exceptional reasons warranting the payment of extra or additional compensation. The above interpretation of the constitutional provision seems to be too strict. It seems in effect to require a special law for every instance of additional or double compensation. An obiter dictum in the later case of Quimson v. Ozaeta, 98 Phil 705 (1956), approves of a more liberal and perhaps administratively more rational approach. The Court said: According to law, under certain circumstances, the President may authorize double compensation in some cases, such as government officials acting as members with compensation in government examining boards like the bar examinations, or department secretaries acting as members of Board of Directors of government corporations, and in such cases the prohibition against double compensation is not observed. If the President approves the double compensation, well and good. The appointee whose appointment may then be regarded as valid from the beginning could receive extra compensation. If it is disapproved, Sec. 4 ART. IX - CONSTITUTIONAL COMMISSIONS C. The Commission on Elections 389 then the appointment will have to be withdrawn or cancelled, unless of course, the appointee was willing to serve without compensation, in which case there could be no valid objection. Id. at 709-710. Q. Upon optional retirement from the judiciary on 1 April 1992, Santos was fully paid of his retirement gratuity under R.A. No. 910, as amended. For five years thereafter he has been receiving a monthly pension. Thereafter he was appointed Director III of the defunct MMA as Director III thereof. (1) Can he continue to receive his pension while receiving salary as Director? (2) Upon separation from the MMA, can his separation pay under R.A. 7294 include his years of service in the judiciary? A. (1) Yes. The second paragraph of Section 8 means that a retiree receiving pension or gratuity can continue to receive such pension or gratuity even if he accepts another government position to which another compensation is attached. (2) No. That would be double compensation for the same service in the judiciary for which he has already been paid. Section 11 of R.A. No. 7924 does not specifically authorize payment of additional compensation for years of government service outside of the MMA. Santos v. Court of Appeals, G.R. No. 139792, November 22, 2000. NOTES: Bonuses given to one whose compensation under the law is merely a per diem violates the rule against additional compensation. Cabili v. CSC, G.R. No. 156503, June 22, 2006. When a law says that money generated by a school may be used for "other programs/projects of the university or college," such a law is not authorization for giving additional or double compensation. Benguet State U u. Colting, G.R. No. 169637, June 8,2007. Absent clear and unequivocal statutory authority, the grant of both separation pay and retirement benefits violates the constitutional proscription on additional compensation. Herrera, et al. v. NPC, G.R. No. 166570, December 18,2009. C. THE COMMISSION ON ELECTIONS SECTION 1. (1) THERE SHALL BE A COMMISSION ON ELECTIONS COMPOSED OF A CHAIRMAN AND SIX COMMISSIONERS WHO SHALL BE NATURAL-BORN CITIZENS OF THE PHILIPPINES AND, AT THE TIME OF 390 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 THEIR APPOINTMENT, AT LEAST THIRTY-FIVE YEARS OF AGE, HOLDERS OF A COLLEGE DEGREE, AND MUST NOT HAVE BEEN CANDIDATES FOR ANY ELECTIVE POSITION IN THE IMMEDIATELY PRECEDING ELECTIONS. HOWEVER, A MAJORITY THEREOF, INCLUDING THE CHAIRMAN, SHALL BE MEMBERS OF THE PHILIPPINE BAR WHO HAVE BEEN ENGAGED IN THE PRACTICE OF LAW FOR AT LEAST TEN YEARS. (2) THE CHAIRMAN AND THE COMMISSIONERS SHALL BE APPOINTED BY THE PRESIDENT WITH THE CONSENT OF THE COMMISSION ON APPOINTMENTS FOR A TERM OF SEVEN YEARS WITHOUT REAPPOINTMENT. OF THOSE FIRST APPOINTED, THREE MEMBERS SHALL HOLD OFFICE FOR SEVEN YEARS, TWO MEMBERS FOR FIVE YEARS, AND THE LAST MEMBERS FOR THREE YEARS, WITHOUT REAPPOINTMENT. APPOINTMENT TO ANY VACANCY SHALL BE ONLY FOR THE UNEXPIRED TERM OF THE PREDECESSOR. IN NO CASE SHALL ANY MEMBER BE APPOINTED OR DESIGNATED IN A TEMPORARY OR ACTING CAPACITY. Q. What is the common starting point for appointees to the Commission? A. February 2, 1987, the day the new Constitution took effect. Thus, in reckoning the seven year term, counting must always start from a February 2 even if the appointee took office later. This way the staggering of the terms is preserved. Q. For purposes of this provision, what does "engaged in the practice of law" mean? A. It means to engage in "any activity, or out of court, which requires the application of law, legal procedure, knowledge, training and experience." Cayetano v. Monsod, G.R. No. 100113, September 3, 1991. (This is a broad definition of practice of law. Moreover, in the instant case, Monsod had been confirmed by the Commission on Appointments and the argument was used that there was no abuse of discretion in the confirmation. See also dissents.) Q. In the absence of a Chairman of the COMELEC, the President designated Commissioner Yorac Acting Chairman. Valid? A. No. Article IX, C, Section 1(2) prohibits the appointment of Members in a temporary or acting capacity. Moreover, Article XI, A, Section 1, provides for the independence of the Commissions. The choice of a temporary chairman falls under the discretion of the Commission and cannot be exercised for Sec. 4 ART. IX - CONSTITUTIONAL COMMISSIONS C. The Commission on Elections 391 it by the President. Brillantes, Jr. v. Yorac, G.R. No. 93867, December 18,1990. SEC. 2. THE COMMISSION ON ELECTIONS SHALL EXERCISE THE FOLLOWING POWERS AND FUNCTIONS: (1) ENFORCE AND ADMINISTER ALL LAWS AND REGULATIONS RELATIVE TO THE CONDUCT OF AN ELECTION, PLEBISCITE, INITIATIVE, REFERENDUM, AND RECALL. (2) EXERCISE EXCLUSIVE ORIGINAL JURISDICTION OVER ALL CONTESTS RELATING TO THE ELECTIONS, RETURNS, AND QUALIFICATIONS OF ALL ELECTIVE REGIONAL, PROVINCIAL, AND CITY OFFICIALS, AND APPELLATE JURISDICTION OVER ALL CONTESTS INVOLVING ELECTIVE MUNICIPAL OFFICIALS DECIDED BY TRIAL COURTS OF GENERAL JURISDICTION, OR INVOLVING ELECTIVE BARANGAY OFFICIALS DECIDED BY TRIAL COURTS OF LIMITED JURISDICTION. DECISIONS, FINAL ORDERS, OR RULINGS OF THE COMMISSION ON ELECTION CONTESTS INVOLVING ELECTIVE MUNICIPAL AND BARANGAY OFFICES SHALL BE FINAL, EXECUTORY, AND NOT APPEALABLE. (3) DECIDE, EXCEPT THOSE INVOLVING THE RIGHT TO VOTE, ALL QUESTIONS AFFECTING ELECTIONS, INCLUDING DETERMINATION OF THE NUMBER AND LOCATION OF POLLING PLACES, APPOINTMENT OF ELECTION OFFICIALS AND INSPECTORS, AND REGISTRATION OF VOTERS. (4) DEPUTIZE, WITH THE CONCURRENCE OF THE PRESIDENT, LAW ENFORCEMENT AGENCIES AND INSTRUMENTALITIES OF THE GOVERNMENT, INCLUDING THE ARMED FORCES OF THE PHILIPPINES, FOR THE EXCLUSIVE PURPOSE OF ENSURING FREE, ORDERLY, HONEST, PEACEFUL, AND CREDIBLE ELECTIONS. (5) REGISTER, AFTER SUFFICIENT PUBLICATION, POLITICAL PARTIES, ORGANIZATIONS, OR COALITIONS WHICH, IN ADDITION TO OTHER REQUIREMENTS, MUST PRESENT THEIR PLATFORM OR PROGRAM OF GOVERNMENT; AND ACCREDIT CITIZENS' ARMS OF THE COMMISSION ON ELECTIONS. RELIGIOUS DENOMINATIONS AND SECTS SHALL NOT BE REGISTERED. THOSE WHICH SEEK TO ACHIEVE THEIR GOALS THROUGH VIOLENCE OR UNLAWFUL MEANS, OR REFUSE TO UPHOLD AND ADHERE TO THIS CONSTITUTION, OR WHICH ARE SUPPORTED BY ANY FOREIGN GOVERNMENT SHALL LIKEWISE BE REFUSED REGISTRATION. FINANCIAL CONTRIBUTIONS FROM FOREIGN GOVERNMENTS AND THEIR AGENCIES TO POLITICAL PARTIES, ORGANIZATIONS, COALITIONS, OR CANDIDATES RELATED TO ELECTIONS CONSTITUTE INTERFERENCE IN NA 392 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 TIONAL AFFAIRS, AND, WHEN ACCEPTED, SHALL BE AN ADDITIONAL GROUND FOR THE CANCELLATION OF THEIR REGISTRATION WITH THE COMMISSION, IN ADDITION TO OTHER PENALTIES THAT MAY BE PRESCRIBED BY LAW. (6) FILE, UPON A VERIFIED COMPLAINT, OR ON ITS OWN INITIATIVE, PETITIONS IN COURT FOR INCLUSION OR EXCLUSION OF VOTERS; INVESTIGATE AND, WHERE APPROPRIATE, PROSECUTE CASES OF VIOLATIONS OF ELECTION LAWS, INCLUDING ACTS OR OMISSIONS CONSTITUTING ELECTION FRAUDS, OFFENSES, AND MALPRACTICES. (7) RECOMMEND TO THE CONGRESS EFFECTIVE MEASURES TO MINIMIZE ELECTION SPENDING, INCLUDING LIMITATION OF PLACES WHERE PROPAGANDA MATERIALS SHALL BE POSTED, AND TO PREVENT AND PENALIZE ALL FORMS OF ELECTION FRAUDS, OFFENSES, MALPRACTICES, AND NUISANCE CANDIDACIES. (8) RECOMMEND TO THE PRESIDENT THE REMOVAL OF ANY OFFICER OR EMPLOYEE IT HAS DEPUTIZED, OR THE IMPOSITION OF ANY OTHER DISCIPLINARY ACTION, FOR VIOLATION OR DISREGARD OF, OR DISOBEDIENCE TO ITS DIRECTIVE, ORDER, OR DECISION. (9) SUBMIT TO THE PRESIDENT AND THE CONGRESS A COMPREHENSIVE REPORT ON THE CONDUCT OF EACH ELECTION, PLEBISCITE, INITIATIVE, REFERENDUM, OR RECALL. Q. What is the nature of the powers of the Commission on Elections? A. Like the Civil Service Commission, the Commission on Elections is an administrative agency. As such, therefore, the powers it possesses are executive, quasi-judicial, and quasi- legislative. By exception, however, it has been given judicial power as judge with exclusive original jurisdiction over "all contests relating to the election, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction." NOTE: The 1973 Constitution used the unique wording that the COMELEC shall "be the sole judge of all contests," thus giving the appearance that judicial power had been conferred. This phraseology, however, was changed in the 1987 Constitution to give the COMELEC "exclusive jurisdiction over all contests," Sec. 4 ART. IX - CONSTITUTIONAL COMMISSIONS C. The Commission on Elections 393 thus removing any vestige of exercising its adjudicatory power as a court and correctly aligning it with what it is — a quasi-judicial body. Consistent with the characterization of its adjudicatory power as quasi-judicial, the judicial review of COMELEC en banc decisions (together with the review of Civil Service Commission decisions) is via the prerogative writ of certiorari, not through an appeal, as the traditional mode of review of quasi-judicial decisions of administrative tribunals in the exercise the Court's supervisory authority. This means that the Court will not supplant the decision of the COMELEC as a quasi-judicial body .except where a grave abuse of discretion or any other jurisdictional error exists. The appropriate due process standards that apply to the COMELEC, as an administrative or quasi-judicial tribunal, are those outlined in the seminal case of Ang Tibay v. Court of Industrial Relations; Mendoza v. Comelec, G.R. No. 188308, October 15, 2009. Q. Does the Comelec have jurisdiction to issue writs of certiorari, mandamus, quo warranto or habeas corpus? A. Yes it does, but only in aid of its appellate jurisdiction over election protest cases involving elective municipal officials decided by courts of general jurisdiction, as provided for in Article IX (C), Section 2 of the 1987 Constitution: This point was settled in the case of Relampagos vs. Cumba. This means is that its jurisdiction is concurrent with that of the Supreme Court under Article VIII, Section 5(1). Carlos v. Judge Angeles, G.R. No. 142907, November 29,2000. Q. Summarize the development of jurisprudence on the powers of the Commission on Elections. A. The developments since Nacionalista Party v. Comelec, 85 Phil. 149 (1949) until 1965 was summed up by Ututalan v. Comelec, 15 SCRA 465,469 (1965) by saying that the "functions of the Commission under the Constitution are essentially executive ('enforcement') and administrative ('administration') in nature!" Abes v. Commission on Elections, L-28348, December 15,1967, could say that there "has been neither deviation nor retreat" from this doctrine. Subsequent decisions, however, showed that the characterization of the Comelec's power by the Nacionalista Party case as being "preventive only and not curative also" was, perhaps, less than accurate. The Supreme Court, in acknowledging the broad sweep of the Comelec's constitutional power to insure free, orderly, and honest elections, recognized in the Commission a power which already partook of the "curative" power to nullify improperly made canvass. Thus, a divided Court in Lagumbay v. Comelec, 16 SCRA 175 (1966), 394 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 upheld the Commission's authority to exclude what the Court characterized as statistically improbable returns. In Antonio, Jr. v. Comelec, 32 SCRA 319 (1970), the Court upheld the power of the Comelec to exclude returns which were the product of coercion even if they be clean on their face. Finally, Usman v. Commission on Elections, 42 SCRA 667 (1971) upheld the authority of the Comelec to entertain the testimony of handwriting experts as proof of the falsity of the returns. At the core of most of these cases, and other similar cases, was the problem of determining where the jurisdiction of the Commissipn ended and where the authority of the Electoral Tribunals and the courts began. Under the 1973 Constitution, this aspect of the problem largely disappeared because aside from its administrative power of deciding all cases relative to the conduct of election, the Commission then was given thejudicial power of being "the sole judge of all contests relating to the elections, returns, and qualifications of all members of the Batasang Pambansa and elective provincial and city officials." Article XII, C, Section 2(2), 1973 Constitution. The problem of conflict of jurisdiction could then arise only in the election of municipal and other minor elective officials. This problem will continue under the new Constitution because the Commission on Elections continues to have original jurisdiction over election contests involving regional, provincial, and city officials, and appellate jurisdiction over municipal and barangay officials. Moreover, with the return of jurisdiction over election contests involving members of Congress to the Electoral Tribunals, the problems under the 1935 Constitution will also return. Q. Does the Comelec have jurisdiction over plebiscites? A. Yes. The case at bar involves the determination of whether the electorate of Taguig voted in favor of, or against the conversion of the municipality of Taguig into a highly urbanized city in the plebiscite conducted for the purpose. This is within the jurisdiction of the Comelec and not of regular courts. The case at bar assailing the regularity of the conduct of the Taguig plebiscite does not fit the kind of a case calling for the exercise of judicial power. It does not involve the Violation of any legally demandable right and its enforcement. There is no plaintiff or defendant m the case at bar for it merely involves the ascertainment of the vote of the electorate of Taguig whether they approve or disapprove the conversion of their municipality to a highly urbanized city. Buac and Bautista v. Comelec, G.R. No. 155855, January 26, 2004. Q. Does the Comelec have jurisdiction over intra-party disputes? A. The COMELEC correctly stated that "the ascertainment of the identity of [a] political party and its legitimate officers" Sec. 2 ART. IX - CONSTITUTIONAL COMMISSIONS C. The Commission on Elections 395 is a matter that is well within its authority. The source of this authority is no other than the fundamental law itself, which vests upon the COMELEC the power and function to enforce and administer all laws and regulations relative to the conduct of an election. In the exercise of such power and in the discharge of such function, the Commission is endowed with ample "wherewithal" and "considerable latitude in adopting means and methods that will ensure the accomplishment of the great objectives for which it was created to promote free, orderly and honest elections." To resolve this simple issue, the COMELEC need only to turn to the Party Constitution. It need not go so far as to resolve the root of the conflict between the party officials. It need only resolve such questions as may be necessaxy in the exercise of its enforcement powers. LDP v. COMELEC, G.R. No. 161265, February 24,2004; Atienza, et al. v. Comelec, G.R. No. 188920, February 16,2010. Q. May the Commission promulgate rules and regulations for the implementation of election laws? A. Yes. Such power is deemed implicit in the power to implement regulations. Gallardo v. Tabamo, Jr., 218 SCRA 253, 263-264 (1993). Moreover, should there be conflict between a rule of procedure promulgated by the Commission and a Rule of Court, if the proceeding is before the Commission, the Commission rule should prevail; but if the proceeding is in court, the Rules of Court should prevail. Aruelo, Jr. v. Court of Appeals, October 20,1993. Q. Does the Commission have the power to transfer municipalities from one congressional district to another for the purpose of preserving proportionality. A. No. This is not one of the broad powers granted by Section 2(2). Neither is it what is referred to by tlie Ordinance Appended to the Constitution, Sections 2 and 3, authorizing the Commission to make "minor adjustments." The deliberations of the Constitutional Commission on the subject clearly excluded the power to transfer whole municipalities. Montejo v. Commission on Elections, 242 SCRA 415 (1995). Q. In cases where the Comelec has appellate jurisdiction, what is the period for making the appeal? 396 16 THE 1987 PHILIPPINE CONSTITUTION: Sec. A COMPREHENSIVE REVIEWER A. Section 6, Article IX-A of the 1987 Constitution grants and authorizes the COMELEC to promulgate its own rules of procedure. The 1993 COMELEC Rules of Procedure have provided a uniform five (5) day period for taking an appeal. Significantly, Section 5(5), Article VIII of the Constitution provides in part that "[r]ules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court." Antonio v. Comelec, G.R. No. 135869, September 22,1999. Q. What is the scope of the power of the Commission over deputized officers? A. The power of the Commission over deputized officers under Section 2(6) covers not just criminal cases but also administrative cases. Thus, where the Commission has deputized a City Prosecutor as election canvasser, such Prosecutor cannot claim immunity from the power of the Commission on the argument that he comes under the executive department. The Commission has power over all persons required by law to perform duties relative to the conduct of elections. However, under Section 2(8), the Commission may merely issue a recommendation for disciplinary action to the President. Tan v. Comelec, 237 SCRA 353,358-359 (1994). Q. More specifically, who decides problems involving "elections, returns, and qualifications" of candidates? A. Once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, COMELEC's jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRETs own jurisdiction begins. Aggabao v. Comelec, G.R. No. 163756, January 26,2005. Moreover, in the case of municipal offices, even if the case began with the Comelec before proclamation, if there should be proclamation before the controversy is resolved, it ceases to be a pre-proclamation controversy and becomes a contest cognizable by the Court of First Instance. E.g., Arcenas v. Comelec, supra; Faderanga v. Comelec, supra. Q. What is the difference between the jurisdiction of the COMELEC before proclamation and its jurisdiction after proclamation? Or, put differently, what is the difference between the jurisdiction Sec. 2 ART. IX - CONSTITUTIONAL COMMISSIONS C. The Commission on Elections 397 of the Comelec over a pre-proclamation controversy and its jurisdiction over a "contest?" A. Its jurisdiction over a pre-proclamation controversy is administrative or quasi-judicial and is governed by the less stringent requirements of administrative due process (although the Supreme Court has insisted that question on "qualifications" should be decided only after a full-dress hearing) whereas its jurisdiction over "contests" is judicial and is governed by the requirements of judicial process. Hence, even in the case of regional or provincial or city offices, it does make a difference whether the COMELEC will treat it as a pre-proclamation controversy or as a contest. Q. Section 9 of R.A. 6679 makes decisions of a municipal or metropolitan court in a barangay election appealable to the regional trial court. Is this valid? A. No. The COMELEC has exclusive appellate jurisdiction over all contests involving barangay elective officials decided by trial court of limited jurisdiction. The jurisdiction of the COMELEC, however, is over questions of fact; questions of law go to the Supreme Court. Flores v. COMELEC, G.R. No. 89604, April 20,1990. Q. Section 4 of COMELEC Resolution No. 2499 placed the Sangguniang Kabataan ("SIC) elections under the direct control and supervision of the Department of Interior and Local Government. Does this contravene the Constitutional mandate that the COMELEC shall have the power to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall?" A. No. "Elections for SK officers are not subject to supervision of the COMELEC in the same way that, as we have recently held [i.e., in Mercado v. Board of Election Supervisors, 243 SCRA 422 (1995)], contests involving elections of SK officials do not fall within the jurisdiction of the COMELEC." Alunan III v. Mirasol, G.R. No. 108399, July 31,1997, 276 SCRA 501, 511. Q. Does the COMELEC have authority to review contests involving the election of officers of a barangay federation? A. No. The power of the COMELEC is over popular elections. Taule v. Secretary Santos, G.R. No. 90336, August 12,1991. NOTE: If a case which should go to the Comelec en banc is erroneously filed with a division, it may automatically be elevated to the Comelec en banc. This is not provided for in the Comelec Rules of Procedure, but such action is not prohibited. Mutilan v. Comelec, G.R. No. 1712468, April 2, 2007. 398 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 However, it is only in the exercise of its adjudicatory or quasijudicial powers that the COMELEC is mandated to hear and decide cases first by division and then, upon motion for reconsideration, by the COMELEC en banc. The conduct of a preliminary investigation before the filing of an information in court does not involve the exercise of adjudicatory function. Baytan v. Comelec, G.R. No. 153945, February 4,2003; Balindong v. Comelec, G.R. Nos. 153991-92, October 16,2003 Moreover, the rule is that only decisions of the Comelec en banc may be brought to the Court on certiorari. However, where a division of the Comelec decides a motion for reconsideration in violation of Article IX, C, 3, the division's ruling is a complete nullity and may be brought to the Court on certiorari. Aguilar v. Comelec, G.R. No. 185140, June 30,2009. Q. A defeated mayoralty candidate files a protest with the CFI. Dismissal of the protest is sought on the ground that the petitioner did not allege that he filed a certificate of candidacy, a jurisdictional fact. Decide. A. It may be that he did not allege so in so many words; but such jurisdictional fact need not be expressed in a fixed formula. It can be deduced from the tenor of the allegations. Maquinay v. Bleza, 100 SCRA 702 (L-54230, October 30,1980). Q. Does the COMELEC have the power to annul an entire municipal election on the ground of post-election terrorism? A. Yes. It may be true that there is no specific provision vesting such authority in the COMELEC, but there is no doubt that the body has extensive powers given by the new Constitution under the general rubric of its authority to "enforce and administer all laws relative to the conduct of elections" under Article IX, C, 2(1). Moreover, Section 185 of the 1978 Election Code accords it exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of insuring free, orderly and honest elections. Election returns which are coerced returns are no returns at all and the COMELEC has the power to reject them. True, earlier decisions under the 1935 Constitution denied this power to the COMELEC. E.g., Abes v. Comelec, 21 SCRA 1252 (1967); but the new Constitution has expanded the powers of the COMELEC. Biliwang v. Comelec, G.R. No. 55642, June 19,1982. Here the COMELEC had found that it was impossible to distinguish the illegal from the valid returns. (NOTE also that the COMELEC annulled the elections after proclamation.) Q. The Comelec is given authority to investigate and prosecute violations of the election law and Section 7 says that decisions, orders, and rulings of the Commission may be reviewed only by the Supreme Court on certiorari. After the preliminary investigation .2 ART. IX - CONSTITUTIONAL COMMISSIONS C. The Commission on Elections 399 conducted by Comelec lawyers and after the Comelec approves the report and orders the filing of a criminal case, may the trial court order a reinvestigation and require the presentation of the records of the preliminary investigation made by the Comelec? A. Yes. The "final orders, rulings and decisions of the COMELEC reviewable on certiorari by the Supreme Court as provided by law are those rendered in actions or proceedings before the COMELEC and taken cognizance of by said body in the exercise of its adjudicatory or quasi-judicial powers." The regional trial court, on the other hand, is given exclusive authority to try and decide criminal cases involving elections. When the Comelec as prosecutor files a case before a trial court, the trial court acquires jurisdiction and all subsequent dispositions of the case must be subject to approval by the court. Hence, the court may order reinvestigation and require submission of records of the preliminary examination to satisfy itself that there is probable cause for the issuance of a warrant of arrest. People v. Hon. Delgado, G.R. No. 93419-32, September 18,1990. Q. What is the import of the constitutional [Art. IX-C, §2(7)] and statutory [§265, B.P. Big. 881 ("Omnibus Election Code")] mandate for the Comelec to investigate and prosecute cases of violation of election laws? A. It "translates, in effect, to the exclusive power to conduct preliminary investigations in cases involving election offenses for the twin purpose of filing an information in court and helping the Judge determine, in the course of preliminary inquiry, whether or not a warrant of arrest should be issued." Kilosbayan, Inc. v. Commission on Elections, G.R. No. 128054, October 16,1997,280 SCRA 892, 917. NOTE: Section 2(6), Article IX-C of the Constitution vests in the COMELEC the power to "investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices." The phrase "[w]here appropriate" leaves to the legislature the power to determine the kind of election offenses that the COMELEC shall prosecute exclusively or concurrently with other prosecuting arms of the government. Banat v. Comelec, G.R. No. 177508, August 7,2009. Q. Petitioner contends that, since the 1987 Constitution empowered the Comelec to investigate and prosecute cases involving election offenses, it is the obligation of the Comelec to search for the evidence needed to judicially indict the respondents identified in petitioner's letter-complaint as the government officials who disbursed public finds allegedly for electioneering purposes during the May, 1992 elections. Decide. A Erroneous contention. "The task of the Comelec as investigator and prosecutor, acting upon any election offense complaint, is 400 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 not physical searching and gathering of proof in support of a complaint for an alleged commission of an election offense. A complainant, who in effect accuses another person of having committed an act constituting an election offense, has the burden, as it is his responsibility to follow through his accusation and prove his complaint." Kilosbayan, Inc. v. Commission on Elections, G.R. No. 128054, October 16, 1997, 280 SCRA 892, 924. Q. Does a preliminary investigation conducted by a Provincial Election Supervisor involving election offenses have to be coursed through the Provincial Prosecutor before the Regional Trial Court may take cognizance of the investigation and determine whether or not probable cause exists? A. No, because prosecution of election offenses is exclusively under the COMELEC. If the Provincial Prosecutor performs any role at all, it is by delegation by the COMELEC. The court therefore may rely on the investigation conducted by the Provincial Election Supervisor for purposes of determining the existence of probable cause to issue a warrant. People v. Judge Inting, G.R. No. 88919, July 25,1990. Q. Which of the following have the power to investigate, prosecute and try election offenses committed by a public officer in relation to his office — the Commission on Elections, the Fiscal, or the Special Prosecutor in the Ombudsman office? A. The Commission on Elections has exclusive jurisdiction. Corpus v. Tanodbayan, 149 SCRA 281, 283 (1987). Q. Information was filed by the Provincial Fiscal for an election offense as an aftermath of the elections of May 1987. The judge dismissed the information on the ground that prosecuting election offenses is within the exclusive jurisdiction of the Commission on Elections. Decide. A. While indeed the COMELEC is vested with exclusive power to prosecute election offenses, the Constitution in Article IX, C, Section 2(4) likewise authorizes the COMELEC to deputize, with the consent of the President, other law enforcement agencies. This the COMELEC has done and the consent of the President was given in E.O. 134 dated February 27,1987. The acts of the delegated officers are in legal contemplation acts of the COMELEC. People v. Basilia, G.R. No. 83938-40, November 6,1989. Q. What are the powers which have been declared not to belong to the COMELEC? A. There are certain powers which even under the new Constitution still clearly do not belong to the Commission. Thus, it is not Sec. 4 ART. IX - CONSTITUTIONAL COMMISSIONS C. The Commission on Elections 401 NOT empowered to.... empowered to decide questions "involving the right to vote." Article IX, C, Section 2(3). The power to determine whether or not a person can exercise or is precluded from exercising the right of suffrage is a judicial question, Pungutan v. Abubakar, 43 SCRA 1, 12 (1972), and the power to resolve such question has been excluded from the Commission's power to be judge of election contests. Finally, while the Commission may punish for contempt, such power may not be exercised in connection with its purely executive or ministerial functions but only in furtherance of its quasi-judicial and now also judicial functions. Guevara v. COMELEC, 104 Phil. 268 (1958); Masangcay v. Comelec, 6 SCRA 27 (1962). Q. Does the Comelec have the power to decide whether a person has the constitutional qualifications to be voted for even in national elections? A. Before proclamation, any problem should be resolved in a "preproclamation" proceeding by the Commission because of its powers under Sections 2(1) and (3). The only questions that may not be touched by the Commission are "those involving the right to vote." Hence, before proclamation, the Commission has the authority to decide whether a person has the constitutional qualifications needed to be voted for even on the national level. See dissenting view of Narvasa, C.J. and Mendoza, J. in Romualdez-Marcos v. Commission on Elections, G.R. No. 119976, September 18,1995. Q. If a proclaimed winner is subsequently declared to be disqualified, does the second placer take his place? A. No. As early as Geronimo v. Ramos, [136 SCRA 435] this Court has held that: "The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified or non- eligible person may not be valid to vote the winner into office or maintain him there. . . . The rationale for the rule is explained in Benito v. COMELEC [235 SCRA 436] as follows: "For to allow the defeated and repudiated candidate to take over the mayoralty despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part 402 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 and to undermine the importance and meaning of democracy and the people's right to elect officials of their choice." [at pp. 441-442. Loreto v. Brion, G.R. No. 130681, July 29,1999. Q. What political parties and organizations may not be registered? A. Generally, all political parties and organizations which present their platform or program of government and which satisfy requirements prescribed by law may register. However, religious denominations and sects and organizations which seek to achieve their goals through violence or unlawful means or refuse to uphold and adhere to the Constitution, or which are supported by foreign governments, may not be registered. Q. May lay organizations with religious affiliations or political parties which derive their principles from religious beliefs be registered? A. Yes. The ban is only on religious denominations and sects, such as the Catholic Church, or the Anglican Church, or the Iglesia ni Kristo, or the Muslim denomination. This prohibition is made in the spirit of separation of Church and State and is intended to prevent churches as churches from wielding political power. SEC. 3. THE COMMISSION ON ELECTIONS MAY SIT EN BANC OR EN TWO DIVISIONS, AND SHALL PROMULGATE ITS RULES OF PROCEDURE IN ORDER TO EXPEDITE DISPOSITION OF ELECTION CASES, INCLUDING PREPROCLAMATION CONTROVERSIES. ALL SUCH ELECTION CASES SHALL BE HEARD AND DECIDED IN DIVISION, PROVIDED THAT MOTIONS FOR RECONSIDERATION OF DECISIONS SHALL BE DECIDED BY THE COMMISSION EN BANC. Q. Does the Comelec en banc have jurisdiction to decide election cases? A. No. This power pertains to the divisions of the Commission. Any decision by the Commission en banc as regards election cases decided by it in the first instance is null and void. Soller v. Comelec, G.R. No. 139853, September 5, 2000. Q. When is hearing by division required? A. It is only in the exercise of its adjudicatory or quasi-judicial powers that the COMELEC is mandated to hear and decide cases first by division and then, upon motion for reconsideration, Sec. 4 ART. IX - CONSTITUTIONAL COMMISSIONS C. The Commission on Elections 403 by the COMELEC en bane. The conduct of a preliminary investigation before the filing of an information in court does not involve the exercise of adjudicatory function. Baytan v. Comelec, G.R. No. 153945, February 4, 2003; Balindong v. Comelec, G.R. Nos. 153991-92, October 16,2003. Q. Do coalitions have to register in order to enjoy the benefits of a registered political party? A. Yes, because the coalition is distinct in personality from that of the coalescing parties. Moreover, this issue is administrative and not quasi-judicial and therefore may be decided by the Comelec en banc without going through a division first. Liberal Party v. Comelec, G.R. No. 191771, May 6,2010. Q. Must a motion for reconsideration of an order of dismissal for lack of interest due to the failure of petitioner or counsel to appear for hearing be reviewed by the COMELEC en banc or may it be considered by a division? A. It may be considered by a division. What the Constitution says must be heard in banc are motions for reconsideration of "decisions," that is resolutions of substantive issues. The described dismissal was not a decision. Salazar, Jr. v. COMELEC, G.R. No. 85742, April 19,1990. Q. Is the rule on preferential disposition of election cases suggested by Section 7, Article IX-C and the requirement in Section 257 of the Omnibus Election Code that the COMELEC shall decide all election cases brought before it within ninety days from the date of submission a hard and firm rule? A. No. Considering the tribunal's manpower and logistic limitations, it is sensible to treat the procedural requirements on deadlines realistically. Overly strict adherence to deadlines might induce the Commission to resolve election contests hurriedly by reason of lack of material time. In our view this is not what the framers of the Code had intended since a very strict construction might allow procedural flaws to subvert the will of the electorate and would amount to disenfranchisement of voters. Alvarez v. Comelec, G.R. No. 142527, March 1, 2001. SEC. 4. THE COMMISSION MAY, DURING THE ELECTION PERIOD, SUPERVISE OR REGULATE THE ENJOYMENT OR UTILIZATION OF ALL FRANCHISES OR PERMITS FOR THE OPERATION OF TRANSPORTATION AND 404 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 OTHER PUBLIC UTILITIES, MEDIA OF COMMUNICATION OR INFORMATION, ALL GRANTS, SPECIAL PRIVILEGES, OR CONCESSIONS GRANTED BY THE GOVERNMENT OR ANY SUBDIVISION, AGENCY, OR INSTRUMENTALITY THEREOF, INCLUDING ANY GOVERNMENT-OWNED OR CONTROLLED CORPORATION OR ITS SUBSIDIARY. SUCH SUPERVISION OR REGULATION SHALL AIM TO ENSURE EQUAL OPPORTUNITY, TIME, AND SPACE, AND THE RIGHT TO REPLY, INCLUDING REASONABLE, EQUAL RATES THEREFOR, FOR PUBLIC INFORMATION CAMPAIGNS AND FORUMS AMONG CANDIDATES IN CONNECTION WITH THE OBJECTIVE OF HOLDING FREE, ORDERLY, HONEST, PEACEFUL, AND CREDIBLE ELECTIONS. Q. Does the power to regulate media during "election period" also extend to the period of a plebiscite or referendum? A. Yes. Of essence to plebiscite and referenda is "fair submission." Moreover, the formulation of the Constitution is more important in a sense than the choice of men who will implement that charter. Evidently, therefore, regulatory power during the period of plebiscite or referendum, is also intended. Unido v. Comelec, 104 SCRA 17, 39 (L-56515, April 3,1981). Q. On the occasion of the ratification campaign for the Autonomy Act for the Cordillera, the COMELEC, issued a resolution prohibiting columnists, commentators, and announcers from using their columns or radio or television time to campaign for or against the plebiscite dining the period of the campaign. Reliance was made on the Election Code and on Article IX, C, Section 4 of the Constitution authorizing the COMELEC to "supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of. . . media communication or information." Sanidad, a columnist, challenged the validity of the resolution as a violation of freedom of expression. Decide. A. The resolution is unconstitutional. The authority given by the Constitution is over holders of franchises. The purpose is to assure candidates equal opportunity and equal access to media. Sanidad is not a candidate and in fact in a plebiscite there are no candidates. Plebiscite issues are matters of public concern and the people's right to be informed must be preserved. Moreover, the people's choice of forum for discussion should not be restricted. Sanidad v. COMELEC, G.R. No. 90878, January 29,1990. Q. May the Comelec require print media to allocate free space for candidates? A. The 1995 case of Philippine Press Institute v. Commission on Elections, G.R. No. 119654, May 22, 1995, ruled that print media may not be compelled to allocate free space to the Commission. Sees. 5-6 ART. IX - CONSTITUTIONAL COMMISSIONS C. The Commission on Elections 405 Such would amount to a prohibited taking of property without just compensation. NOTE: See also the case on media ban on election ads and on election surveys discussed under Section 4, Article III. SEC. 5. No PARDON, AMNESTY, PAROLE, OR SUSPENSION OF SENTENCE FOR VIOLATION OF ELECTION LAWS, RULES, AND REGULATIONS SHALL BE GRANTED BY THE PRESIDENT WITHOUT THE FAVORABLE RECOMMENDATION OF THE COMMISSION. 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. Q. What are political parties? A. "Section 80 of the 1965 Election Code and Section 22 of the 1971 Election Code defined a political party as 'an organized group of persons pursuing the same political ideals in a government and includes its branches, and divisions.' The 1978 Election Code adopted the aforequoted definition by providing in Section 199 that 'any other group of persons pursuing the same political ideals in government may register with the Commission and be entitled to the same rights and privileges.'" Geronimo v. Comelec, 107 SCRA 614, 627 (L-52413, September 26,1981). Q. Was the KBL a political party? A. For the purpose of the Interim Batasang Pambansa elections in April 1978, the KBL was not considered a political party but merely as "an umbrella organization." Laban v. Comelec, 82 SCRA 196 (March 25, 1978). After the 1978 elections, however, the KBL became a party as shown by the actuations of its members, e.g., in the Interim Batasang Pambansa. (Hence, since that time, affiliation with or departure from it became covered by Section 10 on "turncoatism.") Sevillaje v. Comelec, 107 SCRA 141,156 (L-52793 & 53504, August 31, 1981); Geronimo v. Comelec, 107 SCRA 614, 626 (L-52413, September 26,1981). Q. What is the importance of registration of a political party? A. (1) Registration confers juridical personality on the party. (2) It informs the public of the party's existence and ideals. (3) It identifies the party and its officers for purposes of regulation by the COMELEC. 406 16 THE 1987 PHILIPPINE CONSTITUTION: Sec. A COMPREHENSIVE REVIEWER Q. Do coalitions have to register in order to enjoy the benefits of a registered political party? A- Yes, because the coalition is distinct in personality from that of the coalescing parties. Liberal Party v. Comelec, G.R. No. 191771, May 6,2010. Q. To register for purposes of the electoral process, must an organization be a political party? A. No. See Section 2(5). Q. Is there a distinction between an accredited political party and a registered political party? A. The concept of accreditation no longer appears in the new Constitution. For purposes of the electoral process, all parties, organizations and coalitions are considered equal. SEC. 7. No VOTES CAST IN FAVOR OF A POLITICAL PARTY, ORGANIZATION, OR COALITION SHALL BE VALID, EXCEPT FOR THOSE REGISTERED UNDER THE PARTY-LIST SYSTEM AS PROVIDED IN THIS CONSTITUTION. Q. Is block-voting allowed? A. In effect Section 7 prohibits block-voting "except for those registered under the party-list system." SEC. 8. POLITICAL PARTIES, OR ORGANIZATIONS OR COALITIONS REGISTERED UNDER THE PARTY-LIST SYSTEM, SHALL NOT BE REPRESENTED IN THE VOTERS' REGISTRATION BOARDS OF ELECTION INSPECTORS, BOARDS OF CANVASSERS, OR OTHER SIMILAR BODIES. HOWEVER, THEY SHALL BE ENTITLED TO APPOINT POLL WATCHERS IN ACCORDANCE WITH LAW. Q. What has happened to the "two-party system" under the 1935 Constitution? A. The 1935 Constitution and the 1971 Election Code both gave a preferred position to the two major political parties. The 1935 Constitution gave proportional representation in the Commission on Appointments to the various parties — proportional, that is, to the membership strength of the parties in the Senate and House of Representatives. In both the Senate and House Electoral Tribunals, only the two major parties enjoyed representation. Since there was no Commission on Sees. 9-10 ART. IX - CONSTITUTIONAL COMMISSIONS C. The Commission on Elections 407 Appointments or Electoral Tribunal in the 1973 Constitution, these constitutional advantages enjoyed by the two major parties were absent in that Constitution. Under the new Constitution, representation is given not just to the two major parties but to all parties proportionally. Under the 1971 Election Code, only the two major parties had representation in the Registration Board, in the Board of Election Inspectors, in the Committee on Printing of Official Ballots, and in the provincial body charged with the duty to verify the official ballots sent to the provinces by the Bureau of Printing. These advantages disappeared with the adoption in 1973 of Section 9(2): "No party or candidate shall have membership in the registration board, board of election inspectors, board of canvassers, or other similar bodies." The 1981 Amendments, however, restored the preferred position of the top two political parties, if accredited, at least in registration boards, boards of election inspectors, boards of canvassers, other similar bodies. Moreover, such accredited parties "may by law be granted other rights or privileges." Under the new Constitution the concept of accreditation and the consequent advantages of accredited parties disappeared. Moreover, Section 8 now says: "Political parties, or organizations or coalitions registered under the party-list system, shall not be represented in the voters' registration boards of election inspectors, boards of canvassers, or other similar bodies. However, they shall be entitled to appoint poll watchers in accordance with law." Thus, there is again a leveling of all political parties. In fact, the purpose of Section 8 and Section 7 is to allow the growth of a multi-party system. Note, however, that the multi-party system was responsible for the proliferation of candidates during the 1992 national elections! SEC. 9. UNLESS OTHERWISE FIXED BY THE COMMISSION IN SPECIAL CASES, THE ELECTION PERIOD SHALL COMMENCE NINETY DAYS BEFORE THE DAY OF ELECTION AND SHALL END THIRTY DAYS THEREAFTER. SEC. 10. BONA FIDE CANDIDATES FOR ANY PUBLIC OFFICE SHALL BE FREE FROM ANY FORM OF HARASSMENT AND DISCRIMINATION. Q. Does this provision give candidates immunity from suit? A. No. 408 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 5-6 Q. Give an example of discrimination. A. Unequal treatment in the availment of media facilities. SEC. 11. FUNDS CERTIFIED BY THE COMMISSION AS NECESSARY TO DEFRAY THE EXPENSES FOR HOLDING REGULAR AND SPECIAL ELECTIONS, PLEBISCITES, INITIATIVES, REFERENDA, AND RECALLS, SHALL BE PROVIDED IN THE REGULAR OR SPECIAL APPROPRIATIONS AND, ONCE APPROVED, SHALL BE RELEASED AUTOMATICALLY UPON CERTIFICATION BY THE CHAIRMAN OF THE COMMISSION. D. THE COMMISSION ON AUDIT SECTION 1. (1) THERE SHALL BE A COMMISSION ON AUDIT COMPOSED OF A CHAIRMAN AND TWO COMMISSIONERS, WHO SHALL BE NATURAL-BORN CITIZENS OF THE PHILIPPINES AND, AT THE TIME OF THEIR APPOINTMENT, AT LEAST THIRTY-FIVE YEARS OF AGE, CERTIFIED PUBLIC ACCOUNTANTS WITH NOT LESS THAN TEN YEARS OF AUDITING EXPERIENCE, OR MEMBERS OF THE PHILIPPINE BAR WHO HAVE BEEN ENGAGED IN THE PRACTICE OF LAW FOR AT LEAST TEN YEARS, AND MUST NOT HAVE BEEN CANDIDATES FOR ANY ELECTIVE POSITION IN THE ELECTIONS IMMEDIATELY PRECEDING THEIR APPOINTMENT. AT NO TIME SHALL ALL MEMBERS OF THE COMMISSION BELONG TO THE SAME PROFESSION. (2) THE CHAIRMAN AND THE COMMISSIONERS SHALL BE APPOINTED BY THE PRESIDENT WITH THE CONSENT OF THE COMMISSION ON APPOINTMENTS FOR A TERM OF SEVEN YEARS WITHOUT REAPPOINTMENT. OF THOSE FIRST APPOINTED, THE CHAIRMAN SHALL HOLD OFFICE FOR SEVEN YEARS, ONE COMMISSIONER FOR FIVE YEARS, AND THE OTHER COMMISSIONER FOR THREE YEARS, WITHOUT REAPPOINTMENT. APPOINTMENT TO ANY VACANCY SHALL BE ONLY FOR THE UNEXPIRED PORTION OF THE TERM OF THE PREDECESSOR. IN NO CASE SHALL ANY MEMBER BE APPOINTED OR DESIGNATED IN A TEMPORARY OR ACTING CAPACITY. SEC. 2. (1) THE COMMISSION ON AUDIT SHALL HAVE THE POWER, AUTHORITY, AND DUTY TO EXAMINE, AUDIT, AND SETTLE ALL ACCOUNTS PERTAINING TO THE REVENUE AND RECEIPTS OF, AND EXPENDITURES OR USES OF FUNDS AND PROPERTY, OWNED OR HELD IN TRUST BY, OR PERTAINING TO, THE GOVERNMENT, OR ANY OF ITS SUBDIVISIONS, AGENCIES, OR INSTRUMENTALITIES, INCLUDING GOVERNMENT-OWNED AND CONTROLLED CORPORATIONS WITH ORIGINAL CHARTERS, AND ON A POST-AUDIT BASIS: (A) CONSTITUTIONAL BODIES, COMMISSIONS AND OFFICES THAT HAVE BEEN GRANTED FISCAL AUTONOMY UNDER THIS CONSTITUTION; (B) AUTONOMOUS STATE COLLEGES AND UNIVERSITIES; (c) OTHER GOVERNMENT-OWNED OR Sec. 2 ART. IX - CONSTITUTIONAL COMMISSIONS C. The Commission on Elections 409 CONTROLLED CORPORATIONS AND THEIR SUBSIDIARIES; AND (D) SUCH NON-GOVERNMENTAL ENTITIES RECEIVING SUBSIDY OR EQUITY, DIRECTLY OR INDIRECTLY, FROM OR THROUGH THE GOVERNMENT, WHICH ARE REQUIRED BY LAW OR THE GRANTING INSTITUTION TO SUBMIT TO SUCH AUDIT AS A CONDITION OF SUBSIDY OR EQUITY. HOWEVER, WHERE THE INTERNAL CONTROL SYSTEM OF THE AUDITED AGENCIES IS INADEQUATE, THE COMMISSION MAY ADOPT SUCH MEASURES, INCLUDING TEMPORARY OR SPECIAL PRE-AUDIT, AS ARE NECESSARY AND APPROPRIATE TO CORRECT THE DEFICIENCIES. IT SHALL KEEP THE GENERAL ACCOUNTS OF THE GOVERNMENT AND, FOR SUCH PERIOD AS MAY BE PROVIDED BY LAW, PRESERVE THE VOUCHERS AND OTHER SUPPORTING PAPERS PERTAINING THERETO. (2) THE COMMISSION SHALL HAVE EXCLUSIVE AUTHORITY, SUBJECT TO THE LIMITATIONS IN THIS ARTICLE, TO DEFINE THE SCOPE OF ITS AUDIT AND EXAMINATION, ESTABLISH THE TECHNIQUES AND METHODS REQUIRED THEREFOR, AND PROMULGATE ACCOUNTING AND AUDITING RULES AND REGULATIONS, INCLUDING THOSE FOR THE PREVENTION AND DISALLOWANCE OF IRREGULAR, UNNECESSARY, EXCESSIVE, EXTRAVAGANT, OR UNCONSCIONABLE EXPENDITURES, OR USES OF GOVERNMENT FUNDS AND PROPERTIES. Q. What is the general function of the Commission on Audit? A. It is the function of the Commission on Audit to examine the accuracy of the records kept by accountable officers and to determine whether expenditures have been made in conformity with law. It is therefore through the Commission on Audit that the people can verify whether their money has been properly spent. NOTE: Government owned and controlled corporations are not autonomous bodies independent of government. They are subject to audit by the Commission on Audit and subject to control by the President. Government owned and controlled corporations are not autonomous bodies independent of government. They are subject to audit by the Commission on Audit and subject to control by the President. Strategic Alliance v. Radstock Securities, G.R. No. 178158, December 4, 2009. Q. Classify the functions of the Commission on Audit. A. They may be classified thus: (1) to examine and audit all forms of government revenues; (2) to examine and audit all forms of government expenditures; (3) to settle government accounts; (4) to promulgate accounting and auditing rules "including those 410 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 1-2 for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures," and (5) to decide administrative cases involving expenditures of public funds. Q. May COA, in the exercise of its auditing function, disallow the payment of backwages to employees illegally dismissed and say that the responsibility belongs to the official who dismissed them in bad faith? A. No. COA cannot say that the responsibility belongs to the official who made the illegal dismissal when such official has not been heard. Besides, payment of backwages is not an irregular, unnecessary, excessive or extravagant expense. Uy, et al v. COA, G.R. No. 130685, March 21, 2000. Q. Are Local Water Districts incorporated under P.D. 198 government owned corporations with original charter and therefore under the jurisdiction of the COA? A. Yes, they are. Davao City Water District, et al v. civil Service Commission and Commission on Audit, G.R. 95237-8, September 13,1991. Q. Does the power of the Commission extend to non-accountable officers? A. The Commission has authority not just over accountable officers but also over other officers who perform functions related to accounting such as verification of evaluations and computation of fees collectible, and the adoption of internal rules of control. An Evaluator/Computer, for instance, is an indispensable part of the process of assessment and collection and comes within the scope of the Commission's jurisdiction. Mamaril v. Domingo, 227 SCRA 206 (1993). NOTE: Even in cases where pre-audit is allowed and pre-audit has already been performed, the Commission is not estopped from making a post-audit. Development Bank of the Philippines v. Commission on Audit, 231 SCRA 202 (1994). Q. What is meant by the power of the Commission to "settle accounts?" A. It means the power to settle liquidated accounts, that is, those accounts which may be adjusted simply by an arithmetical .1-2 ART. IX - CONSTITUTIONAL COMMISSIONS D. The Commission on Audit 411 process. It does not include the power to fix the amount of an unfixed or undetermined debt. Compafiia General de Tabacos v. French and Unson, 39 Phil. 34, 42 (1919). Another way of looking at this power was stated by Guevara v. Gimenez, 6 SCRA 807, 813 (1962) thus: . . . Such function is limited to a determination of whether there is a law appropriating funds for a given purpose; whether a contract, made by the proper officer, has been entered into in conformity with said appropriation law; whether the goods or services covered by said contract have been delivered or rendered in pursuance of the provisions thereof, as attested to by the proper officer; and whether payment therefor has been authorized by the officials of the corresponding department or bureau. If these requirements have been fulfilled, it is the ministerial duty of the Auditor General to approve and pass in audit the voucher and treasury warrant for said payment. Q. The Commission on Audit reduced the amount that was passed in audit on the ground that the original amount was "excessive and disadvantageous to the government." Does the Commission have the authority to do so? A. Yes, on the basis of its authority in Article IX, D, 2(1). This extends to the accounts of all persons respecting funds or properties received or held by them in an accountable capacity. Dincong v. Commissioner Guingona, Jr., 162 SCRA 782 (1988). (The Court, however, reversed the factual decision that the original amount was excessive.) NOTE: The COA can decide money claims based on law. But if a money claim is denied by a law, COA has no authority to pass judgment on the constitutionality of the law. Parreno c. COA, G.R. No. 162224 June 7, 2007. Q. The National Power Corporation hired the services of a lawyer without complying with the requirement which prior written approval of the Solicitor General should be observed. When the COA disallowed payment to the lawyer, it was argued that the circular requiring approval by the Solicitor General was unconstitutional because it restricted the practice of law. Decide. A. The circular was merely a safeguard to prevent irregular, unnecessary, excessive and extravagant or unconscionable expenditures. Polloso v. Gangan, G.R. No. 140563, July 14, 2000. Q. Where regulations require public bidding for the sale of government property, does the Commission on Audit have the authority to interpret the meaning of "public bidding" and what constitutes its "failure?" 412 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 5-6 A. Yes, and for as long that there is no clear evidence of abuse of discretion, the decision of COA will not be disturbed. "No less than the Constitution has ordained that the COA shall have exclusive authority to define the scope of its audit and examination, establish the techniques and methods required therefore, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or use of government fluids and properties." Danville Maritime, Inc. v. Commission on Audit, G.R. No. 85285, July 28,1989. Q. If the Commission has already passed an account in audit, may the fiscal still look into it for the purpose of determining possible criminal liability? A. Yes, because the Commission's interest is merely administrative and not criminal. Ramos v. Aquino, 39 SCRA 641 (1971). Q. Is the authority of the Commission the same for all kinds of funds? A. No. See Section 2(1). Q. May public corporations under the jurisdiction of the COA employ private auditors? A. Yes. The clear and unmistakable conclusion from a reading of the entire Section 2 is that the COA's power to examine and audit is non-exclusive. On the other hand, the COA's authority to define the scope of its audit, promulgate auditing rules and regulations, and disallow unnecessary expenditures is exclusive. However, as the constitutionally mandated auditor of all government agencies, the COA's findings and conclusions necessarily prevail over those of private auditors, at least insofar as government agencies and officials are concerned. DBP v. COA, G.R. No. 88435, January 16, 2002 SEC. 3. No LAW SHALL BE PASSED EXEMPTING ANY ENTITY OF THE GOVERNMENT OR ITS SUBSIDIARY IN ANY GUISE WHATEVER, OR ANY INVESTMENT OF PUBLIC FUNDS, FROM THE JURISDICTION OF THE COMMISSION ON AUDIT. SEC. 4. THE COMMISSION SHALL SUBMIT TO THE PRESIDENT AND THE CONGRESS, WITHIN THE TIME FIXED BY LAW, AN ANNUAL REPORT COVERING THE FINANCIAL CONDITION AND OPERATION OF THE GOVERNMENT, Sec. 2 ART. IX - CONSTITUTIONAL COMMISSIONS C. The Commission on Elections 413 ITS SUBDIVISIONS, AGENCIES, AND INSTRUMENTALITIES, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, AND NON-GOVERNMENTAL ENTITIES SUBJECT TO ITS AUDIT, AND RECOMMEND MEASURES NECESSARY TO IMPROVE THEIR EFFECTIVENESS AND EFFICIENCY. IT SHALL SUBMIT SUCH OTHER REPORTS AS MAY BE REQUIRED BY LAW. ARTICLE X LOCAL GOVERNMENT GENERAL PROVISIONS SECTION 1. THE TERRITORIAL AND POLITICAL SUBDIVISIONS OF THE REPUBLIC OF THE PHILIPPINES ARE THE PROVINCES, CITIES, MUNICIPALITIES AND BARANGAYS. THERE SHALL BE AUTONOMOUS REGIONS IN MUSLIM MINDANAO AND THE CORDILLERAS AS HEREINAFTER PROVIDED. Q. What is the constitutional significance of Section 1? A. The constitutional significance of Section 1 is that provinces, cities, and municipalities and barangays have been fixed as the standard territorial and political subdivisions of the Philippines. This manner of subdividing the Philippines cannot go out of existence except by a constitutional amendment. Q. How many autonomous regions are allowed by the Constitution? A. Only two. Should a third one be desired, a constitutional amendment is needed. Q. Why did the Constitutional Commission retain the word barangay in spite of its links with the previous regime? A. For three reasons: (1) it has a historical significance in Asia; (2) existing laws use the term; (3) there are continuing references to it in public discussions. As Section 3 says, the Local Government Code must be characterized by decentralization. Q. E.O. No. 220 dated July 15, 1987 creates the Cordillera Administrative Region (CAR) creating a temporary administrative agency pending the creation of the Cordillera Autonomous Region. Does E.O. 222 thereby create a territorial and political subdivision? A. No. What is created is not a public corporation but an executive agency under the control of the national government. It is more similar to the regional development councils which the President 414 Sec. 2 ART. X - LOCAL GOVERNMENT General Provisions 415 may create under the Article X, Section 14. Cordillera Broad Coalition v. Commission on Audit, G.R. No. 79956, January 29,1990. SEC. 2. THE TERRITORIAL AND POLITICAL SUBDIVISIONS SHALL ENJOY LOCAL AUTONOMY. Q. What is the significance of this declaration of local autonomy? A. It is meant to free local governments from the well-nigh absolute control by the legislature which characterized local government under the 1935 Constitution. Thus, although a distinction is made between local governments in general and autonomous regions, even those outside the autonomous regions are supposed to enjoy autonomy. Q. Are autonomy and decentralization the same? A. Not really. Autonomyiseitherdecentralizationofadministration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments 'more responsive and accountable,' and 'ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress.' At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns.... "Decentralization of power, on the other hand, involves an abdication of political power in favor of local government units declared to be autonomous. In that case the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central government authorities. According to a constitutional author, decentralization of power amounts to 'self-immolation,' since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency." Limbona v. Conte Mangelin, et al., G.R. No. 80391, February 28, 1989. (Citing Bernas, "Brewing Storm Over Autonomy," Manila Chronicle.) Q. What is the meaning of local autonomy as it has emerged in recent decisions? A. It means that local governments have certain powers given by the Constitution which may not be curtailed by the national government, but that, outside of these, local governments may 416 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 not pass ordinances contrary to statute. Magtqjas v. Pryce Properties, 234 SCRA 255 (1994) In Magtajas, the government of Cagayan the Oro City contended that, under its authority to prohibit gambling, the city could prevent the Philippine Games and Amusement Board (PAGCOR) from operating a casino in the city. PAGCOR, however, had authority under P.D. 1869 to centralize and regulate all games of chance wider the territorial jurisdiction of the Philippines. In ruling that Cagayan de Oro City could not curtail PAGCOR's authority the court in no uncertain terms said: "Municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body." In Laguna Lake Development Authority v. Court of Appeals, G.R. No. 120865-71, December 7,1995, the Supreme Court denied to the municipalities around Laguna Lake the power to authorize the construction or dismantling offish pens, fish enclosures, fish corrals and the like in Laguna Lake. The municipalities claimed the authority under general provisions of the 1991 Local Government Code, specifically Section 149. The Laguna Lake Development Authority (LLDA), however, claimed power under Republic Act No. 4850 as amended by Presidential Decree No. 813. Applying principles of statutory construction, the Court ruled that the specific power of the LLDA must prevail over the general power of local governments. Moreover, the Court pointed out that the power given by the Local Government Code to local governments was a revenue generating power and not a regulatory power. Hence, the Court, while denying regulatory authority to the municipalities, recognized their authority to impose fees for purposes of generating revenue. In Tan v. Perefia, G.R. No. 149743, February 18, 2005 which violated the statutory limit on the number of cockpits was declared invalid. Q. Do local governments have power to grant franchise to operate CATV system. A. No. Batangas CATV v. CA & Batangas City, G.R. No. 138810, September 29,2004. Q. The law says that the budget officer shall be appointed by the Department head upon the recommendation of the head of local government subject to civil service rules and regulations. If Sec. 2 ART. X - LOCAL GOVERNMENT General Provisions 417 none of those recommended by the local government head meets the requirements of law, may the Department head appoint anyone he chooses? A. No. He must return the recommendations of the local government head explaining why the recommendees are not qualified and ask for new recommendations. In other words, the recommendation of the local government head is a conditio sine quo non of the Department's appointing authority. This is the only way local autonomy can be given the recognition the Constitution wants it to have. When in doubt, favor autonomy. San Juan v. Civil Service Commission, G.R. No. 92299, April 19,1991. Q. May COA reduce the allowance given to judges by local governments? A. No. Since the Local Government Code authorizes local governments to give allowance to judges and decide how much this should be, local autonomy prohibits the Commission on Audit from interfering with the authority of the local government by reducing what has been decided by the local government. Dadole, et al. v. COA, G.R. No. 125350, December 3, 2002; Leynes v. COA, G.R. No. 143596, December 11, 2003. SEC. 3. THE CONGRESS SHALL ENACT A LOCAL GOVERNMENT CODE WHICH SHALL PROVIDE FOR A MORE RESPONSIVE AND ACCOUNTABLE LOCAL GOVERNMENT STRUCTURE INSTITUTED THROUGH A SYSTEM OF DECENTRALIZATION WITH EFFECTIVE MECHANISM OF RECALL, INITIATIVE, AND REFERENDUM, ALLOCATE AMONG THE DIFFERENT LOCAL GOVERNMENT UNITS THEIR POWERS, RESPONSIBILITIES AND RESOURCES, AND PROVIDE FOR THE QUALIFICATIONS, ELECTION, APPOINTMENT AND REMOVAL, TERM, SALARIES, POWERS AND FUNCTIONS AND DUTIES OF LOCAL OFFICIALS, AND ALL OTHER MATTERS RELATING TO THE ORGANIZATION AND OPERATION OF THE LOCAL UNITS. Q. What is the present form of local government? A. The present form consists of an executive distinct from the legislative body. This is different from the form of government under the old Metro Manila Commission where a Commission exercised both legislative and executive powers. Q. The 1973 Constitution contained a provision which said that "No change in the existing form of government shall take effect until ratified by a majority of the votes cast in a plebiscite called for the purpose." Why was this not retained? A. The provision was considered too limitive of the power of Congress. 418 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 Q. What is the present state of the law on "initiative" and "recall?" A. The 1991 Local Government Code now provides for "initiative and referendum" on the local level which it defines as "the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance." The Court has ruled that, even as worded, the statute authorizes initiative and referendum not just on ordinances but also on resolutions arguing that to narrow the meaning to only ordinances would subvert the intent of VI, Section 32 which includes "any act... passed by... local legislative body." Garcia v. COMELEC, 237 SCRA 279, 290 (1994). The current law on "recall" is now found also in the Local Government Code of 1991. The constitutionality of one method of recall adopted by the Code was tested in Garcia v. Commission on Elections, 227 SCRA 100 (1993). Section 70 of the 1991 Local Government Code authorized provinces, cities, legislative districts and municipalities to have a "preparatory recall assembly" authorized to initiate the recall of an elective official. The contention of Governor Enrique Garcia was that "the right to recall does not extend merely to the prerogative of the electorate to reconfirm or withdraw their confidence on the official sought to be recalled at a special election. Such prerogative necessarily includes the sole and exclusive right to decide on whether to initiate a recall proceedings or not." In deciding against Garcia the Court said: "The Constitution did not provide for any mode, let alone a single mode, of initiating recall elections. Neither did it prohibit the adoption of multiple modes of initiating recall elections. The mandate given by section 3 of Article X of the Constitution is for Congress to 'enact a local government code which shall provide for a more responsive and accountable local government structure through a system of decentralization with effective mechanisms of recall, initiative, and referendum . . By this constitutional mandate, Congress was clearly given the power to choose the effective mechanisms of recall as its discernment dictates."... SEC. 4. THE PRESIDENT OF THE PHILIPPINES SHALL EXERCISE GENERAL SUPERVISION OVER LOCAL GOVERNMENTS. PROVINCES WITH RESPECT TO COMPONENT CITIES AND MUNICIPALITIES, AND CITIES AND MUNICIPALITIES WITH RESPECT TO COMPONENT BARANGAYS SHALL ENSURE Sec. 2 ART. X - LOCAL GOVERNMENT General Provisions 419 THAT THE ACTS OF THEIR COMPONENT UNITS ARE WITHIN THE SCOPE OF THEIR PRESCRIBED POWERS AND FUNCTIONS. Q. What is the power of general supervision? A. It is the power of a superior officer to see to it that lower officers perform their functions in accordance with law. It does not include the power to substitute one's judgment for that of a lower officer in matters where a lower officer has various legal alternatives to choose from. Q. What is the supervisory structure in the local government system? A. The President has general supervision over all local government units. But his direct supervisory contact is with autonomous regions, provinces, and independent cities. The rest follow in hierarchical order as indicated in Section 4. Q. When Section 187 of the Local Government code authorizes the Secretary of Justice to pass judgment on the constitutionality or legality of a tax ordinances or revenue measures, does he not exercise the power of control? A. No. He does not thereby dictate what the law should be but merely ensures that the ordinance is in accordance with law. Drilon v. Lim, 235 SCRA 135,141 (1994). Q. Petitioner challenges the right of the President, through the Secretary of Interior, to suspend him on the ground that the removal of the phrase "as may be provided by law" from the constitutional provision has stripped the President and legislature of the power over local governments. Corollarily he argues that the new Constitution has effectively repealed existing laws on the subject. Decide. A. The power of general supervision of the President includes the power to investigate and remove. Moreover, Section 3 itself of this Article provides that the Local Government Code may provide for "removal" thus indicating that laws on the subject are not out of the compass of the legislature. Autonomy does not transform local governments into kingdoms unto themselves. The important distinction is between the power of general supervision, which the President has, and the power of control, which the President does not have. Ganzon v. Court of Appeals, G.R. No. 93252, August 5,1991. Q. May the Secretary of Local Government annul the election of officers of a federation of barangay officials? 420 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 A. No. Such annulment would amount to control and therefore in excess of executive supervisory powers. Taule v. Secretary Santos, G.R. No. 90336, August 12,1991. Q. Did COA commit grave abuse of discretion in affirming the disallowance of P3,760,000 for premium paid for the hospitalization and health care insurance benefits granted by the Province of Negros Occidental to its 1,949 officials and employees. A. Yes. LGUs are not under the control of the President or executive officers. They are only under general their supervision. Province of Negros v. COA, G.R. No. 182574, September 28,2010. SEC. 5. EACH LOCAL GOVERNMENT UNIT SHALL HAVE THE POWER TO CREATE ITS OWN SOURCES OF REVENUE AND TO LEVY TAXES, FEES, AND CHARGES SUBJECT TO SUCH GUIDELINES AND LIMITATIONS AS THE CONGRESS MAY PROVIDE, CONSISTENT WITH THE BASIC POLICY OF LOCAL AUTONOMY. SUCH TAXES, FEES, AND CHARGES SHALL ACCRUE EXCLUSIVELY TO THE LOCAL GOVERNMENTS. Q. It is contended that the exemption of PAGCOR from tax violates the right of local governments to create its own source of revenue. Comment. A. "The power of local government to 'impose taxes and fees' is always subject to limitations' which Congress may provide by law." PAGCOR is exempted by PD 1869 which is still extant. Basco v. PAGCOR, 197 SCRA 52, 65 (1991). NOTE: Is this still good law considering that PD 1869 predates the Local Government Code? Q. How are statutory provisions on fiscal powers of local governments interpreted? A. The power of local governments to tax is liberally interpreted in its favor against the state, but it is strictly construed against . the local government in favor of the taxpayer. Petron v. Mayor, G.R. No. 158881, April 16, 2008. Q. May Makati City impose business taxes on condominium corporations? A. The power of local government units to impose taxes within its territorial jurisdiction derives from the Constitution itself, which recognizes the power of these units "to create its own sources of revenue and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may Sec. 11 ART. X - LOCAL GOVERNMENT General Provisions 421 provide, consistent with the basic policy of local autonomy." These guidelines and limitations as provided by Congress are in main contained in the Local Government Code of 1991 (the "Code"). For Makati to impose a business tax it must be shown that the Condominium is engaged in business. The City Treasurer has not posited the claim that the Corporation is engaged in business activities beyond the statutory purposes of a condominium corporation. The assessment appears to be based solely on the Corporation's collection of assessments from unit owners, such assessments being utilized to defray the necessary expenses for the Condominium Project and the common areas. There is no contemplation of business, no orientation towards profit in this case. Hence, the assailed tax assessment has no basis under the Local Government Code or the Makati Revenue Code, and the insistence of the city in its collection of the void tax constitutes an attempt at deprivation of property without due process of law. Yamane v. BA Lepanto Condominium, G.R. No. 154993, October 25,2005. Q. May the power of local governments to raise revenues be limited by administrative order? A. No. Under Section 5, Article X of the 1987 Constitution, only guidelines and limitations that may be established by Congress can define and limit such power of local governments. Philippine Petroleum Cor. v. Mun. ofPililla, 198 SCRA 82, 89 (1991). The power to tax of local governments may not be negated by executive order through a grant of exemption absent a statute granting such exemption. John Hay Peoples Alternative Coalition v. Urn, G.R. No. 119775, October 24, 2003. Considered as the most revolutionary piece of legislation on local autonomy, the Local Government Code effectively deals with the fiscal constraints faced by LGUs. It widens the tax base of LGUs to include taxes which were prohibited by previous laws. Batangas Power cannot rely for exemption on the Basco case as this was decided prior to the effectivity of the LGC, when there was still no law empowering local government units to tax instrumentalities of the national government. Batangas Power v. Batangas City, G.R. No. 152675, April 28, 2004. 422 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 "Under the now prevailing Constitution, where there is neither a grant nor a prohibition by statute, the tax power must be deemed to exist although Congress may provide statutory limitations and guidelines. The basic rationale for the current rule is to safeguard the viability and self-sufficiency of local government units by directly granting them general and broad tax powers. Nevertheless, the fundamental law did not intend the delegation to be absolute and unconditional; the constitutional objective obviously is to ensure that, while the local government units are being strengthened and made more autonomous, the legislature must still see to it that (a) the taxpayer will not be over-burdened or saddled with multiple and unreasonable impositions; (b) each local government unit will have its fair share of available resources; (c) the resources of the national government will not be unduly disturbed; and (d) local taxation will be fair, uniform, and just." Manila Electric v. Province ofLaguna, G.R. No. 131359, May 5 1999. NOTE: Earlier decisions said that "in interpreting statutory provisions on municipal fiscal powers, doubts will have to be resolved in favor of municipal corporations." This is also echoed in Section 5(a) of the Code, which states that "[a]ny provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit." But somewhat conversely, Section 5(b) then proceeds to assert that a[i]n case of doubt, any tax ordinance or revenue measure shall be construed strictly against the local government unit enacting it, and liberally in favor of the taxpayer." And this latter qualification has to be respected as a constitutionally authorized limitation which Congress has seen fit to provide. Evidently, local fiscal autonomy should not necessarily translate into abject deference to the power of local government units to impose taxes. Petron v. Mayor, G.R. No. 158881, April 16, 2008. Briefly, therefore, the power of local governments to tax is liberally interpreted in its favor against the state, but it is strictly construed against the local government in favor of the taxpayer. NOTE: Jurisprudence suggests that aside from the national franchise tax, the franchisee is still liable to pay the local franchise tax, unless it is expressly and unequivocally exempted Sec. 11 ART. X - LOCAL GOVERNMENT General Provisions 423 from the payment thereof under its legislative franchise. The "in lieu of all taxes" clause in a legislative franchise should categorically state that the exemption applies to both local and national taxes; otherwise, the exemption claimed should be strictly construed against the taxpayer and liberally in favor of the taxing authority. Smart Communications v. City of Davao, G.R. No. 155491, July 21, 2009. NOTE: R.A. 7160 removed the tax exemptions of some corporations thus placingthem under the taxing authority oflocal governments. Since, however, the power oflocal governments to tax is subject to limitations imposed by Congress, exemptions granted by Congress after R.A. 7160 bind local governments. Smart Communications v. City of Davao, G.R. No. 155491, September 16,2008. SEC. 6. LOCAL GOVERNMENT UNITS SHALL HAVE A JUST SHARE, AS DETERMINED BY LAW, IN THE NATIONAL TAXES WHICH SHALL BE AUTOMATICALLY RELEASED TO THEM. Q. Administrative Order 372 of President Ramos says: "SECTION 1. All government departments and agencies, including state universities and colleges, government-owned and controlled corporations and local governments units will identify and implement measures in FY 1998 that will reduce total expenditures for the year by at least 25% of authorized regular appropriations for non-personal services items, along the following suggested areas ... SECTION 4. Pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation, the amount equivalent to 10% of the internal revenue allotment to local government units shall be withheld. The AO is challenged as an attempt to control local governments and to encroach on their autonomy. Decide. A. 1. Section 1 can be read as merely advisory and therefore cannot be proscribed as an attempt to exercise control over local governments. 2. Section 4, however, is "in contravention of Section 286 of the Local Government Code and of Section 6, Article X of the Constitution, providing for the automatic release 424 9-10 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER to each of these units its share in the national internal revenue." Pimentel v. Aguirre, G.R. No. 132988, July 19, 2000. Q. May Congress impose conditions on the release of the share of local governments? A. No.. This provision mandates that (1) the LGUs shall have a "just share" in the national taxes; (2) the "just share" shall be determined by law; and (3) the "just share" shall be automatically released to the LGUs. Under the assailed provisos in the GAAs of1999,2000 and 2001, a portion of the IRA in the amount of five billion pesos was earmarked for the LGSEF, and these provisos imposed the condition that "such amount shall be released to the local government units subject to the implementing rules and regulations, including such mechanisms and guidelines for the equitable allocations and distribution of said fund among local government units subject to the guidelines that may be prescribed by the Oversight Committee on Devolution." Significantly, the LGSEF could not be released to the LGUs without the Oversight Committee's prior approval. To the Court's mind, the entire process involving the distribution and release of the LGSEF is constitutionally impermissible. The LGSEF is part of the IRA or ^just share" of the LGUs in the national taxes. To subject its distribution and release to the vagaries of the implementing rules and regulations, including the guidelines and mechanisms unilaterally prescribed by the Oversight Committee from time to time, as sanctioned by the assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions, makes the release not automatic, a flagrant violation of the constitutional and statutory mandate that the "just share" of the LGUs "shall be automatically released to them." Batangas v. Executive Secretary, G.R. No. 152774, May 27,2004. Q. Respondents argue that the above constitutional provision is addressed not to the legislature but to the executive, hence, the same does not prevent the legislature from imposing conditions upon the release of the IRA. Decide. A. As the Constitution lays upon the executive the duty to automatically release the just share of local governments in the national taxes, so it enjoins the legislature not to pass laws that might prevent the executive from performing this duty. Sec. 11 ART. X - LOCAL GOVERNMENT General Provisions 425 To hold that the executive branch may disregard constitutional provisions which define its duties, provided it has the backing of statute, is virtually to make the Constitution amendable by statute — a proposition which is patently absurd. Moreover, if it were the intent of the framers to allow the enactment of statutes making the release of IRA conditional instead of automatic, then Article X, Section 6 of the Constitution would have been worded to say "shall be [automatically] released to them as provided by law." Alternative Center v. Zamora, G.R. No. 144256, June 8, 2005. NOTE: Section 6 allows Congress to determine the just share of local governments in the national taxes. Uniform and non-discriminatory criteria must be prescribed in the Local Government Code. If the criteria in creating local government units are not uniform and discriminatory, there can be no fair and just distribution of the national taxes to local government units. Cityhood Laws violate Section 6, Article X of the Constitution. League of Cities v. Comelec, G.R. No. 178056, November 18, 2008. [Reversed one month later but reaffirmed August 24, 2010.] SEC. 7. LOCAL GOVERNMENTS SHALL BE ENTITLED TO AN EQUITABLE SHARE IN THE PROCEEDS OF THE UTILIZATION AND DEVELOPMENT OF THE NATIONAL WEALTH WITHIN THEIR RESPECTIVE AREAS, IN THE MANNER PROVIDED BY LAW, INCLUDING SHARING THE SAME WITH THE INHABITANTS BY WAY OF DIRECT BENEFITS. Q. What are the fund sources of local governments? A. They are: (1) local taxes, fees, and charges; (2) its share in the national taxes; (3) its share in the proceeds of the utilization of natural resources within their respective areas; (4) other "sources of revenues" which they may legitimately make use of either in their public or governmental capacity, or private or proprietary capacity. Q. What is the scope of their power to levy taxes, fees, and charges? A. They are subject to such guidelines and limitations as Congress may provide. However, such guidelines and limitations to be imposed by Congress must not be such as to frustrate the "basic policy of local autonomy." 426 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 Q. What is the share of the national government in such taxes, fees, and charges. A- None. Q. In what way can local governments share in the fruits of the utilization of local natural resources? A. Local governments can either have shares from revenues accruing through fees and charges or they can receive direct benefits such as lower rates, e.g., for consumption of electricity generated within their locality. SEC. 8. THE TERM OF OFFICE OF ELECTIVE LOCAL OFFICIALS, EXCEPT BARANGAY OFFICIALS, WHICH SHALL BE DETERMINED BY LAW, SHALL BE THREE YEARS, AND NO SUCH OFFICIAL SHALL SERVE FOR MORE THAN THREE CONSECUTIVE TERMS. VOLUNTARY RENUNCIATION OF THE OFFICE FOR ANY LENGTH OF TIME SHALL NOT BE CONSIDERED AS AN INTERRUPTION IN THE CONTINUITY OF HIS SERVICE FOR THE FULL TERM FOR WHICH HE WAS ELECTED. Q. What is the term of elective local officials? A. Except for barangay officials, three years; and no such official shall serve for more than three consecutive terms. Q. Due to the incumbent mayor's death, the vice-mayor succeeds to the office of mayor by operation of law and serves the remainder of the mayor's term. Is he considered to have served a term in that office for the purpose of the three-term limit? A. No. §8 of Article X embodies two policies, viz.: (1) to prevent political dynasties and (2) to enhance the freedom of choice of the people. First, historical examination of this provision reveals that two ideas emerge from the Constitutional Commission proceedings: (1) "the notion of service of term, derived from the concern about the accumulation of power as a result of prolonged stay in office;" and (2) "the idea of election, derived from the concern that the right of the people to choose those whom they wish to govern them be preserved." Borja, Jr., v. Commission on Elections, G.R. No. 133495, September 3,1998, p. 7. Moreover the Commission discussed term limits "on the assumption that the officials concerned were serving by reason of election." Id. Sec. 11 ART. X - LOCAL GOVERNMENT General Provisions 427 Second, textual analysis of the provision shows that it "contemplates service by local officials for three consecutive terms as a result of election." Id. at 8. "To recapitulate, the term limit of elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply." Id. at 11. Q. When will the three-term limit of local elective officials — except barangay officials — apply? A. Only when these two conditions concur: (1) the local official concerned has been elected three consecutive times; and (2) he has fully served three consecutive terms. Borja, Jr, v. Commission on Elections, G.R. No. 133495, September 3,1998. Q. Summarize the rules on terms limits since Boija. A. 1. Lonzanida was elected Mayor to a third term. His election was challenged, however, and he lost and had to abandon his office. He could still run in the next election year because he did not serve three full terms. Lonzanida v Comelec, G.R. No. 135150, July 28,1999. 2. Talaga lost when he ran for a third term. The winner, however, lost to him in a recall election and he served the rest of the former winner's term. At the end of this term he could run again because he had not served three full terms. Adormeo v. Comelec, G.R. No. 147927, February 4, 2002. 3. Hagedorn served as Mayor for three full terms. In the first year after the end of his third term, he ran in a recall election. Qualified? Yes, because between the end of his third term and the recall election there was an interruption thus breaking the successiveness. Socrates v Comelec, G.R. No. 154512, November 12, 2002. 4. During the third term of a Mayor of a municipality, the municipality was converted to a city. The Mayor was allowed to finish the third term. Could he run as Mayor of the city in the next election? No. There has been no change in territory nor in constituency. Thus the three 428 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER 5. 6. 7. 8. Sec. 17 term limit applies. Latasa v. Comelec, G.R. No. 154829, December 10, 2003. When a municipal councilor assumed the office of Vice- Mayor his assumption of office as vice-mayor in January 2004 was by operation of law. It was an involuntary severance from his office as municipal councilor resulting in an interruption in the service of his 2001-2004 term. He did not serve the full 2001-2004 term. Montebon v. COMELEC, G.R. No. 180444, April 8, 2008. After serving a full three year term, Alegre was declared to have been invalidly elected. Should that term be counted for purposes of the three term limit? Yes. The decision declaring him not elected is of no practical consequence because he has already served. Ong v. Alegre, G.R. No. 163295, January 23,2006; Rivera III v. Morales, G.R No. 167591, May 9,2007. Where a Mayor in the last month of his third term was ousted by a final decision declaring his election invalid, he did not serve three full terms. The interruption of his tenure was involuntary. Dizon v. Comelec, G.R. No. 182088, January 30,2009. The preventive suspension of a local elective official does not interrupt his term for purposes of computing the three-term limit. Alboin v. Comelec, G.R. No. 184836, December 23,2009. Q. R.A. No. 7160 ("Local Government Code of 1991" approved on October 10,1991, took effect on January 1,1992), Section 43-c limits the term of office of barangay officials to three years. Petitioners argue that Section 8, Article X of the Constitution, "by excepting barangay officials whose 'terms shall be determined by law* from the general provision fixing the term of 'elective local officials' at three years," impliedly prohibits Congress from legislating a three-year term for such officers. Thus, Section 43-c of R.A. No. 7160 is unconstitutional. Decide. A. "Undoubtedly, the Constitution did not expressly prohibit Congress from fixing any term of office for barangay officials. It merely left the determination of such term to the lawmaking body, without any specific limitation or prohibition, thereby leaving to the lawmakers full discretion to fix such term in accordance with the exigencies of public service." David v. Sees. 9-10 ART. X - LOCAL GOVERNMENT General Provisions 429 Commission on Elections, G.R. No. 127116, April 8,1997, 271 SCRA 90,104. How long then is the term of barangay officials? The "answer of the [Constitutional] Commission was...: 'As may be determined by law*; more precisely, '(a)s provided for in the Local Autonomy Code.' And the Local Autonomy Code, in its Sec. 43-c, limits their term to three years." Id. at 105. SEC. 9. LEGISLATIVE BODIES OF LOCAL GOVERNMENTS SHALL HAVE SECTORAL REPRESENTATION AS MAY BE PRESCRIBED BY LAW. Q. Who appoints sectoral representatives in local legislative bodies? A. Section 9 says "as may be provided by law." The Local Government Code says that they are appointed by the President. "But the Secretary of Local Government may, by authority of the President inform the sectoral representatives of their appointments. Otherwise stated, it is actually the President who has made appointments in the cases involved herein, and the Secretary of Local Government is only the transmitter or communicator of said appointments." Supangan, Jr. v. Santos, G.R. No. 84663, August 24,1990. Q. But may the President make the appointments even before Congress has passed the law? A. The phrase "as may be provided by law" is not prospective. Hence, it can refer to law already existing at the time the Constitution was enacted or to future laws. Supangan, Jr. v. Santos, supra. Q. Who prescribes the qualifications of local "sectoral representatives?" A. Since the Constitution does not prescribe the qualifications, these are prescribed by law. And in making the appointments, the President must observe the qualification requirements. Supangan, Jr. v. Santos, supra. SEC. 10. No PROVINCE, CITY, MUNICIPALITY, OR BARANGAY MAY BE CREATED, DIVIDED, MERGED, ABOLISHED, OR ITS BOUNDARY SUBSTANTIALLY ALTERED, EXCEPT IN ACCORDANCE WITH THE CRITERIA ESTABLISHED IN THE LOCAL GOVERNMENT CODE AND SUBJECT TO APPROVAL BY A MAJORITY OF THE VOTES CAST IN A PLEBISCITE IN THE POLITICAL UNITS DIRECTLY AFFECTED. 430 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 9-10 Q. What feature in Section 10 contributes to local autonomy? A. Principally, the requirement of approval by a majority of the votes cast in a plebiscite in the political units directly affected. Q. Which political units should participate in the plebiscite? A. All the political units affected. If what is involved is a barangay, the plebiscite should be municipality or city-wide; if a municipality or component city, province-wide. If a portion of province is to be carved out and made into another province, the plebiscite should include the mother province. Tan v. COMELEC, 142 SCRA 727 (July 11, 1986), following the dissenting opinion in Lopez, Jr. v. COMELEC, 136 SCRA 633 (May 31,1985). Q. Who should participate in a plebiscite for the creation of a new province? A. In Tan v. COMELEC, 142 SCRA 727 (1986), which was decided on the basis of the 1973 Constitution which prescribed that the plebiscite should be "in the unit or units affected," the Court had said that where a portion of an existing province was being lopped off to form a new province, both the mother province and the proposed new province should participate and not just the proposed new province. Certainly the mother province is affected because its boundary is substantially altered. The Court also added that the apparent different ruling in Paredes v. Executive Secretary, 128 SCRA 61 (1984) was not applicable because that decision did not touch on the constitutional issue and should not be seen as controlling. The dissent of Abad Santos, J. in that case, in fact, was followed in Lopez, Jr. v. COMELEC, 136 SCRA 633 (1985). (NOTE: The 1987 Constitution now says "in the political units directly affected." It is submitted that this does not affect the decision in Tan since, when a province is divided into two, the mother province is also directly affected.) Q. Andong was one of the barangays made into a municipality by the executive order which was nullified by Pelaez v. Auditor General in 1965. It is claimed, however, that it never ceased to exercise corporate. It therefore claims to be a de facto corporation. Decide. A. There is no evidence to support the claim of its continued existence as a corporation. To uphold the claim would mean upholding Sec. 11 ART. X - LOCAL GOVERNMENT General Provisions 431 defiance of the decision which nullified its existence as a municipality. Camid v. Office of the President, G.R. No. 161414, January 17,2005. NOTE: The requirement that the Local Government Code shall contain the criteria, etc. for the creation of municipalities does not prevent the creation of municipalities before the passage of that Local Government Code. The Constitution "contains no requirement that a Local Government Code is a condition sine qua non for the creation of a municipality... What the constitutional provision means is that, once said Code is enacted, the creation, modification or dissolution of local government units should conform to the criteria thus laid down." Torralba v. Municipality ofSibagat, 147 SCRA 390,394 (1987) NOTE: This decision was based on the provisions of the 1973 Constitution. A similar provision is found in the 1987 Constitution, X, 10. However, it is submitted that the freedom which Congress has in departing from the Local Government Code is wider now than wider the 1973 Constitution because the Local Government Code now is just like any other statute. NOTE\League of Cities v. Comelec, G.R. No. 178056, November 18, 2008 first held that the creation of local government units must follow the criteria established in the Local Government Code and not in any other law and that Congress cannot write such criteria in any other law, like the Cityhood Laws. Within a month this was reversed on reconsideration which ruled that the spirit of the law prevails over the letter and that the intent of the law was to exempt the sixteen municipalities from the income requirement for the creation of cities. December 21, 2009. NOTE: R.A. No. 9355 creating the Province of Dinagat was declared unconstitutional for being short of the statutorily required land area and population. Navarro v. Executive Secretary, G.R. No. 180050, February 10, 2010. Navarro v. Executive Secretary, G.R. No. 180050, February 10,2010; May 12,2010. SEC. 1L.THE CONGRESS MAY,BYLAW,CREATE SPECIAL METROPOLITAN POLITICAL SUBDIVISIONS SUBJECT TO A PLEBISCITE AS SET FORTH IN SECTION 10 HEREOF. THE COMPONENT CITIES AND MUNICIPALITIES SHALL RETAIN THEIR BASIC AUTONOMY AND SHALL BE ENTITLED TO THEIR OWN LOCAL EXECUTIVES AND LEGISLATIVE ASSEMBLIES. THE JURISDICTION OF THE METROPOLITAN AUTHORITY THAT WILL THEREBY BE CREATED SHALL BE LIMITED TO BASIC SERVICES REQUIRING COORDINATION. Q. Does Section 11 preserve the present Metro-Manila Commission? A. This provision is not intended to preserve the Metropolitan Manila Commission but is an attempt to preserve part of it 432 9-10 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER as a supra-municipal authority with limited jurisdiction thereby saving the National Capital Region from relegation to a constitutional limbo. The provision also authorizes the creation of similar authorities in other metro-political regions. The area of jurisdiction would not be the totality of municipal government but only basic services. As such it would be a juridical entity with municipal powers - police, eminent domain, and taxation powers exercised by a legislative assembly - needed for providing basic services. Congress would supply the details, but it was contemplated that the Mayors of the component units would form the metropolitan authority. The effect of this would also be to restore the Mayor-Council set-up for the cities and towns of the National Capital Region and thus restore to them their lost autonomy. Moreover, the entity Metro Manila created by P.D. 824 will continue to exist until a new law is passed. Q. What is the status of the Metropolitan Manila Development Authority? A. Metropolitan or Metro Manila is a body composed of several local government units — i.e., twelve (12) cities and five (5) municipalities, namely, the cities of Caloocan, Manila, Mandaluyong, Makati, Pasay, Pasig, Quezon, Muntinlupa, Las Pinas, Marikina, Paranaque and Valenzuela, and the municipalities of Malabon, Navotas, Pateros, San Juan and Taguig. With the passage of Republic Act (R.A.) No. 7924in 1995, Metropolitan Manila was declared as a "special development and administrative region" and the Administration of "metro- wide" basic services affecting the region placed under "a development authority" referred to as the MMDA. "Metro-wide services" are those "services which have metro-wide impact and transcend local political boundaries or entail huge expenditures such that it would not be viable for said services to be provided by the individual local government units comprising Metro Manila." There are seven (7) basic metro-wide services and the scope of these services cover the following: (1) development planning; (2) transport and traffic management; (3) solid waste disposal and management; (4) flood control and sewerage management; (5) urban renewal, zoning and land use planning, and shelter services; (6) health and sanitation, urban protection and pollution control; and (7) public safety. Sec. 11 ART. X - LOCAL GOVERNMENT General Provisions 433 It will be noted that the powers of the MMDA are limited to the following acts: formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installation of a system and administration. There is no syllable in R.A. No. 7924 that grants the MMDA police power, let alone legislative power. Even the Metro Manila Council has not been delegated any legislative power. Unlike the legislative bodies of the local government units, there is no provision in R.A. No. 7924 that empowers the MMDA or its Council to "enact ordinances, approve resolutions and appropriate funds for the general welfare" of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a "development authority." It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, people's organizations, nongovernmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area. All its functions are administrative in nature. It is not a municipal corporation endowed with police power. Its creating was never submitted to a plebiscite. MMDA v. Bel-Air Village, G.R. No. 135962, March 27, 2000. Q. Can MMDA order the Bel Air Village Association (BAVA) to open Jupiter Street to the public considering that Jupiter Street is owned by BAVA? A. No. MMDA is not a local government unit with policy power. It is different from the Metro Manila Commission (MMC) which was the centred government of a local government unit. Neither is it a metropolitan political subdivision under Section 11 because its creation was never submitted to a plebiscite. MMDA, therefore, does not possess police power. MMDA v. Bel-Air Village, G.R. No. 135962, March 27, 2000. Q. May MMDA confiscate and suspend or revoke drivers' licenses without need of any other legislative enactment? A. Where there is a traffic law or regulation validly enacted by the legislature or those agencies to whom legislative powers have been delegated (the City of Manila in this case), the petitioner is not precluded — and in fact is duty-bound — to confiscate and suspend or revoke drivers' licenses in the exercise of its mandate of transport and traffic management, as well as the administration and implementation of all traffic enforcement 434 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 12-13 operations, traffic engineering services and traffic education programs. Without such law, the MMDA has no power. MMDA v. Garin, G.R. No. 130230, April 15, 2005. SEC. 12. CITIES THAT ARE HIGHLY URBANIZED, AS DETERMINED BY LAW, AND COMPONENT CITIES WHOSE CHARTERS PROHIBIT THEIR VOTERS FROM VOTING FOR PROVINCIAL ELECTIVE OFFICIALS, SHALL BE INDEPENDENT OF THE PROVINCE. THE VOTERS OF COMPONENT CITIES WITHIN A PROVINCE, WHOSE CHARTERS CONTAIN NO SUCH PROHIBITION, SHALL NOT BE DEPRIVED OF THEIR RIGHT TO VOTE FOR ELECTIVE PROVINCIAL OFFICIALS. Q. How many kinds of cities are provided for in Section 12? A. This provision provides for three kinds of cities: (1) highly urbanized cities as determined by law, (2) cities not raised to the highly urbanized category but whose existing charters prohibit their voters from voting in provincial elections, and (3) component cities, i.e., cities which still are under a province in some way. Since cities in the first and second categories do not vote in provincial elections, they are independent of the province; but since cities in the third category are under a province, they cannot be denied a vote in the election of provincial officials. The second category is envisioned as an ad-hoc category to take care of existing charters; but these cities can become either "highly urbanized," or, they may be demoted to component cities qualified to vote in provincial elections. The second category therefore may eventually disappear altogether. Moreover, changes in the conditions of highly urbanized cities may necessitate their demotion to a lower category. Conversely, component cities might rise to the level of highly urbanized cities. Q. May a resident of "component cities whose charter prohibit their voters from voting for provincial elective officials" run for a provincial elective office? A. No. As Section 12 says, these are independent of the province. This independence includes the incapacity of its residents to run for provincial office. Abella v. Commission on Elections, G.R. No. 100710, September 3,1991. SEC. 13. LOCAL GOVERNMENT UNITS MAY GROUP THEMSELVES, CONSOLIDATE OR COORDINATE THEIR EFFORTS, SERVICES, AND RESOURCES FOR PURPOSES COMMONLY BENEFICIAL TO THEM IN ACCORDANCE WITH LAW. Sees. 14-15 ART. X - LOCAL GOVERNMENT Autonomous Regions 435 Q. Does the grouping contemplated in Section 13 create a new juridical entity? A. No. Q. May local government units create these groupings even without prior enabling law? A. Yes. SEC. 14. THE PRESIDENT SHALL PROVIDE FOR REGIONAL DEVELOPMENT COUNCILS OR OTHER SIMILAR BODIES COMPOSED OF LOCAL GOVERNMENT OFFICIALS, REGIONAL HEADS OF DEPARTMENTS AND OTHER GOVERNMENT OFFICES, AND REPRESENTATIVES FROM NON-GOVERNMENTAL ORGANIZATIONS WITHIN THE REGIONS FOR PURPOSES OF ADMINISTRATIVE DECENTRALIZATION TO STRENGTHEN THE AUTONOMY OF THE UNITS THEREIN AND TO ACCELERATE THE ECONOMIC AND SOCIAL GROWTH AND DEVELOPMENT OF THE UNITS IN THE REGION. Q. What is the purpose of Section 14? A. Its purpose is to foster administrative decentralization as a complement to political decentralization in order to make possible bottom-to-top planning. AUTONOMOUS REGIONS SEC. 15. THERE SHALL BE CREATED AUTONOMOUS REGIONS IN MUSLIM MINDANAO AND IN THE CORDILLERAS CONSISTING OF PROVINCES, CITIES, MUNICIPALITIES, AND GEOGRAPHIC AREAS SHARING COMMON AND DISTINCTIVE HISTORICAL AND CULTURAL HERITAGE, ECONOMIC AND SOCIAL STRUCTURES, AND OTHER RELEVANT CHARACTERISTICS WITHIN THE FRAMEWORK OF THIS CONSTITUTION AND THE NATIONAL SOVEREIGNTY AS WELL AS TERRITORIAL INTEGRITY OF THE REPUBLIC OF THE PHILIPPINES. Q. What is the reason behind the creation of autonomous regions? A. One of the riches of the Filipino nation is its cultural diversity. A major purpose of the creation of autonomous regions is the creation of a situation which will allow each culture to flourish unhampered by the dominance of other cultures and thereby to contribute more effectively to national progress. Hence, a prerequisite for the creation of an autonomous region is a certain distinctive regional commonality of "historical and cultural heritage, economic and social structures, and 436 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 12-13 other relevant characteristics." Such commonality is found in Muslim Mindanao and in the Cordilleras. As to the areas between these two, they are not characterized by distinctive characteristics but are practically a homogeneous culture. Hence, they all come under one category and are not allowed to form an autonomous region. Another purpose of the creation of autonomous regions is to furnish a possible solution to the regional conflicts that have arisen partly from cultural diversity. Q. What is the meaning of "Muslim Mindanao?" A. The phrase is a short-hand expression to designate those areas of Mindanao which are predominantly Muslim. The phrase is not meant to characterize all of Mindanao as Muslim. Q. Is an autonomous region an independent nation within the nation? . A. No, an autonomous region is organized "within the framework of this Constitution and the national sovereignty." SEC. 16. THE PRESIDENT SHALL EXERCISE GENERAL SUPERVISION OVER AUTONOMOUS REGIONS TO ENSURE THAT LAWS ARE FAITHFULLY EXECUTED. Q. What authority does the President have over autonomous regions? A. He exercises "general supervision." SEC. 17. ALL POWERS, FUNCTIONS, AND RESPONSIBILITIES NOT GRANTED BY THIS CONSTITUTION OR BY LAW TO THE AUTONOMOUS REGIONS SHALL BE VESTED IN THE NATIONAL GOVERNMENT. Q. Enumerate some of the powers which are not given to autonomous regions. A. Autonomous regions do not have jurisdiction over national defense and security, foreign relations and foreign trade, customs and tariff, quarantine, currency, monetary affairs, foreign exchange, banking and quasi-banking, external borrowing, posts and communications, air and sea transport, immigration and deportation, citizenship and naturalization, and general auditing. Sec. 21 ART. X - LOCAL GOVERNMENT Autonomous Regions 437 SEC. 18. THE CONGRESS SHALL ENACT AN ORGANIC ACT FOR EACH AUTONOMOUS REGION WITH THE ASSISTANCE AND PARTICIPATION OF THE REGIONAL CONSULTATIVE COMMISSION COMPOSED OF REPRESENTATIVES APPOINTED BY THE PRESIDENT FROM A LIST OF NOMINEES FROM MULTISECTORAL BODIES. THE ORGANIC ACT SHALL DEFINE THE BASIC STRUCTURE OF GOVERNMENT FOR THE REGION CONSISTING OF THE. EXECUTIVE DEPARTMENT AND LEGISLATIVE ASSEMBLY, BOTH OF WHICH SHALL BE ELECTIVE AND REPRESENTATIVE OF THE CONSTITUENT POLITICAL UNITS. THE ORGANIC ACTS SHALL LIKEWISE PROVIDE FOR SPECIAL COURTS WITH PERSONAL, FAMILY, AND PROPERTY LAW JURISDICTION CONSISTENT WITH THE PROVISIONS OF THIS CONSTITUTION AND NATIONAL LAW. THE CREATION OF THE AUTONOMOUS REGION SHALL BE EFFECTIVE WHEN APPROVED BY A MAJORITY OF THE VOTES CAST BY THE CONSTITUENT UNITS IN A PLEBISCITE CALLED FOR THE PURPOSE, PROVIDED THAT ONLY PROVINCES, CITIES, AND GEOGRAPHIC AREAS VOTING FAVORABLY IN SUCH PLEBISCITE SHALL BE INCLUDED IN THE AUTONOMOUS REGION. Q. What law will be the charter of the autonomous regions? A. Their charter will be the Organic Act which will be passed by Congress in the manner and according to the substantive specifications contained in Section 18. Q. How may any provision of the Organic Act be amended? A. An ordinary statute, whether general or special, cannot amend an organic act that provides for an autonomous region which under the Constitution may only be created, and therefore changed, through a plebiscite called for the purpose. Pandi v. Court of Appeals, G.R. No. 116850, April 11, 2002. Q. May the ARMM Regional Assembly create a province? A. No, only Congress can create a province because creating a province necessarily involves creating a legislative district which only Congress can do. Sema v. Comelec, G.R. No. 177597, July 16, 2008. Q. When does the creation of the autonomous regions become effective? A. It becomes effective when approved by a majority of the votes cast by the constituent units in a plebiscite held for the purpose. 438 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 Q. Which constituent units become part of the autonomous region? A. Only the provinces, cities, and geographic areas which vote favorably. This means that it is possible for a cluster of municipalities or barangays within one province to belong to an autonomous region while the others might not. Q. May the Province of Ifugao, which was the only province which voted for a Cordillera Autonomous Region, constitute the Cordillera Autonomous Region? A. No. The Constitution says that an autonomous region shall consist of provinces, cities and municipalities, and, therefore, not just of one province. Moreover, R.A. 6766, the Organic Act which was the subject of the referendum, itself contains provisions which can be implemented only if the new political entity would consist of more than one province. Ordillo v. COMELEC, G.R. No. 93054, December 4,1990. Q. Can a tribal court of the Cordillera Bodong Administration render a valid executory decision in a land dispute? A. No. In the January 23, 1990 plebiscite, the creation of the Cordillera Autonomous Region was rejected by all the provinces and city of the Cordillera region, except Ifugao province, hence, the Cordillera Autonomous Region did not come to be. Hence, no autonomous region was created. As a logical consequence of that, the Cordillera Bodong Administration created under Section 13 of Executive Order No. 220, as well as the indigenous and special courts for the indigenous cultural communities of the Cordillera region (Sec. 1, Art. VH, Rep. Act. 6776) do not exist. "Such tribal courts are not a part of the Philippine judicial system which consists of the Supreme Court and the lower courts which have been established by law (Sec. 1, Art. VIII, 1987 Constitution). They do not possess judicial power. Like the pangkats or conciliation panels created by P.D. No. 1508 in the barangays, they are advisory and conciliatory bodies whose principal objective is to bring together the parties to a dispute and persuade them to make peace, settle, and compromise. Spouses Badua v. Cordillera Bodong Administration, G.R. No. 92649,14 February 1991. Q. Can constituent units which vote negatively in the first plebiscite under this Constitution join the autonomous region at some future time? Sec. 19 ART. X - LOCAL GOVERNMENT Autonomous Regions 439 A. It is submitted that they may through a subsequent plebiscite. The language of the last paragraph of Section 18 does not put a time limit and the evident intent of the Constitution is to honor the free choice of constituent units. Q. The legality of R.A. 6734, the Organic Act of Mindanao, is challenged and the plebiscite called in thirteen provinces of Mindanao for the ratification of the Organic Act is challenged for being illegal in that aspects of the Organic Act violate the Tripoli Agreement which is a valid international agreement. Decide. A. Even if the Tripoli Agreement were an international agreement, the fact would not affect the validity of the Organic Act. International agreements as internal law are on the same legal level as statutes and whichever as between the two, international agreement or statute, comes later supersedes the other. Abbas v. COMELEC, G.R. No. 89651 & 89965, November 10,1989. Q. Does the approval of the Organic Act automatically create the autonomous region? A. No. As the Constitution says, the creation of the autonomous region takes effect only after it is ratified in a plebiscite. Abbas v. COMELEC, G.R. No. 89651 & 89965, November 10,1989. Q. For the effective creation of the autonomous region is it required that the total votes cast in all the units where the plebiscite is called must yield a majority of affirmative votes? A. No. It is enough for the creation of the autonomous region that some "provinces, cities, and geographic areas" vote favorably. In other words, as an examination of the constitutional text shows, for effective ratification it is not necessary to achieve a "double majority." Abbas v. COMELEC, G.R. No. 89651 & 89965, November 10,1989. Q. What happens then to the political subdivisions which do not vote favorably? A. They remain in the administrative Region to which they belong now. Abbas v. COMELEC, G.R. No. 89651 & 89965, November 10,1989. SEC. 19. THE FIRST CONGRESS ELECTED UNDER THIS CONSTITUTION SHALL, WITHIN EIGHTEEN MONTHS FROM THE TIME OF ORGANIZATION OF BOTH HOUSES, PASS THE ORGANIC ACTS FOR THE AUTONOMOUS REGIONS IN MINDANAO AND THE CORDILLERAS. MUSLIM Q. If the first Congress fails to pass the Organic Act within eighteen months, will it no longer be able to pass such Act later? 440 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 A. The failure of Congress to act cannot be allowed to frustrate the clear intent of the electorate. The relatively short period is prescribed in order to emphasize the urgency of creating autonomous regions as a means towards solving existing serious peace and order problems and foreclosing secessionist movements. SEC. 20. WITHIN ITS TERRITORIAL JURISDICTION AND SUBJECT TO THE PROVISIONS OF THIS CONSTITUTION AND NATIONAL LAWS, THE ORGANIC ACT OF AUTONOMOUS REGIONS SHALL PROVIDE FOR LEGISLATIVE POWERS OVER: ADMINISTRATIVE ORGANIZATION; CREATION OF SOURCES OF REVENUES; ANCESTRAL DOMAIN AND NATURAL RESOURCES; PERSONAL, FAMILY, AND PROPERTY RELATIONS; REGIONAL, URBAN, AND RURAL PLANNING DEVELOPMENT; ECONOMIC, SOCIAL, AND TOURISM DEVELOPMENT; EDUCATIONAL POLICIES; PRESERVATION AND DEVELOPMENT OF THE CULTURAL HERITAGE; AND 9) SUCH OTHER MATTERS AS MAY BE AUTHORIZED BY LAW FOR THE PROMOTION OF THE GENERAL WELFARE OF THE PEOPLE OF THE REGION. Q. Legislation passed by the autonomous regions can come into conflict either with the Constitution or with national laws. How are such conflicts to be resolved? A. As to conflicts with the Constitution, the Constitution should always prevail. For instance, the full gamut of religious freedom must be recognized even in an area where a principal basis for the autonomy is religious homogeneity. When the conflict is between national statutes and local laws, however, there is no easy answer to the question as to which should prevail. The matter could not only very well necessitate the serious weighing of the values involved but even the adjustment of national laws in order to accommodate the constitutional desire for local autonomy in its various aspects. This could be especially crucial in the application of personal Sec. 21 ART. X - LOCAL GOVERNMENT Autonomous Regions 441 and property laws for those belonging to autonomous regions but acting outside the autonomous territory, and vice-versa. Thus, conflict of law principles could develop within our one national municipal law. Q. Is the enumeration in Section 20 exhaustive of what the Organic Act may give to the autonomous regions? A. No. See Section 17. The enumeration in Section 20 is intended as a political signal that indeed the Constitution takes the matter of regional autonomy seriously. Q. May the ARRM Assembly create a legislative district? A. No. Only Congress can create provinces and cities because the creation of provinces and cities necessarily includes the creation of Section 5, Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. Sema v. Comelec, G.R. No. 177597, July 16, 2008. SEC. 21. THE PRESERVATION OF PEACE AND ORDER WITHIN THE REGIONS SHALL BE THE RESPONSIBILITY OF THE LOCAL POLICE AGENCIES WHICH SHALL BE ORGANIZED, MAINTAINED, SUPERVISED AND UTILIZED IN ACCORDANCE WITH APPLICABLE LAWS. THE DEFENSE AND SECURITY OF THE REGIONS SHALL BE THE RESPONSIBILITY OF THE NATIONAL GOVERNMENT. Q. Are autonomous regions beyond the range of the Commander- in-Chief powers of the President? A. No, because the autonomous regions are still part of one Republic. ARTICLE XI ACCOUNTABILITY OF PUBLIC OFFICERS SECTION 1. PUBLIC OFFICE IS A PUBLIC TRUST. PUBLIC OFFICERS AND EMPLOYEES MUST AT ALL TIMES BE ACCOUNTABLE TO THE PEOPLE, SERVE THEM WITH UTMOST RESPONSIBILITY, INTEGRITY, LOYALTY, AND EFFICIENCY, ACT WITH PATRIOTISM AND JUSTICE, AND LEAD MODEST LIVES. Q. What is meant by "public office as a public trust?" A. As expressed by Justice Malcolm in Cornejo v. Gabriel, 41 Phil. 188,194 (1920), the basic idea of government in the Philippines "is that of a representative government, the officers being mere agents and not rulers of the people, one where no one man or set of men has a proprietary or contractual right to an office, but where every officer accepts office pursuant to the provisions of law and holds the office as a trust for the people whom he represents." Q. What does the command to lead modest lives entail? A. The point of the command is that, even if the public officer is independently wealthy, he should not live in a manner that flaunts his wealth. SEC. 2. THE PRESIDENT, THE VICE-PRESIDENT, THE MEMBERS OF THE SUPREME COURT, THE MEMBERS OF THE CONSTITUTIONAL COMMISSIONS AND THE OMBUDSMAN MAY BE REMOVED FROM OFFICE ON IMPEACHMENT FOR, AND CONVICTION OF, CULPABLE VIOLATION OF THE CONSTITUTION, TREASON, BRIBERY, GRAFT AND CORRUPTION, OTHER HIGH CRIMES, OR BETRAYAL OF PUBLIC TRUST. ALL OTHER PUBLIC OFFICERS AND EMPLOYEES MAY BE REMOVED FROM OFFICE AS PROVIDED BY LAW, BUT NOT BY IMPEACHMENT. 442 Sec. 13 ART. XI - ACCOUNTABILITY OF PUBLIC OFFI SEC. 3. (1) THE HOUSE OF REPRESENTATIVES SHALL HAVE THE EXCLUSIVE POWER TO INITIATE ALL CASES OF IMPEACHMENT. (2) A VERIFIED COMPLAINT FOR IMPEACHMENT MAY BE FILED BY ANY MEMBER OF THE HOUSE OF REPRESENTATIVES OR BY ANY CITIZEN UPON A RESOLUTION OF ENDORSEMENT BY ANY MEMBER THEREOF, WHICH SHALL BE INCLUDED IN THE ORDER OF BUSINESS WITHIN TEN SESSION DAYS, AND REFERRED TO THE PROPER COMMITTEE WITHIN THREE SESSION DAYS THEREAFTER. THE COMMITTEE, AFTER HEARING, AND BY A MAJORITY VOTE OF ALL ITS MEMBERS, SHALL SUBMIT ITS REPORT TO THE HOUSE WITHIN SIXTY SESSION DAYS FROM SUCH REFERRAL, TOGETHER WITH THE CORRESPONDING RESOLUTION. THE RESOLUTION SHALL BE CALENDARED FOR CONSIDERATION BY THE HOUSE WITHIN TEN SESSION DAYS FROM RECEIPT THEREOF. (3) A VOTI: OF AT LEAST ONE-THIRD OF ALL THE MEMBERS OF THE HOUSE SHALL BE NECESSARY EITHER TO AFFIRM A FAVORABLE RESOLUTION WITH THE ARTICLES OF IMPEACHMENT OF THE COMMITTEE, OR OVERRIDE ITS CONTRARY RESOLUTION. THE VOTE OF EACH MEMBER SHALL BE RECORDED. (4) IN CASE THE VERIFIED COMPLAINT OR RESOLUTION OF IMPEACHMENT IS FILED BY AT LEAST ONE-THIRD OF ALL THE MEMBERS OF THE HOUSE, THE SAME SHALL CONSTITUTE THE ARTICLES OF IMPEACHMENT, AND TRIAL BY THE SENATE SHALL FORTHWITH PROCEED. (5) No IMPEACHMENT PROCEEDINGS SHALL BE INITIATED AGAINST THE SAME OFFICIAL MORE THAN ONCE WITHIN A PERIOD OF ONE YEAR. (6) THE SENATE SHALL HAVE THE SOLE POWER TO TRY AND DECIDE ALL CASES OF IMPEACHMENT. WHEN SITTING FOR THAT PURPOSE, THE SENATORS SHALL BE ON OATH OR AFFIRMATION. WHEN THE PRESIDENT OF THE PHILIPPINES IS ON TRIAL, THE CHIEF JUSTICE OF THE SUPREME COURT SHALL PRESIDE, BUT SHALL NOT VOTE. No PERSON SHALL BE CONVICTED WITHOUT THE CONCURRENCE OF TWO-THIRDS OF ALL THE MEMBERS OF THE SENATE. (7) JUDGMENT IN CASES OF IMPEACHMENT SHALL NOT EXTEND FURTHER THAN REMOVAL FROM OFFICE AND DISQUALIFICATION TO HOLD ANY OFFICE UNDER THE REPUBLIC OF THE PHILIPPINES, BUT THE PARTY CONVICTED SHALL NEVERTHELESS BE LIABLE AND SUBJECT TO PROSECUTION, TRIAL, AND PUNISHMENT ACCORDING TO LAW. (8) THE CONGRESS SHALL PROMULGATE ITS RULES ON IMPEACHMENT TO EFFECTIVELY CARRY OUT THE PURPOSE OF THIS SECTION. 444 9-10 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Q. Is the list of officers subject to impeachment found in Section 2 exclusive? A. As presently worded, yes. Q. What are the grounds for "impeachment?" A. See Section 2. Note that "graft and corruption" was first added by the 1973 Constitution to the grounds found under the 1935 Constitution. The 1987 Constitution has added "betrayal of public trust," which means any form of violation of the oath of office even if such violation may not be a criminally punishable offense. Q. What is the purpose of impeachment? A. The purpose of impeachment is not to punish but only to remove an officer who does not deserve to hold office. Q. What is the procedure for impeachment? A. See Section 3. Q. What penalty may be imposed upon conviction on impeachment? A. Because the only purpose of impeachment is to remove, the penalty which may be imposed "shall not extend further than removal from office and disqualification to hold any office under the Republic." This is broader than the old 1935 and 1973 formula of disqualification "to hold any office of honor, trust, or profit under the Republic of the Philippines." This penalty, moreover, is beyond the reach of the President's power of executive clemency, but does not place the officer beyond liability to criminal prosecution. When criminally prosecuted, therefore, for the offense which warranted his conviction on impeachment, the officer cannot plead the defense of double jeopardy. Q. How often may an officer be impeached? A. The Constitution prohibits the initiation of more than one "impeachment proceeding" within one year. When is an impeachment proceeding deemed to be initiated? The "impeachment proceeding" is not initiated when the complaint is transmitted to the Senate for trial because that is the end of the House proceeding and the beginning of another proceeding, namely Sees. Sec. 13 ART. XI - ACCOUNTABILITY OF PUBLIC OFFIC the trial. Neither is the "impeachment proceeding" initiated when the House deliberates on the resolution passed on to it by the Committee, because something prior to that has already been done. The action of the House is already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for action. This is the initiating step which triggers the series of steps that follow. Francisco, et al. v. House Speaker, et al., G.R. No. 160261, November 10,2003. SEC. 4. THE PRESENT ANTI-GRAFT COURT KNOWN AS THE SANDIGANBAYAN SHALL CONTINUE TO FUNCTION AND EXERCISE ITS JURISDICTION AS NOW OR HEREAFTER MAY BE PROVIDED BY LAW. Q. Is the Sandiganbayan a "constitutional court?" A. No. It is a statutory court; that is, it is created not by the Constitution but by statute, although its creation is mandated by the Constitution. Q. What is the rationale for this provision? A. The 1971 Constitutional Convention was fully aware of the continuing need to combat the evils of graft and corruption; hence, this provision. In fact, as early as 1955 an anti-graft law, R.A. 1379, was already thought necessary. This was followed in 1960 by the Anti-Graft Act, R.A. 3019, whose validity was upheld in Morfe v. Mutuc, 22 SCRA 424 (January 31, 1968); Nunez v. Sandiganbayan, 111 SCRA 433 (January 30,1982). Q. Is the jurisdiction of the Sandiganbayan limited to criminal and civil cases involving graft and corrupt practices of public officers? A. Section 5 of Article XHI (1973) gave to the legislature broad discretion to grant jurisdiction to the Sandiganbayan not only over graft and corrupt practices but also over "such other offenses committed by public officers and employees, including those in government owned or controlled corporations, in relation to their office as may be determined by law." Pursuant to this, broad powers were given to the Sandiganbayan through P.D. No. 1486. Mayor Lecaroz v. Sandiganbayan, 128 SCRA 324 (March 22,1984). 446 9-10 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER Q. The Superintendent and Cashier of the Government-owned Catanduanes Agricultural and Industrial College (CAIC) were indebted to Jesus and Mila Balmadrid, suppliers of school construction materials. The Superintendent and Cashier fraudulently issued 4 CAIC checks to the Balmadrids. The Superintendent, Cashier, and the Balmadrids were tried and found guilty by the Sandiganbayan of violating Section 3(e) of R.A. 3019 (the Anti-Graft and Corrupt Practices Act). The Balmadrids allege that as private citizens, the Sandiganbayan has no jurisdiction over them. Is their contention correct? A. No. "In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, they shall be tried jointly with said public officers and employees (Section 4, P.D. 1606) . . . Private persons may be charged together with public officers to avoid repeated and unnecessary presentation of witnesses and exhibits against conspirators in different venues, especially if the issues involved are the same. It follows therefore that if a private person may be tried jointly with public officers, he may also be convicted jointly with them, as in the case of the present petitioners." Balmadrid v. The Honorable Sandiganbayan, G.R. No. 58327, March 22,1991. Q. Does the Sandiganbayan have jurisdiction over a private individual who is charged with malversation of public funds as a principal after the said individual had been designated by the Bureau of Internal Revenue as a custodian of distained property? A. Section 4 of P.D. No. 1606, in enunciating the jurisdiction of the Sandiganbayan, "unequivocally specifies the only instances when the Sandiganbayan will have jurisdiction over a private individual, i.e., when the complaint charges the private individual either as a co-principal, accomplice or accessoiy of a public officer or employee who has been charged with a crime within its jurisdiction. The Information does not charge petitioner of being a co-principal, accomplice or accessory to a pub- He officer committing an offense under the Sandiganbayan's jurisdiction, the Sandiganbayan has no jurisdiction. Azarcon v. Sandiganbayan, G.R. No. 116033, February 26, 1997, 268 SCRA 747, 758. Q. Did not the accused become a public officer and therefore became subject to the Sandiganbayan's jurisdiction when the BIR designated him as custodian? Sees. 5-6 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS 447 A. No. Although Section 206 of the National Internal Revenue Code "authorizes the BIR to effect a constructive distraint by requiring 'any person' to preserve a distrained property," there is no provision in the said statute "constituting such person a public officer by reason of such requirement. The BIR's power authorizing a private individual to act as depository cannot be stretched to include the power to appoint him as a public officer. Id. at 761. SEC. 5. THERE IS HEREBY CREATED THE INDEPENDENT OFFICE OF THE OMBUDSMAN, COMPOSED OF THE OMBUDSMAN TO BE KNOWN AS TANODBAYAN, ONE OVER-ALL DEPUTY AND AT LEAST ONE DEPUTY EACH FOR LUZON, VISAYAS, AND MINDANAO. A SEPARATE DEPUTY FOR THE MILITARY ESTABLISHMENT MAY LIKEWISE BE APPOINTED. SEC. 6. THE OFFICIALS AND EMPLOYEES OF THE OFFICE OF THE OMBUDSMAN, OTHER THAN THE DEPUTIES, SHALL BE APPOINTED BY THE OMBUDSMAN ACCORDING TO THE CIVIL SERVICE LAW. Q. What is the power of the Ombudsman over his office? A. Under the Constitution, the Office of the Ombudsman is an independent body. As a guarantee of this independence, the Ombudsman has the power to appoint all officials and employees of the Office of the Ombudsman, except his deputies. This power necessarily includes the power of setting, prescribing and administering the standards for the officials and personnel of the Office. To further ensure its independence, the Ombudsman has been vested with the power of administrative control and supervision of the Office. This includes the authority to organize such directorates for administration and allied services as may be necessary for the effective discharge of the functions of the Office, as well as to prescribe and approve its position structure and staffing pattern. Necessarily, it also includes the authority to determine and establish the qualifications, duties, functions and responsibilities of the various directorates and allied services of the Office. This must be so if the constitutional intent to establish an independent Office of the Ombudsman is to remain meaningful and significant. The Civil Service Commission has no power over this. Ombudsman v. CSC, G.R. No. 162215, July 30, 2007. 448 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 SEC. 7. THE EXISTING TANODBAYAN SHALL HEREAFTER BE KNOWN AS THE OFFICE OF THE SPECIAL PROSECUTOR. IT SHALL CONTINUE TO FUNCTION AND EXERCISE ITS POWERS AS NOW OR HEREAFTER MAY BE PROVIDED BY LAW, EXCEPT THOSE CONFERRED ON THE OFFICE OF THE OMBUDSMAN CREATED UNDER THIS CONSTITUTION. Q. What two distinct offices are created in the above provisions? A. The two offices are that of the Ombudsman or Tanodbayan and that of the Special Prosecutor. The Special Prosecutor inherits the prosecutorial responsibility of the Tanodbayan of the 1973 Constitution but is no longer called Tanodbayan. The Ombudsman inherits the title Tanodbayan and acts as champion of the people, independent of and not beholden to the President, and functions according to the enumeration in Section 13. Relying on the prestige of his office, he will have persuasive powers plus the ability to require that proper legal steps are taken by the officers concerned. But the final say as to whether to prosecute or not will belong to the executive department, although the Ombudsman or Tanodbayan may seek to compel the fiscal to prosecute by mandamus in proper cases. What is envisioned is a champion capable of lending assistance especially to those who would normally not even know how to go about filing a complaint. For these reasons, Sections 7, 8, 9,10,11,12, and 14 are intended to strengthen his independence. Q. Raul Gonzales was Tanodbayan under the 1973 Constitution and continued as such even after the ratification of the new Constitution. May he conduct preliminary investigation and files cases against government officials? A. Section 7 makes the Tanodbayan the Special Prosecutor. However, he may not exercise those powers "conferred on the Ombudsman created under this Constitution." Hence, since the power to investigate has been given to the Ombudsman by Section 13, par. 1, the Special Prosecutor may investigate and file cases only when so authorized by the Ombudsman. Zaldivar v. Sandiganbayan and Gonzales, 160 SCRA 843 (April 17,1988). NOTE: Acop v. Ombudsman, G.R. No. 120422, September 27, 1995, reaffirms the doctrine in Zaldivar that the power Sec. 13 ART. XI - ACCOUNTABILITY OF PUBLIC OFFI to investigate, including preliminary investigation, belongs to the Ombudsman and not to the Special Prosecutor. But, while the Ombudsman's power to investigate is primary, it is not exclusive and, under the Ombudsman Act of 1989, he may delegate it to others and take it back any time he wants to. Natividad v. Felix, 229 SCRA 680, 688 (1994), which also traces the statutory history of the powers of the Ombudsman. Q. May the Military Deputy investigate civilian police? A. Because the power of the Ombudsman is broad and because the Deputy Ombudsman acts under the direction of the Ombudsman, the power of the Military Deputy to investigate members of the civilian police has also been affirmed. Acop v. Ombudsman, G.R. No. 120422, September 27,1995. Q. Does the power to investigate cover only acts related to the performance of official function? A. The power of the Ombudsman to investigate is very broad especially as it has been expanded by the Ombudsman Act of 1989. He can investigate "any illegal act or omission of any public official" even if the offense committed by the official is not related to the performance of his functions. Deloso v. Domingo, 191 SCRA 545,550 (1990). Q. May a claim of confidentiality bar the Ombudsman's power to investigate? A. Even the claim of confidentiality will not prevent the Ombudsman from demanding the production of documents needed for the investigation. In Almonte v. Vasquez, G.R. No. 95367, May 22, 1995, the Court said that where the claim of confidentiality does not rest on the need to protect military, diplomatic or other national security secrets but on general public interest in preserving confidentiality, the courts have declined to find in the Constitution an absolute privilege even for the President. Moreover, even in cases where matters are really confidential, inspection can be done in camera. Q. May the Ombudsman impose preventive suspension? A- The power to investigate also includes the power to impose preventive suspension. This is different from the suspension referred to in Section 13(3). This latter is suspension as a pen 450 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sees. 12-13 alty; preventive suspension is not a penalty. Buenaseda v. Flavier, 226 SCRA 645 (1993). SEC. 8. THE OMBUDSMAN AND HIS DEPUTIES SHALL BE NATURALBORN CITIZENS OF THE PHILIPPINES, AND AT THE TIME OF THEIR APPOINTMENT, AT LEAST FORTY YEARS OLD, OF RECOGNIZED PROBITY AND INDEPENDENCE, AND MEMBERS OF THE PHILIPPINE BAR, AND MUST NOT HAVE BEEN CANDIDATES FOR ANY ELECTIVE OFFICE IN THE IMMEDIATELY PRECEDING ELECTION. THE OMBUDSMAN MUST HAVE FOR TEN YEARS OR MORE BEEN A JUDGE OR ENGAGED IN THE PRACTICE OF LAW IN THE PHILIPPINES. DURING THEIR TENURE, THEY SHALL BE SUBJECT TO THE SAME DISQUALIFICATIONS AND PROHIBITIONS AS PROVIDED FOR IN SECTION 2 OF ARTICLE IX-A OF THIS CONSTITUTION. SEC. 9. THE OMBUDSMAN AND HIS DEPUTIES SHALL BE APPOINTED BY THE PRESIDENT FROM A LIST OF AT LEAST SIX NOMINEES PREPARED BY THE JUDICIAL AND BAR COUNCIL, AND FROM A LIST OF THREE NOMINEES FOR EVERY VACANCY THEREAFTER. SUCH APPOINTMENTS SHALL REQUIRE NO CONFIRMATION. ALL VACANCIES SHALL BE FILLED WITHIN THREE MONTHS AFTER THEY OCCUR. SEC. 10. THE OMBUDSMAN AND HIS DEPUTIES SHALL HAVE THE RANK OF CHAIRMAN AND MEMBERS, RESPECTIVELY, OF THE CONSTITUTIONAL COMMISSIONS, AND THEY SHALL RECEIVE THE SAME SALARY, WHICH SHALL NOT BE DECREASED DURING THEIR TERM OF OFFICE. SEC. 11. THE OMBUDSMAN AND HIS DEPUTIES SHALL SERVE FOR A TERM OF SEVEN YEARS WITHOUT REAPPOINTMENT. THEY SHALL NOT BE QUALIFIED TO RUN FOR ANY OFFICE IN THE ELECTION IMMEDIATELY SUCCEEDING THEIR CESSATION FROM OFFICE. SEC. 12. THE OMBUDSMAN AND HIS DEPUTIES, AS PROTECTORS OF THE PEOPLE, SHALL ACT PROMPTLY ON COMPLAINTS FILED IN ANY FORM OR MANNER AGAINST PUBLIC OFFICIALS OR EMPLOYEES OF THE GOVERNMENT, OR ANY SUBDIVISION, AGENCY OR INSTRUMENTALITY THEREOF, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, AND SHALL, IN APPROPRIATE CASES, NOTIFY THE COMPLAINANTS OF THE ACTION TAKEN AND THE RESULT THEREOF. Q. How is the jurisdiction of the Ombudsman over a person determined? A. For purposes of determining the scope of the jurisdiction of the Ombudsman, a public officer is one to whom some of the Sec. 13 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS 451 sovereign functions of the government have been delegated. The National Centennial Commission performs executive power which "is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance." The executive function, therefore, concerns the implementation of the policies as set forth by law. Laurel v. Desierto, G.R. No. 145368, April 12,2002 Q. Charged with murder, the Governor challenges the authority of the office of the Ombudsman to conduct the investigation. He argues that the authority of the Ombudsman is limited to "crimes related to or connected with an official's discharge of his public functions." Decide. A. The Ombudsman has authority. Section 12 says that he may "investigate... any act or omission of any public official... when such act or omission appears to be illegal, unjust, improper or inefficient." This is set out in greater detail in Section 16 of R.A. 6770, the Ombudsman Act. Murder is illegal. And since it was allegedly committed by a public official it comes within the jurisdiction of the Ombudsman. Deloso v. Domingo, G.R. No. 90591, November 21,1990. Q. The accused claims that the complaints against him were sworn to before a notary public and the affidavits before a provincial fiscal not deputized by the Ombudsman. Can the Ombudsman entertain the complaint? A. Section 12 ells the Ombudsman to act on complaints filed in any manner. Raro v. Sandiganbayan, G.R. No. 108431, July 14, 2000; Uy v. Sandiganbayan, G.R. Nos. 105965-70, March 20, 2001. SEC. 13. THE OFFICE OF THE OMBUDSMAN SHALL HAVE THE FOLLOWING POWERS, FUNCTIONS, AND DUTIES: (1) INVESTIGATE ON ITS OWN, OR ON COMPLAINT BY ANY PERSON, ANY ACT OR OMISSION OF ANY PUBLIC OFFICIAL, EMPLOYEE, OFFICE OR AGENCY, WHEN SUCH ACT OR OMISSION APPEARS TO BE ILLEGAL, UNJUST, IMPROPER, OR INEFFICIENT. (2) DIRECT, UPON COMPLAINT OR AT ITS OWN INSTANCE, ANY PUBLIC OFFICIAL OR EMPLOYEE OF THE GOVERNMENT, OR ANY SUBDIVISION, AGENCY OR INSTRUMENTALITY THEREOF, AS WELL AS OF ANY GOVERN 452 THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER Sec. 17 MENT-OWNED OR CONTROLLED CORPORATION WITH ORIGINAL CHARTER, TO PERFORM AND EXPEDITE ANY ACT OR DUTY REQUIRED BY LAW, OR TO STOP, PREVENT, AND CORRECT ANY ABUSE OR IMPROPRIETY IN THE PERFORMANCE OF DUTIES. (3) DIRECT THE OFFICER CONCERNED TO TAKE APPROPRIATE ACTION AGAINST A PUBLIC OFFICIAL OR EMPLOYEE AT FAULT, AND RECOMMEND HIS REMOVAL, SUSPENSION, DEMOTION, FINE, CENSURE, OR PROSECUTION, AND ENSURE COMPLIANCE THEREWITH. (4) DIRECT THE OFFICER CONCERNED, IN ANY APPROPRIATE CASE, AND SUBJECT TO SUCH LIMITATIONS AS MAY BE PROVIDED BY LAW, TO FURNISH IT WITH COPIES OF DOCUMENTS RELATING TO CONTRACTS OR TRANSACTIONS ENTERED INTO BY HIS OFFICE INVOLVING THE DISBURSEMENT OR USE OF PUBLIC FUNDS OR PROPERTIES, AND REPORT ANY IRREGULARITY TO THE COMMISSION ON AUDIT FOR APPROPRIATE ACTION. (5) REQUEST ANY GOVERNMENT AGENCY FOR ASSISTANCE AND INFORMATION NECESSARY IN THE DISCHARGE OF ITS RESPONSIBILITIES, AND TO EXAMINE, IF NECESSARY, PERTINENT RECORDS AND DOCUMENTS. (6) PUBLICIZE MATTERS COVERED BY ITS INVESTIGATION WHEN CIRCUMSTANCES SO WARRANT AND WITH DUE PRUDENCE. (7) DETERMINE THE CAUSES OF INEFFICIENCY, RED TAPE, MISMANAGEMENT, FRAUD, AND CORRUPTION IN THE GOVERNMENT, AND MAKE RECOMMENDATIONS FOR THEIR ELIMINATION AND THE OBSERVANCE OF HIGH STANDARDS OF ETHICS AND EFFICIENCY. (8) PROMULGATE ITS RULES OF PROCEDURE AND EXERCISE SUCH OTHER POWERS OR PERFORM SUCH FUNCTIONS OR DUTIES AS MAY BE PROVIDED BY LAW. Q. What are the powers of the Ombudsman? A. Over the years the scope of the powers of the Ombudsman under Section 13 has been clarified thus settling various disputed issues: 1. The Ombudsman can investigate only officers of government owned corporations with original charter. PAL, even when still owned by the government, did not have original charter. Khan, Jr. v. Ombudsman, G.R. No. 125296, July 20, 2006. 2. The jurisdiction of the Ombudsman over disciplinary cases involving public school teachers has been modified by Section 9 of R.A. 4670, otherwise known as the Magna Carta Sec. 13 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS 453 for Public School Teachers, which says that such cases must first go to a committee appointed by the Secretary of Education. Ombudsman v. Estandarte, G.R. No. 168670, April 13, 2007. It is erroneous, thus, to contend that R.A. No. 4670 confers an exclusive disciplinary authority on the DECS over public school teachers and prescribes an exclusive procedure in administrative investigations involving them. R.A. No. 4670 was approved on June 18,1966. On the other hand, the 1987 Constitution was ratified by the people in a plebiscite in 1987 while R.A. No. 6770 was enacted on November 17, 1989. It is basic that the 1987 Constitution should not be restricted in its meaning by a law of earlier enactment. The 1987 Constitution and R.A. No. 6770 were quite explicit in conferring authority on the Ombudsman to act on complaints against all public officials and employees, with the exception of officials who may be removed only by impeachment or over members of Congress and the Judiciary. The Ombudsman Act authorizes the Ombudsman to impose penalties in administrative cases. Ombudsman v. CA, November 22, 2006; Ombudsman v. Lucero, November 24, 2006. Section 21 of R.A. 6770 vests in the Ombudsman "disciplinary authority over all elective and appointive officials of the Government," except impeachable officers, members of Congress, and the Judiciary. And under Section 25 of R.A. 6770, the Ombudsman may impose in administrative proceedings the "penalty ranging from suspension without pay for one year to dismissal with forfeiture of benefits or a fine ranging from five thousand pesos (P5,000.00) to twice the amount malversed, illegally taken or lost, or both at the discretion of the Ombudsman x x x." Clearly, under R.A. 6770 the Ombudsman has the power to impose directly administrative penalty on public officials or employees. Ombudsman v. CA, G.R. No. 168079, July 17,2007. Note, however, that according to the Local Government Code, elective officials may be dismissed only by the proper court. "Where the disciplining authority is given only the power to suspend and not the power to remove, it should not be permitted to manipulate the law by usurping the power to remove." Sangguniang Barangay v. Punong Barangay, G.R. No. 170626, March 3, 2008. 454 9-10 THE 1987 PHILIPPINE CONSTITUTION: Sees. A COMPREHENSIVE REVIEWER 4. The Special Prosecutor may not file an information without authority from the Ombudsman. Republic Act No. 6770, by conferring upon the Ombudsman the power to prosecute, likewise grants to the Ombudsman the power to authorize the filing of information. A delegated authority to prosecute was also given to the Deputy Ombudsman, but no such delegation exists to the Special Prosecutor. Nor is there an implied delegation. The Special Prosecutor prosecutes only when authorized by the Ombudsman. Perez v. Sandiganbayan, G.R. No. 166062, September 26,2006. 5. The Ombudsman has been conferred rule making power to govern procedures under it. Buencamino v. CA, G.R. No. 175895, April 4,2007. One who is answering an administrative complaint filed before the Ombudsman may not appeal to the procedural rules under the Civil Service Commission. Medina v. COA, G.R. No. 176478, February 4, 2008. 6. A preventive suspension will only last ninety (90) days, not the entire duration of the criminal case like petitioners seem to think. Indeed, it would be constitutionally proscribed if the suspension were to be of an indefinite duration or for an unreasonable length of time. The Court has thus laid down the rule that preventive suspension may not exceed the maximum period of ninety (90) days, in consonance with Presidential Decree No. 807, now Section 52 of the Administrative Code of 1987. Villas Nor v. Sandiganbayan, G.R. No. 180700, March 4, 2008. Q. Are the powers of the Ombudsman delegable? A. The power to investigate or conduct a preliminary investigation on any Ombudsman case may be exercised by an investigator or prosecutor of the Office of the Ombudsman, or by any Provincial or City Prosecutor or their assistance, either in their regular capacities or as deputized Ombudsman prosecutors. Honasan II v. Panel of Investigators of the DOJ, G.R. No. 159747, April 13, 2004. NOTE: The primary jurisdiction of the Ombudsman to investigate any act or omission of a public officer or employee applies only in cases cognizable by the Sandiganbayan. In cases cognizable by regular courts, the Ombudsman has concurrent Sees. 14-17 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS 465 jurisdiction with other investigative agencies of government. Republic Act No. 8249, otherwise known as An Act Further Defining the Jurisdiction of the Sandiganbayan, limits the cases that are cognizable by the Sandiganbayan to public officials occupying positions corresponding to salary grade 27 and higher. The Sandiganbayan has no jurisdiction over private respondent who, as punong barangay, is occupying a position corresponding to salary grade 14 under Republic Act No. 6758, otherwise known as the Compensation and Position Classification Act of 1989. Ombudsman v. Rodriguez, G.R. No. 172700, July 23, 2010. Q. If the Ombudsman refers a case to the NBI for investigation and the NBI recommends prosecution. Accused complains that the Ombudsman abd